Focus On

Real Property Law - REGISTRATION OF DOCUMENTS - Lis pendens or certificates of pending litigation - Vacating of

Thursday, January 12, 2017 @ 7:00 PM  


Appeal by the defendant, Houk, from denial of a request to vacate certificates of pending litigation (CPLs) filed by the plaintiff, Daniels Investments. The defendant was a former office administrator for the plaintiff. In 2008, the plaintiff commenced litigation alleging the defendant misappropriated funds. The plaintiff registered CPLs against two properties in which the defendant had an interest. The defendant owned one home jointly with her husband, and a separate revenue property with a group of investors. The plaintiff alleged the misappropriated funds were used to acquire and/or improve the properties. A pre-trial conference was held in 2012. In 2013, the defendant was charged with criminal offences related to the alleged misappropriation. In 2015, the defendant applied to strike the plaintiff’s statement of claim for want of prosecution with an order vacating the CPLs. The chambers judge dismissed the defendant’s application, finding sufficient facts pled to sustain the CPLs. The defendant appealed the aspect of the decision related to the CPLs.

HELD: Appeal allowed. The Fisher decision applied by the chambers judge remained good law that did not require reconsideration. Relying on Fisher, the chambers judge correctly determined that the plaintiff’s statement of claim called into question title to or an interest in the land covered by the CPLs as required by s. 46 of the Queen’s Bench Act. However, the judge failed to determine whether the CPLs should nonetheless be vacated on other grounds pursuant to s. 47 of the Act. Overlooking s. 47 of the Act and misinterpreting and misapplying Fisher as setting out the sole ground upon which a CPL could be vacated constituted an error in law. The appropriate remedy was to return the matter to the chambers judge for determination on the merits.