36 THE ADVOCATE
VOL. 80 PART 1 JANUARY 2022
After reviewing the evidence of the merits in some detail, Sigurdson J.
agreed:
77 Although I have not concluded that the plaintiffs’ claim is not
arguable, my assessment, for the purposes of this application, is that it is
weak.
78 I have concluded that damages are an adequate remedy. In deciding
what order to make I may take into account the strength of the plaintiffs’
case. In this respect the statutory provisions dealing with the
discharge of certificates of pending litigation are similar to the considerations
on an interlocutory injunction application.
79 Given my assessment of the strength of the plaintiffs’ case, I have
concluded that the security that the defendants are prepared to provide,
i.e. the undertaking required by Gerow J., is sufficient. Provided it
remains in place, I order that the certificate not be allowed to be re-filed.29
On the other hand, in Youyi Group Holdings (Canada) Ltd. v. Brentwood
Lanes Canada Ltd.,30 the Court of Appeal addressed the inclination of courts
to jump to conclusions on the merits at an interlocutory stage. In Youyi, it
was the merits of the claim for the desired remedy of specific performance
that were at issue, rather than the merits of the case on liability.
On an application to discharge the CPL, the owner resisting specific performance
filed expert evidence on the availability of alternative development
properties. The chambers judge ordered the CPL discharged on the
basis that the subject property “is not unique and therefore it does not warrant
the protection of specific performance”.31
The CPL was ordered discharged upon the owner posting $1.5 million of
security in the context of an allegedly concluded agreement for the sale of
a 4.5-acre parcel of commercial property in Burnaby by the defendant
Brentwood Lanes to the plaintiff Youyi for $28.8 million.
The Court of Appeal ordered the CPL reinstated. Newbury J.A. addressed
the difficulties inherent in assessing merits on an interlocutory basis, citing32
with approval the decision of Garson J. (as she then was) in Aviawest
Resorts Inc. v. Memory Lane Developments Inc., which held that “the court
should consider the merits of the plaintiff’s claim but only so far as doing so
enables the court to determine that the plaintiffs’ claim may be frivolous, a
nuisance, an abuse of process, or, I would add, has no chance of success”.33
Garson J. had rejected the proposition that the application should be
decided as if on a summary trial, and she described the “test” required to be
met by the defendants as “requiring the court to find that it is clear the
plaintiffs cannot succeed on the claim for specific performance”.34
Since the allegation of uniqueness could not be said to have “no chance
of success”, the Court of Appeal in Youyi ruled that the CPL ought not to
have been discharged: