November 6, 2023
Do you know what a “certificate of pending litigation” ( often called a CPL) is and does?
A CPL is a document issued by a court- in Ontario, the Superior Court of Justice – when a party, the Plaintiff, is suing, claiming an interest in land. A CPL is registered in the Land Titles Office and is a notice to the world of the claim. Typically, this prevents the land from being sold or mortgaged.
Not surprisingly, the Defendant owner of the land seldom wants to wait for the process to wind its way through the court with a CPL tying up the land. There is a remedy – a motion to discharge the CPL.
The test to obtain a discharge is set out in a 1987 decision that summarizes earlier cases:
- Whether the plaintiff is or is not a shell corporation — Pete & Martys (Front) Ltd. v. Market Block, supra, at p. 99[C.P.C.].
- Whether the land is or is not unique (ibid), bearing in mind that, in a sense, any parcel of land has some special value to the owner — Clock Investments Ltd. v. Hardwood Estates Ltd.(1977), 16 O.R. (2d) 671, 79 D.L.R. (3d) 129 (Ont. Div. Ct.).
- The intent of the parties in acquiring the land — Tru-Style Designs Inc. v. Greymac Properties Inc.(1986), 56 O.R. (2d) 462 at 479, 11 C.P.C. (2d) 117, 31 D.L.R. (4th) 253 (Ont. H.C.).
- Whether there is an alternative claim for damages
- The ease or difficulty of calculating damages — Holden Corp. v. Gingerfield Properties Ltd.(1987), 59 O.R. (2d) 304 at 310, (Ont. H.C.).
- Whether damages would be a satisfactory remedy — Pete & Martys (Front) Ltd. v. Market Block, supra, at pp. 101 to 102.
- The presence or absence of another willing purchaser — Holden Corp. v. Gingerfield Properties Ltd., supra, at 310.
- The harm is done to the defendant if the certificate is allowed to remain, or to the plaintiff if the certificate is removed, with or without the requirement of alternative security — Heron Bay Investments Ltd. v. Peel-Elder Developments Ltd.(1976), 2 C.P.C. 338 at 339 (Ont. H.C.).
The court will consider each factor in deciding whether to vacate or discharge the CPL. Ultimately, it is a question of the judge’s discretion whether or not to vacate the certificate. This is a delicate balancing act and is an area where the quality of advocacy by the lawyers can sway the court.
WHAT WEILERS LLP CAN DO FOR YOU
Our experienced litigation team are effective advocates with a sound knowledge of the law affecting real estate litigation, whether or not a certificate of pending litigation is required. Fumbling the ball at this early stage of an action can be an expensive proposition, so if you are claiming an interest in land or are a landowner subject to a CPL, give Weilers LLP a call and see if we should carry the ball for you.