Cancelling a Certificate of Pending Litigation – Vancouver Litigation Lawyers

One of the tools that litigants have to secure potential proceeds in a successful estate litigation lawsuit is the use of certificates of pending litigation. A Certificate of Pending Litigation (“CPL”) is a charge on a property that can secure a litigants interest in a property by stopping the owner from either selling or refinancing the subject property. However in some circumstances, the subject-property owners find that they need to bring an application to have the charge removed.

Certificate of Pending Litigation

The preliminary test that the Courts can use to determine whether a CPL should be remove was set out in the British Columbia Court of Appeal decision, Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2014 BCCA 388 (CanLII):

 

[28]        As a preliminary matter the applicant must show that it is experiencing or likely to experience “hardship and inconvenience” as a result of the registration of the CPL. It appears that the degree of hardship required is the subject of disagreement in the Supreme Court of British Columbia. While some judges have proceeded on the basis that the hardship need not be “significant” (see, e.g., Enigma Investments Corp. v. Henderson Land Holdings (Canada) Ltd. 2007 BCSC 1379 (CanLII), and 0966349 B.C. Ltd. v. Shell Canada Limited, Reasons dated February 28, 2014, New Westminster Docket S151234), others have required “severe suffering” (see, e.g., the lower court decision in Liquor Barn Income Fund v. Mather 2009 BCSC 1092 (CanLII), at para. 7.) The Shorter Oxford Dictionary (6th ed., 2007) defines “hardship” to mean “the quality of being hard to bear” or “severe suffering or privation”; “significant” to mean “important, notable;          consequential”; and “insignificant” to mean “of no importance; trivial, trifling” or  “meaningless”. To the extent that these or other decisions of the trial court suggest that “hardship” in s. 256(1) may be met by proof of hardship that is “insignificant” or “not significant”, I would disagree. I doubt that the Legislature intended the threshold under s.256 to be surmounted by proof of hardship that is only “trifling”. On the other hand, I agree that a court should not be “exacting” in its analysis of hardship and inconvenience.

Vancouver Litigation Lawyers – Contact Kushner Law Group Today!

If you have property that is the subject of a certificate of pending litigation or are involved in estate litigation, contact the Kushner Law Group today to schedule a consultation.

 

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