50-Year-Old Certificate of Pending Litigation Discharged by the Ontario Superior Court

Sometimes, a problem on title is older than the lawyer handling it.

In Rosenberg v. Destiny Development Limited in Trust, Justice John Callaghan of the Ontario Superior Court of Justice granted an order obtained by Matthew R. Harris of Spetter Zeitz Klaiman PC, discharging a Certificate of Pending Litigation (“CPL”) that had remained registered against a residential property for more than 50 years.

The applicant had acquired her home in 1983. When she later sought to refinance the property, she discovered a CPL registered on title in 1979—at a time when such registrations were referred to as certificates of lis pendens.

The difficulty was extraordinary: after more than five decades, searches could not identify the underlying action or establish the nature of the claim. The original respondent could not be located, and there had been no apparent prosecution of the claim for nearly half a century.

Matthew Harris of Spetter Zeitz Klaiman PC successfully brought the application to the Ontario Superior Court of Justice and obtained the requested order discharging the CPL. Justice Callaghan recognized the Court’s broad discretion under s. 103 of the Courts of Justice Act and the Rules of Civil Procedure to discharge a CPL where justice requires it.

The Court found that:

• The CPL had been registered more than 50 years earlier;
• The underlying litigation could no longer be identified;
• Any action to which the CPL might have related had either been resolved or was so ancient that there was no realistic prospect of it proceeding;
• The applicant had lived in the property for almost 45 years; and
• It would be unjust to continue restricting her ability to deal with and refinance her home based upon an unknown claim by a party that could no longer be located.

Justice Callaghan concluded: “Both justice and equity favour the discharge of the CPL.”

The Court granted the requested order.

This was an unusual title problem with an appropriately definitive solution. Matthew Harris and the team at Spetter Zeitz Klaiman PC are pleased to have assisted in clearing this decades-old impediment to the owner’s title and restoring her ability to deal freely with her property.