Court File and Parties
COURT FILE NO.: CV-17-580635 COURT FILE NO.: CV-17-586635 DATE: 2019/03/18 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Basu Deb Bose, Dr. Prasanta Kumar Darkar, Ranendra N. Ghosh, Sunil Sengupta, Asish Kumar Ghosh, Sailesh K. Roy, Swapan Kumar Ghosh, Rupa Dutta and Basanti Roy Applicants – and – Bangiya Parishad Toronto (also known as Bangiya Parishad) Respondent
AND BETWEEN:
Rathin Ghose, Sanjib Mukherjee, Subhra Sur, Apurba Mukherjee, Kobi Banerjee, Anirban Kargupta, Prabais Bengali Cultural Association, and Bangiya Parishad Toronto Applicants - and – Jnan Chowdhury also known as Ananda Chowdhury also known as Ananda Jnan Chowdhury, Ashoke Neogi also known as Ashok Neogi, Arpita Mukherjee, Partha Banerjee also known as Pabi Banerjee also known as Partha Bapi Banerjee, Mrinmoy Bhakta, Ujjal Chowdhury, Nirmal De, Ruby Mukherjee, and Sandip Goswami Respondents
Counsel: Wade Morris for the Applicants Suvendu Goswami for the Respondents David Morawetz for the Applicants Suvendu Goswami for the Respondents Jnan Chowdhury also known as Ananda Chowdhury also known as Ananda Jnan Chowdhury, Ashoke Neogi also known as Ashok Neogi, Mrinmoy Bhakta, Ujjal Chowdhury, Nirmal De, Ruby Mukherjee, and Sandip Goswami
HEARD: In writing
PERELL, J.
REASONS FOR DECISION – COSTS
[1] Suvendu Goswami is the lawyer of record for the Respondents in two related applications known as the Governance Application and the Lease Application. David Morawetz and John Lo Faso are the lawyers of record for the Applicants in the Governance Application. Wade Morris is the lawyer of record for the Applicants in the Lease Application.
[2] The Applicants in both applications respectively sought to have Mr. Goswami disqualified and removed as lawyer of record for numerous alleged and different conflicts of interest. I dismissed the motions, which were heard as one consolidated motion, and ordered that the Applicants pay costs on a substantial indemnity basis, if requested. [1] I concluded my Reasons for Decision by inviting the Applicants’ lawyers to apologize to Mr. Goswami. I stated:
The circumstances of these motions call for a punitive costs award, and I award the Respondents’ substantial indemnity costs - if requested.
I recommend, however, that the Applicants’ lawyers apologize to Mr. Goswami, that Mr. Goswami accept the apology, and that the Respondents request costs on a partial indemnity basis. The parties should then get on with this matter in the normal course.
In making this recommendation, I believe that all the lawyers were acting in what they thought was in the best interests of their own clients. While I conclude that the Applicants’ lawyer’s decision were very misguided, I do not believe that the Applicants’ lawyers’ motives in pursuing these motions were malicious or were taken to achieve a tactical or strategic victory. The Applicants’ lawyers overreacted to a scheduling matter that could have been and should have been resolved without the hysteria and emotional stress that followed.
In making a punitive costs award - if requested, I am not to be taken as making any conclusion about the professionalism of any of the lawyers. I do not wish to replicate what happened in the immediate case of making a procedural mountain out of a procedural molehill and of damaging reputations. In making a punitive costs award, I am responding only to the circumstances of the immediate case where the disqualification motions were dismissed but serious and ultimately unfounded allegations were made about Mr. Goswami.
If the parties cannot agree about the quantum of those costs, they may make submissions in writing, beginning with the Respondents’ submissions within twenty days of the release of these Reasons for Decision followed by the Applicants’ submissions within a further twenty days.
[3] Mr. Morris did not apologize. The Lease Applicants, his clients, submit that I made a mistake in my Reasons for Decision. They submit that I did not differentiate the position taken by the Governance Applicants, who clearly impugned Mr. Goswami’s fitness to practice and his mental health (by among other things asking the Law Society of Ontario to investigate Mr. Goswami’s fitness to practice), from the position of the Lease Applicants, who sought to have Mr. Goswami disqualified on numerous grounds of conflict of interest. The Lease Applicants point out that the different positions are reflected in the notices of motion, factums, and in how the disqualification motions were argued. Thus, Mr. Morris did not feel he should apologize.
[4] Mr. Morawetz made a one-sentence apology: “I apologize, and I hope you accept my apology.”
[5] Mr. Goswami accepted the apology, but his clients, the Respondents, persist in a request for substantial indemnity costs because the Governance Applicants continued in making derisive public comments about Mr. Goswami.
[6] Thus, the Respondents claim substantial indemnity costs of $58,918 ($54,918 for fees, plus HST, plus $3,665.88 for disbursements). The partial indemnity costs are $39,055.92, all inclusive of fees, taxes, and disbursements. The actual costs of the Respondents are $65,093.20, all inclusive of fees, taxes, and disbursements.
[7] I do not agree that I made any mistake in my Reasons for Decision in failing to differentiate between the Applicants, but ultimately nothing turns on this alleged mistake.
[8] My further review of the records for the motions, which were argued as one motion, my review of the correspondence between the parties, and my review of the costs submissions confirms to me that the Governance Applicants and the Lease Applicants were a tag-team and together and in different ways, they sought to impugn Mr. Goswami. The Applicants were allies. The Respondents were their common enemy. The Lease Applicants would have been quite content to have Mr. Goswami disqualified for the reasons advanced by the Governance applicants and vice-versa. The Lease Applicants stood to profit from getting rid of Mr. Goswami and did not disassociate themselves from the personal attacks being made against him by the Governance Applicants about his fitness, and the Lease Applicants made their own ultimately unproven allegations that Mr. Goswami should be disqualified. Mr. Morris on behalf of the Lease Applicants was a supporter and an enabler of Mr. Morawetz, and the Lease Applicants were directly and indirectly complicit in conduct that would justify a punitive costs award.
[9] But ultimately whether or not I made a mistake in my Reasons for Decision, it makes no difference, because to his credit, Mr. Goswami accepted the paltry apology and therefore, I shall award costs on a partial indemnity basis in accordance with the normal principles.
[10] The Respondents were successful on two motions that were argued as one motion. I award them costs on a partial indemnity basis of $37,500, all inclusive, and without and deductions or setoffs of costs as claimed by the Applicants in either application. The costs are payable jointly and severally and they are payable forthwith.
[11] The Respondents are entitled to the costs of one motion. Although two applications were involved, the factual underpinnings were identical. The procedural history of the two applications was intertwined. It was necessary to know the common factual and procedural background to both applications to determine whether or not Mr. Goswami should be disqualified.
[12] The procedural history of the two motions to disqualify was as follows:
a. The Lease Application was commenced on August 11, 2017 supported by an affidavit of Basu Deb Bose dated July 21, 2017.
b. The Governance Application was commenced on November 16, 2017 supported by affidavits of Sanjib Mukherjee, Rathin Ghose, Subhra Sur, Apurba Makherjee, Kobi Banerjee, Anirban Kargupta, and Pradipta Datta.
c. On January 19, 2018, in Civil Practice Court, Justice Firestone scheduled the Lease Application to be heard on May 29, 2018 (2 hours) and the Governance Application to be heard on September 17, 2018. Examinations in the Governance Application were to be completed by June 30, 2018. Examinations in the Lease application were scheduled to be completed earlier, before May 29, 2018.
d. The examinations proceeded in the Lease Application. Mr. Morris cross-examined the bailiff, Harvey Gerber, on February 27, 2018.
e. On April 25, 2018, Mr. Goswami cross-examined Swapan Gupta, Mukul Majumder, Ranendra Ghosh, and Pratap Som. Mr. Ghosh’s and Mr. Som’s cross-examination were not completed, and the examinations were adjourned to April 30, 2018.
f. On April 26, 2018, Mr. Goswami cross-examined Basu Deb Bose.
g. On April 30, 2018, Mr. Ghosh and Mr. Som did not reattend nor did Nirmal De, whose examination had been scheduled for that day attend to be examined. Mr. Goswami took out certificates of non-attendance.
h. Because it became apparent that the Lease Application would not be ready for May 29, 2018, the date was vacated, and Mr. Morris for the Lease Applicants arranged a Chambers appointment for June 20, 2018.
i. On June 5, 2018, Mr. Goswami sent an email message to counsel for the Applicants in the Governance Application proposing to examine Rathin Ghose on June 18 and Sanjib Mukherjee on June 19, 2018 and advising that Mr. Ananda Chowdhury would be available to be cross-examined after June 20, 2018.
j. Between June 6, 2018 and June 18, 2018 are the regrettable events, including Mr. Morawetz’s and Mr. Lo Faso’s impugning Mr. Goswami’s fitness to practice and mental health, that I describe in my Reasons for Decision.
k. On June 18, 2018, Bapi Banerjee was cross-examined.
l. On June 20, 2018, Mr. Morawetz, Mr. Morris, and Mr. Goswami appeared before Justice McArthur, who made the following endorsement. (It should be noted that Justice McArthur did not different the Lease Applicants from the Governance Applicants about the allegations being made against Mr. Goswami, save that she noted that the issue was initiated by the Governance Applicants.)
This application and the companion application CV-17-586635 are to go for a pre-trial conference [case conference] under rule 50.03(1) on an urgent basis. On today’s date, without notice to the court, the Applicant [the Governance Applicants] sought to argue that Mr. Goswami is not of sound mind. I declined to hear submissions on this issue, given the lack of notice and the seriousness of the allegation raised by the Applicants [the Governance Applicants and the Lease Applicants]. This issue and any others can be raised with the pre-trial conference judge. The Applicants [the Governance Applicants and the Lease Applicants] provided Mr. Goswami with their material, in support of their allegation that he is not of sound mind in court today. The pre-trial conference [case conference] should be set on an urgent basis. Any costs to be considered by the pre-trial judge.
m. On July 3, 2018, Mr. Morawetz, along with an agent for Mr. Morris. and Mr. Goswami attended the case conference ordered by Justice McArthur. Justice Matheson presided. and she made the following endorsement:
At this case conference the applicants in the applications have decided to bring motions to remove the respondents’ counsel, and in those circumstances, other steps, specifically examinations/cross-examinations, that had been contemplated for each application must await the disposition of those motions. I am prepared to give an early date for those motions, which, bearing in mind the time requested for delivery of material (which is affected by counsel’s availability over the summer) shall be August 30, 2018. The following shall be the schedule for material in these motions: […]
The September 17, 2018 return date for CV-17-586635 shall be vacated;
After disposition of these motions, counsel should arrange to attend at CPC for new schedules. Prior schedules for these applications are hereby vacated.
n. In accordance with the leave granted by Justice Matheson, on July 11, 2018, the Governance Applicants brought a motion to disqualify Mr. Goswami. The motion was supported by an affidavit from Sanjib Mukherjee dated July 11, 2018.
o. In accordance with the leave granted by Justice Matheson, on July 13, 2018, the Lease Applicants brought a motion to disqualify Mr. Goswami.
p. On August 16, 2018, Basu Deb Bose delivered another affidavit in the Lease Application.
q. On August 31, 2018, the two disqualification motions came on before Justice Dow. The motions were adjourned because Justice Dow suggested that Mr. Goswami needed counsel and Mr. Goswami responded by asking for an adjournment. Justice Dow made the following endorsement:
This matter and action [sic] CV-17-586635 involve motions to remove Suvendu Goswami as solicitor of record for the respondents. I raised whether Mr. Goswami and his clients would be better served if Mr. Goswami had counsel represent him given the nature of the motions. Mr. Goswami then requested an adjournment of these motions so that he could retain counsel. The applicants opposed this request citing a previous case conference and a pretrial where it was made clear that these motions were to proceed.
Further, the applicants raised concerns about delay. Despite same, given the nature of the relief sought in these motions, I conclude Mr. Goswami should be permitted the briefest of adjournments on terms. The earliest date available and agreed upon by counsel is November 23, 2018 and these motions are adjourned to that date for 90 minutes. This adjournment is peremptory to Mr. Goswami and his clients. Costs of today thrown away and sought by the applicants, in the amount of $3,500 and $2,330 are reserved to the judge that determines these motions.
r. Mr. Goswami retained co-counsel, Lalit Kalra, and the disqualification motions were argued on November 23, 2018.
[13] Before proceeding further with the costs determination, I pause to note that in the written costs submissions, there is a dispute between the parties about what occurred when the disqualification motions were adjourned by Justice Dow and about what Justice Dow may have said about the merits of the disqualification motions and about Mr. Goswami’s conduct and about what Justice Dow meant by his endorsement about costs. As I view the matter, Justice Dow cannot be taken to have ruled on the merits of motions that he was adjourning. As for costs, he deferred that matter to the judge hearing the motions, and he recorded what the Applicants were claiming as wasted costs because of the adjournments.
[14] Returning to the matter of the determination of the costs for the two disqualification motions, I disagree with the submissions of both parties about allocating Mr. Goswami’s and latterly Mr. Kalra’s legal services to the disqualification motions.
[15] Typically, disqualification motions arise at the outset of a proceeding, but in the immediate case, this did not occur and the proceedings were well underway before the Lease Applicants and the Governance Applicants separately and together found reasons to bring disqualification motions. Typically, interlocutory motions are free-standing events for which the associated costs can be readily allocated. That is not the situation in the immediate case.
[16] In the immediate case, Lease Applicants, had they been successful, would have claimed costs of $17,707.90 on a partial indemnity basis and the Governance Applicants, had they been successful, would have claimed costs of $7,971.13, on a partial indemnity basis. These costs claims are belied by their claims for $3,500 and $2,330 just for an adjournment, but more to the point, when a disqualification motion comes late in a proceeding, the costs associated with the disqualification motions cannot be arbitrarily isolated from the costs being incurred in the proceeding.
[17] In the immediate case, the Governance Applicants were motivated to disqualify Mr. Goswami because of his alleged erratic behaviour in scheduling cross-examinations that came late in the proceedings and the Lease Applicants were motivated to disqualify Mr. Goswami with respect to events that occurred before the Lease Application was even launched but allegedly only discovered during the cross-examinations.
[18] In the immediate case, resisting the disqualification motions was obviously of extraordinary importance to the Respondents and the factual background to the motions was as complicated as it was acrimonious. The factual background included a complex and bitter dispute that had yielded two applications. The breadth of the grounds for disqualification meant that a very broad swath of the law about the different types of disqualifying conflicts of interest was in play.
[19] Doing the best that I can to determine what the Lease Applicants and the Governance could reasonable expect to pay should they lose their late-arriving disqualification motion, I assess that sum to be $37,500, inclusive of fees, taxes, and disbursements, on a partial indemnity scale.
[20] Order accordingly.
Perell, J. Released: March 18, 2019