The plaintiffs sought leave under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure to issue a certificate of pending litigation in relation to a dispute over the right to remove and sell cable fixtures from industrial property pursuant to an asset marketing agreement.
The court held that the plaintiffs established a triable issue regarding an interest in land because the agreement granted rights to enter the land, remove fixtures, and enforce a security interest over them.
However, applying the equitable discretion and the Dhunna factors, the court found that the cable was not unique and that damages were readily quantifiable and would constitute an adequate remedy.
The court concluded that issuing a CPL would cause disproportionate prejudice to the property owner compared to the plaintiffs’ ability to recover damages.
Leave to issue the certificate of pending litigation was therefore refused.
