Court File and Parties

COURT FILE NO.: CV-18-00606799-0000 DATE: 20240402 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PRIMONT HOMES (VAUGHAN) INC., Plaintiff AND: MAPLEQUEST (VAUGHAN) DEVELOPMENTS INC. and 2373480 ONTARIO INC., Defendants

BEFORE: VERMETTE J.

COUNSEL: Daniel A. Schwartz, Scott McGrath, Alexander Soutter and Jessica DeFilippis, for the Plaintiff William A. Chalmers and Codie Mitchell, for the Defendant Maplequest (Vaughan) Developments Inc. Emilio Bisceglia and Adriana Di Biase, for the Defendant 2373480 Ontario Inc.

HEARD: December 7-8, 2023

Endorsement

[1] This case involves a dispute over a number of lots in a subdivision in Vaughan, Ontario. Based on an alleged agreement with the Defendant Maplequest (Vaughan) Developments Inc. (“Maplequest”), the Plaintiff, Primont Homes (Vaughan) Inc. (“Primont”), asserts a contractual right over the lots and seeks specific performance of the agreement. Maplequest and the Defendant 2373480 Ontario Inc. (“237”) deny that there is a binding agreement between Maplequest and Primont with respect to the lots in issue and state that Maplequest sold most of the lots to 237 in 2013.

[2] In March 2019, at the time that it served its Statement of Claim on Maplequest, Primont brought a motion for an interlocutory injunction and leave to issue a certificate of pending litigation (“CPL”). On March 15, 2019, an interim injunction was made enjoining Maplequest and 237 from the purchase and sale of the lots until the disposition of the motion. As a result of what subsequently happened in the action, Primont’s motion was never heard on the merits and the interim injunction has remained in force.

[3] Maplequest moves for the following relief: a. an order that Primont’s motion for a CPL and an interlocutory injunction, which was first returned on March 15, 2019, be heard and dismissed; b. if the interim injunction that was made on March 15, 2019 is not dissolved as a consequence of the relief requested in paragraph a. above or otherwise, an order dissolving the interim injunction due to Primont’s failure to disclose material facts to the Court.

[4] 237 moves for the following relief: a. an order dissolving the interim injunction that was made on March 15, 2019; b. in the alternative, an order compelling Primont and its directors and officers to jointly and/or severally post into Court the sum of $19,611,450.00 plus interest accrued thereon from the date of the interim injunction – or, in the alternative, such other amount as this Court deems just – as security to fortify the undertaking as to damages given by Primont in connection with the interim injunction.

[5] I find that Rule 2.02 of the Rules of Civil Procedure prevents the Defendants from attacking the March 15, 2019 interim injunction and the undertaking as to damages given by Primont at that time. However, I also find that Primont’s motion for an interlocutory injunction and leave to issue a CPL must be heard on the merits. Ultimately, I grant the interlocutory injunction sought by Primont prohibiting the Defendants from selling, purchasing, transferring, further encumbering or otherwise dealing with the lots in issue pending the disposition of this action or further order of the Court.

I. Factual Background

A. The parties and the lands in issue

[6] Primont is an Ontario corporation that is part of the Primont Homes group of companies. Primont is a home builder operating in the Greater Toronto Area (“GTA”). Primont’s President is Mr. Joe Montesano.

[7] Maplequest is an Ontario corporation. It is a residential land developer. Its current principal is Mr. Mohsin Masood. Its former principals were Messrs. Masood Pervez and Ikhlaq Memon, who are Mohsin Masood’s father and uncle, respectively.

[8] 237 is an Ontario corporation. It is a home builder operating in the GTA. Its principal is Mr. Vince Vigliatore.

[9] The lots over which Primont asserts a claim in this action and that were the subject of the interim injunction are lots contained in Blocks 39-44, 50 and 54 (“Lots”) in a subdivision in Vaughan (“Subdivision”). 237 claims an interest in the Lots, except for lots contained in Block 50.

B. Agreement of purchase and sale between Primont and Maplequest dated April 30, 2012

[10] On April 30, 2012, Maplequest and Primont entered into an agreement of purchase and sale pursuant to which Primont purchased 206 serviced lots from Maplequest in the Subdivision for a total purchase price of $46,401,500.00 (“Primont APS”).

[11] The Primont APS states that the 206 lots are located on Blocks 1 to 13, 15 to 21, 25, 26, 29 to 36, 38 to 45, 51 and 55. The Block numbers were with reference to a concept plan for the Subdivision dated March 27, 2012.

[12] It is Mr. Montesano’s evidence that during the negotiation for the Primont APS, he advised Messrs. Pervez and Memon that Primont was interested in purchasing all the lots in the Subdivision. According to Mr. Montesano, Messrs. Pervez and Memon told him that only 206 lots were for sale at the time, but they promised that when the remaining lots became available for sale, they would sell them to Primont. This evidence is disputed by Maplequest.

[13] Maplequest has adduced evidence that Primont only wanted to buy freehold townhouse lots, not condominium townhouse lots, and that it ultimately agreed to purchase the 206 freehold townhouse lots only. This is denied by Mr. Montesano.

C. Agreement of purchase and sale between Primont and 237 dated May 17, 2013

[14] On May 17, 2013, Maplequest and 237 entered into an agreement of purchase and sale with respect to 55 serviced lots in the Subdivision for a total purchase price of $13,117,500.00 (“237 APS”). A similar template was used for both the Primont APS and the 237 APS. The agreements were prepared by the same lawyer.

[15] The 237 APS states that the 55 lots are located on Bocks 52 and 53. The Defendants’ evidence is that the description of the lands purchased in the 237 APS is erroneous. According to 237 and Maplequest, it was always intended and understood between 237 and Maplequest that the lands purchased by 237 comprised Blocks 39-44 and 54. The lands referred to in the 237 APS on Blocks 52 and 53 were sold to Treasure Hill, as discussed below.

[16] In around January 2016, 237 began to market the sale of its proposed townhouses under the brand “Cornerstone”. As part of its marketing, 237 established a website and a Cornerstone sales office (which never opened) in Vaughan, and placed signs in strategic locations. It is 237’s position that Mr. Montesano knew that 237 was affiliated with Cornerstone and that Cornerstone was advertising the sale of lots in the Subdivision at the material time. In his affidavit evidence, Mr. Vigliatore states that he had several conversations with Mr. Montesano about the fact that 237 had purchased lots in the Subdivision from Maplequest. He also states that Mr. Montesano approached him in 2016 to buy 237’s lots, which offer Mr. Vigliatore declined. Mr. Montesano denies that these conversations happened. His evidence is that he did not know that 237 made any claim to the Lots until after this litigation was commenced.

D. Agreement of purchase and sale between Maplequest and Treasure Hill

[17] On November 12, 2013, Maplequest and Armati Developments Inc., a company in the Treasure Hill group of companies (“Treasure Hill”), entered into an agreement of purchase and sale pursuant to which Maplequest sold 101 serviced lots in the Subdivision to Treasure Hill (“Treasure Hill APS”). The Treasure Hill APS states that the 101 lots are located on Bocks 52 and 53, i.e., the same Blocks referred to in the 237 APS.

[18] Sometime in 2013 or early 2014, Mr. Montesano learned that Maplequest had agreed to sell certain lots in the Subdivision to Treasure Hill. Mr. Montesano’s evidence is that he was upset when he found out because the lots had been promised to him.

E. First Amendment Agreement between Primont and Maplequest

[19] In April 2014, Primont and Maplequest executed an amendment to the Primont APS (“First Amendment”). The First Amendment includes a section entitled “Addition to Schedule ‘D-Description’” which reads, in part:

The parties acknowledge and agree as follows:

(a) The Vendor has prepared a new draft plan of subdivision for the lands, a copy of which is attached hereto as Schedule “S” (the “Revised Draft Plan”);

(b) The Revised Draft Plan contains, in total, 50 proposed blocks for townhouse development, representing, in total, 257 proposed townhouse lots;

(c) The Vendor has, as of the date hereof, finalized for release to the Purchaser for marketing purposes 36 of the proposed Blocks on the Revised Draft Plan, being proposed Blocks 1 to 27, and 29 to 37, all inclusive, which Blocks represent, in total, 186 proposed townhouse lots (the “186 Released Lots)”’;

(d) It is the Vendor’s intention to proceed with registration of a plan of subdivision and the installation of municipal services for the 186 Released Lots, as per the configuration of same on the Revised Draft Plan.

(e) In addition to the 186 Released Lots the Purchaser is entitled to purchase from the Vendor twenty (20) further townhouse lots pursuant to the provisions of the Agreement of Purchase and Sale (the “Additional Lots”).

(f) The Vendor has advised the Purchaser that further changes may be required to the Revised Draft Plan prior to the Vendor releasing the Additional Lots to the Purchaser for marketing purposes;

(g) The Vendor and Purchaser agree that it is their common intention that as the Vendor finalizes further blocks/lots on the Revised Draft Plan, the next available twenty (20) townhouse lots on the Revised Draft Plan, as may be amended, will be released to the Purchaser as the Additional Lots, no matter where on the Revised Draft Plan, such next twenty (20) townhouse lots may be located. For greater certainty, if more than twenty (20) townhouse lots are available to be released at one time, the Purchaser shall have the option of choosing which twenty (20) townhouse lots it will acquire from the Vendor as the Additional Lots.

(h) The parties further agree that if, due to the configuration and site of the townhouse blocks that are subsequently finalized and released, more than twenty (20) townhouse lots must be conveyed together, the parties shall negotiate in good faith, the fair market price of the townhouse lots to be conveyed to Purchaser in excess of twenty (20), and the Agreement of Purchase and Sale and all terms thereof shall be amended accordingly.

(i) In addition to the 206 townhouse lots that are to be conveyed to the Purchaser pursuant to the terms of the Agreement of Purchase and Sale, the Revised Draft Plan currently contains an additional fifty-one (51) proposed townhouse lots. Such number of further proposed townhouse lots may change if the Revised Draft Plan is further amended. The parties agree to negotiate in good faith an agreement for the Purchaser to purchase the remaining proposed townhouse lots at a purchase price reflecting the fair market value of such proposed townhouse lots at the time of such agreement; and

(Paragraph (i) above is hereinafter referred to as the “Clause”.)

[20] Despite what the First Amendment states, the Revised Draft Plan is not attached to it.

[21] The “186 Released Lots” referred to in the First Amendment did not include the Lots, i.e., Blocks 39-44, 50 or 54. Primont’s position is that the Lots are the “remaining proposed townhouse lots” referred to in the Clause because they are the only lots on the “Revised Draft Plan” that, to Primont’s knowledge, had not been sold already to Primont or Treasure Hill.

[22] Maplequest’s position is that the words “remaining proposed townhouse lots” in the Clause refer to land that Maplequest was hoping to receive in the future from adjacent landowners as compensation for certain construction and servicing work that Maplequest would be performing. It is also Maplequest’s position that Primont knew in 2013, even before the agreements of purchase and sale were executed, that Maplequest was going to sell the condominium townhouse lots in the Subdivision to 237 and Treasure Hill. This is denied by Mr. Montesano who states that he did not know that 237 made any claim to the lots in issue until after this litigation was commenced.

F. Requests for the Lots

[23] On May 9, 2016, Primont’s lawyer sent the following e-mail to Maplequest’s lawyer:

Good afternoon.

Thank you for providing the relevant documentation. We have now had an opportunity to review same and have the following questions:

1. Our client understands that your client will be obtaining engineering approvals shortly. As such, please advise where the additional 20 lots purchased are located and when same will be ready for release to our client for marketing purposes.

2. With respect to the additional 51 lots available for purchase by our client in accordance with section (i) of the addition to Schedule D set out in the first amendment, please advise which blocks will contain these lots and when they will be available for purchase by our client.

[24] On May 11, 2016, Maplequest’s lawyer responded that he would forward the e-mail to his client and seek instructions. On May 18, 2016, Primont’s lawyer sent a follow-up e-mail. Maplequest’s lawyer responded on May 19, 2016. He stated that he had sent the follow-up e-mail to his client, and understood that the agent had spoken to Mr. Montesano. Mr. Montesano does not recall such a conversation with the real estate agent.

[25] On July 12, 2016, Maplequest’s lawyer sent an e-mail to Primont’s lawyer attaching a draft amendment to the Primont APS. In his e-mail, Maplequest’s lawyer stated that the draft amendment was intended to identify the Block numbers on the draft plan of subdivision that contained the 206 townhouse lots being sold to Primont.

[26] The draft amendment contained a provision that would have deleted the entire section entitled “Addition to Schedule ‘D-Description’” set out in paragraph 19 above, including the Clause, i.e., paragraph (i) referring to the additional 51 lots. Primont did not agree to the proposed amendment.

[27] On March 17, 2017, prior to the closing of the sale of the 206 lots to Primont, Primont’s lawyer inquired as to the status of the additional lots referred to in the Clause in an e-mail to Maplequest’s lawyer. On March 20, 2017, Maplequest’s lawyer responded as follows with respect to this inquiry: “Our client advises that there are no additional lots.”

[28] The closing of the sale of the 206 lots to Primont was scheduled for March 27, 2017, but ultimately occurred on April 3, 2017. Primont built homes on each lot and conveyed these lots to purchasers.

G. Assignment Agreement between 237 and Digreen Homes Vaughan Inc.

[29] 237, Digreen Homes Vaughan Inc. (“Digreen”) and Maplequest entered into an Assignment and Assumption of Agreement of Purchase and Sale made effective as of April 18, 2017 (“Assignment Agreement”). Pursuant to the Assignment Agreement, 237 assigned the 237 APS to Digreen for the sum of $19,611,450.00, which is approximately $6.5 million more than the purchase price in the 237 APS.

[30] Digreen is an affiliate of Maplequest. It was incorporated on April 10, 2017, a few days before the date of the Assignment Agreement. Maplequest and Digreen are controlled by the same persons and have overlapping principals.

[31] The Assignment Agreement included the following clause:

Default by the Assignee. In the event of default by the Assignee of any its [sic] obligations under this Agreement or the Purchase Agreement, the Assignor shall have the right to terminate this Agreement upon fifteen (15) days’ prior written notice to the Assignee and to retain the Assignment Price (and the Assigned Interests) without prejudice to any other remedies available to it as a result of the Assignee’s default (including for certainty that the Assignor may cure any curable Assignee breach of the terms of the Purchase Agreement following which the Assignee shall fully reimburse, indemnify and hold harmless the Assignor for all costs, losses, and expenses incurred by the Assignor in this regard in accordance with Section 10 hereof). Furthermore, upon termination by the Assignor of this Agreement, the Assignee shall immediately furnish, transfer and assign to the Assignor any and all plans, reports, drawings, agreement, deposits or documents relating to the Property. The Vendor acknowledges and agrees that any termination of this Agreement shall not prejudice or constitute a waiver or termination of any rights or entitlements of the Assignor, as purchaser under the Purchase Agreement.

[32] On October 12, 2018, 237 commenced an action against Digreen and Maplequest for an alleged breach of the Assignment Agreement. 237 alleges that Digreen failed to make full payment to 237. The Statement of Claim was amended on January 11, 2019. 237 claims against both Maplequest and Digreen: (a) the sum of $9,611,450.00; (b) all costs and expenses incurred by 237 in enforcing and/or establishing its rights under the Assignment Agreement; and (c) an order granting 237 leave to register a CPL.

[33] In the Statement of Claim, 237 reserves all of its rights under the Assignment Agreement, including the right to terminate the Assignment Agreement and retain possession and control of the lands purchased under the 237 APS.

H. The action

[34] Primont commenced this action against Maplequest on October 11, 2018. The Statement of Claim was served five months later, on March 12, 2019. The Statement of Claim was amended on April 8, 2021. 237 was added as a Defendant at that time.

[35] Primont claims the following, among other things, against Maplequest: a. damages for breach of contract and negligent misrepresentation in the amount of $20 million for delayed delivery of the 206 serviced lots and other breaches of the Primont APS; b. a declaration that Maplequest and Primont are subject to a binding agreement (i.e., the Clause) for Primont to acquire, at its option, the Lots, and a declaration that Maplequest breached the Clause; c. an order for specific performance of the Clause; d. certificates of pending litigation in respect of the Lots; and e. interim, interlocutory and permanent injunctions restraining Maplequest and its affiliates from marketing, offering for sale, encumbering or otherwise disposing, transferring or dealing in any way with the Lots.

[36] As against 237, Primont claims a declaration that Primont’s claim to and interest in the Lots is superior to any claim or interest that 237 may have.

I. March 15, 2019 Injunction and subsequent attendances before Dow J.

[37] In March 2019, Primont brought a motion for leave to issue a CPL and for an interim and/or interlocutory injunction prohibiting Maplequest from selling, further encumbering, or otherwise dealing with the Lots pending the disposition of the action or further order of the Court. The motion was returnable on March 15, 2019. Primont served its motion materials on March 12, 2019, at the same time as its Statement of Claim. It also served a supplemental motion record on March 14, 2019. At the time, 237 was not a party to this action.

[38] The following undertaking as to damages was provided in the affidavit sworn by Mr. Montesano in support of Primont’s motion:

Primont hereby undertakes to comply with any order made by this Court as to damages in the event that an interlocutory injunction is granted but subsequently found to have been improper.

[39] On March 15, 2019, counsel for Primont, Maplequest and 237 appeared before Justice Dow. They agreed to adjourn Primont’s motion to April 26, 2019, which was the return date of a motion brought by 237 for a CPL.

[40] Justice Dow granted an interim injunction pending the return of the motion (“March 15, 2019 Injunction”). His endorsement reads, in part:

Counsel also advise Maplequest has given [237] an undertaking to not transfer, sell or further encumber the property in dispute in [the action commenced by 237].

The property in question in this action is the same as in [the action commenced by 237] save one additional block being, Block 50 on Plan 65M-4550 […]. Maplequest submits if any encumbrance is registered on the affected properties, it will be in default of its financing obligations.

I order Maplequest give the same undertaking it has given to [237] also to Primont, such undertaking not to be registered on title by any party.

Maplequest and [237] confirm they are in settlement discussions. As a condition of any settlement on or before April 26, 2019, they must arrange and attend a chambers appointment before me with notice to counsel for Primont and arranged through Michelle Chen. Should any party require further directions on or before April 26, 2019, they may arrange a chambers appointment before me in the above described manner.

I hereby enjoin Maplequest and [237] from the purchase and sale of the said properties until the issues raised in these motions returnable April 26, 2019 are determined subject to further order by the Court also not to be registered on title by any party.

[41] Justice Dow also established a timetable for the exchange of materials before the hearing.

[42] The parties later learned that 237’s motion had been scheduled before an associate judge and, therefore, could not proceed at the same time as Primont’s motion which had to be heard by a judge. On April 12, 2019, the parties attended at a case conference before Justice Dow. Justice Dow adjourned Primont’s motion and 237’s motion to September 10-11, 2019. He also established a timetable for the service of Primont’s response to a demand for particulars and the delivery of Maplequest’s Statement of Defence. He wrote the following regarding the interim order he made on March 15, 2019:

My interim order made March 15, 2019 shall remain in effect pending disposition of these motions. Should Maplequest exercise its notice to withdraw its undertaking any party may request a further chambers appointment before me for additional temporary interlocutory relief. […]

[43] On July 11, 2019, counsel for Primont, Maplequest and 237 agreed to adjourn Primont’s motion given scheduling issues. They also agreed that Justice Dow’s interim order would be extended. On July 26, 2019, the parties attended at Civil Practice Court. The September 10-11, 2019 motion dates were vacated and the motions were rescheduled to January 16-17, 2020.

[44] On August 23, 2019, the parties attended at another case conference before Justice Dow. Justice Dow wrote the following endorsement:

Primont’s motion for a Certificate of Pending Litigation and interlocutory injunction is now scheduled to proceed on January 16 and 17, 2020. Primont is requesting the temporary injunctive relief I granted March 15 remain in place while the parties proceed to trial (on an expedited basis). I am not prepared to so order. Further, given the subject lands are part of the action by [237], they are entitled to participate in the cross-examinations and file material. The participation of [237] at the hearing of Primont’s motion shall be at the discretion of the judge hearing the matter. If the parties require my assistance in completing a timetable they may schedule a further chambers appointment before me.

J. One Judge Pilot Program and agreement for a bifurcated trial

[45] On October 17, 2019, this action was admitted, on consent, to the Provincial Civil Case Management Pilot – One Judge Model (“Pilot Program”). Justice Glustein was appointed as case management judge under the Pilot Program.

[46] On November 21, 2019, at a case conference, Justice Glustein ordered on consent that the issues for trial be bifurcated, with the first trial to begin on May 11, 2020 for five days. The issues to be addressed at that trial related to Primont’s claim related to the Lots. In his endorsement dated January 15, 2021 (2021 ONSC 102), Justice Glustein summarized as follows what was agreed upon on November 21, 2019:

[26] The first case conference after transfer into the Pilot Program occurred on November 21, 2019. At that time, the parties discussed whether to continue with the injunction proceedings or whether a faster and less costly resolution could be structured.

[27] In particular, the issue of bifurcating the trial was discussed at the case conference. The parties agreed that addressing the Additional Lots issue in a bifurcated trial would provide a faster and less costly resolution of the Additional Lots issue in contrast to the injunction proceedings which still would have required the merits to be addressed at a trial.

[28] Under the bifurcated approach, if Primont could not establish a right of first refusal under the First Amending Agreement, or the right to specific performance of such a right of first refusal (if found to exist), then (i) the return of the injunction proceedings would not be necessary and (ii) 237 would no longer be involved in the Primont claim and could continue with its own litigation against Maplequest. A bifurcated process would have avoided attendances at two separate proceedings (injunction and trial) to address the Additional Lots Claim.

[29] At the case conference, the parties advised the court that a bifurcated Additional Lots Trial would be determined based on the text of the First Amending Agreement, with additional evidence of the factual matrix leading up to the signing of the agreement. There was no discussion of either limitations issues or any credibility issues relating to the Additional Lots Claim that might overlap with a later trial of the Delay Claim.

[30] On the consent of counsel, and based on the above submissions at the case conference, the court approved the proposed bifurcated structure under Rule 6.1.01 of the Rules of Civil Procedure, which allows, on consent, a separate hearing on one or more issues in a proceeding.

[31] All parties affirmed they wanted to proceed as early as possible. Consequently, I scheduled the Additional Lots Trial within six months, to be heard for five days starting May 11, 2020, with a strict timetable to ensure all steps prior to trial were completed, under the terms of the Pilot Program that “[a]t a relatively early stage of the proceeding, the case management judge will fix a trial date … and impose a schedule for completing necessary steps prior to trial”.

[32] However, at the November 21, 2019 case conference, the parties could not agree on the scope of the issues to be determined at the Additional Lots Trial. In my endorsement, the parties were asked to attempt to resolve the dispute between themselves but were not able to do so.

[33] A full hearing was required to address the scope of the issues to be addressed at the Additional Lots Trial. That hearing was scheduled for December 19, 2019.

[47] On December 19, 2019, Justice Glustein held that the three issues to be addressed at the Additional Lots Trial were: (1) the enforceability of the Clause; (2) determination of the lots to which the Clause applied; and (3) entitlement of Primont to specific performance.

[48] The trial was subsequently adjourned to February 8, 2021.

K. Order of Glustein J. dated January 15, 2021

[49] In late December 2020, Maplequest proposed certain amendments to its Statement of Defence and Counterclaim to plead, among other things, a limitations defence to Primont’s claim related to the Lots. The issues raised by the proposed amendments were discussed at a case conference with Justice Glustein on December 22, 2020. Given that a resolution was not reached at the case conference, Justice Glustein scheduled a formal hearing for January 5, 2021 to determine whether the scheduled trial could proceed as a bifurcated trial in light of the proposed limitations defence. Justice Glustein also raised the issue of whether the action should continue to proceed under the Pilot Program.

[50] In his endorsement dated January 15, 2021 (2021 ONSC 102), Justice Glustein found that the parties’ positions did not avoid the risk of inconsistent judgments. As a result, he concluded that a single trial had to be scheduled to address all issues in the action. Justice Glustein also removed the action from the Pilot Program because he found that the parties had not conducted themselves in a manner consistent with the intent of the Pilot Program. However, he agreed to continue to case manage the matter. Justice Glustein stated the following with respect to the next steps in the action:

Further, there is no need for any extensive delay for a single trial to be conducted. Discoveries still remain to be completed on the Additional Lots Claim and can include any delay issues. A considerable amount of work has already been done to produce documents for the Additional Lots Claim. With the assistance of case management, the remaining documents and discoveries can be completed promptly, with a trial date set shortly thereafter.

[51] Associate Justice Josefo ordered timetables for the next steps in the action on consent on April 7, 2021 and July 13, 2021.

L. Scheduling of the motions

[52] In early November 2021, 237 served a Motion Record for a motion for an order dissolving the March 15, 2019 Injunction. A case conference was subsequently scheduled before Justice Glustein for November 26, 2021. At the case conference, Maplequest advised that it intended to bring its own motion to dissolve the March 15, 2019 Injunction. Justice Glustein ordered that the motions be heard by him on May 30-31, 2022, with a timetable to be agreed upon by counsel and forwarded to his assistant.

[53] On March 3, 2022, as a result of Maplequest’s failure to propose a timetable and deliver its motion materials in a timely fashion, Justice Glustein vacated the May 30-31, 2022 dates for the motions.

[54] The case management of the matter was subsequently transferred to Justice Vella. Case conferences were held before Justice Vella on August 2 and November 7, 2022, among others. A number of issues regarding the motions were discussed, but the hearing of the motions was not scheduled.

[55] In February 2023, the case management of this action was transferred to me. At a case conference held before me on February 21, 2023, the motions were scheduled to be heard by me on December 7-8, 2023.

II. Discussion

[56] The submissions of the Defendants in their respective facta and at the hearing did not completely correspond to their respective Notices of Motion. Among other things, while 237 did not ask in its Notice of Motion for the return and dismissal of Primont’s motion for an interlocutory injunction and leave to issue a CPL, it made submissions on the merits of Primont’s motion, both in its Factum and at the hearing. Further, while Maplequest’s request to dissolve the March 15, 2019 Injunction was made in the alternative to its request that Primont’s motion for an interlocutory injunction and leave to issue a CPL be heard and dismissed, the dissolution issue was argued first in Maplequest’s Factum.

[57] Given that this is the main relief sought in 237’s Notice of Motion and that the Defendants dealt with this point first, I will first discuss the issue of whether the March 15, 2019 Injunction should be dissolved. I will deal next with Primont’s argument that Maplequest’s motion is an abuse of process or collateral attack (which argument now also applies to 237’s motion given that 237 has made submissions in its Factum and at the hearing regarding the merits of Primont’s motion for an interlocutory injunction and leave to issue a CPL). I will then turn to the merits of Primont’s motion.

A. Whether the March 15, 2019 Injunction should be dissolved

1. Positions of the parties

a. Position of Maplequest

[58] Maplequest’s position is that the March 15, 2019 Injunction should be dissolved because Primont failed to provide an adequate undertaking as to damages. It states that the undertaking provided by Primont was insufficient because Primont did not, and does not currently, have sufficient assets. Maplequest argues that Primont has, at best, demonstrated that it had a single asset worth $1.5 million as of September 2023. Maplequest submits that Primont was obligated to disclose that it did not have sufficient assets, but it failed to do so. According to Maplequest, this failure amounts to a material non-disclosure.

[59] Maplequest advances a second ground in support of its position that the March 15, 2019 Injunction should be dissolved. Maplequest argues that Primont does not have clean hands and has overstated its case. More specifically, Maplequest submits that Primont: (a) attempted to seek a Mareva injunction disguised as a standard injunction, (b) misled the court, and (c) repeatedly tried to avoid a hearing of its motion on the merits. Maplequest also makes arguments based on an affidavit that was filed by Primont in support of the March 15, 2019 Injunction, i.e., the affidavit of Joseph Bozzo, on which Primont no longer relies.

[60] Maplequest argues that there was no significant delay in bringing its motion to dissolve the March 15, 2019 Injunction. According to Maplequest, Primont’s submission that Rule 2.02 of the Rules of Civil Procedure applies ignores key events in this action’s procedural history. Maplequest states that when the entire history is considered, it is clear that neither Maplequest nor 237 delayed their pursuit of relief from the Court.

b. Position of 237

[61] 237’s position is that the March 15, 2019 Injunction should be dissolved due to Primont providing an improper undertaking as to damages. 237 argues that Primont knew that the undertaking as to damages that it provided had little to no value.

c. Position of Primont

[62] Primont submits that this Court should conclude that Primont’s undertaking as to damages is adequate given the evidence of Primont’s assets together with the lack of evidence of the Defendants’ damages. Primont points out that neither Defendant has adduced any real evidence that it has suffered any damages, or what the quantum of such damages might be, such that the undertaking as to damages would be inadequate. Primont argues that Maplequest has suffered no damages given its position that it has already sold the lands to 237 for a fixed price, and 237 has suffered no damages given its position that it has already assigned its rights to the lands to Digreen for a fixed price.

[63] Alternatively, Primont submits that Rule 2.02 of the Rules of Civil Procedure precludes the challenge to the validity of the undertaking. Primont states that Maplequest identified its concerns with the undertaking as to damages in July 2019, and that the grounds relied upon by the Defendants crystallized in February 2020 following examinations for discovery. However, the dissolution motions were not brought until November 2021 or later.

[64] In the further alternative, Primont argues that if the undertaking as to damages is deficient, the proper course of action is for the Court to give Primont an opportunity to cure any deficiency.

2. Discussion

[65] In my view, Rule 2.02 prevents the Defendants from attacking the original undertaking as to damages provided by Primont and, more generally, the disclosure made for the purpose of the March 15, 2019 Injunction. Rule 2.02 provides as follows:

A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

[66] In Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), rev’d on other grounds: , the Divisional Court adopted the following passage as explaining the principle behind this Rule:

Rule 2.02 requires a party to exercise reasonable diligence in raising objections to an opponent’s failure to observe procedural requirements. Inordinate delay before objecting or the taking of further steps after obtaining knowledge of an irregularity are generally indicative of a lack of seriousness about the objection, will likely lull the opponents into a false sense of security, or simply represent dilatory tactics which are to be discouraged. The sanction imposed is waiver unless leave of the court is obtained.

See also Sedia Inc. v. Athena Donair Distributors Ltd., 2021 ONSC 900 at para. 19.

[67] In this case, it is clear that Maplequest was aware of the alleged issues with Primont’s undertaking as to damages in 2019. In an affidavit sworn on July 19, 2019, Mr. Masood stated the following regarding Primont’s undertaking as to damages:

Mr. Montesano states in the First Montesano Affidavit that Primont undertakes to pay any damages awarded by the court if “an interlocutory injunction is granted but subsequently found to have been improper”.

I have significant concerns about the value of this undertaking. Primont is a single purpose entity. It has not stated whether it presently has any assets. As well, since its business is to buy serviced lots and then sell them, even if it presently has any assets, it will likely have disposed of them at the conclusion of this legal proceeding.

I note from the article attached as Exhibit GG that Mr. Montesano appears to own assets. Mr. Montesano has chosen not to provide an undertaking as to damages. Such an undertaking could have been given. Instead, he appears willing only to provide an undertaking from Primont, which may be worthless.

[68] 237 would also have had knowledge of these issues either independently (e.g., Primont is a single-purpose entity) or after receiving Mr. Masood’s affidavit.

[69] Even taking into account the COVID-19 pandemic, two and a half years (i.e., from March 15, 2019 until 237 brought its dissolution motion in November 2021) is not a reasonable period of time to raise a procedural irregularity or attack an order. I note that Rule 37.14 provides that a party or other person who is affected by an order obtained on motion without notice and who wants to move to set aside or vary the order must do so forthwith. While in this case the Defendants had notice of Primont’s motion, they were “short-served” and did not have the time to file responding materials. In such circumstances, the principle that a motion to set aside an order must be brought with dispatch and that any significant delay could militate against granting relief still applies. See Sheikh v. Pearl, 2016 ONCA 523 at para. 66.

[70] Moreover, multiple steps were taken in the proceeding between March 2019 and November 2021. The fact that the parties had agreed to proceed with a bifurcated trial that would provide a faster and less costly resolution of the Lots issue is neither here nor there because both the March 15, 2019 Injunction and Primont’s undertaking as to damages continued to apply during that time. More particularly, the undertaking as to damages would have applied had the Court subsequently found (at the bifurcated trial or otherwise) that the granting of the March 15, 2019 Injunction had caused damages to the Defendants for which Primont ought to compensate them.

[71] Thus, pursuant to Rule 2.02, the Defendants require leave of the Court to attack the March 15, 2019 Injunction and Primont’s undertaking as to damages. Leave was not sought. In any event, I would not have granted leave given that the Defendants clearly knew about the alleged irregularities and they chose not to attack them for a very long period of time: see Gaska v. G.R.T. Genesis Inc., 2019 ONSC 1491 at para. 22. The parties freely made a number of litigation decisions over the years, while the March 15, 2019 Injunction applied. They made their bed and must lie in it. Further, given my conclusion that Primont’s motion for interlocutory relief must be returned and determined on its merits, it is preferable to focus the Court’s attention and analysis on the merits of the motion rather than what happened in the context of an interim injunction that was granted five years ago and about which the parties took no action for a long time. The determination of Primont’s motion for an interlocutory injunction will require a consideration of Primont’s undertaking as to damages. This is discussed below.

[72] Despite my conclusion regarding the applicability of Rule 2.02, I will deal briefly with Maplequest’s argument that Primont does not have clean hands and has overstated its case. Maplequest’s argument that Primont is seeking a Mareva injunction disguised as a standard injunction is based on the argument that Primont’s claim for specific performance in accordance with the Clause is “tenuous at best”, and that there is no reason why any loss incurred by Primont could not be compensated for by damages. This argument, even if accepted, does not demonstrate that Primont does not have clean hands or that it misled the Court. The appropriate “forum” for this argument is in the context of the discussion of whether the test for an interlocutory injunction is met in this case. In any event, I disagree with the proposition that the March 15, 2019 Injunction is equivalent to a Mareva injunction. The March 15, 2019 Injunction is narrow in scope and only applies to the lands in issue in this action. It does not broadly apply to Maplequest’s assets.

[73] I also reject Maplequest’s argument that the March 15, 2019 Injunction should be dissolved because Primont “repeatedly tried to avoid a hearing of its motion on the merits”. As reflected in the endorsement of Justice Glustein dated January 15, 2021 at para. 27, the parties agreed in November 2019 to proceed with a bifurcated trial instead of the return of the injunction proceedings. It is only in November 2021 that a motion to dissolve the March 15, 2019 Injunction was brought and it was then scheduled by Justice Glustein, the case management judge at the time. The adjournment of the Defendants’ motions, which were originally scheduled to be heard in May 2022, is largely the responsibility of Maplequest. The fact that Primont has raised arguments based on the unique procedural history of this case as to why the motion should not be scheduled or should be dismissed as an abuse of process is part of the litigation process and is not in itself a reason to dissolve the March 15, 2019 Injunction.

[74] I also find that Maplequest’s argument based on the affidavit of Joseph Bozzo does not establish that Primont does not have clean hands or misled the court. The affidavit itself discloses the relationship between Mr. Bozzo and Primont, i.e., it discloses at paragraphs 2 and 10 that Mr. Bozzo’s real estate brokerage firm is regularly retained by Primont. It also discloses that Mr. Bozzo’s firm had been assisting Primont with sale marketing efforts with respect to the Subdivision. Mr. Bozzo is not presented as an expert because no acknowledgement of expert’s duty is attached to his affidavit. Any issue with respect to the weight to be given to Mr. Bozzo’s evidence in light of his connection to Primont would have been obvious to Justice Dow. Maplequest acknowledges in its Factum that it took issue with Mr. Bozzo’s affidavit before Justice Dow. In light of the foregoing, the fact that Mr. Bozzo’s affidavit was included in Primont’s original motion materials before Justice Dow does not constitute a ground to dissolve the March 15, 2019 Injunction.

B. Whether Maplequest’s motion is an abuse of process or collateral attack

1. Positions of the parties

a. Position of Maplequest

[75] Maplequest’s position is that Primont’s motion for an interlocutory injunction must be returned and heard on its merits. Maplequest states that Primont continues to benefit from the March 15, 2019 Injunction without ever having proved its entitlement to same. Maplequest submits that the March 15, 2019 Injunction was intended only as a temporary order until Primont’s motion could be heard on its merits, initially a month later. While the hearing of Primont’s motion was rendered unnecessary as a result of the bifurcated trial which was intended to address Primont’s motion, it became necessary again when the proceeding was “de-bifurcated” and removed from the Pilot Program.

[76] Maplequest argues that Primont’s submission that the Defendants are bringing unnecessary interlocutory motions is misleading. Maplequest states that the only reason why the Defendants’ motions are necessary is because Primont has refused to bring its motion for an interlocutory injunction back for hearing.

b. Position of Primont

[77] Primont argues that the present motions are an abuse of process and/or a collateral attack. Its position is that the motions are an attempt to circumvent the effect of Justice Glustein’s order “de-bifurcating” the proceeding – which was not appealed – and court-ordered timetables – which were made on consent. Primont also points out that the delay resulting from the motions has been severe. It states that courts should not take steps to encourage or condone the bringing of unnecessary interlocutory motions.

2. Discussion

[78] I do not accept Primont’s argument that requiring it to return its motion for an interlocutory injunction and to argue it on the merits constitutes an abuse of process or a collateral attack. The March 15, 2019 Injunction and Justice Dow’s subsequent endorsements are very clear that the March 15, 2019 Injunction was an interim order that was intended to be in force only pending the disposition of Primont’s motion for an interlocutory injunction. Thus, the March 15, 2019 Injunction is premised on the motion returning before the Court. In these circumstances, it is difficult to understand how the return of the motion could constitute an abuse of process or a collateral attack.

[79] I do not agree that what subsequently happened in the litigation makes the return of the motion an abuse of process or a collateral attack. Primont’s argument in this regard is seriously undermined by the fact that Justice Glustein, who made the “de-bifurcation” order on which Primont relies, agreed to schedule and hear the motions. Had Justice Glustein been of the view that the motions were an abuse of process or a collateral attack on one of his orders, one would expect to see this mentioned in one of his endorsements.

[80] Further, none of what happened in the litigation had the effect of making the March 15, 2019 Injunction an interlocutory order. While the parties may have agreed to proceed in a certain way, such agreement was not binding on them in the event of a change in circumstances. Further, hearing Primont’s motion for an interlocutory injunction on the merits does not have the effect of “re-bifurcating” the action. This is an interlocutory motion that will ultimately not affect how the trial proceeds in this matter.

[81] Thus, I agree with Maplequest that, in the absence of consent on the part of the Defendants, Primont cannot continue to benefit from the March 15, 2019 Injunction without establishing its entitlement to an interlocutory injunction. While the delay caused by this motion is highly unfortunate, this is not a reason to allow Primont to treat the March 15, 2019 Injunction as something that it is not, i.e., an interlocutory injunction. The problems associated with the bringing of interlocutory motions in Toronto is better addressed at the scheduling stage, not at the hearing of the motion when the motion raises a valid issue and the parties have already spent considerable time, efforts and legal fees on the motion. This is especially the case where two case management judges with knowledge of the case supervised the scheduling and progress of the motion.

[82] Accordingly, it is necessary to consider and determine Primont’s motion for an interlocutory injunction and leave to issue a CPL on the merits.

C. Whether the March 15, 2019 Injunction should be made interlocutory or, in the alternative, whether leave should be granted to issue a CPL

1. Position of the parties

a. Position of Primont

[83] Primont submits that the issue of whether the Clause is enforceable is a serious issue to be tried. It states that there is sufficient certainty of the property referred to in the Clause. Primont’s position is that the “2014 Concept Plan” is the best evidence that the Court will ever have with respect to the draft plan referred to in the First Amendment. Primont states that the words “remaining townhouse lots” in the Clause should be interpreted as being the Lots in light of the factual matrix at the time. Primont further states that the parties’ intent was that all remaining lots would go to Primont. It argues that this Court should reject Maplequest’s interpretation of the Clause in light of the language of the Clause and the circumstances at the time. Primont also argues that the Defendants’ evidence is riddled with credibility issues. According to Primont, it is open to a judge to find that the 51 blocks referred to in the Clause are the blocks that were not sold to Treasure Hill.

[84] Primont states that there is sufficient certainty of the price for the Lots. It submits that “fair market value” is an objective standard by which price is determinable.

[85] Primont argues that the other terms of the agreement of purchase and sale would be negotiated and were known to the parties as they repeatedly used the same standard form of agreement. Primont states that, in any event, those other terms are not essential and need not be determined before an agreement is enforced.

[86] Primont submits that its and Maplequest’s subsequent conduct shows that they acted as though the Clause was enforceable.

[87] It is Primont’s position that whether specific performance is appropriate is a serious issue to be tried. It argues that where a party cannot satisfy a damages award, damages are an inadequate remedy and specific performance is appropriate. Primont states that other than the Lots, Maplequest has no meaningful assets. It also states that absent an injunction, Maplequest will convey the lands to Digreen pursuant to the Assignment Agreement and an award of damages against Maplequest would be uncoverable.

[88] Primont submits that the Lots are especially suited for development and that Primont could not have simply gone out and acquired replacement land that was development-ready land, suitable for 50-60 low or medium density townhomes, in the GTA, and selling at arm’s length. Primont also points out that it owned the neighbouring land, which is a factor recognized as making land unique. According to Primont, the expert evidence adduced on the motion reveals a serious issue to be tried on this point.

[89] Primont argues that it is appropriate to consider the conduct of the parties and to weigh the equities when determining whether specific performance is appropriate. Primont submits that Maplequest’s attempt to have Primont sign an amendment removing the Clause supports an order for specific performance.

[90] Primont’s position is that its right to the Lots has priority over 237’s.

[91] Primont states that it would be irreparably harmed without an interlocutory injunction because damages would not be an adequate remedy. It submits that the balance of convenience favours maintaining the injunction. Primont argues that if the March 15, 2019 Injunction is dissolved, it is reasonable to expect that Primont will be left without a remedy. Meanwhile, the Defendants are not prejudiced as any damages they might suffer are already crystallized by the 237 APS or the Assignment Agreement.

[92] Primont seeks leave to issue a CPL in the alternative to an interlocutory injunction. According to Primont, it has raised a triable issue that it has an equitable interest in the Lots. Primont states that to the extent that there are any contested credibility issues affecting this issue, the Court should not determine them but should rather grant leave to issue a CPL and direct this matter to trial.

[93] Primont submits that the factors set out in the case law with respect to the issuance of a CPL favour Primont. Among other things, Primont argues that the Lots are unique, there is no alternative claim for damages, damages would be an inadequate remedy as Maplequest has no other assets other than the Lots, and the balance of convenience favours Primont.

[94] Primont states that it would be equitable to grant leave to issue a CPL because without one, Primont’s claim to the Lots will be defeated and the Lots will be conveyed, likely to Digreen. Primont further states that it would not be equitable to reward the Defendants by refusing a CPL given that Primont’s claims would have already been decided but for the Defendants’ motions.

b. Position of Maplequest

[95] In its Factum, Maplequest conceded that there was a serious issue to be tried. However, it sought to qualify its concession at the hearing of the motions by making submissions regarding the merits of the case and encouraging the Court to consider the merits of the case in the context of the other factors in the test for an interlocutory injunction. Maplequest stated that while there was a serious question to be tried, the outcome was beyond doubt. I note that the question of the merits of Primont’s claim is discussed in Maplequest’s Factum in the section dealing with the balance of convenience.

[96] Maplequest submits that Primont cannot demonstrate irreparable harm. It states that Primont has not provided any sufficient explanation as to why any of its alleged losses could not be compensated for by damages, which alone bars any claim for specific performance. Maplequest argues that the fact that raw land in Vaughan may be becoming rare is irrelevant because the Lots are merely an investment for Primont and all Primont stands to lose is money. Maplequest also argues that any reputational harm alleged by Primont is mere speculation. It points out that Primont has not submitted any evidence to substantiate its bald allegation that it will suffer reputational harm. (I note that at the hearing, Primont advised that it was no longer relying on any alleged harm to the “Primont brand”.)

[97] Maplequest states that while a party’s inability to pay a damages award is a relevant factor, it alone does not automatically constitute irreparable harm. Maplequest also argues that Primont cannot obtain execution before judgment.

[98] Maplequest submits that the balance of convenience cannot favour an injunction that has the effect of a Mareva injunction, which would prevent Maplequest from dealing with its assets before judgment, without Primont proving its entitlement to same. Maplequest states that while it has been unable to deal with its own lands, it has still had to incur the costs associated with maintaining and carrying that land.

[99] Maplequest also submits that the balance of convenience cannot favour granting an injunction when Primont has overstated its tenuous claim to the Lots. According to Maplequest, when the entire factual matrix is considered, there is no factual basis upon which to ground any reasonable expectations of Primont that it was entitled to a right of first refusal with respect to the Lots, let alone its claim for specific performance. Maplequest states that the Clause does not refer to the Lots, but instead refers to lots that Maplequest anticipated creating from lands that it had hoped to receive from adjoining landowners. Maplequest argues that the Clause was included in the First Amendment as merely an agreement to negotiate. Maplequest’s position is that a plain reading of the Clause reveals that it is nothing more than an agreement to negotiate for certain unidentified lands that does not conform with section 4 of the Statute of Frauds, R.S.O. 1990, c. S.19. Maplequest notes that it is trite law that agreements to negotiate or agreements to agree are not enforceable because, among other things, essential terms have not been settled or the contract is too general or uncertain to be valid.

[100] Maplequest argues that even if Primont can demonstrate that the Clause is enforceable, Primont is nevertheless not entitled to specific performance because the Lots are merely an investment for Primont. Maplequest states that specific performance is not available to commercial parties whose interest in the land at issue is purely commercial.

[101] Maplequest submits that granting injunctive relief to Primont will only exacerbate Maplequest’s damages and since Primont is merely a shell corporation, Maplequest will be unable to recover any of those damages. Consequently, the balance of convenience favours Maplequest.

[102] Maplequest states that $1.5 million is an insufficient undertaking as to damages given the value of the lands.

[103] With respect to Primont’s request for a CPL, Maplequest concedes in its Factum that while Primont’s case is weak, there remains a triable issue. Again, Maplequest sought to qualify this admission at the hearing and argued that the merits of the case could be considered under the other factors that are part of the test for a CPL. Maplequest’s position is that Primont cannot satisfy the balance of the test for a CPL.

[104] Maplequest argues that a CPL cannot be issued in circumstances where there is no evidence that even suggests that the 55 condominium lots in the 237 APS are the same as the 51 lots mentioned in the Clause. Maplequest also argues that the lands themselves are not unique and that Primont’s claim for specific performance is almost certain to fail given that the Lots are a mere investment for Primont. Maplequest states that Primont is a single-purpose corporation without assets.

[105] Maplequest submits that it will suffer harm as a result of a CPL, but that Primont will not suffer harm if a CPL is not granted. Maplequest states the following in its Factum:

If this court grants a certificate of pending litigation, Maplequest cannot practically deal with the Disputed Lots. The Disputed Lots are already subject to the 237 APS, which was entered into before the [Clause] ever came into existence. A certificate of pending litigation will do nothing but deter any party from dealing with the Lots, effectively acting as injunctive relief. As noted above, Primont cannot demonstrate its entitlement to such relief. There is no evidence before this court that Maplequest will be unable to satisfy any damages award that this court may order in favour of Primont. However, even if that was a legitimate concern, a certificate of pending litigation is not to be used as security for damages.

c. Position of 237

[106] 237’s submissions were principally focused on Primont’s request for leave to issue a CPL.

[107] 237 argues that Primont cannot satisfy its onus to prove that it has a triable claim to an interest in the Lots. 237’s position is that the Clause is not an enforceable or binding agreement to acquire an interest in the Lots because the Clause offends section 4 of the Statute of Frauds, there was no consensus ad idem between the parties with respect to Primont’s acquisition of the Lots, and the Clause is an agreement to agree or negotiate that is not enforceable.

[108] 237 submits that there is no certainty in the Clause with respect to the essential terms required to formulate a binding and enforceable agreement between the parties regarding the Lots. Among other things, the Clause does not clearly identify the lots or their location, the number of lots to be acquired is not certain, the Clause does not contain a purchase price, and there is nothing in the Clause about the servicing of the lots, the required delivery date and the closing date for the transaction.

[109] 237 points out that the Clause came into effect after the 237 APS, and that there is no dispute between Maplequest and 237 that 237 purchased the Lots, not Primont. 237 argues that Primont could not have acquired an interest in the Lots pursuant to the Clause because the Lots had already been sold to 237.

[110] In addition to Primont not having a reasonable interest in the Lots, 237 argues that the equities in this case support a finding that a CPL should not be granted because: (i) Primont is a shell company with insufficient assets; (ii) the Lots are not unique; (iii) Primont has claimed damages as an alternative remedy; (iv) damages are an appropriate remedy and can easily be quantified; (v) 237 will suffer greater harm than Primont if the CPL is granted; and (vi) Primont does not come to Court with clean hands.

[111] 237 points out that Primont has been able to buy extensive lots in various areas of the GTA, including in Vaughan where the Lots are located, to build out townhouse sites comparable to those in the Subdivision.

[112] 237 states that damages are an appropriate remedy and can be easily quantified. It notes that Primont will never be able to build out the entire community because Treasure Hill purchased a third of the lots in the Subdivision. Therefore, Primont’s argument that damages are not an appropriate remedy because it will lose any chance to develop the whole community should be rejected. 237 submits that it is well established that an award of damages, and not specific performance, is the more appropriate remedy when land is purchased merely as an investment to be developed and resold at a profit.

[113] 237 argues that it will suffer greater harm than Primont if a CPL is granted. It states that the March 15, 2019 Injunction has been in place for five years and, during this time, 237 has been precluded from building out the Lots and selling townhouses to purchasers for a profit. 237 further states that it has been unable to recover the amount owing pursuant to the Assignment Agreement or to settle its lawsuit with Maplequest and Digreen, resulting in significant prejudice to its financial and business interests. 237 submits that there is no credible evidence from Primont that it will suffer any harm if the CPL is not granted. According to 237, what Primont is trying to achieve by seeking a CPL in this case is to effectively obtain execution before judgment, which is improper.

[114] 237 relies on its submissions regarding the request for a CPL in relation to Primont’s request for an interlocutory injunction. 237 submits that there is no serious issue to be tried with respect to Primont’s entitlement to the Lots, Primont will not suffer irreparable harm if the injunction is not granted, and the balance of convenience favors the injunction being denied.

[115] 237 argues that if the CPL or interlocutory injunction is granted, Primont should be required to post security in the sum of $19,611,450 to fortify its undertaking as to damages.

2. Discussion – Interlocutory injunction

[116] I will first deal with Primont’s main request, i.e., its request for an interlocutory injunction.

[117] RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (“RJR”) sets out a three-part test for determining whether a court should exercise its discretion to grant an interlocutory injunction: (1) whether there is a serious issue to be tried; (2) whether the person applying for the injunction would suffer irreparable harm if the injunction were not granted; and (3) whether the balance of convenience is in favour of granting the interlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific. See Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para. 25.

a. Serious issue to be tried

[118] At the first stage, the moving party must demonstrate a serious issue to be tried. The threshold is a low one. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, which is not the case here. Once satisfied that the claim is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if the motions judge is of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. See RJR at 337-338, 348.

[119] I find that while Primont does not have a particularly strong case, its claim with respect to the Lots is neither vexatious nor frivolous and is a serious question to be tried.

[120] Whether the Clause is a binding and enforceable agreement and whether it contains sufficient certainty with respect to the essential terms of an agreement of purchase and sale constitutes a serious question to be tried. As the points below show, this is not a frivolous or vexatious issue.

[121] Price is an essential element of an agreement of purchase and sale. The Clause refers to “a purchase price reflecting the fair market value of such proposed townhouse lots at the time of such agreement”. In Mitsui & Co. (Canada) Ltd. v. Royal Bank of Canada, [1995] 2 S.C.R. 187 at para. XXXI, the Supreme Court of Canada held that a price described as “reasonable fair market value” was not uncertain, was not subject to further negotiation and was not an “agreement to agree”. The Supreme Court stated that “[t]he law recognizes that agreements to purchase property in the future at a ‘reasonable price’ or at ‘fair market value’ are valid and enforceable.” Similarly, in Mapleview-Veterans Drive Investments Inc. v. Papa Kerollus VI Inc. (Mr. Sub), 2016 ONCA 93 at paras. 26-30, the Court of Appeal held that a renewal option at the “then current rate” was not an agreement to agree because the “then current rate” was a rate that could be readily ascertained through resort to expert evidence as to rental rates for comparable spaces as at the renewal date.

[122] I note that paragraph (h) of the First Amendment (reproduced in paragraph 19 above) refers to the parties’ agreement to negotiate a “fair market price” in a particular set of circumstances in relation to the 20 townhouse lots that Maplequest had to transfer to Primont in order to fulfil its contractual obligation to sell 206 lots to Primont under the Primont APS. It was not argued that this clause was unenforceable.

[123] The parties spent a significant amount of time arguing about whether the Clause had sufficient certainty with respect to the properties intended to be sold. In my view, there is a serious question to be tried in this respect. I make the following observations:

a. The fact that the number of Lots is not exactly 51 may not be an issue as the Clause could be interpreted as meaning that all remaining townhouse lots were to be sold to Primont, no matter the number of lots, and the Clause itself provides that the number of such lots may change. b. The fact that Maplequest may no longer have a copy of the Revised Draft Plan is not determinative. The issue to be determined is what the parties agreed upon at the time the Clause was signed. Evidence can be (and has been) presented on the issue of what the remaining townhouse lots were at the time the First Amendment was signed. If the Clause is interpreted as meaning that all remaining townhouse lots were to be sold to Primont, a court can make a determination regarding such lots based on the available evidence. c. While the trial judge may come to a different conclusion based on the evidence adduced at trial, it is my view that Maplequest’s interpretation and explanation of the Clause does not make sense in light of the wording of the Clause. In my view, the wording of the Clause precludes an interpretation that the 51 lots did not exist at the time the Clause was signed and depended on future acquisitions by or transfers to Maplequest. As the Supreme Court of Canada stated, the surrounding circumstances or “factual matrix” must never be allowed to overwhelm the words of an agreement and cannot be used in the interpretive process to deviate from the text such that a new agreement is effectively created. See Corner Brook (City) v. Bailey, 2021 SCC 29 at para. 20. d. The fact that the lots in issue in the Clause are not precisely identified and are subject to change is consistent with other agreements that Maplequest entered into at the material time. This appears to be how Maplequest was doing business and there has been no suggestion that these other agreements were not binding. For example: i. As noted above, the lots identified in the 237 APS are not the Lots. Nevertheless, the Defendants’ position is that the 237 APS is a binding agreement for the purchase and sale of the Lots (except for Block 50). ii. Mr. Vigliatore stated in one of his affidavits that “the specific location of the lots which 237 Inc. was to purchase [under the 237 APS] was immaterial” and that the lots were “effectively fungible”. iii. Mr. Masood stated in one of his affidavits that the blocks listed in the Primont APS were “placeholders”. iv. The 20 additional lots that were to be conveyed to Primont under the First Amendment to reach a total of 206 are not specifically identified. Despite this, no one has argued that the First Amendment was not binding with respect to the 20 additional lots.

[124] As for the other terms to be included in an agreement of purchase and sale, Maplequest’s solicitor at the relevant time, Robert Gray, stated during his examination that he used the same template for agreements of purchase and sale in relation to the Subdivision, including the Primont APS, the 237 APS and the Treasure Hill APS. At the time of the execution of the Primont APS, Mr. Gray was also Primont’s solicitor, but Primont later retained another lawyer.

[125] Mr. Gray’s evidence is consistent with Maplequest’s Amended Statement of Defence and Counterclaim which states the following:

The form of the Primont APS was a template used by Robert Gray, Primont’s long-time legal counsel. Mr. Gray has represented Primont since the 1990s, and Primont is familiar with the template that he used. Mr. Gray represented both Primont and Maplequest on this transaction until about May 2016 and this template was also used in prior transactions between affiliates of Primont and affiliates of Maplequest.

[126] I note that the use of a template was also acknowledged by 237. In fact, Mr. Vigliatore points out in one of his affidavits that a similar template was used for both the Primont APS and the 237 APS. He also states the following with respect to the 237 APS:

At the time of signing the APS, I understood the APS to be based on a template that Mr. Gray frequently used for similar real estate transactions. 237 Inc. and its legal counsel were not involved in the drafting of the APS nor did it negotiate its terms beyond the essential terms of the deal as agreed to between 237 Inc. and Maplequest.

[127] In light of the foregoing, a court could find that the same template would be used with respect to the Lots and that there was no uncertainty as to the applicable terms. Further, and in any event, it is unlikely that a court would find that all of these terms are essential terms.

[128] I also find that there is a serious question to be tried with respect to Primont’s entitlement to specific performance.

[129] The ultimate test for specific performance is whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties. See Halliday-Shaw v. Grieco, 2023 ONCA 226 at para. 12 and Dhatt c. Beer, 2021 ONCA 137 at para. 42. A party seeking specific performance must establish a fair, real, and substantial justification by showing that damages would be inadequate to compensate for its loss of the subject property: see Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52 at para. 69 (“Lucas”).

[130] Whether specific performance is to be awarded is a question that is rooted firmly in the facts of an individual case. In determining whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties, courts typically examine and weigh together three factors: (1) the nature of the property involved; (2) the related question of the inadequacy of damages as a remedy; and (3) the behaviour of the parties, having regard to the equitable nature of the remedy. Whether a property is unique, either by virtue of its nature or the features of the contract for its purchase and sale, operates as only one of several factors a court must consider when determining entitlement to specific performance. See Lucas at para. 71.

[131] Uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use that cannot be readily duplicated elsewhere. The court must examine the subjective uniqueness of the property from the point of view of the plaintiff at the time of contracting. The court must also determine objectively whether the plaintiff has demonstrated that the property or the transaction has characteristics that make an award of damages inadequate for that particular plaintiff. See Lucas at paras. 74-75.

[132] Whether a defendant is in a position to pay damages and whether the plaintiff is likely to recover them is relevant to the issue of the adequacy of damages. See UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., 2009 ONCA 328 at para. 103 (“UBS”) and Dhatt v. Beer, 2020 ONSC 2729 at paras. 41-47; aff’d by 2021 ONCA 137 at para. 43. In UBS, the Court of Appeal adopted the following statement of Sharpe J.A. in Injunctions and Specific Performance, looseleaf, 2nd ed. (Aurora, Ont.: Canada Law Book, 2007): “If the defendant is unable to pay a damages award, then however accurate the assessment of the plaintiff’s loss may have been, the remedy of damages can hardly be described as adequate.”

[133] Courts are usually reluctant to award specific performance of contracts for property purchased solely as an investment because money damages are well-suited to satisfy purely financial interests: see Lucas at para. 78. However, it has been accepted in a number of cases that there may be circumstances where the remedy of specific performance is available in actions involving contracts for sale of investment properties: see, e.g., Modopoulos v. Hershberg, 2021 ONSC 2025 at paras. 67-68. While specific performance is available with respect to contracts for the sale of a commercial or investment property, it is generally more difficult to establish a property’s uniqueness than in residential property cases: see 1954294 Ontario Ltd. v. Gracegreen Real Estate Development Ltd., 2017 ONSC 6369 at paras. 153-157 (“Gracegreen”). Nevertheless, where a property – including an investment property – is unique in the sense that a substitute is not readily available, specific performance is available: see, e.g., Gracegreen at paras. 163-168 and Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201 at paras. 290-294 (“Fram”).

[134] Turning to the case at bar, I find that there is a serious issue to be tried as to whether the land rather than its monetary equivalent better serves justice between the parties. With respect to the factor of the nature of the property involved, the parties have adduced evidence, including expert evidence, on the issue of whether a substitute property was readily available and whether the Lots’ qualities could be readily duplicated elsewhere. While the experts disagree on certain points, this is not an issue that should be determined at the interlocutory stage. I note that some of the factors that were present in Fram (see paras. 292-293) are also present in this case, including the fact that Primont already has a presence and experience in the Subdivision/development where the Lots are located, and the Clause was part of a broader agreement – the First Amendment – which contained other contractual obligations and rights that were negotiated and agreed upon by the parties. Mr. Montesano also gave evidence about the ability to spread “soft costs”. I note as well that the Lots are “development-ready”: see Gracegreen at paras. 158-159, 163-168.

[135] The factor of the inadequacy of damages as a remedy is an important one in this case. The evidence before me shows that other than the Lots, Maplequest has no meaningful assets and would not be able to satisfy a damages award for breach of the Clause. Thus, there is a real risk that an award of damages will not meaningfully do justice between the parties: see Gracegreen at paras. 160-161,169.

[136] This is sufficient to raise a serious issue to be tried with respect to Primont’s entitlement to specific performance. Therefore, I do not need to assess the behaviour of the parties in any detail at this interlocutory stage. It suffices to say that I do not find anything in Primont’s behaviour that would militate against an order for specific performance. However, with respect to the Defendants’ behaviour, I am of the view that the Assignment Agreement, its terms and its timing raise a number of questions that could potentially be relevant but that are better left for trial.

[137] Given that I have concluded that there is a serious issue to be tried, I now turn to the issue of irreparable harm.

b. Irreparable harm

[138] At the second stage of the test, the only issue to be decided is whether a refusal to grant relief could so adversely affect the moving party’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory motion. See RJR at 341.

[139] The word “irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm that either cannot be quantified in monetary terms or that cannot be cured, usually because one party cannot collect damages from the other. However, the fact that one party may be impecunious does not automatically determine the motion in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration. See RJR at 341.

[140] I have already found that there was a serious issue to be tried with respect to Primont’s entitlement to specific performance. If an interlocutory injunction is not granted, it is very likely, and the Defendants’ submissions suggest, that the Lots will be conveyed and will not be available to Primont if it is successful in obtaining an order for specific performance at trial. Among other things, I note that the March 15, 2019 Injunction interrupted settlement discussions between 237, Maplequest and Digreen, and that Mr. Vigliatore gave evidence that but for the March 15, 2019 injunction, 237 would have a settlement with Maplequest by now.

[141] In addition, as stated above, Maplequest has no meaningful assets other than the Lots and would not be able to satisfy a damages award for breach of the Clause.

[142] A refusal to grant the interlocutory injunction would irreparably harm Primont’s interest in obtaining specific performance. Such harm “could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” (RJR at 341), i.e., if the injunction is denied but specific performance is granted at trial, because the Lots would be gone. In addition, the harm could not otherwise be remedied given Maplequest’s inability to satisfy a damages award. In these circumstances, which are not limited to Maplequest’s financial situation, I am satisfied that the second branch of the test for an interlocutory injunction is met.

c. Balance of convenience

[143] The third branch of the test involves a consideration of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. See RJR at 342.

[144] As set out above, if the interlocutory injunction is not granted, it is likely that Primont will be left without a remedy. If the interlocutory injunction is granted, it will not impact the Defendants’ respective contractual rights, but it will delay the exercise of such contractual rights (in the event the Defendants are ultimately successful in the litigation). As discussed further below, the Defendants have not adduced evidence quantifying the damages that could be caused by the delay, and they cannot rely on any harm that would be caused to Digreen, who is not a party to this litigation.

[145] In light of the foregoing, I find that the balance of convenience favours Primont. This conclusion is confirmed by the fact that the Defendants were content to leave the March 15, 2019 Injunction in place for more than two years while the litigation proceeded.

d. Undertaking as to damages

[146] For the reasons set out above and based on Rule 2.02 of the Rules of Civil Procedure, I have declined to consider the issues raised by the Defendants regarding Primont’s undertaking as to damages in the context of their request to dissolve the March 15, 2019 Injunction. However, as also stated above, it is necessary to consider the issue of the undertaking as to damages in the context of Primont’s request for an interlocutory injunction, which is being considered now.

[147] Pursuant to Rule 40.03 of the Rules of Civil Procedure, on a motion for an interlocutory order, “the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.”

[148] An undertaking as to damages is an undertaking to the court which carries with it an implicit assurance that the party giving the undertaking will be able to discharge the undertaking: see 642947 Ontario Limited v. Fleischer at para. 63 (Ont. C.A.) (“Fleischer”) and McFlow Capital Corp. v James, 2017 ONSC 1049 at para. 47.

[149] Damages for an injunction wrongly granted are to be assessed on the same basis as damages for breach of contract. The damages to be awarded must be reasonably foreseeable at the time of the granting of the interlocutory injunction and they must be caused by the injunction and not by something else. The responding party has to show that the injunction materially contributed to the alleged damages. See Fleischer at paras. 50-52, 56 and Delrina Corp. v. Triolet Systems Inc. at para. 87 (Ont. C.A.).

[150] In this case, there is evidence that Primont holds a GIC with a maturity date of September 27, 2024. In his affidavit sworn September 29, 2022, Mr. Montesano renewed Primont’s undertaking as to damages. Mr. Montesano stated the following:

Primont has always complied with its financial obligations and this case has been and will be no different. I confirm that Primont will maintain $1.5 million in assets in cash or cash-equivalent (such as the GIC presently held) pending a determination of its claim to the Lots or a Court order providing otherwise.

[151] Maplequest argues that $1.5 million is an insufficient undertaking as to damages given the value of the lands. 237 argues that Primont should be ordered to post $19,611,450.00, which is the purchase price under the Assignment Agreement.

[152] There is no basis to require an undertaking as to damages that is equivalent to the value of the lands. This is because even if the injunction is wrongly granted, the damages suffered by the Defendants as a result of the injunction will not be the loss of the lands. If Primont’s claim to the Lots is dismissed, the Lots will still be there for Maplequest and 237. Further, as pointed out by Primont, at the time the March 15, 2019 Injunction was granted, Maplequest had already sold the Lots (except for Block 50) to 237 for a fixed price, and 237 had already assigned its rights to the lands to Digreen for a fixed price.

[153] The damages potentially caused by the March 15, 2019 Injunction and the interlocutory injunction relate to delay. In my view, the potential damages are the same as those identified by the Court of Appeal in Fleischer with respect to the following scenario:

On this scenario, Fleischer and Newton would not have suffered any damages and Burnac would have acquired the Property it agreed to buy at the price it agreed to pay. But the injunction would have caused an approximately one-year delay in the closing (from November 24, 1989 to December 7, 1990). Sweet Dreams would therefore be liable to 642947 and Burnac for any damages attributable to the delay. These damages could have included increased carrying costs, loss of rental income or even loss of profits.

[154] There is no evidence before me with respect to the approximate quantum of any damages suffered by the Defendants as a result of delay. While Mr. Masood stated in one of his affidavits that Maplequest had to incur the costs associated with maintaining and carrying the land, Primont’s request that Maplequest produce all documentation identifying and substantiating the costs associated with carrying the Lots was refused during Mr. Masood’s cross-examination. As a result, other than self-serving and bald statements that have no evidentiary value, there is no evidence before this Court as to the range of damages that the March 15, 2019 Injunction and the interlocutory injunction may have caused or may cause to Maplequest, and showing that Primont’s undertaking as to damages is insufficient.

[155] As for 237, it argues that it expressly reserved its rights under the Assignment Agreement to retain possession and control of the assigned lots. However, less than six months before the March 15, 2019 Injunction was granted, it commenced an action against Digreen for the sum of money that allegedly remains unpaid under the Assignment Agreement. While 237 states in the Statement of Claim that it reserves its rights under the Assignment Agreement, 237 only seeks monetary relief in its action, and the amount sought is the balance of the assignment price. 237 did not elect to keep the payments that it had already received and to ask for the lands back. Instead, it asked for the balance of the assignment price. There is no evidence that 237 has amended its Statement of Claim and prayer for relief. This Court is entitled to assume that 237 will act as a rational economic actor and not take actions that would increase its damages. In any event, any such action could well break the causation chain and make damages unrecoverable because they were not reasonably foreseeable at the time of the granting of the interlocutory injunction and they were caused by something other than the injunction.

[156] Further, and in any event, aside from bald and self-serving statements of Mr. Vigliatore, 237 has not adduced any evidence as to its alleged potential damages should it terminate the Assignment Agreement and retain possession of the lots. There is also no evidence before me as to the damages caused to 237 as a result of not being able to settle the litigation with Maplequest and Digreen with respect to the Assignment Agreement.

[157] Where there is doubt about the adequacy of an undertaking as to damages, the Court has discretion to require the plaintiff to fortify its undertaking by posting security: see Zuckerman-Honickman Incorporated v. MPI Packaging Inc. at para. 84 (Ont. S.C.J.) (“Zuckerman”). In this case, based on the absence of evidence as to the likely quantum of damages caused by the injunctive relief, there is no basis for this Court to conclude that Primont’s undertaking as to damages is inadequate. This Court cannot guess or speculate. Accordingly, there is no basis to require Primont to fortify its undertaking as to damages. See Zuckerman at paras. 85-86, 91.

[158] However, the fact that the Defendants failed to file evidence regarding their potential damages does not mean that they will not suffer damages as a result of the injunction if it was wrongly granted. By giving an undertaking as to damages, Primont is representing that it has sufficient assets to honour its undertaking and both the Court and the Defendants are entitled to rely on this representation. Primont has also represented to this Court that it “has always complied with its financial obligations and this case has been and will be no different.” Primont and its principals should keep in mind that, in appropriate circumstances, the Court is able to go behind the corporate veil and impose personal liability if an inadequate undertaking as to damages was given by a party. See Vivitar Canada Ltd. v. Vivitar Corp. at paras. 41-42 (Ont. S.C.J.) and Fleischer at paras. 67-70.

[159] Accordingly, I conclude that the granting of an interlocutory injunction is just and equitable in all of the circumstances of this case, and that the March 15, 2019 Injunction should be made interlocutory and extended until the trial of this matter or further order of this Court. Thus, the Defendants are prohibited from selling, purchasing, transferring, further encumbering, or otherwise dealing with the Lots pending the disposition of this action or further order of the Court.

[160] Given my conclusion that an interlocutory injunction should be granted, it is unnecessary to consider Primont’s request for leave to issue a CPL, which Primont’s Factum states was made in the alternative.

III. Conclusion

[161] The Defendants’ motions are dismissed, except for Maplequest’s request that Primont’s motion for an interlocutory injunction and leave to issue a CPL be returned and heard on its merits.

[162] Primont’s motion for an interlocutory injunction is granted. The Defendants are prohibited from selling, purchasing, transferring, further encumbering, or otherwise dealing with the Lots pending the disposition of this action or further order of the Court.

[163] If the parties cannot reach an agreement on costs, Primont shall deliver submissions of not more than four pages (double-spaced), excluding the costs outline, by April 16, 2024. Maplequest and 237 shall deliver their responding submissions (with the same page limit) by April 30, 2024. If it wishes, Primont may deliver reply submissions of not more than two page (double-spaced) by May 10, 2024. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J. Date: April 2, 2024