Meinert v. Zambosco, 2026 ONSC 3636
SUPERIOR COURT OF JUSTICE – ONTARIO
491 Steeles Avenue East, Milton, Ontario L9T 1Y6
RE: Elizabeth A. Meinert, Plaintiff
AND:
Jennifer Zambosco, Defendant
BEFORE: Associate Justice Glick
COUNSEL: Michael N. Freeman, for the Plaintiff
Jennifer Zambosco on her own behalf
HEARD: June 17, 2026
ENDORSEMENT
overview
1The Plaintiff brings a motion for leave to issue a register a Certificate of Pending Litigation (“CPL”) against Unit 903, 2263 Marine Drive, Oakville, Ontario L6L 5K1 (the “condo”). The condo is owned by the Defendant who opposes the relief.
2For the reasons that follow, an Order is granted providing the Plaintiff with leave to issue and register a CPL against the condo.
BACKGROUND
3The Plaintiff and Defendant were friends in high school who reconnected in 2019. On or about March 15, 2021, a fire destroyed the Defendant’s condo. In 2022 the Plaintiff says she began loaning the Defendant money. The Defendant was not working. The Plaintiff says the expectation was that the money would be repaid.
4The Plaintiff says that in mid-2023 the Defendant proposed that the Plaintiff lend her additional money and that repayment would be made by the Plaintiff receiving full ownership of the condo when the Defendant died. The Plaintiff says the Defendant told her that due to health issues diagnosed in 2022, the Defendant did not expect to live more than 3-5 years past 2022. The Plaintiff says she thereafter loaned the Defendant approximately $60,000 towards credit card debt. The Plaintiff says that the Defendant then executed an initial promissory note and told her more formal security arrangements involving the property would follow. The Plaintiff says she pressed for more formal security to secure continued payments she intended to make.
5The Plaintiff says she continued to make payments and starting in January 2024, began to provide the Defendant with $1500 a month. This money was meant to cover mortgage payments, condo fees, insurance and other costs.
6By January 8, 2025, the Plaintiff says she advanced the Defendant $180,000. She says that the Defendant, on January 8, 2025, expecting additional loans, executed a promissory note for the amount of $275,000 with interest from March 15, 2023 onward. The note incorporated a loan agreement. It also gave the Plaintiff a security interest in the condo.
7The Plaintiff says that the Defendant did not provide the security contemplated in the promissory note or any other security. The Plaintiff says the Defendant threatened that if she did not loan her additional money she would sell the house. The Plaintiff says this is what led her to retain counsel. On September 18, 2025, counsel registered a caution on title in the amount of $217,004.92. The caution was valid for sixty days and has since expired.
8This Action was commenced on November 10, 2025. The claim includes an interim Order for leave to register a CPL. Default judgment was obtained on December 17, 2025. A writ of seizure and sale was obtained on December 23, 2025.
9The Defendant brought a motion to set aside the default judgment. Justice Kurz set the judgment aside on February 26, 2026 but ordered that the writ was to remain.
10The Defendant filed a statement of defence and counterclaim on April 7, 2026. The Plaintiff issued a Reply and Defence to Counterclaim and brought this motion.
11Since the Action was commenced the Plaintiff says she has continued to advance funds to the Defendant. She says this includes a $10,000 payment and continued monthly payments for the mortgage, property tax and condo fees. The Plaintiff says that she is worried that the writ will not protect her interests in the event of a default on the mortgage. She says she is also worried that the Defendant may sell or further encumber the condo and that she will have no mechanism to be repaid for her loans.
12The Defendant, for her part, states that the promissory note did not reflect the agreement she had reached with the Plaintiff and repudiated it, which the Plaintiff acknowledged. She says the agreement with the Plaintiff was that the Plaintiff would continue to advance funds up to $275,000 plus one-half of the mortgage, and, in return, would receive the condo or its value of up to $500,000 only upon her death. She says the Plaintiff was not entitled to demand repayment, force a sale or obtain ownership of the condo during her lifetime.
13The Defendant denies the Plaintiff has an equitable interest in the property or that she has a constructive trust. She says the payments were not contributions to the property, but were loan payments to her. The Defendant agrees though that the Plaintiff advanced funds beginning in 2022. She says that the Plaintiff told her that if she took the loan from the Plaintiff, that the Defendant would never have to “fear losing [her] home during [her] lifetime, that she would never force [her] from the condominium, and that she would not demand repayment from [her] while [she] was alive.” The Defendant denies being told she would die within 3-5 years or by any specific date. Her fear of a shortened life expectancy came from her health issues, her own research and conversations with doctors about available treatments.
14The Defendant says that any security arrangements discussed were intended only to protect the Defendant’s right to repayment upon her death and were conditional upon her continuing to perform her obligations under their agreement. She says though that she was never asked to place the Plaintiff on title or grant her a second mortgage on the condo. She says the $1500 dollar monthly payments she received from the Plaintiff were loan payments and not contributions towards the property.
15The Defendant says she did agree to provide security for the Plaintiff’s eventual repayment. She says that on January 8, 2025 she completed a will and powers of attorney meant to protect the Plaintiff’s entitlement to the property and repayment upon her death. This is the same date as the promissory note was executed, but the Defendant again denies that the note reflected the agreement.
16The Defendant agrees that the Plaintiff has continued making payments after the Action was commenced. She also acknowledges that the Plaintiff has directly paid mortgage and condo fees since December 2025. She denies however that this creates any ownership interest.
17The Defendant denies that she intends to sell, transfer or further encumber the property to prevent the Plaintiff from being repaid. She says the written agreement they entered into provides that she may move to another property if equivalent value remains available for repayment upon her death. She says that a CPL would affect her ability to move and provide the Plaintiff more control than what was agreed.
18The agreement that the Defendant refers to does not appear to have been signed by the Parties. The section dealing with moving states:
Liz is the full owner of the property once Jennifer is deceased. While Jennifer is alive, she is the primary owner and recognizes that there is a secured loan owing to Liz payable from the value of the property. While Jennifer is alive, all decisions being made will remain Jennifer’s and Elizabeth does not have decision making abilities as long as the integrity of the $500,000 is secured and maintained. Jennifer must inform Elizabeth of any intent to not reside in condo, or sell. Jennifer must maintain a property of equal or more in value to uphold the integrity of the deal the two entered. There must be the $500,00 or greater, to be secured in a property, excluding debts owed on mortgage.
LAW AND ANALYSIS
19A CPL is a mechanism by which a party who asserts an otherwise unregistered claim to an interest in land, can provide effective notice of its proprietary claim to non-parties, and thereby protect its claim, pending the determination of the alleged interest, on its merits. A CPL does not, in and of itself, create a right or interest in the land. (see Ambassador Electric Inc. v. Fernwood Builders (London) Ltd., 2014 ONSC 3738 at para. 7)
20Pursuant to section 103 of the Courts of Justice Act and rule 42.01 of the Rules of Civil Procedure, the court may grant leave for the issuance of a CPL where there is an “interest in land” in question. A claim for a CPL must be included in a plaintiff’s statement of claim, and there must be a description of the land in question sufficient for registration.
21As set out by Master Glustein, as he was then, in Perruzza v. Spatone, 2010 ONSC 841, the test on a motion for leave to issue a CPL is the same as the test on a motion to discharge a CPL. At paragraph 20 of that decision, Master Glustein summarized the legal principles as follows:
(i) The threshold in respect of the “interest in land” issue in a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c.C.43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (Ont. S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen. Div. - Comm. List) at para. 62);
(ii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), 2002 CarswellOnt 219 (C.A.) at para. 20);
(iii) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (S.C. - Master) at paras. 10-18); and
(iv) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CanLII 1414 (ON HCJ), 1977 CarswellOnt 1026 (Div. Ct) at para. 9).
22As Associate Justice McAfee noted in Sharpe v. Philips, 2026 ONSC 3491 at paragraph 13, the threshold of whether there is a triable issue as to an interest in land is a low one (see also 2730453 Ontario Inc. v. 2380673 Ontario Inc., 2021 ONSC 6370 (Ont. S.C.J.) at para. 7).
There is a Triable Issue as to the Interest in Land
23As noted by Associate Justice La Horey at paragraph 9 of 990 Bloor Street West v Amado, 2026 ONSC 2874 “in considering the threshold issue of whether there is an “interest in land” on a motion for a CPL, the court is to determine whether there is a triable issue. It is not the court’s role to decide whether the plaintiff’s claim will likely succeed at trial (See the cases cited in Suntower Developments Ltd. v. Studios of America Corp., 2023 ONSC 2703 at paragraph 24).”
24Case law is clear that a claim for a constructive trust over property may give rise to an interest in land. (See First Leaside Wealth Management Inc. v. Phillips 2012 ONSC 5443 at paragraph 36).
25The Plaintiff has asserted a constructive trust over the condo. She alleges that she has made payments towards the carrying costs of the property. The Defendant admits that the Plaintiff has made mortgage payments, though she disputes the effect of those payments. Both Parties agree though that the payments were not a gift, but a loan.
26The Plaintiff also says that the fact that the Defendant offered the condo as a “security interest” for the repayment of money is another basis upon which the Plaintiff has an interest in land. This though is not a basis to conclude that the Plaintiff has an interest in the condo. As set out by Justice McCarthy at paragraph 15 of Tian v. Jiang, 2026 ONSC 1947 a covenant not to sell a property until a loan is paid is contractual and does not create any proprietary interest in the property:
The covenant not to sell the property until the private loan has been paid off is entirely contractual – it does not create any proprietary interest in the property. If the Plaintiff were to sell the property before the private loan was paid off, it would amount to a breach of contract, and the Plaintiff could look to the Defendant for damages. While the Plaintiff may have an interest in when and if the property is sold, this does not on its own create a proprietary interest in land.
27I find however that the Plaintiff’s asserted interest in the condo is more than a simple security interest. There is a triable issue as to whether or not there is in fact an interest in the land. The Plaintiff has asserted a constructive trust. She is seeking an Order in the claim directing that she be added as a joint owner to the title of the property. She is paying the mortgage on the property among other costs. On the evidence before me, there is at least a triable issue that the Plaintiff has an interest in the condo.
A Consideration of the Equitable Factors Supports the Issuance of a CPL
28Having regard to the equitable factors, I find that they militate in favour of granting a CPL. I note the following:
a. The property is not unique. This weighs against a CPL (see para. 39(a) of Perruzza v. Spatone)
b. The Plaintiff is seeking an Order for damages as well as to be added to title. The claim for damages weighs against a CPL. At the same time, I agree with the Plaintiff that the damages sought in the claim do not by themselves fully compensate the Plaintiff on her theory of the case. This weighs in favour of a CPL.
c. The Parties agree that the Plaintiff is making mortgage payments on the property. As above, they do not agree whether this creates a property interest. I find that it is a factor which weighs in favour of a CPL.
d. The Defendant says she does not intend to move to frustrate the Plaintiff’s claim, but does suggest she may wish to move in the future. If she does, the Plaintiff may be left without any remedy. This is a factor which weighs in favour of a CPL.
e. If the Plaintiff is unsuccessful in her claim she will need to pay damages arising from the CPL. There is nothing in the record suggesting she will not be able to do so. There is however little evidence to suggest any significant damages will occur if a CPL is granted.
29The Defendant submits that the Plaintiff is attempting to use the litigation process to obtain rights that were never granted under the parties’ agreement. If the record clearly established this, it would militate against a CPL (see paragraph 25 of Tian v. Jiang). It is unclear however what the parties intended. There is conflicting evidence as to what security the Parties intended or agreed to, including whether the Defendant intended to add the Plaintiff to title upon the mortgage renewal. These are issues for trial. As above, if the Defendant is ultimately proven correct, she will be entitled to damages with respect to the CPL.
30Finally, I find that the balance of convenience favours the Plaintiff. A CPL may inconvenience the Defendant in dealing with the property, but absent a CPL, the Plaintiff will potentially be left without a remedy. She is already paying the mortgage to avoid enforcement proceedings that would potentially deprive her of a remedy. The fact that the Defendant may have left the property to the Plaintiff in her will is insufficient protection, as is the writ of execution that remains on the property per the Order of Justice Kurz.
ORDER
31For all of these reasons, the motion for leave to issue and register a certificate of pending litigation is granted.
COSTS
32The Plaintiff has sought costs in the amount of $5,000 but has not provided a costs outline. The Defendant states that if she was successful on the motion she did not seek costs. In the circumstances, and having regard to the Defendant’s likely ability to pay which was a basis of the motion, I make no order as to costs.
Associate Justice Glick
Date: June 25, 2026
COURT FILE NO.: CV-25-4842-0000
DATE: 2026 06 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elizabeth A. Meinert, Plaintiff
AND:
Jennifer Zambosco, Defendant
eNDORSEMENT
Glick AJ.
Released: June 25, 2026