THE ADVOCATE 35
VOL. 80 PART 1 JANUARY 2022
MERITS OF THE UNDERLYING CLAIM
In this section of the article, I consider the importance of the merits of the
underlying claim in a number of different scenarios. I refer only to the merits
of those elements of a claim that may give rise to the entitlement to file
a CPL under s. 215 of the Act.
In addition to the merits being central to an application under s. 215 of
the Act, and potentially to other proceedings for dismissal of the whole or a
portion of the claim under Rule 9-5, 9-6 or 9-7, they are often critical in
applications under s. 256.
Sigurdson J.’s decision in De Cotiis v. De Cotiis,25 and subsequent case law
applying it, demonstrate the importance of the merits of the claim when
applying the factors set out in ss. 256–57 of the Act.
The criteria are as follows:
• hardship and inconvenience are experienced or are likely to be
experienced by the registration of the CPL;26
• an order requiring security to be given is proper in the circumstances;
• damages will provide adequate relief to the party in whose name
the CPL has been registered.28
Sigurdson J. noted that s. 257 provides the court with a series of options.
These include cancellation of the CPL upon posting of security “in an
amount satisfactory to the court” by the party seeking its discharge or refusing
to order its cancellation, which refusal may be conditional on an undertaking
and security from the party having registered the CPL.
Section 257(3) further provides that the court may take into account the
probability of the plaintiff succeeding in the action in determining the
amount of security, if any, to be posted. The analysis concerning the probability
of success is with respect to the action in its entirety and not simply
with respect to the plaintiff’s claim for an interest in land.
Prior to De Cotiis, “hard” security was normally required upon an order to
discharge a CPL unless it was evident that there was no merit to the claim
or no triable issue that could sustain a claim against land. In De Cotiis, the
applicants sought to re-file a CPL against 86 properties. The defendants contended
that the plaintiffs’ amended claim and the affidavit material filed did
not raise an arguable claim or triable issue that they had a claim to an interest
in land. Alternatively, the defendants said that they would suffer hardship
and inconvenience if the CPL were re-filed. They argued that the
plaintiffs’ demonstrably weak claim dictated that the CPL should be cancelled
upon adequate security being given, but that the security in the circumstances
ought to be limited to an undertaking in damages.