Legal Blog

Certificate of Pending Litigation

Jodi Feldman Professional Corporation v. Foulidis 2018 Ont SCJ

A lawyer was suing her client for unpaid fees. Shortly after pleadings were closed, the lawyer learned that the client had granted her former brother-in-law a mortgage against title to the client’s property. The lawyer moved to amend the pleadings claiming a CPL and a declaration that the mortgage was fraudulent. Given that the lawyer did not already have a judgment against the client, the lawyer had to show (using the Grefford test) (a) there was a high probability that the lawyer would successfully recover judgment in the main action, (b) evidence to demonstrate that the impugned transaction was made with the intent to defeat or delay creditors, and (c) that the balance of convenience favoured the issuance of a CPL. The Master had refused the CPL. The motion judge overturned that decision. The Master had used the high probability test regarding the success of the action to the 2^nd criterion relating to evidence and this was improper. The lawyer only needed to prove that there were triable issues as to whether the impugned transaction was carried out with the intent to defeat or delay creditors.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.