ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-CV-372393
DATE: August 27, 2012

BETWEEN:

Maria Costa

Plaintiff

• and -

Maria Joao Lourenco and Fatima Sousa

Defendants

COUNSEL:

• J. Jerome Cusmariu for the Plaintiff
• Patrick Summers for the Defendant Fatima Sousa
• Abraham Barry Davis for the Defendant Maria Joao Lourenco

HEARING DATE: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

1In October 2011, the Defendant Fatima Sousa brought a motion to have the Plaintiff Maria Costa’s action dismissed on the grounds that the action was statute barred under the Limitations Act , 2002, S.O. 2002, c. 24 . The co-defendant Mario Joao Lourenco, who is the Plaintiff’s daughter, delivered an affidavit and supported her mother’s position.

2The motion came on before me for a hearing on June 12, 2012, when I raised the question, apparently not considered by any, that the applicable statute might be the Real Property Limitations Act, R.S.O. 1990, c. L.15. I raised the issue because I had in March 2012 decided a case that examined the difficult issue of which statute applies to claims for a constructive trust interest in land. See Pirani v. Karmali, 2012 ONSC 1647 .

3None of the parties were ready to argue the point, and I decided to adjourn the motion to July 31, 2012 to provide all sides the opportunity to address the issue. Subsequently, Ms. Sousa decided to withdraw her motion. Subject to her claim for costs, the summary judgment motion was withdrawn on consent. Ms. Lourenco also made a claim for costs.

4Ms. Sousa now claims costs of $7,500, inclusive of disbursements plus applicable HST. (The disbursements total $860.17). Ms. Lourenco waives her disbursements and claims costs of $ 6,520, all inclusive. Ms. Sousa submits that there should be no costs order, or that costs should be in the cause, or that only a small award of costs be made with the bulk of the costs being in the cause because the work associated with the summary judgment motion was productive trial preparation work.

5In their written costs submissions, Ms. Costa and Ms. Lourenco submitted that Ms. Sousa ought to have been aware of the legal problem before she brought her summary judgment motion because the issue originally was raised years ago in Hartman Estate v. Hartfarm Holdings Ltd. , 2006 266 (ON CA) , [2006] O.J. 69 (C.A.) . This may be true, but it is equally true that Ms. Costa and Ms. Lourenco could have raised the issue at the outset of the parties’ engagement in a summary judgment motion.

6In my opinion, I see no purpose in attributing blame on any party for not appreciating that Real Property Limitations Act might apply. Putting that issue aside, the fact remains that Ms. Sousa abandoned her summary judgment motion and under rule 37.09 (3) where a motion is abandoned, a responding party is entitled to costs of the motion forthwith, unless the court orders otherwise.

7In all the circumstances, I see no reason not to apply this rule and no reason to order otherwise. However, I think that in the above circumstances, the quantum of the costs is modestly too high for Ms. Costa, and I would reduce the award to $6,250, all inclusive. Ms. Lourenco did not deliver a factum and I would award her costs of $2,750, all inclusive.

8Orders accordingly.

Perell, J.

Released: August 27, 2012

COURT FILE NO.: 09-CV-372393
DATE: August 27, 2012

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Maria Costa

Plaintiff

‑ and ‑

Maria Joao Lourenco and Fatima Sousa

Defendants