Executive Summary: Key Legal and Evidentiary Issues

• Landmark West registered a certificate of lis pendens (CLP) on the Moscas' land despite its counterclaim seeking only monetary relief, not an interest in the land.

• The Moscas' original statement of claim included a request for specific performance, which Justice Malik found sufficient to sustain the CLP under section 148 of the Land Titles Act.

• Amendment of the statement of claim to remove the specific performance remedy triggered a binding order requiring Landmark to withdraw the CLP forthwith, with which it failed to comply.

• Mootness became the central issue on appeal, as the practical dispute over the CLP was already resolved by Justice Malik's conditional order once the amendment was made.

• Landmark's cross-appeal challenged the refusal to order production of the Moscas' sale agreement with a new buyer, raising questions of relevance, materiality, and particularity under Rule 5.11.

• Costs of both appeals were awarded to the Moscas under the Schedule C tariff, given Landmark's non-compliance with the CLP withdrawal obligation.

The land sale dispute and breach of contract

On January 24, 2024, Giovanni Mosca, Pasquale Mosca, and the Estate of Marlene June Mosca filed a statement of claim against Landmark West Capital Management Inc, alleging Landmark breached an agreement to purchase land from the Moscas. As remedies, the Moscas sought both an order for specific performance of the agreement for purchase and sale and damages for breach of contract. Landmark responded on April 5, 2024, with a statement of defence, alleging it repudiated the agreement for purchase and sale because the Moscas failed to disclose material information about land use restrictions. Landmark also filed a counterclaim, claiming return of deposits paid under the agreement and damages for costs incurred in anticipation of closing.

The new buyer and the certificate of lis pendens

In July 2024, the Moscas entered into a purchase and sale agreement with a new buyer. Subsequently, on January 28, 2025, Landmark registered a certificate of lis pendens (CLP) on title to the land, certifying proceedings had been taken in court to enforce a claim of interest in land by Landmark against the land. According to Landmark, it was concerned about what a sale to a third party would mean for its legal rights and obligations in the underlying litigation. On February 10, 2025, the Moscas applied for an order directing that the CLP be discharged. On February 27, Applications Judge Farrington granted that application on the basis that Landmark's counterclaim claimed a return of a deposit, pre-trial interest, and some expenses, but did not claim any interest in the land.

Justice Malik's decision at King's Bench

Landmark appealed the discharge of its CLP to the Court of King's Bench. It also applied for an order under Rule 5.11 of the Alberta Rules of Court, Alta Reg 124/2010, directing the Moscas to produce the sale agreement with the new buyer and any other records regarding that sale. On August 26, 2025, Justice Malik granted Landmark's appeal. He found that because the Moscas' statement of claim sought specific performance of the purchase and sale agreement as a remedy, Landmark had a sufficient interest in the land to sustain a CLP under section 148 of the Land Titles Act, RSA 2000, c L-4. However, if the statement of claim was amended to abandon the claim for specific performance, he reasoned, then Landmark would not have an interest in the land and the CLP should be withdrawn. Justice Malik allowed the appeal but also ordered that upon the Moscas amending their statement of claim to remove the claim for specific performance, Landmark shall forthwith withdraw the CLP. Regarding the production application, Justice Malik denied it, holding that records pertaining to the sale to the new buyer were records of ongoing negotiations or pending agreements that had not yet been finalized and, as such, were not yet relevant and material to the underlying litigation.

The amendment and non-compliance

The Moscas appealed the portion of the decision which allowed Landmark's appeal. Landmark cross-appealed the decision refusing production. Landmark did not cross-appeal the direction that it forthwith withdraw the CLP in the event the statement of claim was amended to remove the claim for specific performance. After factums were filed but before the appeal hearing in the Court of Appeal, the Moscas applied in the Court of King's Bench for permission to amend their statement of claim to remove the claim for specific performance. Landmark contested the amendment, arguing it was not being sought in good faith, because the Moscas were attempting to remove the CLP in reliance on Justice Malik's order while they were, at the same time, appealing that order. Justice Feasby granted the application, and the statement of claim was amended to remove the claim for specific performance. With that amendment, Landmark became subject to a binding court order requiring it to forthwith withdraw the CLP. As of the date of the hearing before the Court of Appeal, Landmark had not complied with that direction.

The Court of Appeal's ruling on mootness and costs

The Court of Appeal of Alberta, comprising Justices Antonio, Fagnan, and Hawkes, concluded that the Moscas' appeal was moot. The panel held that Justice Malik's order settles the practical question, and that it is not the role of the Court of Appeal to enforce that order. Substantively, all that remained was a hypothetical or abstract question about the requirements for registering a CLP that would not have the effect of resolving some controversy which affects or may affect the rights of the parties, citing Borowski v Canada (Attorney General), [1989] 1 SCR 342. The Court declined to address Landmark's argument that the requirements of section 148 of the Land Titles Act could be met by a defendant who opposes a claim for specific performance and eschews any interest in land, noting that Landmark cited no authority for this counterintuitive proposition. The Court further observed that Justice Malik did consider all of Landmark's arguments and concluded the only basis on which the CLP could be upheld was the then-extant claim for specific performance. The Court also noted there was nothing improper about the Moscas proceeding on two fronts to have the CLP discharged — in the Court of Appeal by appealing Justice Malik's decision, and in the Court of King's Bench by satisfying Justice Malik's prerequisite for removal of the CLP. Regarding Landmark's cross-appeal on production, the Court agreed with Justice Malik that the agreement with the new buyer was relevant to damages and mitigation, citing Southcott Estates Inc v Toronto Catholic District School Board, 2012 SCC 51, but found the broader request for any other records regarding the sale lacked particularity. Given that Justice Malik had granted Landmark leave to bring its application again should circumstances warrant, the Court declined at that time to address producibility of the July 2024 agreement. Both the Moscas' appeal and Landmark's cross-appeal were dismissed. Costs of both appeals were awarded to the Moscas according to the Schedule C tariff. The Court noted that the hearing of the Moscas' appeal likely would not have been necessary if Landmark had complied with its obligation to discharge the CLP forthwith after the Moscas obtained permission to amend their statement of claim. No exact monetary amount was specified in the judgment beyond the reference to the Schedule C tariff.