Background
Jessica Ashley Davis alleged that her former partner, Edward Archibald, and related companies improperly sold a Squamish property and used the proceeds in another real-estate transaction. She commenced an action against Archibald, 1316215 BC Ltd., and others, and registered certificates of pending litigation, including one against the Squamish property held by 1316215 BC Ltd.
After no step had been taken in the first action for more than a year, 1316215 BC Ltd. applied under s. 252 of British Columbia’s Land Title Act to cancel the Squamish CPL. Before that application was decided, Davis filed a substantially duplicative action that added defendants, registered a second CPL against the property, discontinued the first action, and removed the first CPL. A chambers judge found that the second action served a valid protective purpose relating to possible limitation periods and declined to cancel the second CPL.
The Court’s Holding
The Court of Appeal allowed the appeal. It accepted the chambers judge’s factual finding that Davis commenced the second action for a bona fide protective purpose rather than specifically to defeat the pending cancellation application. But that protective purpose did not insulate her later conduct from scrutiny.
The Court held that registering the second CPL and discontinuing the first action, with knowledge that doing so would eliminate 1316215 BC Ltd.’s crystallized right to have its s. 252 application determined, was an abuse of process. The chambers judge also applied the wrong considerations when addressing a remedy, relying on hardship-and-inconvenience principles rather than the distinct s. 252 framework governing prolonged litigation inactivity.
The Court did not itself cancel the second CPL. It remitted the matter to the Supreme Court of British Columbia to reconsider the application as though it concerned the first CPL under s. 252. If that court determines that the first CPL should have been cancelled under the statutory test, the second CPL must also be cancelled.
Key Takeaways
- A legitimately filed protective action can become abusive through later procedural steps that knowingly defeat an opposing party’s accrued procedural rights.
- Once a property owner applies under s. 252 after a year without a litigation step, its right to seek cancellation of the CPL crystallizes and cannot simply be erased by refreshing the CPL through a replacement action.
- On reconsideration, the court must apply the s. 252 framework, under which prejudice from a dormant CPL is presumed and the claimant bears the burden of showing why cancellation would be unjust.
Why It Matters
The decision limits litigants’ ability to use replacement proceedings and fresh CPLs to avoid judicial scrutiny of delay. Although courts may permit protective actions to preserve claims against new parties or address limitation concerns, parties must manage overlapping proceedings without undermining pending applications or the integrity of the statutory CPL regime.
The ruling also clarifies that abuse-of-process remedies involving CPLs must remain tied to the Land Title Act’s established cancellation routes. Where the abuse defeats a pending s. 252 application, the remedy should restore the parties to the position in which that statutory application can be decided on its merits.