Executive Summary: Key Legal and Evidentiary Issues

• Enforceability of a pre-construction Agreement of Purchase and Sale (APS) term granting the vendor an equitable interest in the purchaser’s existing home as security upon breach
• Sufficiency of the APS clause (paragraph 16(b)) and Tarion Addendum in creating an “interest in land” capable of supporting a Certificate of Pending Litigation (CPL)
• Application of the triable-issue threshold for granting a CPL, including reliance on equitable mortgage jurisprudence in the pre-construction context
• Evidentiary weight of affidavits establishing the purchaser’s alleged breach of the APS by failing to pay deposits and complete the occupancy closing
• Consideration of limited equities where the parties expressly contracted for the vendor’s right to register a CPL against the purchaser’s existing home
• Impact of the purchaser’s acknowledgement of beneficial ownership in the existing home and recommendation to seek legal advice on enforcing the negotiated security arrangement

Background and facts of the dispute
The dispute arises from a pre-construction condominium transaction involving a residential unit in a development known as “Motto Condos,” located at the corner of Bloor Street West and Dovercourt Road in Toronto, Ontario. The plaintiff, 990 Bloor Street West Ltd., is the vendor/developer. The defendant, Martin Amado, is the purchaser under an Agreement of Purchase and Sale (APS) entered into on or about April 13, 2023, as subsequently amended. The APS was concluded before construction, a typical arrangement in the new-condominium market. Under the APS, the defendant agreed to purchase the condominium unit and, as part of the overall bargain, recognized that some or all of the funds needed to close would be generated from the sale of his existing residence. That residence is a property municipally known as 151 Buttonleaf Crescent, Stouffville, Ontario (the “Existing Home”). The Tarion Addendum to the APS identified 151 Buttonleaf Crescent as the purchaser’s address, thereby tying the security arrangement directly to a specific parcel of land.

Contractual security over the purchaser’s existing home
A central feature of this case is a negotiated security clause in the APS. In paragraph 16(b), the purchaser expressly acknowledged that “some or all of the monies required to purchase the Dwelling will come from the sale” of the Existing Home, confirmed that he had a beneficial ownership interest in that home, and agreed that, in the event of his breach of the APS, the vendor would have an equitable interest in the Existing Home as security for amounts owing under the agreement. The clause further provided that the vendor “shall be at liberty to register a Certificate of Pending Litigation against title to the Existing Home in order to preserve its said interest.” This language is designed to function much like an equitable mortgage or security interest: if the purchaser defaults, the vendor is not merely an unsecured creditor but can assert an equitable interest in identified real property to secure its claim. The Tarion Addendum’s identification of 151 Buttonleaf Crescent as the relevant address helps ensure the land description is sufficient for registration purposes, as required when seeking a CPL. The purchaser also signed an “Information for Buyers of New/Pre-Construction Condominium Homes” document recommending that purchasers obtain legal advice before signing an agreement of purchase and sale. This underscores that the purchaser had been specifically advised—at least in general terms—to seek legal counsel before accepting the security clause and other contractual terms.

Alleged breach of the agreement of purchase and sale
The plaintiff alleges that the defendant failed to comply with his obligations under the APS. The evidence before the court consists of affidavits from two individuals: Jeffrey Kansun (sworn March 23, 2026) and Leigh Pawlick (sworn March 19, 2026). These affidavits set out that the defendant failed to pay the deposit owing under the APS and then failed to complete the occupancy closing transaction. On the plaintiff’s version of events, these failures constitute breaches of the APS that trigger the security provision in paragraph 16(b). Once the purchaser is in breach, the vendor claims to have an equitable interest in the Existing Home and seeks to preserve that interest by registering a CPL against title. The parcel register for the Existing Home confirms that the defendant is the sole registered owner of 151 Buttonleaf Crescent, which aligns with his acknowledgment in the APS that he holds a beneficial ownership interest in that property. This ownership status is critical to supporting any equitable interest in land and the related CPL remedy.

Legal framework for certificates of pending litigation
The motion is brought without notice for an order granting a CPL against the Existing Home. Under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure, the court may grant leave to issue a CPL where there is an “interest in land” in question, provided that: the plaintiff has claimed a CPL in its statement of claim, the claim includes a description of the land sufficient for registration, and the motion is properly brought (which may be done without notice). In this case, the plaintiff’s statement of claim, issued on March 23, 2026, asserts an equitable interest in the Existing Home, includes a request for a CPL, and contains the necessary legal description. The court applies the framework articulated in Perruzza v. Spatone, where the relevant factors for granting a CPL were set out. While certificates of pending litigation are typically used to preserve a genuine dispute about title or interest in land, the case law recognizes that they are not generally intended as a simple form of security for damages. However, the parties here have contractually modified that usual context by agreeing that, upon breach, the vendor would have an equitable interest in the Existing Home and could register a CPL as security for amounts owing.

Equitable mortgage and triable issue on interest in land
The key question for the threshold “interest in land” requirement is whether there is a triable issue that the plaintiff holds such an interest. The court emphasizes that, at this stage, it is not deciding whether the plaintiff will ultimately succeed at trial; it must only determine whether the claim to an interest in land is sufficiently grounded in law and fact to proceed. The decision draws on authority concerning equitable mortgages. In Sundial v. Grewal, a 2026 decision, a developer/vendor sued a purchaser for breach of a pre-construction agreement of purchase and sale that contained a clause very similar to paragraph 16(b). In that case, the court found the vendor had established an entitlement to an equitable mortgage and held that purchasers “should be held to the bargain they struck,” reinforcing that sophisticated contractual security language in pre-construction agreements can be enforced. Similarly, in 2254069 Ontario Inc. v. Kim, the court held that an equitable mortgage could amount to an interest in land sufficient to support a CPL. These authorities support the proposition that a properly framed contractual term may give rise to an equitable mortgage or equivalent equitable interest, and that this can justify the issuance of a CPL. Against this backdrop, the court considers the evidence of breach, the explicit language of paragraph 16(b), and the confirmed ownership of the Existing Home. Based on these factors, the Associate Justice concludes that the plaintiff has raised a triable issue as to whether it has an interest in the Existing Home.

Equities and contractual allocation of risk
The court notes that it has “very little information on the equities” beyond what is presented in the motion record. Ordinarily, when a CPL is sought, the court weighs the prejudice to the property owner (who may find their property effectively frozen) against the claimant’s need to preserve its alleged interest. Here, however, the parties themselves have contractually agreed that the vendor may register a CPL on the Existing Home if the purchaser breaches the APS. The Associate Justice gives significant weight to this contractual allocation of risk, observing that the APS “specifically permits the registration of a CPL.” In the absence of countervailing evidence or equitable considerations from the purchaser (who was not present on this without-notice motion), the court considers it equitable to permit the CPL to be registered in order to give effect to the parties’ bargain. This approach is consistent with the broader principle, reflected in the cited case law, that parties who freely enter into contractual security arrangements—especially after being encouraged to seek legal advice—should ordinarily be held to those terms, absent compelling reasons to the contrary.

Ruling and overall outcome
The court grants the plaintiff’s motion for a certificate of pending litigation and signs the order authorizing registration of a CPL against title to 151 Buttonleaf Crescent, Stouffville, Ontario, in favour of 990 Bloor Street West Ltd. This outcome reflects the court’s finding that there is a triable issue as to whether the plaintiff holds an equitable interest in the Existing Home under paragraph 16(b) of the APS, as well as its view that enforcing the CPL clause accords with the parties’ contractual intentions. The successful party on this motion is the plaintiff, 990 Bloor Street West Ltd., which obtains the CPL remedy it sought. The endorsement is confined to granting the CPL and does not fix or award any specific amount of damages, costs, or other monetary relief; the total monetary award or costs in favour of the plaintiff cannot be determined from this decision.