T.S. Publishing Group Inc. v. Shokar, 2015 ONSC 3792
CITATION: T.S. Publishing Group Inc. v. Shokar, 2015 ONSC 3792
COURT FILE NO.: CV-10-408182
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.S. PUBLISHING GROUP INC.
Plaintiff
– and –
TARWINDER SHOKAR, SHOKAR PUBLISHING GROUP INC. and HARBHAJAN SHOKAR
Defendants
TARWINDER SHOKAR
Plaintiff by Counterclaim
– and –
T.S. PUBLISHING GROUP INC., DANNY ROSSO and CHRISTIANE TETREAULT
Defendants by Counterclaim
Tanya C. Walker, for the Plaintiff and Defendants by Counterclaim
Tarwinder Shokar in person
J. MACDONALD, J.
COSTS DECISION
[1] On April 29, 2015, I granted judgment in favour of the plaintiff against the defendant Tarwinder Shokar and fixed pre-judgment interest. I also dismissed the counterclaim in its entirety. I have received submissions in respect of costs and I now fix the costs of the action and counterclaim, including the costs in respect of the submissions addressing s. 178(1) of the Bankruptcy and Insolvency Act R.S.C. 1985 c B. 3 which I ordered on April 29, 2015.
[2] I award the costs of the action to the plaintiff, and I award the costs of the counterclaim to the defendants by counterclaim. All of the parties entitled to costs were represented by the same counsel.
[3] In her written costs submissions, Ms. Walker sets out accurately in paragraph 19 the nine causes of action which arose in the claim and counterclaim. Subparagraphs 23(a)-(o) of her submissions list accurately the numerous factual issues at trial.
[4] The amended Statement of Claim sought $600,000 in damages from Mr. Shokar. His counterclaim sought $2,000,000 in damages, declarations in respect of his ownership of the shares in the plaintiff corporation and relief in respect of the plaintiff corporation’s oppressive conduct, pursuant to the Ontario Business Corporations Act, R.S.O. 1990, c B 16. The trial lasted 14 days. In its diversity and length, this is properly characterized as moderately complex litigation. However, the complexity was reduced by two factors: credibility and reliability were the dominant issues and there was considerable overlap between the issues in the claim and counterclaim.
[5] The amount claimed by the plaintiff is very much higher than the damages awarded. I awarded the plaintiff $64,200 damages. Having found that the counterclaim was devoid of merit, I did not assess damages therein. In my opinion, the assessed damages do not reflect the magnitude of the matters in issue, for the following reasons. Part of the reason for the plaintiff’s low assessment of damages (in relation to the amount claimed) is that Mr. Shokar was not forthcoming about the full extent of his actions which damaged the plaintiff. In addition, the plaintiff also failed to prove the accuracy of its financial books and records. Lastly, in respect of the counterclaim in which damages were not assesed, Mr. Shokar sued in libel and proved a defamatory statement against the defendants by counterclaim, whose defence of justification prevailed.
[6] The plaintiff also asserts that Mr. Shokar delayed the action, thereby causing costs to be incurred. I accept the plaintiff’s submissions in paragraphs 28, 29, 30, 31, 32, 33 and 35 of its costs submissions. I find that much of this delay unnecessarily lengthened this proceeding.
[7] The plaintiff also criticizes Mr. Shokar for mounting a stout defence, for refusing to admit almost all of what I have found that he did and for vigorously pursuing his counterclaim, which I have dismissed in full. In my opinion, Mr. Shokar was entitled to proceed in these ways and this conduct is not a basis for awarding costs on an increased scale. The work made necessary by these positions is, however, properly the subject of a compensatory costs award.
[8] Mr. Shokar took his employer’s monies totaling $39,200, which accounts for over half of the damages awarded against him. In addition, the remaining damages awarded were for Mr. Shokar’s intentional interference with the plaintiff’s economic relations. Mr. Shokar’s aforesaid conduct was tantamount to fraud upon the plaintiffs in my opinion.
[9] In these circumstances, I award to the plaintiff the costs of the action on a substantial indemnity basis. I award to the defendants by counterclaim the costs of the counterclaim on a partial indemnity basis.
[10] The costs fixed should be fair, reasonable and proportionate to this litigation. The expedient of simply multiplying hours of work by hourly rates does not achieve that goal. The overlap between claim and counterclaim, each attracting a different scale of costs, makes that particularly true.
[11] Given the nature of the case and its issues, the number of motions, pre-trial conferences and To Be Spoken To Court attendances and the length of the trial, the hours invested in this action by counsel to the plaintiff and defendants by counterclaim are mostly reasonable and appropriate.
[12] Looking at all factors, the fees which are proportionate to this litigation, both claim and counterclaim, and also reasonable and fair are $165,000. I fix the disbursements recoverable by the plaintiff and defendants by counterclaim in the amount of $28,500.
[13] I therefore award to the plaintiff and defendants by counterclaim costs in the amount of $193,500, payable forthwith by Tarwinder Shokar. Those costs are separate from all costs awarded previously in this action.
Mr. Justice John Macdonald
Released: June 16, 2015
CITATION: T.S. Publishing Group Inc. v. Shokar, 2015 ONSC 3792
COURT FILE NO.: CV-10-408182
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.S. PUBLISHING GROUP INC.
Plaintiff
– and –
TARWINDER SHOKAR, SHOKAR PUBLISHING GROUP INC. and HARBHAJAN SHOKAR
Defendants
TARWINDER SHOKAR
Plaintiff by Counterclaim
– and –
T.S. PUBLISHING GROUP INC., DANNY ROSSO and CHRISTIANE TETREAULT
Defendants by Counterclaim
REASONS FOR JUDGMENT
Mr. Justice John Macdonald
Released: June 16, 2015