Executive Summary: Key Legal and Evidentiary Issues

• Landmark registered a certificate of lis pendens on land at the centre of its litigation with the Moscas over a purchase and sale agreement.
   
• Justice Malik restored the certificate, ruling Landmark's interest in the land depended on the Moscas' outstanding claim for specific performance.
   
• Amending the statement of claim to drop that claim for specific performance triggered Landmark's obligation to withdraw the certificate forthwith.
   
• Despite Landmark's noncompliance with the withdrawal order, the Court of Appeal found the Moscas' appeal moot because the practical dispute was already resolved.
   
• Production of records about the Moscas' sale to a new buyer was refused for lack of particularity, despite an acknowledged link to damages and mitigation.
   
• A later application to vary the costs award failed to meet the high threshold required to reopen and reargue an appeal.
   

Facts of the case

On January 24, 2024, Giovanni Mosca, Pasquale Mosca, and the Estate of Marlene June Mosca sued Landmark West Capital Management Inc., alleging Landmark breached an agreement to purchase land from them and seeking specific performance along with damages. Landmark answered on April 5, 2024, claiming it had repudiated the agreement because the Moscas failed to disclose material information about land use restrictions, and it counterclaimed for return of its deposits and costs incurred in anticipation of closing. In July 2024, the Moscas contracted to sell the land to a new buyer. Landmark registered a certificate of lis pendens (CLP) against the title on January 28, 2025, citing concern for its rights in the pending litigation. The Moscas applied to discharge the CLP, and Applications Judge Farrington granted that relief on February 27, 2025, finding Landmark's counterclaim asserted no interest in the land itself. Landmark appealed that discharge to the Court of King's Bench and separately sought an order under Rule 5.11 compelling production of the new sale agreement and related records. On August 26, 2025, Justice Malik allowed Landmark's appeal, restoring the CLP on the basis that the Moscas' outstanding claim for specific performance gave Landmark a sufficient interest in the land; he ordered that once the statement of claim was amended to remove that claim, Landmark would have to withdraw the CLP forthwith. He denied Landmark's production application, characterizing the new sale as still pending. Both sides appealed further: the Moscas challenged the restoration of the CLP, and Landmark cross-appealed the refusal to order production, though it did not cross-appeal the withdrawal condition. While the appeal was pending, the Moscas obtained permission from Justice Feasby to amend their claim and remove the request for specific performance, over Landmark's objection that the amendment was sought in bad faith. That amendment left Landmark bound by an order to withdraw the CLP forthwith, which it had not done by the time of the appeal hearing. Approximately three months after the Court of Appeal dismissed both the appeal and cross-appeal and awarded costs to the Moscas, Landmark applied to vary that costs award, arguing each side should bear its own costs.

Policy and legislative provisions at issue

Section 148 of the Land Titles Act, RSA 2000, c L-4, permits a CLP to be registered by a person claiming an interest in land or a person who has proceeded by action to call into question title to or interest in land. Landmark argued this threshold could be satisfied by a defendant who resists a claim for specific performance while disclaiming any interest in the land itself, a proposition the Court found unsupported by authority and did not need to resolve given its mootness finding. On the production dispute, Rule 5.11(1)(a) of the Alberta Rules of Court allows a court to order a record produced if a relevant and material record has been omitted from an affidavit of records, with relevance defined under Rule 5.2(1) by reference to whether a record could reasonably help determine an issue in the pleadings. Any records ultimately produced remain subject to the implied undertaking in Rule 5.33 restricting their use to the litigation itself. In the costs application, Landmark relied on Rule 9.13, which permits variation of a judgment on application where the court is satisfied there is good reason, while the Court noted the request might more properly fall under Rule 14.38(2)(c), governing reopening and reargument of an appeal.

Reasoning and analysis

The panel found the Moscas' appeal moot, applying the test in Borowski v Canada (Attorney General) for whether a decision would resolve a live controversy affecting the parties' rights. Because Landmark had not cross-appealed the direction to withdraw the CLP upon amendment, and because Justice Malik's order already settled the practical dispute once the amendment was made, nothing remained for the Court to decide beyond an abstract question about the requirements of section 148. Justice Malik's finding that the July 2024 sale agreement was relevant to damages and mitigation was upheld, consistent with Southcott Estates Inc v Toronto Catholic District School Board, but the panel declined to order production of the broader category of "any other records" because the request lacked particularity and no evidentiary basis for it appeared on the record; Landmark was left free to bring a properly particularized request. Turning to the later costs application, the panel applied the high threshold described in Tailleur v McKiernan, under which reargument is permitted only where the Court was misled about the record or issues, overlooked or misapprehended evidence, or made a patent error. It concluded none of those circumstances existed: the original panel had been aware of the relevant procedural history and had made no error in awarding costs to the Moscas.

Ruling and overall outcome

The Court of Appeal dismissed the Moscas' appeal as moot, leaving Justice Malik's order intact and requiring Landmark to withdraw its CLP forthwith. It also dismissed Landmark's cross-appeal on production, denying the broader document request while leaving Landmark free to reapply with a particularized request. Costs of both appeals were awarded to the Moscas according to the Schedule C tariff, with the panel observing that the hearing would likely have been unnecessary had Landmark complied with its obligation to discharge the CLP forthwith. When Landmark later applied to vary that costs award and have each side bear its own costs, the Court denied the application, finding no exceptional circumstances warranting reargument; because the Moscas filed no submissions on the application, no costs were awarded for it either.