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Civil Litigation - Certificate of Pending Litigation (CPL) (2)

. Juriansz v. Gurevich

In Juriansz v. Gurevich (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, this brought against "the decision of Associate Justice .... that dismissed this action for delay and discharged the certificates of pending litigation (“CPLs”) ...".

Here the court considered CJA s.103(6) ['Certificate of pending litigation - Order discharging certificate']:

Issue #6: Did the Associate Justice err in finding that the CPLs should be discharged?

[47] Subsection 103(6) of the Courts of Justice Act states:

The court may make an order discharging a certificate,

(a) where the party at whose instance it was issued,

(i) claims a sum of money in place of or as an alternative to the interest in the land claimed,

(ii) does not have a reasonable claim to the interest in the land claimed, or

(iii) does not prosecute the proceeding with reasonable diligence;

(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or

(c) on any other ground that is considered just,

and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just. [Emphasis added.]

[48] The Associate Justice concluded that the CPLs should be discharged for the following reasons, at paras. 59-62:

Since I am granting the motion and dismissing this action for delay, it follows that the CPLs should be discharged. I accordingly need not address the defendants' alternative arguments for discharging the CPLs if the action continues.

Nevertheless, even if I am wrong in dismissing the action, I would still have discharged the CPLs. Pursuant to s. 103(6)(a)(iii) of the Courts of Justice Act, RSO 1990, c C.43, the court may make an order discharging a certificate of pending litigation where the plaintiff does not prosecute the proceeding with reasonable diligence. Whether or not to discharge a CPL is a discretionary decision.

In my view, as outlined above, the plaintiff, her litigation guardian, and now the plaintiff estate has not pursued the claim with anything near reasonable diligence. The inexcusable delay in this case is, in my view, even more pronounced than in the cases of Stayside Corporation Inc. v. Cyndric Group Inc.,2023 ONSC 2363 and Henein v. Alala,2021 ONSC 5871. In both of those cases, the court discharged CPLs for want of prosecution in shorter periods of delay than what is present in this case.

I agree with the defendants that demonstrating prejudice is not required for relief under s. 103(6)(a)(iii) of the Courts of Justice Act. I concur with Corthorn J.'s view in Stayside, supra at para. 37, that failure to prosecute the action diligently is sufficient, as a singular ground, to support making an order that a CPL be discharged. The failure to meaningfully advance this case is, in my view, sufficient in and of itself to discharge the CPLs.

[49] The appellant submits that the Associate Justice erred in law by relying on Stayside Corporation Inc. v. Cyndric Group Inc., 2023 ONSC 2363 for the principle that the failure to prosecute an action with reasonable diligence is sufficient, as a singular ground, to support discharging a CPL. The appellant’s position is based on a misinterpretation of Estate of Angela Sebanc v. Peter Sebanc, 2024 ONSC 2652, 93 E.T.R. (4th) 396, and there is no merit to their submission that it stands for the principle that when a defendant seeks both to dismiss an action for delay and to discharge a CPL, the same reasoning applies in assessing both motions. Under s. 103(6)(a)(iii) of the Courts of Justice Act, a CPL may be dismissed solely on the ground that the plaintiff did not prosecute the proceeding with reasonable diligence. The Associate Justice made no error of law in adopting this principle.

[50] The appellant also alleges that the CPL should not have been discharged because there were serious breaches of Court Orders and the Rules of Civil Procedure by the defendants that amounted to deliberate obstructions, and that the appellants took reasonable steps to advance the litigation despite these alleged obstructions. As determined earlier, the Associate Justice made no palpable and overriding error in finding that the plaintiff did not prosecute the proceeding with reasonable diligence.