581257 Alberta Ltd. Plaintiff - v. -, 2016 ABQB 509

Court of Queen’s Bench of Alberta Citation: 581257 Alberta Ltd v Aujla, 2016 ABQB 509 Date: 20160913 Docket: 0803 04677 Registry: Edmonton Between: 581257 Alberta Ltd. Plaintiff - and - Balwinder Aujla and Harwinder Aujla Defendants _______________________________________________________ Reasons for Judgment regarding Pre-Judgment Interest and Costs of the Honourable Mr. Justice Don J.

Manderscheid _______________________________________________________ Introduction [ 1 ] This decision addresses issues remaining outstanding following a finding of liability on the part of the defendants, Balwinder Aujla and Harwinder Aujla, for monies stolen from the plaintiff, 581257 Alberta Ltd.: 581257 Alberta Ltd v Aujla , 2016 ABQB 66 , [2016] AJ No 149. [ 2 ] In that decision, this Court determined that the defendants were liable for compensatory damages totalling $177,050, less amounts paid in satisfaction of a previous judgment, for net damages of $174,273.

This total reflects $165,254 attributable to theft at the workplace by Balwinder and $9,019 attributable to Harwinder’s similar theft as determined by the Court on the facts. The Court declined to make a punitive damages award or to order solicitor client costs. It was acknowledged at the time of the decision that other issues remained to be addressed, and that further information was outstanding regarding funds forwarded by defendants’ counsel to plaintiff’s counsel after the previous trial. [ 3 ] As it turned out, counsel showed up during busy morning chambers with a formal judgment in hand.

The issue squarely before the Court at that time was the appropriate method of calculating pre-judgment interest. The formal order agreed to by counsel and signed by the Court that day was for separate judgment amounts as against Balwinder and Harwinder. [ 4 ] Counsel subsequently provided written briefs regarding costs. Pre-judgment Interest

[ 5 ] As noted, the main issue raised by counsel during the appearance in morning chambers was the appropriate manner of calculating pre-judgment interest. Defendants’ counsel took the position that pre-judgment interest was not payable as my prior decision did not address interest. However, counsel had alerted the Court at trial to the fact that some payments had been made to the plaintiff following the previous trial. It was not clear to the Court at that time how much was paid, the timing of the payment, nor the circumstances surrounding the payment.

It was acknowledged that calculations were required and the plaintiff submitted that further cost issues may arise and could be addressed at a hearing following the decision on liability. The Court anticipated that the parties would provide further information to the Court if they were unable to otherwise settle the outstanding issues. [ 6 ] Section 2(1) of the Judgment Interest Act, RSA 2000, c J-1 mandates that the Court award pre-judgment interest from the date the cause of action arose to the date of the judgment.

I found that the parties had provided no information or basis upon which to conclude that any of the factors listed as exceptions in s. 2(2) would apply in this case. [ 7 ] I agreed with plaintiff’s counsel that a fair and reasonable approach to take with respect to pre-judgment interest was to divide the amount attributable to Balwinder’s multi-year theft by the number of years in question and to calculate interest from each year for the amount in question, starting from the second year.

As I had found that the plaintiff established that Harwinder’s theft occurred from August 2007 to January 2008, the calculation in relation to the amount attributable to his theft posed no similar difficulties. Costs [ 8 ] The outstanding issues pertain to costs. [ 9 ] The plaintiff made a formal offer dated October 22, 2013 in accordance with Rule 4.24. The offer stated that the plaintiff would accept from the defendants, jointly and/or severally, a payment of $175,000.

It required a mutual executed release. [ 10 ] The defendants argue that this was not a true offer of compromise which Balwinder could unilaterally accept and act upon, citing Equitable Trust Company v Lougheed Block Inc , 2015 ABCA 37 , 593 AR 388. In Equitable Trust , the offer to one appellant provided that it was contingent on all other appellants agreeing to accept the respective offers made to them.

The Court concluded that the offer was not capable of being independently accepted, noting that there was nothing in the record that would support the contention that the one party was in a position to influence any of the other appellants with respect to their own offers. It also noted that Equitable had taken great pains to craft its offers to settle with multiple conditions precedent. [ 11 ] That case is distinguishable from the current matter. Here, there was one straightforward offer to the two defendants.

It was clear from the wording of the offer that Balwinder was at liberty to pay, severally, $175,000 which, upon both parties signing a mutual release, would put an end to the suit as against her. Unlike the situation in Equitable Trust , Balwinder did not have to influence Harwinder with respect to agreeing to the offer, or a separate offer, to him.

She was able to independently accept the offer with no commitment on the part of Harwinder to contribute anything whatsoever or to admit to any personal liability. [ 12 ] The fact that an offer only becomes effective upon acceptance by each of the defendants does not invalidate the offer: Rances v Scalpen , 2009 ABQB 390 , 462 AR 69. In Rances , the plaintiffs' offer provided that they would accept an admission by each of the defendants that an accident was caused by the negligence of one or more of the defendants, for which negligence the admitting defendant would be liable on a joint and several basis.

Nielsen J. upheld the offer, distinguishing cases requiring additional steps, such as Pettipas v Klingbeil , 2000 ABQB 988 , 276 AR 24 in which a settlement offer by a defendant required the plaintiff to secure discontinuance of any claims for contribution by the other defendant. [ 13 ] I reject the suggestion that the offer in this case is ineffective because Harwinder might for some reason have refused to sign a release which would have created no liability for him, and would have put an end to the suit against him. [ 14 ] The amount of the offer included costs and interest.

I find that the plaintiff beat the formal offer, as judgment for damages and interest was obtained against Balwinder in the total amount of $208,132.23. The plaintiff is entitled to double costs against Balwinder for all steps taken after service of the offer pursuant to Rule 4.29. [ 15 ] The plaintiff is entitled to costs against Balwinder for all steps taken in relation to both the first and second trials.

There can be no suggestion that the requirement of a second trial was due to any action or inaction on the part of the plaintiff. [ 16 ] The plaintiff is also entitled to an award of costs for the experts throughout. The defendants complain about disbursements for the expert, Mr. Prasad. However, his task was undoubtedly rendered more onerous and complicated due to the lack of information from the defendants and their concealment of the stolen monies. It lies ill in their mouths to complain about this disbursement in the circumstances.

While I stated in my earlier decision that he simply performed calculations and identified deposits which were not apparently related to legitimate income sources, I made no finding to the effect that this task was not arduous and time consuming. As for Mr. Thoman, he was called to respond to the defendants’ expert’s critique of Mr. Prasad’s approach. I find no “double-dipping”, as suggested by the defendants. Both were essential and helpful to the Court in reaching its conclusions in this case. [ 17 ] The defendants also complain about costs for the plaintiff’s expert, Mr.

Presizniuk, who testified in the first trial (2011 ABQB 39, 2011 ABQB 539 ), arguing that the evidence was not of any significant assistance. However, the Court of Appeal overturned that trial decision specifically on the issue of the shifting onus and the nature of the evidence which could be relied upon to establish the plaintiff’s loss. It commented that the judge’s evaluation of the expert evidence may well have been influenced by her incorrect starting point on the burden issue: 2013 ABCA 16 , 542 AR 123 at para 49 . In my view, Mr.

Presizniuk’s evidence was as critical to the plaintiff’s case as was the plaintiff’s expert evidence in the second trial. [ 18 ] The plaintiff also asks for an additional costs award of $3,000 or $5,000 on the basis that documents which had been admitted for truth of contents at the first trial were not admitted on the same basis on the second trial. As a result, extensive time was required at the last minute right before Christmas to garner evidence establishing the accuracy of the defendants’ own bank records.

[ 19 ] Rule 10.33(2)(

b) provides that the Court may vary costs where a party has denied or refused to admit something that should have been admitted. Clearly, the defendants were in the best position to determine the accuracy of their own bank records. Their failure at the last minute to admit them for the truth of their contents in the second trial could not reasonably have been anticipated by the plaintiff, given the concession at the first trial. I accept that this resulted in inconvenience and more time than would otherwise have been required to arrange for the appropriate bank affidavits.

I award $1,000 in additional costs in this respect against each of the defendants. [ 20 ] Finally, the defendants argue that Harwinder should either receive costs or there should be no order against him. Harwinder took the position at a certain point in the litigation that he had taken money from August 2007. Ultimately, damages were awarded against him in the amount of only $9,019 for conversion of monies from August 2007 onward. In my view, all of the steps taken in relation to the suit against Harwinder would have been necessary in pursuing the claim as against Balwinder.

Having considered the factors listed under Rule 10.33, I exercise my discretion and decline to order costs against Harwinder beyond the $1,000 I have imposed for the late failure to admit the truth of the contents of the couple’s bank records. [ 21 ] The defendants further complain that Balwinder will pay more in costs than in actual damages, and argue that this does not promote the confidence of the public in access to justice. Rule 4.29(4)(

e) allows the Court to depart from the double costs rule in special circumstances. However, the defendants have not pointed to any special circumstances which would justify the non-application of the rule. This case is indeed a cautionary tale to anyone contemplating workplace theft. The defendants’ own concealment of the thefts, their probably deliberately poor bookkeeping, their failure to provide information with respect to the tracking of the monies, and their obfuscation throughout the process all led to these protracted proceedings.

These are poor circumstances in which to complain about having to pay costs. Conclusion [ 22 ] In obtaining judgment against Balwinder, the plaintiff beat the formal offer.

The plaintiff is entitled to double costs against Balwinder for all steps taken after service of the offer pursuant to Rule 4.29. [ 23 ] The plaintiff is entitled to costs against Balwinder for all steps taken for the first trial and to the end of the second trial, and to costs for the experts throughout. [ 24 ] The plaintiff is entitled to an additional $1,000 in costs against each of the defendants for the late failure to admit the defendants’ banking documents for the truth of their contents prior to the second trial. No further costs are awarded as against Harwinder. Heard on the 3 rd day of May, 2016.

Dated at the City of Edmonton , Alberta this 13 th day of September, 2016. Don J. Manderscheid J.C.Q.B.A. Appearances: Greg J. Lintz Tarrabain Raponi & Company for the Plaintiff Brian G. Doherty Doherty Schuldhaus LLP for the Defendants