Lipskaya v Guo 2020 BCSC 2090 canceled a certificate of pending litigation registered against the property where the owner was indebted to her for arrears of child maintenance.
The court found that the certificate of pending litigation (CPL) had been improperly filed as the claim did not disclose an interest in the land.
What Is a CPL and When Can It Be Filed?
A CPL is a mechanism by which a party may secure a claimed interest in land.
The certificate gives notice to the world at large that the legal or beneficial title to the property is in dispute. It does not prevent an actual transfer or change in the title, but any transfer or change would be subject to the certificate of pending litigation, and thus risky.
It’s It is not to be used as a form of pre-judgment execution in respect of a purely financial claim. The requirement that there be a claim for an interest in land stems from s. 215(1) of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA].
In Chen v. Jin, 2019 BCSC 567, the court set out the principles governing an application to cancel a CPL
The key to s. 215(1)(a) is that the CPL must be grounded in a claim to an interest in land
It is improper to file a CPL as leverage to secure a financial claim: Drein v. Puleo, 2016 BCSC 593at paras. 8-10.
The correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Actis simply whether the pleadings disclose a claim for an interest in land. Where a CPL fails to properly claim an interest in land, it should be cancelled on the basis that it does not meet that precondition: Xiao v. Fan, 2018 BCCA 143at paras. 19 and 27.
Cancellation of a CPL
The process for making this determination as set out by the Court of Appeal in Xiao is as follows:
Accordingly, the correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Act is simply whether the pleadings disclose a claim for an interest in land. In such an application, no evidence is to be considered.
If the merits of the claim for an interest in land are challenged, a defendant should apply for a summary dismissal of that part of the claim under Rule 9-6(4), where evidence may be considered, and the test to be applied is whether there is a bona fide triable issue of fact or law. If that part of the claim is dismissed, a defendant may then apply to have the CPL cancelled under s. 254. See also Bilin v. Sidhu, 2017 BCCA 429and Berthin v. Berthin, 2018 BCCA 57.
