2417563 Ontario Inc. v Brampton (City)
CITATION: 2417563 Ontario Inc. v Brampton (City), 2025 ONSC 1020
COURT FILE NO.: DC-24-102-0000
DATE: 2025 02 14
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE:
2417563 Ontario Inc. and 1063155 Ontario Inc., Applicants
-and-
The Corporation of the City of Brampton and 2581558 Ontario Inc., Respondents
BEFORE:
C. Chang J.
COUNSEL:
B. Phillips, Y. Fox, for the Applicants
D. Nunes, for the Respondent, 2581558 Ontario Inc.
HEARD:
February 6, 2025 (via videoconference)
ENDORSEMENT
[1] The applicants bring this motion for leave to obtain a certificate of pending litigation respecting a strip of land in the area of Orenda Road and Kennedy Road in Brampton (the “Subject Land”).
[2] The Subject Land was declared surplus and sold by the respondent, The Corporation of the City of Brampton (the “City”), to the respondent, 2581558 Ontario Inc., (“258”) pursuant to By-Law #64-2024. The applicants have brought the underlying application for judicial review to quash that by-law.
[3] The City neither responded to this motion nor attended the hearing.
FACTUAL BACKGROUND
[4] In 2022, the City inquired of, among others, the applicants and 258 respecting the possible sale of two parcels of land, including the Subject Land. Specifically, the City asked of those contacted that anyone interested in purchasing the Subject Land express their interest in writing. The applicants and 258 responded in the affirmative.
[5] On April 18, 2024, the City issued a public notice of its intentions to: a) declare both parcels as surplus and sell them to the owners of 71 Orenda Road and 72 Orenda Road; and b) hold a public meeting of the Committee of Council on April 24, 2024 respecting that proposed declaration and sale. In advance of that public meeting, the City publicly released a staff report setting out its recommendations to the Committee of Council. 258 owns 72 Orenda Road, and the owner of 71 Orenda Road is not a party to this motion or the underlying application for judicial review.
[6] The April 24, 2024 public meeting of the Committee of Council was held and, on May 1, 2024, the City passed By-Law # 64-2024 declaring both parcels of land surplus and authorizing their sale to 258 and the owner of 71 Orenda Road.
ISSUE
[7] The sole issue for determination on this motion is whether I should exercise my discretion to grant leave for the applicants to obtain a certificate of pending litigation respecting the Subject Land.
ANALYSIS
Governing Test
[8] The applicable test for whether leave should be granted to obtain a certificate of pending litigation is undisputed and, in any event, well settled law. The court must first be satisfied that there is a triable issue respecting the applicable claimed interest in land, and then must consider all relevant factors, including the equities, between the parties (see: Waters Estate v Henry, 2022 ONSC 5485, at para. 169). The moving party bears the burden of demonstrating that there is a triable issue respecting its claimed interest in land (see: Rahbar v Parvizi, 2022 ONSC 1104, at para. 21).
Parties’ Positions
[9] The applicants concede that they neither have nor are claiming an interest in land in this proceeding. They have no agreement or other arrangement with the City respecting their purchase of the Subject Land, and have paid no moneys, by way of deposit or otherwise, toward such a purchase. However, they submit that a certificate of pending litigation is an equitable remedy and, even absent a claim to an interest in land, equity demands that they be granted leave to obtain that remedy. The Subject Land, they say, should not be permitted to be sold or encumbered, and thus the status quo maintained, until the application for judicial review has been determined. Otherwise, submit the applicants, their opportunity to “submit their pitch” (counsel’s words) to purchase the Subject Land will be lost.
[10] 258 submits that the requested leave to obtain a certificate of pending litigation should be denied because there is simply no merit to the applicants’ motion. The applicants, 258 argues, have admittedly failed to meet the “gating threshold issue” of a reasonable claim to an interest in land. 258 further submits that, in any event, the balance of equities favours denying the requested leave because, not only is it a bona fide arm’s length purchaser for value of the Subject Land without notice of the applicant’s alleged claim, it, in good faith, entered into and completed the entirety of the applicable process mandated by the City respecting that purchase.
Decision
[11] I find that there is no triable issue respecting the applicants’ claimed interest in land and the applicants’ motion must be dismissed accordingly.
[12] The applicants admit that, in this proceeding, they neither make a claim to an interest in the Subject Land, nor have such a claim on the facts. This, in my view, is fatal to the applicants’ motion for leave to obtain a certificate of pending litigation.
[13] Despite this, the applicants submit that the requested leave still ought to be granted because the balance of equities strongly favours granting it. The applicants argue that, should 258 remain unrestrained in its ability to sell or encumber the Subject Land, there is a real risk that same will be “lost” to them should their application for judicial review succeed. The only inconvenience to 258, argue the applicants, will be its temporary inability to deal freely with the Subject Land. I disagree.
[14] The issue of a reasonable claim to an interest in land must be addressed before any balancing of other factors – including the applicable equities – is undertaken. I find it abundantly clear from a plain reading of s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43, that the basic organizing principle underlying a certificate of pending litigation is, where appropriate, the preservation of rights of a party claiming an interest in land pending the court’s determination of that claim. The common law test reflects this, as the threshold issue on a motion for leave to obtain a certificate of pending litigation is whether there is a triable issue respecting the claimed interest in land (see: Gentles v Lynch, 2024 ONSC 2656, at para. 36). Put another way, absent a triable issue respecting a reasonable claim to an interest in land (let alone the absence altogether of such a claim), a motion for leave to obtain a certificate of pending litigation automatically fails (see: Todd Family Trust v Barefoot Science Technologies Inc., 2013 ONSC 523, at paras. 13, 19-21; Ablitt v Papasotiriou-Lanteigne, 2022 ONSC 5809, at para. 26).
[15] The applicants submit that the case-at-bar is different because their application for judicial review seeks to quash a by-law respecting the sale of municipal land and therefore the applicable issue is sui generis, and the law should be expanded to allow for the issuance of certificates of pending litigation in absence of any claim to an interest in land. Again, I disagree.
[16] As set out above, based on the express wording of s. 103 of the Courts of Justice Act, a reasonable claim to an interest in land is an indispensable requirement for the issuance of a certificate of pending litigation and essential to the court’s inquiry on a motion for leave to obtain such a certificate. In my view, this court has no proper role in judicially re-formulating legislative intention in the face of crystal-clear legislative expression.
[17] Should the legislature have intended certificates of pending litigation to be available in proceedings where no interest in land is in issue, it would have said so. Should there be an appetite to expand s. 103 of the Courts of Justice Act to permit the issuance of certificates of pending litigation in proceedings where no interest in land is in issue, it will be for the legislature to take the appropriate steps.
DISPOSITION
[18] I therefore make the following orders:
a. the applicants’ motion is dismissed; and
b. the applicants shall pay to 258 its costs of this motion in the agreed-upon all-inclusive amount of $9,000.00.
C. Chang J.
Date: February 14, 2025