THE ADVOCATE 39
VOL. 80 PART 1 JANUARY 2022
formance is Inderjit’s statement: “My family and I want to reside in the
property.” This, in conjunction with all the above, establishes it is plain
and obvious they would not succeed at trial.42
Due to the weakness of the case, Burke J. ordered that the CPL be discharged
upon the posting of $2,000 security.
CONCLUSIONS
1. Despite admonitions against courts jumping to conclusions at an interlocutory
stage, judges and masters hearing applications to cancel a CPL
may be heavily influenced by the perceived merits of a claim and by
their perception of whether the CPL was filed to obtain a tactical advantage.
This perception may influence decisions on all of the bases upon
which a CPL may be cancelled.
2. It is critical for plaintiffs to avoid the appearance that the CPL is being
filed for tactical purposes unrelated to the underlying legal grounds giving
rise to the alleged entitlement.
3. This means that counsel should take great care before filing a CPL to
work closely with the client to assess the merits of their claim both on
liability (e.g., is there a good claim for an interest in land?) and on the
availability of an in rem remedy (usually specific performance or a trust
claim).
4. It is important not to underestimate the complexity of these elements,
which may, at first blush, seem straightforward. An imprecisely
pleaded case may prove fatal to protecting the asset, which can ultimately
prove critical to achieving the result intended.
5. Counsel seeking to cancel a CPL should carefully consider the three
potentially available bases for such an order and the implications of
each option.
6. Document discovery and an early examination for discovery may assist
in disproving the merits of the plaintiff’s position at an early stage,
which may prove essential. By obtaining critical admissions, the defendant
may increase the prospects of convincing the court to apply s. 215
of the Act or of meeting the tests under Rule 9-5 or 9-6, or of minimizing
the conditions that may be attached by the court to a potential cancellation
of the CPL.
7. Counsel should give serious consideration to combining an application
to cancel a CPL with other steps, such as a security for costs application,
a counterclaim for abuse of process or an application to compel
the plaintiff to post security if it is to maintain the CPL.