254 Cancellation Of Certificate Of Pending Litigation If Action Dismissed

FORMS

Forms of Application for Cancellation of a Certificate of Pending Litigation

Submissions using Certificate of Registrar’s Dismissal of Proceeding

On the Form 17 Cancellation of Charge, Notation or Filing, select Nature of Interest, Certificate of Pending Litigation, and attach an image of the original Registrar’s Certificate of Dismissal of Proceeding.

PRACTICE

Cancellation of Certificate of Pending Litigation (Alternative to Section 254)

Section 25 of the Land Title Act Regulation, B.C. Reg. 334/79, provides that:

• If a person applies to cancel the registration of a certificate of pending litigation following a dismissal of the proceeding, the registrar may cancel the certificate

• (a) on production of a consent to cancellation signed by the party who filed the certificate of pending litigation, or
• (b) on giving notice to the party who filed the certificate.

When an action has been dismissed and the owner cannot or does not want to wait for the appeal period to expire in order to apply for a release of a certificate of pending litigation, the owner may make application pursuant to s. 25 of the Land Title Act Regulation. On the Form 17 Cancellation of Charge, Notation or Filing select Nature of Interest Certificate of Pending Litigation and attach an image of the original order dismissing the action and the consent to the cancellation by the party who filed the certificate. The regulation requires that it is the party, and not the party’s solicitor, who must consent to the dismissal order. When the owner does not provide the consent, the registrar issues notice in accordance with s. 294.6(e) of the Act.

Submissions under the Regulation

On the Form 17 Cancellation of Charge, Notation or Filing, select Nature of Interest, Certificate of Pending Litigation, and attach an image of the original consent to cancellation signed by the party who filed the certificate of pending litigation, as well as the court certified copy of the order of dismissal.

Certificate of Dismissal of Proceeding: Section 254(b)(i)

The following form of certificate from the court registrar is acceptable under s. 254(b)(i) if the time limit for appeal has expired and no notice of appeal has been filed:

Certificate of Dismissal of Proceeding: Section 254(b)(ii)

The following form of certificate from the court registrar is acceptable under s. 254(b)(ii) if a notice of appeal has been filed and finally disposed of and the dismissal of the action has not been set aside:

The Registrar of the Court of Appeal does not endorse this certificate until satisfied by the applicant that no application for leave to appeal, or appeal, has been or will be made by any party to the Supreme Court of Canada.

Submissions

On the Form 17 Cancellation of Charge, Notation or Filing, select Nature of Interest, Certificate of Pending Litigation, and attach an image of the original Registrar’s Certificate of Dismissal of Proceeding.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 2, paras. 665 and 667, and vol. 3, para. 920.

CASE LAW

The 85-year-old defendant was the registered owner of a property with a large home in which she lived with several members of her family. In January 2019, the plaintiff contracted to purchase the property for $9,150,000. The contract provided for: two fully non-refundable deposits of $300,000, which would be forfeited if the plaintiff failed to complete; a completion date of September 9, 2019; and an option for the defendant to lease the property back from the plaintiff for a year after completion. In June 2019, the plaintiff requested an extension of the completion date. The defendant agreed to an extension to April 10, 2020, with an increase in the price to $9,350,000 and additional non-refundable deposits of $800,000 and $200,000. In March 2020, the plaintiff requested a further extension to April 14, and on April 9, requested a third extension. The parties agreed to an extension to June 14, and a non-refundable extension fee of $100,000. In June 12, the plaintiff advised the defendant that it had been unable to obtain financing and was unable to complete. The defendant advised that she was ready, willing, and able to complete the sale in accordance with the terms of the contract. The plaintiff did not tender the purchase price at any time. The plaintiff sued for specific performance and filed a CPL against the property. The defendant asserted that the plaintiff was in breach of contract and claimed the deposits and the extension fee in the amount of $1.1 million. The defendant applied, pursuant to SCCR Rule 9-6 or 9-7, for an order dismissing the action, a certificate that the action had been dismissed pursuant to s. 254 of the Land Title Act, and special costs. Held, application allowed; action dismissed. The matter was appropriate for determination pursuant to Rule 9-7. On the proven facts the plaintiff, even after several extensions, failed to pay the purchase price to complete the transaction. The plaintiff could not succeed on its claim for specific performance, as it was not ready, willing, and able to pay the purchase price on the contracted completion date, and the defendant was under no enforceable obligation to transfer title to the plaintiff. Pursuant to the clear language of the parties’ contract, the plaintiff forfeited the deposits and extension fee. There was nothing to suggest that the amount of the deposits was unconscionable or otherwise a penalty. There was nothing in the defendant’s conduct that could be impugned, and there was no inequality in bargaining power. There would be no basis to grant relief from forfeiture to the plaintiff under s. 24 of the Law and Equity Act, even if the plaintiff had pleaded it, as it was required to do. Section 254 of the LTA is clear that once an action in respect of which a CPL has been registered is dismissed, the registrar must cancel the registration of the CPL in accordance with the regulations. This action had been dismissed. Section 25 of the Land Title Act Regulation provides for applications to cancel the registration of a CPL following a dismissal of the proceeding. The instruction to the registrar in the LTA is mandatory. The defendant had provided notice to the plaintiff that it intended to apply to the registrar for cancellation of the CPL, and no further notice was required. The application should proceed before the registrar. The court would receive submissions on the claim for special costs (1182054 B.C. Ltd. v. Penny, 2021 BCSC 206 (Chambers)).

Section 252 of the Land Title Act cannot be relied on to cancel a claim of lien under s. 25 of the Builders Lien Act (New West Custom Homes (Kelowna) Inc. v. Parkbridge Lifestyle Communities Inc., 2020 BCSC 1613, affirmed 2022 BCCA 299). A s. 252 order is discretionary, and the party opposing cancellation of the CPL bears the onus, as prejudice to the owner of the land is presumed (Rizzuto v. Grover, 2020 BCSC 1564; LeBarr v. Pearl, 2020 BCSC 1638 (Chambers)).