The Superior Court has recently confirmed the test to obtain a Certificate of Pending Litigation (“CPL”) in fraudulent conveyance actions where the Plaintiff is not a judgment creditor. On appeal from a Master’s decision dismissing the motion for the CPL, Justice Diamond confirmed:
 Where a plaintiff has yet to obtain judgment in the underlying/main action, the test for a CPL is set out in the decision of Justice Smith in Grefford v. Fielding 2004 CanLII 8709 (ONSC):
a) has the plaintiff satisfied the Court that there is a high probability that it will successfully recover judgment in the underlying/main action?
b) has the plaintiff introduced evidence demonstrating that the impugned transaction was made with the intent to defeat or delay creditors?
c) has the Plaintiff demonstrated that the balance of convenience favours the issuance of the CPL in the circumstances of the case?
 As held by Justice Sachs in Claireville Holdings Ltd. v. Votiuk 2015 ONSC 694 (CanLII), the Grefford test “applies when the plaintiff has not yet obtained judgment in the underlying action.”
This test is considerably more onerous than the basic CPL requirement under section 103 (1) of the Courts of Justice Act of demonstrating that “an interest in land is in question.”
In particular, detailed affidavit evidence is required indicating the “badges of fraud” alleged in order to establish the ‘triable issue” in the fraudulent conveyance action.