Facts
- Bhuiyan agreed to purchase 33 Budworth Drive South, Toronto, from Gonzales on November 13, 2024, for $1.245 million under an Agreement of Purchase and Sale (APS).
- The closing date was December 16, 2024, but Gonzales refused to close as the purchase price was insufficient to discharge the mortgages.
- Bhuiyan refused to accept this repudiation and later discovered Gonzales had relisted the property, prompting him to file an application for specific performance and seek a Certificate of Pending Litigation (CPL).
- MCC Mortgage Holdings Inc., the second mortgagee, opposed the CPL, as it had obtained a default judgment against Gonzales on June 25, 2024, and a writ of possession on November 1, 2024. MCC intended to evict Gonzales by January 31, 2025.
Court's Decision
- Test for CPL: The applicant must show a triable issue regarding an interest in land, a low threshold.
- The court found Bhuiyan’s claim for specific performance weak, as his argument for uniqueness was based on location rather than the property’s inherent characteristics.
- Even if a triable issue existed, the mortgagee’s rights take precedence. Courts rarely interfere with a mortgagee’s power of sale absent fraud or exceptional circumstances.
- Motion for CPL dismissed.
Next Steps
- If costs are disputed, parties may submit written arguments (max 2 pages) within 14 days.
Outcome: MCC may proceed with eviction and power of sale?. No damages were awarded.
