Estate Planning

Effect of Delay on Certificates of Pending Litigation

By Hull and Hull LLP

In our litigation practice, it is not uncommon to obtain orders permitting clients to register a Certificate of Pending Litigation (CPL) against title to property that is, for instance, an estate asset that one party is seeking to preserve until the litigation is concluded. 

If the litigation stagnates, which can happen from time to time, without reminders in place it is possible for the registered CPL to beleft unaddressed. A recent decision in Novia v. Saccoia Estate (Trustee of) illustrates the impact of such a delay. 

The facts of the case are interesting and somewhat complicated, so I am drastically simplifying them here. In short, a dispute arose between a couple over the purchase of a property. A claim was commenced in 1988. A CPL was obtained in 1989. The plaintiff took no further steps in the litigation. The CPL remained on title for a while….oh lets say, until 2010! In 2006 the defendant passed away. In 2010 the estate trustee of the defendant's estate brought a motion seeking to dismiss the action for delay (how the litigation had not previously been dismissed for delay by the Registrar is a surprise to me). 

The Court reviewed the applicable case law and, based on the evidence before the Court, it found that the delay was inordinate, contumelious and intentional. It also found that the prejudice caused was presumed and actual, as the defendant was no longer able to testify. Accordingly, the action was dismissed and the CPL discharged.

While the facts of this case are uniquely interesting, in my view this case generally serves as a good reminder to all of us to keep an eye on any CPL obtained and properly address its treatment over the life of the litigation.

Have a good day,

Natalia Angelini

Full post as published by Toronto Estate Law Blog on June 22, 2010 (boomark / email).