Court File and Parties

COURT FILE NO.: CV-22-00676263-0000 DATE: 20220216

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HAMIDREZA RAHBAR and MARYAM ESMAEILI Applicants – and – EHSAN PARVIZI and SAMIN SHOKRI Respondents

COUNSEL: Romesh Hettiarachchi, for the Applicants Amanda Geiger, for the Respondents

HEARD (By Videoconference): February 10, 2022

Endorsement

A.A. SANFILIPPO, J.

Overview

[1] On or about September 21, 2021, the Applicants, Hamidreza Rahbar and Maryam Esmaeili, entered into an Agreement of Purchase and Sale with the Respondents, Ehsan Parvizi and Samin Shokri, for the purchase by the Applicants of a detached residential property owned by the Respondents and known municipally as 429 Sauve Crescent, Waterloo, Ontario (the “Subject Property”). The parties do not dispute that the Agreement of Purchase and Sale required the Applicants to pay the Respondents the amount of $1,105,000, subject to adjustments, supported by a deposit of $50,000, and that, subject to its terms and conditions, the Agreement of Purchase and Sale was scheduled to close on December 15, 2021 (the “First Agreement of Purchase and Sale”).

[2] The First Agreement of Purchase and Sale did not complete on December 15, 2021, or at all.

[3] On or about December 22, 2021, the Respondents entered into a second Agreement of Purchase and Sale with Andrei Bradutanu and Corina Bradutanu (the “Second Purchasers”) for the sale of the Subject Property, this time for the amount of $1,235,000, subject to adjustments: $130,000 more than the First Agreement of Purchase and Sale (the “Second Agreement of Purchase and Sale”). The Second Agreement of Purchase and Sale was scheduled to complete on February 25, 2022. By an Amendment dated January 20, 2022, the closing date of the Second Agreement of Purchase and Sale was accelerated to February 11, 2022.

[4] On February 2, 2022, the Applicants issued a Notice of Application, seeking a declaration that the Respondents breached the First Agreement of Purchase and Sale and an Order for specific performance, directing the Respondents to sell the Subject Property to the Applicants in accordance with the First Agreement of Purchase and Sale on a new closing date. Alternatively, the Applicants seek damages arising from the Respondents’ alleged breach of the First Agreement of Purchase and Sale. The Applicants also sought leave to obtain and register a Certificate of Pending Litigation (“CPL”) against title to the Subject Property.

[5] The Respondents have appeared in this Application, even in advance of formal personal service under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and deny the claims advanced by the Applicants.

[6] At Civil Practice Court on February 8, 2022, the Applicants sought the scheduling of this Application and sought the urgent scheduling of a motion by which the Applicants seek leave for the issuance of a CPL against title to the Subject Property, considering the closing date of February 11, 2022. On February 8, 2022, Justice Myers ordered that the Applicants’ motion for the issuance of a CPL be scheduled to be heard on an interim basis on February 10, 2022 for one hour. I heard the Applicants’ motion on February 10, 2022.

[7] Considering the urgency presented by the closing of the Second Agreement of Purchase and Sale pending for the next day, I delivered my ruling granting leave for the issuance of the CPL with reasons to follow. These are those reasons.

I. BACKGROUND

[8] While the parties do not debate that they entered into the First Agreement of Purchase and Sale, and agree that it failed to close, they strongly disagree on the responsibility for the failure of the First Agreement of Purchase and Sale and the resultant liabilities.

[9] The Respondents contended that on the closing day, December 15, 2021, they delivered all necessary documents to the Applicants’ lawyer to complete the transaction. The Respondent, Ehsan Parvizi deposed, in an affidavit sworn February 9, 2022, that on December 15, 2021, he received a telephone call from his real estate lawyer who advised that the Applicants’ real estate lawyer had communicated that their financing had “fallen through” and that the Applicants sought an extension until January 10, 2022 to complete the transaction. Mr. Parvizi deposed that he decided not to grant the extension to the Applicants and to prepare and serve all materials required to tender the closing of the real estate transaction. Mr. Parvizi deposed that, to his understanding, the real estate transaction failed to complete because the Applicants’ did not have financing in place to allow for their purchase of the Subject Property.

[10] The Applicants submitted that neither party was in a position to complete the First Agreement of Purchase and Sale on its closing date. The Applicants’ lawyer, Felorin Rahi, deposed, in an affidavit sworn February 7, 2022, that Scotiabank had agreed to advance financing to the Applicants to purchase the Subject Property, annexing to her affidavit a copy of the Requisition to Solicitor issued by Scotiabank on December 10, 2021. Ms. Rahi deposed that on December 1, 2021 she sent to the Respondents’ lawyer, Mr. Joseph Campione, a requisition letter with closing documents including a Document Registration Agreement (“DRA”) executed by Ms. Rahi, and tendered copies of these materials as part of her affidavit. In an affidavit sworn February 10, 2022, Lucas Barbosa, an articling student with the litigation counsel for the Respondents, deposed that he was advised by the Respondents’ real estate lawyer, Mr. Joseph Campione, that he did not receive these closing documents from Ms. Rahi, whether on December 1, 2021 or at all.

[11] Ms. Rahi deposed that she first learned, after 7:00 pm the day before the scheduled closing, that Scotiabank had withdrawn the Applicants’ financing. With reference to her “call logs”, Ms. Rahi deposed that she called Mr. Campione’s office five times from 3:25 p.m. to 3:30 p.m. on the day of closing, and spoke with Mr. Campione to ask for a short extension of the closing date to accommodate the Applicants on the unexpected decision of Scotiabank to withdraw their financing.

[12] Ms. Rahi deposed that Mr. Campione stated that he would seek instructions. At 5:09 p.m. on the day of closing, Mr. Campione sent an email to Ms. Rahi, stating that he had not received any funds or closing documents from Ms. Rahi, and that he had forwarded, on behalf of the vendor Respondents, “all deliverables pursuant to the DRA”. Mr. Campione wrote that the Respondents were “ready, willing and able to complete this transaction today” and asked that Ms. Rahi “please immediately advise as to the status of this matter”.

[13] Ms. Rahi responded with an email of December 15, 2021 at 5:12 p.m. in which she requested an extension of the closing date to January 10, 2022.

[14] Mr. Campione responded with an email of 6:34 p.m., writing as follows:

We hereby confirm that we are treating your request for an extension as an anticipatory breach of the Agreement of Purchase and Sale thereby discharging us of the obligation to tender. I also confirm that the time is now past 6:00 p.m. and, pursuant to the Agreement of Purchase and Sale as between our respective clients, your clients have failed to provide the closing funds and documents necessary to complete this transaction.

[15] Ms. Rahi deposed that she had not received the following documents from Mr. Campione, on behalf of the vendor Respondents, at the time that the Respondents purported to terminate the First Agreement of Purchase and Sale: (i) the payout statement from TD Bank to discharge the mortgage registered against title to the Subject Property; (ii) the signed Direction regarding funds; and (iii) the signed DRA. The Respondents tendered into evidence an email dated December 15, 2021 at 5:08 p.m. by which Mr. Campione’s office sent to Ms. Rahi the closing documents that she claims were not sent by Mr. Campione in time for the closing. Ms. Rahi denies that she received Mr. Campione’s email and the attached closing documents.

[16] On December 16, 2021, the Applicants wrote to the Respondents to state that they were ready, willing and able to complete the purchase of the Subject Property on December 16, 2021, offering an additional payment to compensate for a one-day delay in closing. On December 21, 2021, the Applicants proposed to complete the transaction by offering payment of an additional $20,000 in consideration of the delay in closing, or an additional amount of $45,000 over and above the initial purchase price if the closing were fixed for January 15, 2022. There is no evidence of a response by the Respondents to either proposal. The Applicants would later discover that the Respondents had entered into the Second Agreement of Purchase and Sale on December 22, 2021.

II. ISSUE

[17] The issue raised by this motion is whether the Applicants established the basis for the exercise of discretion to grant leave for the issuance of a CPL against title to the Subject Property.

III. GOVERNING PRINCIPLES

[18] Section 103(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the “commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office.” Rule 42.01 sets out the process for obtaining a CPL, providing that it may be issued by the Registrar “only under an order of the court” which, under Rule 42.01(3), may be heard on a motion without notice.

[19] The purpose of a CPL is to give non-parties notice of a claim of interest in land, permitting the party registering the CPL to protect their claim against the land pending the determination of their action: Ma v. Ideal Developments Inc., at para. 34; Wang v. Allure at the Gates of Aurora Inc., 2022 ONSC 979, at para. 10; Ambassador Electric Inc. v. Fernwood Builders (London) Ltd., 2014 ONSC 3738, 37 C.L.R. (4th) 106, at para. 7.

[20] The parties did not dispute the governing two-part test. First, the Court must determine whether the Plaintiff has a triable claim to an interest in land. Second, 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 the exercise of discretion regarding whether to grant leave for the issuance of the CPL: Perruzza v. Spatone, 2010 ONSC 841, at para. 20; Cannon v. Gerrits, 2022 ONSC 851, at paras. 16-18; Ma, at para. 35; Wang, at para. 11; Khan v. Taji, 2020 ONSC 6704, 49 R.F.L. (8th) 387, at para. 48; Marmak Holdings Inc. v. Miletta Maplecrete Holdings Ltd., 2019 ONSC 4630, at para. 14; Natale v. Testa, 2018 ONSC 2823, at paras. 49 and 50, rev’d on other grounds, 2018 ONSC 4541; 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, at paras. 20-21; 2526716 Ontario Inc. v. 2014036 Ontario Ltd., 2017 ONSC 1762, at para. 48; Lo Faso v. Ferracuti, 2012 ONSC 2081, 18 R.P.R. (5th) 250, at para. 28, rev’d on other grounds, 2013 ONCA 123; West v. West (1997), 33 O.R. (3d) 472 (Gen. Div.).

[21] Regarding the first part of the test, the burden is on the moving party to show a triable claim to an interest in land: Marmak, at para. 14. Courts have held that in an action involving a failed real estate transaction, the evidence required to overcome this burden is not high: 1062609 Ontario Inc. v. 392602 Ontario Ltd., [1997] O.J. No. 3620 (Gen. Div.), at para. 3; Notarfonzo v. Goodman, [1981] O.J. No. 2198, at paras. 3, 10 and 15. The assessment of whether there is a triable issue as to an interest in land does not require establishing that the Plaintiff’s claim will succeed: Perruzza, at para. 20; Ma, at para. 35.

[22] Regarding the second part of the test, as the granting of a CPL is an equitable remedy, the court will “look at all of the relative matters between the parties” in considering whether to exercise its discretion to grant leave for the issuance of the CPL: Khan, at para. 51, relying on Clock Investments Ltd. v. Hardwood Estates Ltd. (1977), 16 O.R. (2d) 671 (Div. Ct.); Perruzza, at para. 20; 2235209 Ontario Inc. v. Sedona Lifestyles (Rometown) Inc., 2020 ONSC 4008, at para. 70; Bobbie Mann v. Marcus Chac-Wai, 2017 ONSC 3416, at para. 5.

[23] The factors that will guide a court’s assessment of whether to exercise its discretion to grant leave for the issuance of the CPL include the following: (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the certificate of pending litigation is or is not removed with or without security: 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073 (S.C.); Perruzza, at para. 20; Ma, at para. 35; Wang, at para. 11 (d); 2676547 Ontario Inc. v. Elle Mortgage Corporation, 2020 ONSC 4595, at para. 8.

IV. ANALYSIS

A. Triable Issue Regarding an Interest in Land

[24] The Respondents conceded, in my view correctly, that this Application raises a triable issue in relation to an interest in land. The Applicants’ claim arises from a failed Agreement of Purchase and Sale. The Applicants have pleaded a claim for specific performance of the First Agreement of Purchase and Sale.

[25] The Applicants rely heavily on Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.), submitting that where neither party is in a position to close on a scheduled closing date, the Agreement of Purchase and Sale remains in effect and either party may set a new date for closing. The Applicant relies on the Court of Appeal’s statement that “a party who is not ready to close on the agreed date and who subsequently terminates the transaction without having set a new closing date and without having reinstated time of the essence will itself breach or repudiate the agreement.”

[26] The Applicants also relied on 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, 438 D.L.R. (4th) 566, at para. 13, where the Court of Appeal stated that a request for an extension of time to close a real estate transaction would not ordinarily amount to anticipatory repudiation but rather anticipatory breach would result from refusing to close once the request is denied: “It is not the request for an extension that amounted to the purchaser’s anticipatory breach, but its refusal to close on the appointed date when the vendor refused the extension as it was entitled to do.” Here, the Applicants submit that they will establish that Mr. Campione did not refuse the request for an extension but rather declared that the First Agreement of Purchase and Sale was anticipatorily breached on the basis of the Applicants’ request for an extension.

[27] There are significant factual issues in dispute regarding the circumstances of this failed real estate closing. There is a credibility issue regarding whether the Applicants’ real estate lawyer, Ms. Rahi, sent closing documents to the Respondents’ lawyer on December 1, 2021 – as is denied by the Respondents’ real estate lawyer, Mr. Campione, based on an articling student’s sworn affidavit evidence on information and belief – and there is a credibility issue regarding whether Ms. Rahi received Mr. Campione’s closing documents on December 15, 2021 at 5:08 p.m., which Ms. Rahi denied. These credibility determinations, which will be assessed on the adjudication of this Application in the factual matrix in which these communications occurred, will inform the assessment of whether either or both of the parties were in a position to close on December 15, 2021.

[28] The first part of the two-part test for the granting of leave for the issuance of a CPL was therefore satisfied as this Application raises a triable issue regarding an interest in land.

B. Assessment of Relevant Factors

[29] I turn now to an assessment of equities between the parties that informed the exercise of my discretion in granting leave for the issuance of the CPL. I will explain my consideration of the factors set out in Dhunna, as summarized earlier in para. 23 of these reasons. Certain of these factors can be readily addressed. The Applicants are not a shell corporation but rather are individuals who intended to purchase the Subject Property for personal use. There is a “willing purchaser” for the Subject Property – the Second Purchasers – who have contracted to purchase the property. These factors support the granting of the leave to issue the CPL.

[30] This leaves the following factors for consideration in assessment of the equities between the parties: (a) whether the Subject Property is unique; (b) considering that the Applicants have pleaded an alternative claim in damages, whether damages would be a satisfactory remedy, and consideration of the ease or difficulty in calculating damages; and (c) the harm to each party if the CPL is or is not granted.

(a) Uniqueness of the Property

[31] The Respondents submitted that there is nothing unique about the Subject Property. It does not back onto greenspace or a park, it is not over-sized and does not have any particularly unique architectural features. The Respondents contended that it could be readily substituted by other properties in the subdivision in which it is located.

[32] The Applicants submitted that the Subject Property is unique in two ways. First, it is in a “sought after” neighbourhood, as described in the property listing prepared by the Respondent’s real estate agent: “This family friendly neighbourhood has fast become one of the most sought after in Waterloo. … This home has been thoughtfully finished and cared for and offers such an incredible location and a great sized yard.” Second, the Applicants contended that the increasing cost of acquisition of the Subject Property in the current real estate market in the Waterloo area causes the Subject Property to be unique. The Applicants’ submitted that this is shown by the Respondents’ ability to remarket the Subject Property and obtain an immediate sale with an increase of $130,000 in the sale price. The Applicants seek specific performance as their primary remedy.

[33] In John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 O.R. (3d) 304 (C.A), at paras. 38-39, leave to appeal refused, [2003] S.C.C.A. No. 145, the Ontario Court of Appeal explained that the meaning of “uniqueness”, there in the context of a commercial property, included whether “the property in question has a quality that cannot be readily duplicated elsewhere. This quality should relate to the proposed use of the property and be a quality that makes it particularly suitable for the purpose for which it was intended.” In Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, 25 R.P.R. (6th) 177, at paras. 69 and 71, the Court of Appeal stated that in assessing the uniqueness of a property, the Court must examine whether a substitute would not be readily available having consideration for the property’s physical attributes, the purchaser’s subjective interests and the circumstances underlying the transaction.

[34] The Applicant, Maryam Esmaeili deposed, in an affidavit sworn February 2, 2022, that she is concerned that she will not be able to purchase a comparable home for her family because of rising property values, as evidenced by the increase in the value of the Subject Property of $130,000 in the three month period from the First Agreement of Purchase and Sale on September 21, 2021 ($1,105,000) to the Second Agreement of Purchase and Sale on December 22, 2021 ($1,235,000).

[35] Specifically, in an affidavit sworn February 2, 2022, Ms. Esmaeili deposed, at para. 22, as follows: “I am specifically very concerned that I will not be able to buy a similar house for a similar price because the cost of similar houses [is] rising since the Closing Date.” In an affidavit sworn February 7, 2022, Ms. Esmaeili deposed, at para. 4, as follows: “I still desire to own this Property as it is virtually impossible to find the same Property for the price that my husband and I agreed to pay for it last year.” I accept this evidence as it was not subject to cross-examination and was not contradicted by any evidence filed by the Respondents.

[36] In Walker v. Jones (2008), 298 D.L.R. (4th) 344 (Ont. S.C.), at para. 165, Justice Strathy, as he then was, found that affordability is a factor that can make a home unique. Justice Strathy held that it was reasonable for a purchaser to seek specific performance of a failed agreement or purchase and sale rather than to claim damages and seek to replace the property in a “still turbulent and rising real estate market”:

The evidence of Mr. Moore suggests that the market was rising in the period between May and the end of November and it is a reasonable conclusion that the market was still “hot” and did not begin to cool off until some time into the new year. In these circumstances, considering that the defendant had purported to forfeit the plaintiff’s deposit, that the plaintiff had incurred legal expenses in the aborted transaction, together with moving expenses, rent and other costs, and considering that the holiday season was approaching, I do not think it was at all unreasonable for the plaintiff to seek specific performance rather than enter the still turbulent and rising real estate market. As well, the evidence does not establish that she could have found a reasonably comparable substitute property in her price range.

[37] Justice Charney surveyed the legal principles on the issue of uniqueness in Sivasubramaniam v. Mohammad, 2018 ONSC 3073, 98 R.P.R. (5th) 130, at paras. 81-92. I agree with and adopt his finding at para. 84 that the question of uniqueness is impacted by whether a comparable property can be purchased at the same level of affordability: “The question of uniqueness is not just whether there are other similar houses in the same neighbourhood or subdivision, but whether any of those homes were ‘readily available’ for the applicant to purchase when the respondent breached the APS. When the housing market is characterized by rapid price increases, affordability becomes an important factor in the analysis”.

[38] I am satisfied, on the evidence in this motion, that the Applicants have established that they sought to purchase the Subject Property, a residential property, for their own use, and that it was unique in that it was located in a “sought after family neighbourhood” in Waterloo, with a large yard and was at a price that the Applicants found affordable. Further, the Applicants’ ability to pursue the purchase of a replacement property has been impeded by the Respondents’ decision not to refund the $50,000 deposit on the First Agreement of Purchase and Sale, denying the Applicants the use of these funds to apply to another property acquisition.

[39] I am satisfied that the Applicants have shown, for the purpose of this interim motion for the issuance of a CPL, that the Subject Property is unique.

(b) Whether Damages are a Satisfactory Remedy

[40] The Respondents submitted that a CPL ought not be granted because monetary damages (i) are pleaded by the Applicants, in the alternative, (ii) are a satisfactory remedy, and (iii) can be easily calculated. As Master Muir stated in Nabizadeh v. Manifar, 2015 ONSC 5503, 60 R.P.R. (5th) 129, at para. 19: “A CPL is intended to protect an interest in land in situations where other remedies would be ineffective. It is not intended to be an instrument to secure a claim for damages.” See also Marmak, at para. 23; Kim, at para. 38.

[41] The Respondents relied on Sparkman v 2574328 Ontario Ltd., 2021 ONSC 4843, as authority for the proposition that potential appreciation in the value of the property does not suggest the inappropriateness of a monetary damage remedy. However, Sparkman considered the appropriateness of monetary damages as a remedy in the purchase of investment properties where the principal purpose for the acquisition of the properties was for monetary gain. This is, in my view, distinguishable from this acquisition of a residential property for personal use.

[42] I am not satisfied, on the evidence on this motion, for the purposes of consideration of the issuance of a CPL, that a monetary damage claim is a satisfactory remedy because there is insufficient evidence, in the record on this motion, that the Applicants would be able to duplicate the purchase of the Subject Property, or at what amount. There was no evidence of the availability of alternative properties and their pricing.

(c) Assessment of Prejudice

[43] The Respondents submitted that they would be prejudiced by the issuance of a CPL because they would be unable to complete the Second Agreement of Purchase and Sale. They stated that this could expose the Respondents to further litigation at the instance of the Second Purchasers.

[44] The Respondent Ehsan Parvizi deposed, in his affidavit sworn February 9, 2022, that the registration of a CPL would cause significant harm to him and his co-Respondent, Samin Shokri, because they would continue to carry the costs of the Subject Property and would not be able to use the net sale proceeds to purchase another property, as was their intention. He also deposed that he was advised by his realtor, who had in turn been advised by the Second Purchasers, that the Second Purchasers had sold their home, closing on February 11, 2022.

[45] I do not accept Mr. Parvizi’s evidence regarding the timing of the Second Purchasers’ closing of the sale of their house, as this is hearsay. Mr. Parvizi is seeking to testify to what the Second Purchasers told his realtor, and his realtor thereafter imparted to him. Although Rule 39.01(4) of the Rules of Civil Procedure permits hearsay evidence for motions, the inclusion of hearsay evidence on a key point is not proper: Beach v. Toronto Real Estate Board, 2010 ONSC 30001, at para. 5; 1910878 Ontario Inc. v. 2551204 Ontario Inc., 2020 ONSC 3415, at para. 28; Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, at para. 27. I thereby place little weight on this evidence. In any event, for the reasons identified below, I would still not have acceded to the Respondents’ argument even if I had accepted Mr. Parvizi’s evidence on this issue.

[46] The Respondents’ concerns of prejudice pertaining to the inability to complete the Second Agreement of Purchase and Sale derive from the Respondents’ decision to enter into the Second Agreement of Purchase and Sale at a time when the Applicants’ were claiming an interest in the Subject Property. The Respondents made a decision to enter into a Second Agreement of Purchase and Sale on December 22, 2021 when the Applicants were actively claiming continued rights and entitlements in the First Agreement of Purchase and Sale.

[47] The Applicants contend that they would be prejudiced by the sale of the Subject Property by the Respondents at a time in which the Applicants allege an entitlement to acquire the property. The Applicants have shown that if the CPL is not issued, the Applicants will be deprived of their claim for specific performance because the Subject Property would be transferred on the Second Agreement of Purchase and Sale. In my view, it would be unjust to deprive the Applicants of their claim for specific performance, and limit their claim to a remedy in damages, by declining to grant leave for the issuance of a CPL when the claim for specific performance ought to be determined on its substantive merits: Cannon v. Gerrits, 2022 ONSC 851, at para. 26; Ghuman v. 1368394 Ontario Limited, at para. 10.

[48] In my view, the balancing of prejudice to the Applicants through denial of the granting of leave for the issuance of the CPL with the prejudice to the Respondents in the issuance of the CPL favours the granting of leave to issue the CPL.

C. Conclusion

[49] On the basis of this analysis, I found that the Applicants had established the basis for the exercise of my discretion to grant leave for the issuance of a Certificate of Pending Litigation to be registered against title to the Subject Property. Uncontested by the Respondents, the Applicants established that they have a triable issue with regard to an interest in the Subject Property. In considering all relevant factors between the parties, including whether damages would be a satisfactory remedy, and balancing the interests of the parties in exercising my discretion equitably, I concluded that it was appropriate to grant leave for the issuance of the Certificate of Pending Litigation.

V. DISPOSITION

[50] On the basis of these reasons, I ordered on February 10, 2022 as follows:

(a) The Applicants shall be granted leave to obtain and register a Certificate of Pending Litigation against the lands described as Lot 5, Plan 58M-335, S/T Ease, WR84966 in favour of Union Gas Limited, Lying within Pt. of said Lot, being Pt. 5 on 58R-14675, S/T Ease, WR86762 in favour of the Corporation of the City of Waterloo, Lying within Pt. of said Lot, being Pt. 5 on 58R-14675, City of Waterloo, identified as PIN 22684-3485, bearing municipal address 429 Sauve Crescent, Waterloo.

(b) The Applicants shall serve a copy of this Order to the Respondents and the Respondents are at liberty to set aside this order by initiating the required proceedings with notice to the Applicants or upon further court order.

[51] I signed the form of draft Order presented by the Applicants on February 10, 2022, after hearing submissions by the parties.

VI. COSTS

[52] As directed on February 10, 2022, if the parties cannot agree on the issue of costs, the Applicants shall, by February 16, 2022, deliver their written costs submissions of no more than three pages in length (authorities hyperlinked), with a Costs Outline and any supporting materials. The Respondents shall, by February 25, 2022, deliver their written responding costs submissions, of the same length, with any supporting materials.

A.A. SANFILIPPO J.

Dated: February 16, 2022