Perhaps the most frequently used pressure tactic used throughout my commercial litigation practice is the filing of a Certificate of Pending Litigation. The opposing party then typically brings an application to discharge the CPL, often on an emergency basis.
Most litigation counsel are well familiar with the criteria set out in the Land Title Act and other statutes allowing for the filing of CPLs and their potential discharge.
However, in this author’s view, masters and judges hearing applications to discharge CPL’s are influenced primarily by their perception of whether the filer is misusing it as leverage to achieve a result which is abusive of the ordinarily applicable legal processes.
The litigator seeking to file a CPL should be keenly aware of the perception factor before commencing proceedings and take steps to avoid the hot buttons. It can be very tempting to seize on an opportunity to obtain a perceived advantage particularly in time-sensitive circumstances or where the client exerts pressure on counsel, without giving full consideration to the potential implications.
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