Executive Summary: Key Legal and Evidentiary Issues

• Whether the counterclaim paragraphs that repeated the factual and legal allegations from the dismissed 2022 Action constitute an abuse of process under Rule 9-5(1)(d) of the Supreme Court Civil Rules and the court's inherent jurisdiction.
• Application of cause of action estoppel, res judicata, and abuse of process principles where the prior proceeding was resolved by a Consent Dismissal Order rather than by judicial determination on the merits.
• Proper construction of the "defend, indemnify and hold harmless" clause in the Settlement Agreement, and whether such language can revive property-related claims previously released.
• Sufficiency of the counterclaim pleadings to support an interest in land under s. 215 of the Land Title Act for the registration of certificates of pending litigation.
• Effect of s. 254 of the Land Title Act on the court's inherent jurisdiction to immediately cancel CPLs where the supporting pleadings have been struck as an abuse of process.
• Availability of an order under s. 39(3) of the Law and Equity Act restraining the filing of further CPLs against the affected properties without leave of the court.

Facts of the case This decision arises from an application brought by 9095900 Canada Ltd. (formerly EZ Etail Inc.), the plaintiff in the main action and a defendant by counterclaim, together with the additional counterclaim defendants Mohammadreza Toupchinejad, HRA Developments Inc., Vitality Construction Ltd., and Remarto Enterprises Ltd. (collectively, the "applicants"), against Parham Baikoghli and Reza Baikoghli (the "respondents"). The dispute originated from an alleged failed joint effort to develop certain lands, including three properties: the Lougheed Property, the Ottawa Avenue Property, and the Eyremount Drive Property (the "CPL Properties"). On January 20, 2022, the respondents commenced an action in the Vancouver Registry (No. S220311) (the "2022 Action") against the applicants, advancing various causes of action relating to the alleged failed joint venture, and simultaneously registered certificates of pending litigation against the CPL Properties (the "Original CPLs"). On May 20, 2022, with the advice of counsel, the parties settled the 2022 Action through a formal Settlement Agreement containing broad and comprehensive releases of the applicants from all claims that were raised or could have been raised in the 2022 Action. On June 28, 2022, pursuant to the Settlement Agreement, a Consent Dismissal Order was entered, endorsed by counsel for both parties, dismissing the 2022 Action on a without costs basis and expressly providing that the dismissal "shall be for all purposes of the same force and effect as if judgment dismissing the proceedings had been pronounced after a trial on the merits." On or about June 24, 2022, the Original CPLs were cancelled by Reza Baikoghli to satisfy his obligations under the Settlement Agreement. On July 31, 2025, the applicants filed a notice of civil claim in the current action, advancing a straightforward breach of contract claim alleging the respondents had failed to pay the settlement funds owed under the Settlement Agreement. On November 10, 2025, the respondents filed a response to civil claim alleging various wrongs by the applicants, including breaches of the Settlement Agreement and undue pressure and duress warranting rescission of the agreement, and seeking set-off. On the same day, the respondents also filed a counterclaim that, beyond repeating the response to civil claim, added paragraphs (Part 1, paras. 37–49; Part 2, paras. 2–5; and Part 3, paras. 7–13, collectively the "Impugned Paragraphs") which repeated largely verbatim the factual allegations, relief sought, and legal bases from the 2022 notice of civil claim, including claims for a constructive trust over the CPL Properties, disgorgement of profits, quantum meruit, and punitive damages. The respondents also registered three new CPLs against the CPL Properties under registration number CA 2445795.

The application The applicants sought orders striking the Impugned Paragraphs as an abuse of process pursuant to Rule 9-5(1)(d) of the Supreme Court Civil Rules and the court's inherent jurisdiction, cancelling and discharging the three new CPLs, and prohibiting the respondents from registering further certificates of pending litigation against the CPL Properties without leave of the court pursuant to s. 39(3) of the Law and Equity Act. After the hearing on December 3, 2025, Lachance J. issued a memorandum on March 2, 2026, inviting written submissions on the implications of s. 254 of the Land Title Act and authorities including Sood v. Hans, 2023 BCCA 138, Bilin v. Sidhu, 2017 BCCA 429, Berthin v. Berthin, 2018 BCCA 57, and Mott v. P.N.E., 2001 BCCA 731. In their responsive written submissions, the applicants acknowledged that s. 254 precluded immediate dismissal of the CPLs but argued that cancellation should follow once the s. 254 appeal-related requirements were satisfied. The respondents disputed the application of s. 254, partly on the basis that it had not been pleaded.

The court's analysis on the Impugned Paragraphs Justice Lachance reviewed the legal framework for striking pleadings as an abuse of process, drawing on Klassen v. Epp, 2025 BCSC 1056, McCann v. Barens, 2023 BCSC 2000, and Martyn v. Walton, 2025 BCCA 223, which confirm that abuse of process is a broad and flexible doctrine that encompasses res judicata, cause of action estoppel, and circumstances threatening the fairness and integrity of the court's process. The Court addressed Esteghamat-Ardakani v. Taherkhani, 2023 BCCA 290, and acknowledged that while a consent dismissal order is not a judicial determination on the merits, it remains binding unless set aside, and reliance on facts and allegations from a prior dismissed proceeding may amount to an abuse of process even where the strict elements of res judicata are not strictly met. The Court found that the Impugned Paragraphs were inadequately tied to the main proceedings and constituted an explicit attempt to relitigate matters dismissed through the Consent Dismissal Order, mirroring the factual allegations, relief sought, and legal bases set out in the 2022 notice of civil claim. The Court rejected the respondents' first argument that the Impugned Paragraphs were merely particulars of their losses in the contractual counterclaims, noting that the relief sought paragraphs requested the same declaratory and proprietary orders as in the 2022 Action rather than compensation for the loss of the released claims, and that recategorization does not avoid the application of cause of action estoppel. The Court also rejected the respondents' second argument that the indemnity and "hold harmless" clause in the Settlement Agreement revived the released claims. After reviewing the unredacted clause and authorities including Salmon River Co. v. Burt Bros., [1953] 2 SCR 117, Arklie v. Haskell, 33 D.L.R. (4th) 458 (BCCA), and Genak Enterprises Inc. v. Lake Shore Gold Corp., 2022 ONSC 2981, the Court held that the clause was directed to monetary compensation and did not provide a contractual right to revive previously released property-related claims. The Court also declined to apply the contra proferentem principle, finding the agreement was the product of joint drafting between competent counsel and that the phrase "hold harmless" was not relevantly ambiguous. The only exception was para. 5 of Part 2, the request for punitive damages, which the Court allowed to remain because such damages could potentially arise from the surviving breach of trust pleadings.

The court's analysis on the CPLs The Court considered whether the CPLs could be struck, noting that under s. 215 of the Land Title Act, a CPL must be supported by pleadings capable of disclosing a claim to an interest in land. Although the Court found that without the Impugned Paragraphs the surviving counterclaim, which sought only monetary relief for breach of the Settlement Agreement, did not meet the s. 215 threshold, it concluded that at the time the CPLs were filed on November 10, 2025, the Impugned Paragraphs had pleaded sufficient equitable and legal interests in the CPL Properties. The Court reviewed Sood v. Hans, 2023 BCCA 138, Bilin v. Sidhu, 2017 BCCA 429, Berthin v. Berthin, 2018 BCCA 57, and Mott v. P.N.E., 2001 BCCA 731, and concluded that the Court of Appeal authorities tempered the inherent jurisdiction by s. 254 of the Land Title Act, which governs cancellation of CPLs following dismissal of the supporting pleadings, including where those pleadings are struck as an abuse of process. The Court distinguished Davis v. Archibald, 2025 BCSC 2095, and Reum Holdings Ltd. v. 0893178 B.C. Ltd., 2015 BCSC 2022, as not supporting immediate cancellation in these circumstances. Adopting the language of para. 27 of Sood, the Court held that where parts of a pleading supporting a CPL are struck, leaving only pleadings that do not meet s. 215, the court has inherent jurisdiction to order cancellation of the CPL, but the cancellation cannot take effect until either the appeal period expires without an appeal being filed or any appeal is finally disposed of without overturning the dismissal.

The order respecting further CPLs The Court relied on s. 39(3) of the Law and Equity Act and Johnson v. Johnson, 2025 BCSC 337, as authority to prohibit the respondents from filing further certificates of pending litigation against the CPL Properties without leave of the court, on the basis that there is no longer any outstanding cause of action by the respondents asserting an interest in the CPL Properties and that the Impugned Paragraphs should never have been filed in the first place.

Outcome Justice Lachance held that, except for para. 5 of Part 2 (the request for punitive damages), the Impugned Paragraphs are an abuse of process and must be struck without leave to amend. The Court found the CPLs were also an abuse of process but, bound by Court of Appeal authority, could not order their immediate cancellation; instead, the Court ordered that the CPLs (registration number CA 2445795) shall be cancelled by the registrar upon application accompanied by a certificate from the registrar of the Supreme Court of British Columbia, endorsed by the registrar of the Court of Appeal, certifying either that the time to appeal has expired without a notice of appeal having been filed or that any notice of appeal has been finally disposed of without the order being set aside. The Court further ordered, pursuant to s. 39(3) of the Law and Equity Act, that the respondents are prohibited from filing any further certificates of pending litigation against the CPL Properties without leave of the court. The applicants were the successful party. Although the applicants stated that they believed they would have been entitled to special costs, they forwent that request and were awarded regular party and party costs of the application in any event of the cause; no specific monetary amount of costs or damages was set out in the reasons, and the precise quantum of the costs award cannot be determined from the decision.