Luzia v Baptista, 2015 ABQB 736

Court of Queen ’ s Bench of Alberta Citation: Luzia v Baptista, 2015 ABQB 736 Date: 20151119 Docket: 1003 08884 Registry: Edmonton Between: Ana Luzia and Antonio Luzia Plaintiffs - and - Victor Da Conceicae Baptista, Emilia Cruz Baptista, Victor D. Baptista and Cathy P. Baptista Defendants _______________________________________________________ Reasons for Judgment of R. P. Wacowich , Master in Chambers _______________________________________________________ [ 1 ] This is an application by the defendants for

summary judgment dismissing this action based on a limitation issue. Background

[ 2 ] In June of 2000, the plaintiffs Ana Luzia (Ana) and Antonio Luzia (Antonio) and Victor D. Baptista (Jr.) and Cathy P. Baptista (Cathy), entered into a verbal agreement to purchase the lands in issue. The other defendants are the parents of Jr. being his father Victor Da Conceicao Baptista (Sr.) and his wife Emilia Baptista (Emilia) both of whom came on title along with Cathy at the time of the transfer from the original vendors. [ 3 ] The statement of claim alleges that the plaintiffs, and Jr. and Cathy agreed to contribute equally to the down payment for the purchase of the lands.

Also, they would jointly apply for and obtain financing by way of a mortgage for the balance of the purchase price, and would make applications to subdivide the land into two parcels with one parcel to be held in the name of the plaintiffs and the other in the name of Jr. and Cathy.

Additionally, all costs associated with the purchase of the property, the mortgage payments and future subdivision were to be split equally. [ 4 ] The plaintiffs and Jr. and Cathy had a long standing relationship and entered into this agreement on a verbal basis only. [ 5 ] The plaintiffs paid various amounts of money between 2002 and 2003 to Jr., Cathy and Jr.’s company, Del Rei Ceramics. This is evidenced by cheques and stubs - without any degree of particularity on them as to exactly what the payments were for. [ 6 ] Two attempts were made to subdivide the property both of which failed.

The plaintiffs did not require their names on title and at no time have they been on title. [ 7 ] The plaintiffs paid $30,000.00 to Jr., consisting of $20,000.00 on August 2, 2002 and $10,000.00 in January 2003. According to Ana’s affidavit they contributed to the payment of the mortgage and other costs related to the property between 2000 and 2009. There are disagreements as to exactly what payments were made for – the evidence is not clear as to the purpose of payments made by the Plaintiffs. [ 8 ] The plaintiffs say that the property was to be sold and the profits shared if two subdivision applications failed.

Subsequently, when two subdivision attempts failed, the plaintiffs and Jr. and Cathy, at the request of Jr. and Cathy, agreed that the property did not have to be sold. [ 9 ] Ana deposed that in April of 2009 the plaintiffs received a document from Jr. outlining what he felt was an appropriate amount for the defendants to pay the plaintiffs for their interest in the property.

This document, entered as exhibit B to Ana’s affidavit indicates: Property Appraisal as of 2006, Value = $280,000.00 Purchase price = $170,000.00 Net profit = $110,000 Yearly profit of $18,330.00 x 4 years = $73,320.00/2= $36,660.00 Initial investment $30,000.00 + 36,660.00 = $66,660.00 Outstanding monies Mortgage payments in arrears from (July 2002 to Dec 2004) 30 x 432.00 = 12,960 less $12,000.00 received = amount owing $960.00 Property taxes in arrears (2003, 2004,) 901.00 x 2= $1,802.00 Property insurance from Sept 2000 to Dec 2004 60.00 x 48 = $2,880.00 Total amount outstanding to us as of Dec 2004, $5,642.00 Amount of money invested in improvements to existing shop and 2 story house prior to this appraisal $13,000.00\2=$6,500.00 Amount outstanding $12,142.00 Total amount owing to John and Ana $54,581.00 Note; If you are wondering why Dec 2004 as a cut off date.

It’s bcs the $12000.00 I owed you only covered the mortgage payments until Dec 04. This is not an offer but the actual fact’s and value owed to you. But of course we are open for discussion if you have any question..! [ 10 ] As stated, Ana indicates that this document was received from Jr. in April of 2009. Jr. denies being the author of the document or providing it to Ana.

Ana further deposes that between 2000 and 2009 the plaintiffs contributed to payment of the mortgage and other costs relating to the property by paying Jr. monies. [ 11 ] Also attached to Ana’s affidavit is a letter from a lawyer on the purchase of the property dated December 11, 2000, which states: We are the solicitors for Cathy Baptista, Emilia Baptista, and Victor C. Baptista Sr. with regard to the purchase of the property legally described as Plan 5236 KF, Lot B and municipally described as 721 – 195 Avenue Northeast Edmonton.

We are writing to confirm that we have been advised by our clients, that you have agreed to be responsible for one half of the costs incurred in the purchase of the above noted property. We have since completed that transaction and have forwarded our report to the Baptistas directly. We understand that you will make the necessary arrangements directly with our clients regarding the legal fees

incurred. [ 12 ] The statement of claim alleges that the defendants were aware of the plaintiffs’ interest in the lands at the time of the transfers and took the property subject to the plaintiffs’ interests. Alternatively, they took title to the lands on a constructive or resulting trust as to the plaintiffs’ interest. All defendants deny holding the lands in any form of trust for the plaintiffs.

The plaintiffs further allege that if the lands are not held in trust they have a claim to entitlement to reimbursement for the improvements made to the lands and also by virtue of unjust enrichment. [ 13 ] There are incidental features to the relationship between the parties such as jointly working to improve the property, the plaintiffs renting the property and the plaintiffs using the property for various purposes. The lands have been transferred at various times. Currently Land Titles shows the owners are Sr. and Cathy.

Jr. was on title from September 30, 2009 to September 30, 2010. [see Appendix] [ 14 ] The essence of this limitations application is that it is based on the June 2000 verbal agreement and as such the limitation period commences in June 2000. As stated in the submission of the applicant, the central and primary argument of the plaintiff is that due to the fraud perpetrated by Jr. in transferring the lands to Sr., Emilia, and Cathy without the plaintiffs’ knowledge or consent the plaintiffs were deprived of their interest in the lands.

Their claim is that the defendants were unjustly enriched and the courts should therefore impute resulting or constructive trust in respect of half the lands; alternatively the plaintiffs seek monetary damages of $450,000.00. [ 15 ] The applicant states that the respondents must prove that they had no knowledge that the title to the lands were transferred into the names of Cathy and Emilia and Sr. until two years prior to commencement of their action on May 27, 2010. Analysis [ 16 ] The starting point is the Limitations Act . Section 3(1) of the Act states: 3(1) Subject to subsections (1.1) and (1.2) and

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

Summary Judgment [ 17 ] There are a host of cases dealing with the test for

summary judgment after the law was expanded in Hryniak v Mauldin , 2014 SCC 7 . Without referring to numerous cases, it is clear that a court may grant

summary judgment when the process: 1. allows the judge to make the necessary findings of fact, 2. allows the judge to apply the law to the facts, and, 3. is proportionate, more expeditious and less expensive means to achieve a just result; Hryniak at para. 49 [ 18 ] The evidence of the plaintiffs and defendants are diametrically opposed. If a trial judge was of the view that the best evidence was provided by the plaintiffs, the judge would find that the parties agreed in 2000 to purchase the property, split the initial payment and split the expenses.

Pursuant to the agreement two attempts were made to subdivide the property which failed. The property should have been sold and any profits split but the parties agreed to hold onto the land. [ 19 ] Payments were made sporadically by the plaintiffs to Jr. and Cathy and Jr.’s company Del Rei Ceramics up to 2009.

In April 2009 Jr. provided the plaintiffs with an undated, unsigned document offering to pay the plaintiffs one half of the profit in the property less some amounts owing by the plaintiffs to the defendants. [ 20 ] In my view the document offering payment by Jr. is an acknowledgment of the amount owed pursuant to the 2000 agreement between the parties and an affirmation of the plaintiffs’ position as to the intended and agreed effect of the verbal agreement. [ 21 ] It is clear that limitation issues can be raised through

summary judgment. In this case there are clearly issue of credibility and there is a need to hear the evidence of the parties and review the documents supporting the claim in light of their evidence.

[ 22 ] If facts are non-contentious,

summary judgment can proceed, and a plaintiff's claim can be dismissed. However, when the operation of the Limitations Act is obscured by contentious facts, the limitations issue should be resolved at trial. Bjornson v Jolyn Consulting Services Ltd , 2014 ABQB 187 at para 41 [ 23 ] A court cannot grant

summary judgment in Alberta when the necessary facts have not been found. For example, if there are conflicting affidavits on the limitations issue, it may not be possible to find the necessary facts. Whitecourt Power Limited Partnership v lnterpro Technical Services Ltd , 2014 ABQB 135 at para 40 . [ 24 ] The Court of Appeal has given guidance on when facts will be contentious.

In Madill v Alexander Consulting Group Ltd, Justice Russell stated: ... if there is conflicting evidence, or good reason to think that credibility is in issue, or where the issue can only be decided in the context of live evidence, or that further evidence will emerge at trial, the decision about amendments and limitations should be left to the trial judge. Madill v Alexander Consulting Group Ltd , 1999 ABCA 231 at para 24 [ 25 ] There is dispute as to the involvement of Sr.. On the purchase of the land in 2000, the title was put in the name of Sr., Emilia and Cathy.

A letter was sent by their lawyer on December 11, 2000 to the plaintiffs, as previously indicated. [ 26 ] Ana deposed in her March 27, 2014 affidavit, “Upon receipt of this letter in December, 2000, I did not carefully review the same as to whose name the property was actually registered in as it had been in agreement that Baptista, Jr. would be on title and our names would not appear on title, even though we would be part owners of the property.” [ 27 ] On questioning she states that she assumed the Victor referred to was Jr. as the agreement was with Jr. and Cathy.

There is no doubt that both Jr. and Sr. can be referred to as Victor D. Baptista. Counsel for the A+pplicant points out that the lawyer’s letter clearly referred to Sr. In opposition, Ana deposes she thought it referred to Jr. There is no other evidence on this point. It may well be that Ana’s evidence would be accepted given the very close similarity of names of Jr. and Sr. If Ana’s evidence was accepted, then she did not know of Sr.’s ownership or of there being an issue on the 2000 verbal agreement until 2009.

Since the statement of claim was issued in 2010 it was within two years of the date at which the parties knew, or in the circumstances ought to have known that the injury had occurred, that the injury was attributable to the conduct of the defendant, and that the injury warranted bringing a proceeding. Therefore it satisfies section 3(1) of the Limitations Act and the defendant does not have immunity from liability. [ 28 ] There are many instances of conflicting evidence between the parties.

In order to assess the truthfulness of the competing claims of the plaintiffs and the defendants, a trial judge must assess the quality and weight of the evidence.

Summary judgment should not be available where there is a clear difference in evidence on substantive issues. [ 29 ] While it is recognized that the current state of the law on

summary judgment provides more latitude for Courts to grant

summary judgment even when there is a conflict of evidence, the Court is faced with the need to assess the strength of the evidence presented. This is not a case of the respondent raising speculation or conjecture about what did or did not happen. It is a case of direct conflict in evidence. There is evidence to support either view which is something that should be determined by a trial judge. Accordingly the application for

summary judgment is dismissed. Costs follow the event. Heard on the 05 th day of November, 2015. Dated at the City of Edmonton, Alberta this 19 th day of November, 2015. R. P. Wacowich M.C.C.Q.B.A. Appearances: Patricia Tiffen & S. McMullin (Student-at-Law) Robert B White Q.C. & Company

for the Plaintiffs A. S. Attia Attia Reeves Tropak for the Defendants (see Appendix) Appendix History of Title 1994 - 2000 Owners Olga Moysey and Mike Moysey 2000 - 2002 Owners Cathy Pearl Baptista, Victor Da Conceicae Baptista and Emilia Cruz Baptista each as to an undivided1/3 interest; value shown as $169,000.00 2002 - 2009 Owners Victor Da Conceicae Baptista and Emilia Cruz Baptista as joint tenants; value shown on title as $175,000.00 2009 - 2010 Owners Victor Da Conceicae Baptista and Emilia Cruz Baptista and Cathy Pearl Baptista and Victor D.

Baptista all as joint tenants; value shown on title as $900,000.00 September 30, 2010 Affidavit of surviving joint tenant; owners Victor Da Conceicae Baptista and Cathy Pearl Baptista and Victor D. Baptista all as joint tenants September 30, 2010 - present Owners Victor Da Conceicae Baptista and Cathy Pearl Baptista as joint tenants; value shown on title as $890,000.00 Action commenced May 27, 2010.