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Certificate of Pending Litigation (CPL)

Certificate of Pending Litigation (CPL) | Disinherited Estate Litigation

Blackhall v Andrusko 2018 BCSC 140 discusses the law relating to the cancellation of a certificate of pending litigation (CPL) filed against property.

The application was made by the respondent under section 215(1) of the Land Title act who argued that the certificate of pending litigation must be canceled because the claimant did not have a claim to the land.

Section 215 of the Land Title act provides the following:

1) a person who is commenced there is a party to a proceeding, and who is:
a) claiming an estate or interest in land

b) given by another enactment a right of action respective land may register certificate of pending litigation against the land in the same manner as a charges registered, and the registrar of the court in which the proceeding is commenced must attach to the certificate a copy of the pleading or petition by which the proceeding was commenced, or in the case of a certificate of pending litigation under part five of the Court Order Enforcement act, a copy of the notice of application or other document which the claim is made.

The leading case on applications to discharge certificates of pending litigation is Bilin v Sidhu 2017 BCCA 429 where the Court of Appeal reviewed the jurisprudence and concluded that the cases fall into two categories:

a) Where there is no triable issue to support the claim for an interest in land;

b) where the pleadings filed in support of the certificate of pending litigation are incapable of supporting a claim to an interest in land.

Bajwa v Singh 2016 BCSC 916 at para 20 stated that if the claim could not give rise to an interest in land, the certificate of pending litigation will be ordered to be canceled because, essentially, it was improperly registered from the start.

The appeal court in Bilin held the following with regard to whether or not there is a triable issue to support a claim for an interest in land:

“The proper approach in this situation is to bring an application under Rule 9-6(4) for the summary dismissal of the part of the claim that relates to land.

De Cotiis v De Cotiis 2004 BCSC 1658 held the following after reviewing the relevant sections of the Land Title act:

35. To maintain a certificate of pending litigation are to succeed in its application to refile the certificate, the plaintiff must advance a claim to an interest in land.

Where it is shown that there is no serious question to be tried, or put another way, there is no merit to the claim, or stated yet another way, no triable issue, the certificate of pending litigation may be struck, or in circumstances such as these, not reinstated.

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