What is a Certificate of Pending Litigation in Ontario Estate Law?

Disclaimer: This article answers the question, “what is a certificate of pending litigation?” It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Updated: February 2023

In estate law, one tool that is commonly used is called a Certificate of Pending Litigation (CPL). It is an injunctive form of relief, meaning that it is an order by a court that stops or prohibits something from happening.

In this article, we will outline what a CPL is, why you may need one, and the tests that the court will apply to determine if one should be granted. 

Estate disputes can be heated and overwhelming. It is certainly not something you want to handle on your own. We encourage you to book a call with our team so that we can discuss your unique situation.

What is a certificate of pending litigation (CPL)?

A certificate of pending litigation is an order that is issued by an Ontario court, and registered on title, that gives notice that there is a claim related to the property underway. This order prohibits anyone from dealing with the land, such as selling or mortgaging the property.

The only way to have a CPL registered or removed from the property’s title is by a court order.

When may you need to seek a CPL in estate litigation?

You may need a CPL if your rights to property are being challenged, and you want to protect them. For example, there may be disputes about an estate’s beneficiaries, or disagreements about what property is included in the estate.

How do the courts decide whether to grant a certificate of pending litigation?

What is an “interest in land”? The threshold for this definition is very low – the court must determine “whether there is a triable issue”. The court will not consider how likely the plaintiff is to succeed in the claim, just whether or not there are grounds to make a claim.

Additionally, the courts begin in the position that such an issue exists. The onus is on the party opposing the order to show that there is no triable issue.

However, that does not mean that applying for a CPL is easy or a sure thing.

The other major issue that the courts must look at is whether a CPL is just, depending on the situation’s unique circumstances. Generally speaking, the court will consider some or all of the following factors:

• is the plaintiff a shell corporation (generally not applicable in estate litigation);
• is the land unique;
• the intent of the parties acquiring the land;
• whether there is an alternative claim for damages;
• the difficulty or ease of calculating damages;
• whether damages would be a satisfactory remedy; and
• the prejudice or harm to the parties if the CPL is discharged, with or without security.

For example, there is a large difference between a beneficiary’s interest in a family cottage that has been passed on for generations and an ordinary subdivision home that the deceased resided in for a short time. In the first instance, monetary damages may not be a suitable remedy and may be difficult to calculate.

Of course, every situation is unique. Again, it would be wise to speak to us about your circumstances to determine if a CPL should be requested on a motion to the Court.

Certificate of Pending Litigation – A Tool to Use, Not Abuse

The courts have clearly shown that they will not tolerate it when this process is abused. A CPL is not to be used as a “scare tactic” or in some other questionable manner. In fact, doing so opens you to the possibility of a counterclaim wherein you may be responsible for damages.

The Right Tools for the Right Solution

At Beeksma Law, our team will work to make sure that you have the right tools for your problem, and we will fight hard for a just outcome. We encourage you to book a call with our team so that we can discuss your situation.