In North Shore Law LLP v Cassidy, 2020 BCSC 1658 Master Elwood dismissed an action for delay and cancelled the Certificate of Pending Litigation ("CPL") filed against the subject property stating that:
- The plaintiff's delay of some four and a half years was inordinate , especially having regard to the CPL filed against title to the property.
- The plaintiff's explanation that it was trying not to be litigious and attempted to negotiate settlement rather than engage in steps in litigation was inexcusable.
- The inordinate and unexcused delay caused the defendant both presumed prejudice from the CPL and passage of time, and actual prejudice from being unable to deal freely with the property, both of which the plaintiff had not rebutted, and the defendant was generally prejudiced by the cloud of serious allegations that she participated in a fraudulent conveyance or fraudulent preference.
- On balance, justice required that the action be dismissed. The plaintiff's security rested on unproven allegations and it maintained its security against the defendant's property indefinitely for a debt she did not incur.
It is important to note that even though the Master dismissed the action for want of prosecution and accordingly cancelled the CPL, the applicants must wait until all requirements under section 254 of the Land Title Act have been fulfilled before applying to cancel the registration of the CPL. This has been dealt with in recent Court of Appeal cases such as Xiao v Fan, 2018 BCCA 143 and Bilin v Sidhu, 2017 BCCA 429. If immediate cancellation of a CPL is needed, applicants should make sure to plead s. 252 of the Land Title Act, which allows for immediate cancellation of the CPL if "no step has been taken in the proceeding for one year" or more.