In Helmer Estate v. Gliddon, 2024 ONSC 4463 (CanLII), the defendant brought a motion to set aside an Order that permitted the plaintiffs to register a Certificate of Pending Litigation (“CPL”) against a disputed real property, on the basis that the plaintiffs obtained the CPL without making full and fair disclosure, and by providing misleading information.

Rule 39.01(6) of the Rules of Civil Procedure provides that where a motion is or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application. “All material facts” means all facts that might reasonably affect the outcome: Fox v. Fox, 2014 ONSC 1135, 2014 CarswellOnt 2452 (Div. Ct.); Shahbaz v Mizrahhi, 2018 ONSC 1915, at para. 18; Morris v. Lazaridis, 2009 CanLII 39491 (ON SC); Hunter’s Square Developments Inc. v. 351658 Ontario Limited, 2002 CanLII 49491 (ON SC).

The defendant argued that the plaintiffs’ materials for their CPL motion had four major omissions, which are noted below:

1. The plaintiffs had asserted there was an “oral implied trust” in which the defendant agreed to sever joint tenancy of the disputed property, yet provided no evidence in support of this position.
2. The plaintiffs brought their motion before they served their statement of claim.
3. The plaintiffs included an outdated parcel register of the disputed property rather than a recent one. The defendant argued that this was misleading, as a recent parcel register would have revealed evidence that might have changed the outcome of the plaintiffs’ motion.
4. The plaintiffs’ materials did not reference the applicable legal test to allow the disputed property to be severed following death.

The Court carefully considered each of the defendant’s arguments, and found that there was no material non-disclosure that would justify setting aside the CPL Order. Accordingly, the defendant’s motion was dismissed.

On each of the defendant’s arguments, the Court stated as follows:

1. The plaintiffs’ affidavit for their CPL motion contained emails from the deceased’s will-drafting solicitor that referred to an oral implied trust given by the defendant.
2. Rule 37.17 of the Rules of Civil Procedure provides that in an urgent case, a motion may be made before the commencement of a proceeding on the moving party’s undertaking to commence the proceeding forthwith. The Court found that the circumstances were urgent, and noted that the plaintiffs in their affidavit gave an undertaking that they would serve their claim if their motion was granted.
3. The Court found that the plaintiffs may not have known about the evidence that would have been reflected on an updated parcel register at the time they submitted their motion materials. The Court also believed that such evidence, even if it had been known and disclosed, would have not have changed the outcome of the plaintiffs’ motion.
4. The plaintiffs’ failure to reference the test for severing a joint tenancy was not fatal, as judges are presumed to know the law.

To read some of our past blogs on the issue of material non-disclosure, click the links below:

• Rules for Thee but Not for Me – Rule 39.01(6)

• Seeking a Certificate of Pending Litigation: On Notice or Without?

Thank you for reading and have a great weekend.

James