Court File and Parties

Court File No.: 231/17 (Peterborough) Date: 2018-12-12 Ontario Superior Court of Justice

Between: 2299445 Ontario Inc., Plaintiff

– and –

2174542 Ontario Inc. and Safe Harbour Developments Inc., Defendants

Counsel: Brandan Clancy, for the plaintiff

Heard: December 12, 2018

Before: Bale J.

Reasons for Decision

[1] The plaintiff moves for an order authorizing issuance of a certificate of pending litigation in relation to a series of building lots referred to in the agreement between the parties as the Phase 1B lots.

[2] On a previous motion heard in November 2017, de Sa J., while authorizing a certificate to be issued in relation to other lots subject to the contract, refused to issue a certificate in relation to the Phase 1B lots. His reason for doing so was that the defendants had resold the lots to Cleary Homes and that: “To place a CPL on the 25 lots in Phase 1B that have already been sold to Cleary Homes would cause severe prejudice not only to the Defendant, but also potentially to Cleary Homes. It may even threaten the Defendant’s ability to continue as a going concern. I also have concerns that it may give the Plaintiff unfair leverage in the litigation.”

[3] On the present motion, the plaintiff has introduced evidence that the contract between the defendant and Cleary Homes is no longer in effect, and in particular, that Cleary Homes has not begun construction, has advised the municipality that it will not be building on the Phase 1B lots, and has removed from its website all previous references to the project. Based upon this evidence, I am satisfied, for the purposes of this ex parte motion, that the plaintiff is entitled to raise the issue anew.

[4] I am also satisfied that the plaintiff has a reasonable claim to an interest in the Phase 1B lots, namely, the purchaser’s equitable interest in land pending performance of an agreement in writing. On this ex parte motion, that finding alone is sufficient to entitle the plaintiff to an order authorizing the issuance of the requested certificate.

[5] In his very complete and helpful motion record and factum, plaintiff’s counsel addresses the further issue of whether a certificate of pending litigation is just in the circumstances. In my view, that issue, and the application of the factors referred to in s. 103(6) of the Courts of Justice Act, are more properly addressed either on a contested motion for a certificate, or on a motion to discharge a certificate issued following an ex parte motion. Given that in the present case, a motion to discharge is anticipated, I see no utility in reviewing those factors at this time.

[6] In the result, a certificate of pending litigation will issue in relation to the building lots referred to in the parties’ agreement as the Phase 1B lots.

“Bale J.” Released: December 12, 2018