Cancelling a Certificate of Pending Litigation by court order

Last revised September 12, 2024

A Certificate of Pending Litigation (CPL) is a Land Title Act form used when a party to an action is claiming an interest in land. A CPL protects a valid interest in land until litigation is resolved; once a CPL is registered, the land title is ‘frozen’ and cannot be changed until the CPL is cancelled. 

The procedure to cancel a Certificate of Pending Litigation depends on how the action was resolved. The Land Title Act discusses these different potential resolutions in sections 252 to 258. In certain circumstances, it is appropriate to apply to the courts to cancel the CPL.

If no step has been taken for one year/delayed prosecution

Under section 252 of the Land Title Act, a party may apply to have a CPL cancelled if no step has been taken in the matter for one year. A ‘step’ refers to formal steps that advance litigation in the court; this step may be taken by anyone in the proceeding. Whatever step is taken does not need to be against the party on whose land the certificate is registered. 

The party can apply for the CPL to be cancelled in the same court as the proceeding was originally filed. If the applicant was a party to the proceeding, they can start an application (Notice of Application) to cancel the CPL. If the applicant is not a party to the proceeding, they would need to file a Petition. The court will only grant an order to remove the CPL if it is in the interest of justice to do so, which will involve an assessment of the merits of the case and an explanation of the delay. Once the order has been granted, the applicant will need to provide a certified copy of the order to the Registrar of Land Titles, who will cancel the CPL. 

If hardship or inconvenience experienced due to CPL 

Under sections 256 and 257 of the Land Title Act, an applicant may apply to cancel the CPL on the grounds of experiencing or being likely to experience significant hardship or inconvenience specifically due to the CPL being in place. The applicant must be a registered owner of or be entitled to an estate or interest in the land against which the CPL was registered. 

The application must be made in the court in which the proceeding commenced. If the applicant is a party, they must proceed by application (in Supreme Court, a Notice of Application). If the applicant is not a party to the proceeding, they must proceed by Petition. The application must include an affidavit discussing the grounds set out in section 256 of the Land Title Act. 

The applicant must meet the requirements of proof of hardship and inconvenience experienced due to the CPL.

The main reasons the court might refuse to make an order under this section are:

• A plea for specific performance by the respondent
• Land generally regarded by the courts as being unique
• An arguable case i.e. probability of success
• Claim that is not frivolous or vexatious
• Failure to prove hardship or inconvenience 

If a CPL is cancelled due to hardship, an order for security for damages must also be made and followed prior to the cancellation of the CPL. The amount of security ordered will take into account the probability of the party’s success and the possible range of damages to which a party may be entitled. These considerations will only apply to the claim of interest in land relevant to the CPL, with other claims within the action not considered relevant. 

If prior application regarding land title is pending when CPL filed

In some cases, a CPL may be received by the Land Title Office while a prior application to register an indefeasible title or charge is pending. Under section 217 of the Land Title Act, if the prior applicant is a party to the proceeding in which the CPL is registered, the Registrar of Land Titles will register the title and apply the CPL. Under section 256 of the Act, the title owner can apply for a court order to cancel the CPL. As a party to the proceeding, they would proceed by Notice of Application and must include an Affidavit setting out the particulars as discussed in section 256. 

If no claim made against land

To file a CPL, the pleadings of a proceeding must disclose a claim for an estate or interest in the land against which the CPL is filed, in accordance with section 215(1)(a) of the Land Title Act. If this interest in land is not properly and sufficiently disclosed in the pleadings, a party can apply to the court to have the CPL cancelled, without the need to pay security. The court will only consider whether a claim for an interest in land is pleaded, not weigh any evidence or assess the merit of the claim overall. If the application is successful, the court will order the Registrar of Land Titles to cancel the CPL with immediate effect. Note this application must be to a judge of the court, not an associate judge. 

If the court does cancel the CPL, the party may submit an amended Notice of Civil Claim disclosing the interest in land and then refile for a CPL.

See also: Cancelling a Certificate of Pending Litigation by applying to the Land Title Registry

Content reviewed August 22, 2024