“The test for granting and discharging a CPL is set out in s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The applicable principles were recently summarized by Schabas J. in Marmak Holdings Inc. v. Miletta Maplecrete Holdings Ltd. et al., 2019 ONSC 4630, at para. 14 (citations omitted):
The moving party must demonstrate that there is a triable issue with respect to the moving party’s claim to an interest in the Property… The Court must consider all relevant factors between the parties, including whether damages would be a satisfactory remedy, and balance the interests of the parties in exercising its discretion equitably.
See also: 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, at paras. 20-21.
The threshold is whether the plaintiff has demonstrated a triable issue, not whether the plaintiff is likely to succeed: Perruzza v. Spatone, 2010 ONSC 841 at para. 20 (ii). The triable issue must, however, relate to the plaintiff’s interest in land, not simply a right that would lead to an award of damages: Bobbie Mann v. Marcus Chac-Wai, 2017 ONSC 3416, at para. 5. In other words, an interest in land must be a possible remedy at trial based on the evidentiary record on the motion.
The cases confirm that granting a CPL is an equitable remedy: “[T[he governing test is that the Judge must exercise his discretion in equity and look at all of the relative matters between the parties…”: Clock Investments Ltd. v. Hardwood Estates Ltd. et al., 1977 CanLII 1414 (ON SC), 16 O.R. (2d) 671 (Div.Ct.), at para. 10; Perruzza at para. 20 (v) and cases cited therein; 2235209 Ontario Inc. v. Sedona Lifestyles (Rometown) Inc., 2020 ONSC 4008, at para. 70. See also: Bobbie Mann, at para. 5:
Even if the plaintiff has a potential case for a remedy related to an interest in land the court may still refuse the CPL if it would be unjust to order it. The court must consider the equities of granting this form of interim relief. This is not a mechanical application of a test but an exercise of discretion to achieve a just result.”