Executive Summary: Key Legal and Evidentiary Issues

• Whether a Certificate of Lis Pendens (CLP) can be discharged solely on the basis of significant delay in prosecuting the underlying action when no lien is registered on the property
• Characterization of a CLP as a form of interim relief that effectively restrains an owner’s ability to deal with land, thereby imposing an implied duty on the plaintiff to move the litigation forward promptly
• Determination of whether a 26-month period of inactivity, after pleadings closed, amounted to inordinate and inexcusable delay in the circumstances of this commercial property dispute
• Presumption of prejudice to the property owner arising from the continued registration of a CLP and whether the plaintiff’s evidence was sufficient to rebut that presumption
• Assessment of the adequacy and credibility of the plaintiff’s explanation for delay, particularly the reliance on business pressures and relocation activities as justification
• Balancing of equities between protecting a plaintiff’s claimed interest in land and preventing indefinite interference with a defendant’s property rights through a CLP

Facts of the case

Distinguished Properties Inc. commenced an action against First Mutual Properties Ltd. in relation to a commercial property located at 70 First Lake Drive in Sackville, Nova Scotia, identified as PID 003625442. In January 2023, Distinguished Properties registered a Certificate of Lis Pendens (CLP) against this property under section 58(1) of the Land Registration Act, S.N.S. 2001, c.6, to give notice that title to the land was in dispute and to protect the effectiveness of any eventual judgment affecting the property. The defendant, First Mutual, filed its defence and counterclaim in February 2023, and Distinguished Properties delivered its defence to the counterclaim in April 2023. After that exchange of pleadings, the plaintiff took no further steps to advance the litigation for approximately 26 months, from April 24, 2023 to June 13, 2025. During that period, there were no communications or procedural steps such as document disclosure or scheduling of examinations for discovery. In June 2025, First Mutual responded by bringing a motion to discharge the CLP on the basis of delay and prejudice. Only after this motion was filed did Distinguished Properties serve its Affidavit Disclosing Documents on July 2, 2025, followed by First Mutual’s disclosure. No discoveries had been scheduled by the time of the hearing of the motion. In support of its position, Distinguished Properties submitted an affidavit from its owner and president, Gerard MacIntyre. He explained that he is also the Chief Executive Officer and an owner of Lahey Glass, a tenant of First Mutual in the subject property. He deposed that in 2023 he learned First Mutual planned to demolish the Lahey Glass building, which forced Lahey Glass and Mr. MacIntyre to focus from May 2023 to January 2025 on purchasing land, constructing a new building, relocating operations, and negotiating three lease extensions with First Mutual. According to Mr. MacIntyre, this period was extremely busy and significantly curtailed his ability to attend to the litigation. Distinguished Properties argued that this context explained the delay and that the CLP merely preserved the status quo pending resolution of the dispute.

Legal framework and authorities relied upon

The motion turned on section 58 of the Land Registration Act, which authorizes the recording of a CLP and sets out the circumstances in which it can be removed from the register, including by court order dismissing the action or discharging the lis pendens. The court also referred to Anger and Honsburger, Law of Real Property, for the general common-law test governing when a CLP may be vacated. That treatise explains that a CLP can be vacated where it is clear the plaintiff’s claim cannot give any right in land, where the action is vexatious or frivolous, or where the plaintiff has been guilty of delay in pursuing the action, though certificates will not ordinarily be vacated summarily where an interest in land is genuinely in dispute. In this case, First Mutual did not attack the merits of Distinguished Properties’ underlying claim or contend that the plaintiff could never obtain an interest in the land. Instead, the defendant focused narrowly on delay, arguing that the prolonged inaction amounted to inexcusable delay justifying discharge of the CLP. To support that position, First Mutual relied on two Nova Scotia authorities arising from builder’s lien and mechanic’s lien contexts: Kaulback v. Burke and JPA Construction Ltd. v. Saad. Both decisions stress that a party who invokes extraordinary pre-judgment security against land—such as a lien—assumes a special responsibility to move its claim forward expeditiously.

Characterization of the certificate of lis pendens

A central issue was whether the jurisprudence on liens and similar encumbrances should apply by analogy to a CLP in this context. Distinguished Properties argued that a CLP is fundamentally different from a lien because it does not create a charge on the land or confer an interest; it operates only as public notice that litigation affecting the property is underway, purportedly imposing a lighter burden on the owner and merely preserving the status quo. On that theory, the plaintiff contended that authorities about builder’s liens and mechanic’s liens should carry limited weight and that the balance of equities favoured maintaining the CLP despite the delay. The court rejected that characterization as incomplete. Drawing on Anger and Honsburger and the Nova Scotia cases, the judge emphasized that while a CLP does not itself grant an interest in land, it still functions in practice as a significant interim measure. Once recorded, it signals to all potential purchasers and lenders that title to the property is in dispute and effectively warns against dealings until the claim is determined. The decision in Dempsey v. Dempsey was cited for the proposition that the practical effect of a CLP is akin to an injunction, restraining the defendant’s ability to deal freely with the land while the litigation is pending. On this basis, the court aligned a CLP with other forms of interim relief—such as builder’s liens and interlocutory injunctions—that limit a property owner’s rights before trial without any merits adjudication.

Application of delay principles and threshold for inordinate delay

Having characterized the CLP as a serious form of interim relief, the judge accepted that the reasoning in Kaulback and JPA should inform the exercise of discretion under section 58 of the Land Registration Act. In Kaulback, the court held that the powerful statutory right to encumber real property via a mechanic’s lien brings with it an inferred responsibility to move the matter ahead promptly, consistent with the approach taken to other interim remedies like injunctions, where parties must pursue an expeditious trial. In JPA, the court, dealing with a builder’s lien claim, applied the three-part test for dismissal for want of prosecution: inordinate delay, inexcusable delay, and serious prejudice to the defendant, followed by a balancing of the parties’ respective positions to do justice between them. Importantly, JPA underscored that the threshold for what constitutes “inordinate” delay is lower in lien cases because of the extraordinary nature of encumbering real property without proof on the merits and the inherent interference with an owner’s property rights. Applying these principles by analogy, the judge in this case concluded that a party who chooses to register a CLP also assumes an implied duty to prosecute its claim without delay. Counsel for Distinguished Properties effectively conceded this point, acknowledging that his client had obligations extending beyond the ordinary procedural duties in the Civil Procedure Rules once the CLP was put in place.

Evaluation of the plaintiff’s explanation for delay and prejudice to the defendant

The court then considered whether Distinguished Properties had in fact failed to prosecute the action promptly. The judge found that the 26-month period from April 24, 2023 to June 13, 2025, during which the plaintiff took no step beyond its original pleadings, constituted inordinate delay. In that span, there was no communication from the plaintiff, no document disclosure until prompted by the motion, and no scheduling of discoveries—basic steps the court described, echoing JPA, as elementary rather than onerous. Turning to whether the delay was excusable, the court carefully reviewed Mr. MacIntyre’s account of being occupied with the relocation of Lahey Glass and managing day-to-day business pressures. While recognizing that many litigants are busy businesspeople, the judge held that personal and corporate workload, even if substantial, does not justify such a prolonged period of complete inaction in litigation, especially where the plaintiff has already invoked a significant interim restriction on another party’s property. Furthermore, Mr. MacIntyre’s explanation did not address the six-month gap between January and June 2025, after the relocation period he identified had ended, leaving that segment of the delay unexplained. The judge inferred that Distinguished Properties only moved to provide its Affidavit Disclosing Documents because First Mutual brought the motion to discharge the CLP. The court accepted that, as in lien cases, serious prejudice to the landowner can be presumed where a CLP has effectively interfered with the owner’s ability to deal with the property for a prolonged period. Distinguished Properties did not adduce evidence capable of rebutting this presumption. The CLP had been in place for almost three years and the litigation had barely advanced beyond the pleadings stage, so the prejudice element was satisfied.

Balancing of equities and absence of policy terms

In the final stage of the analysis, the judge weighed what outcome would best do justice between the parties. On First Mutual’s side, the factors included nearly three years of constraint on its use of the property, 26 months of inordinate and inexcusable delay by the plaintiff with no meaningful procedural steps taken, and a presumed prejudice that had not been displaced by evidence. On Distinguished Properties’ side, the court examined assertions that the land was a unique commercial asset and that monetary damages would be inadequate to remedy any loss, but found no evidentiary foundation for these claims. The plaintiff also argued that discharging the CLP could allow First Mutual to sell or otherwise deal with the property, potentially undermining the effectiveness of any eventual judgment. The judge acknowledged that this risk might exist but noted that it did not entitle the plaintiff to interfere with First Mutual’s property rights indefinitely, particularly when the plaintiff had itself failed to prosecute the case diligently. The court further observed that, even if the CLP were vacated, Distinguished Properties would not be left without protection, because it could seek an interlocutory injunction supported by evidence if it wished to restrain dealings with the property pending trial. There were no insurance policy terms or specific contractual clauses discussed or interpreted in this decision; the focus remained on procedural obligations, property remedies, and the court’s discretionary power over interim encumbrances under the Land Registration Act.

Outcome and implications

Having considered the legal framework, the nature of the CLP, the length and causes of delay, and the competing equities, the court concluded that Distinguished Properties had failed to promptly prosecute its action and had thereby forfeited the benefit of maintaining the CLP. The 26-month period of complete inactivity, combined with the absence of a convincing explanation and the continuing interference with First Mutual’s rights in its property, led the judge to find that it would be unfair to allow the CLP to remain on title. The court ordered that the Certificate of Lis Pendens registered against the property at 70 First Lake Drive in Sackville, Nova Scotia, PID 003625442, be discharged. On the issue of costs, the court did not fix any amount in the decision. Instead, it directed the parties to attempt to agree on costs within a short time frame; failing agreement, First Mutual was to deliver written submissions by December 16, 2025, and Distinguished Properties by December 19, 2025, after which the court would determine the matter. Accordingly, the successful party on this motion was First Mutual Properties Ltd., but as of this decision no specific monetary amount was ordered in its favour, and the total quantum of any costs or other monetary award could not yet be determined.