In Yi Teng Investment Inc. v. Keltic (Brighouse) Development Ltd., Ken McEwan, Q.C. and Emily Kirkpatrick, acting on behalf of the developer Keltic, succeeded in an application under s. 215 of the Land Title Act to discharge a certificate of pending litigation filed by the plaintiff against Keltic’s residential and commercial development project. The plaintiff alleges that it entered into a purchase and sale agreement with Keltic for a portion of the commercial space in the development (defined in the claim as the “Custom Space”), and filed a certificate of pending litigation against the entire commercial property.
In discharging the CPL, the court found that the pleadings filed by the plaintiff did not allege facts which, if proven, would create a registerable interest in land, and as such could not support the filing of the CPL under s. 215 of the Land Title Act. In particular, the court accepted Ken’s and Emily’s submissions that the plaintiff’s claim did not plead the subdivision of the commercial property necessary to create the Custom Space in accordance with s. 73 of the Land Title Act, nor did the plaintiff plead that title to the Custom Space has been registered in the land title system. Accordingly, the pleadings filed by the plaintiff, if proven, could not create a registerable interest in land.