Luzia v. Baptista, 2012 ABQB 491

Court of Queen ’ s Bench of Alberta Citation: Luzia v. Baptista, 2012 ABQB 491 Date: 20120730 Docket: 1003 08884 Registry: Edmonton Between: Ana Luzia and Antonio Luzia Plaintiffs - and - Victor Conceicao Baptista, Emilia Cruz Baptista, Victor D. Baptista and Cathy P. Baptista Defendants _______________________________________________________ Memorandum of Decision of W.S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application for costs of an abandoned Application. [ 2 ] Plaintiffs counsel proposed a Litigation Plan in a Standard case on February 16, 2012. There was no response from Defence counsel. [ 3 ] On May 10, 2012 Plaintiff ’ s counsel asked for a response, adjusting the dates to account for the passage of time between the February proposal and the May letter. There was no response.

[ 4 ] Counsel wrote again in June, asking for a response by June 20, She threatened an Application if there was no response. There was no response. The Plaintiffs then prepared an affidavit which was sworn on July 9, 2012 and they took out an Application, filed July 11, 2012 and returnable July 24, 2012. [ 5 ] Defence counsel then consented to the litigation plan. [ 6 ] Plaintiffs ’ counsel asked the other side for costs of their abandoned Application. When there was no response, they told Defence counsel that they would be appearing on the date of their abandoned Application to ask for the costs.

No objection was raised. [ 7 ] The Alberta Law Reform Institute considered this question in Consultation Memorandum No. 12.17 for the Rules Project. The Committees position was: c. Abandoned Motions [76] The Committee considered whether or not a costs item should be provided for cases in which • a party is forced to bring an application to get the opposite party to take a step to move the case forward, and • as a result of the application, the opposite party takes the step or a consent order os made, so that the first party abandons the motion.

The question is whether, in these circumstances, a costs item should be provided for the first party despite the abandonment of the application: the first party has been put to the trouble and expense of preparing and filing a notice of motion and affidavit and preparing for the motion.

Position of the Committee [77] The Committee is of the view that some costs should be made available to the party who has been forced to commence an application in order to get the opposite party to move forward. [78] The Committee puts forward for discussion, and invites comments upon, the following proposal: a fee item should b provided which would provide for costs as follows: • 15% of

Schedule C item for a contested application for preparing ans filing the notice of motion; • an additional 35% of the

Schedule C item for preparing and filing an affidavit in support of the motion; • an additional 40% of the item for attendance on the application. [4] Costs of an abandoned Application appear to be captured by Rule 10.31(1)(a), which speaks of the costs to ‘ file ’ an application. It is more explicit in

Schedule C, item 7(c). [5] The Applicant is awarded 50% of

Schedule C item 6(1) (uncontested application). The amount claimed in the Statement of Claim puts the matter just into Column 4. Heard on the 24 th day of July, 2012.

Dated at the City of Edmonton, Alberta this 27 th day of July, 2012. W.S. Schlosser M.C.C.Q.B.A. Appearances: Kaylyn Johnson Ahlstrom Wright Oliver & Cooper LLP for the Plaintiffs