



COURT OF APPEAL FOR ONTARIO

CITATION: RINC Consulting Inc. (Roustan Capital)
    v. Grant Thornton LLP, 2020 ONCA 182

DATE: 20200309

DOCKET: C66698

Brown, Huscroft and Nordheimer JJ.A.

BETWEEN

RINC Consulting Inc., c.o.b. as Roustan
    Capital and

Walter Graeme Roustan, in his personal
    capacity as trustee of the

Walter Graeme Roustan Trust

Plaintiffs (Appellants/

Respondents by way of
    cross-appeal)

and

Grant Thornton LLP

Defendant (Respondent/

Appellant by way of cross-appeal)

M. Philip Tunley and Jennifer P. Saville, for the
    appellants/respondents by way of cross-appeal

Peter Downard and Rachel Laurion, for the respondent/appellant
    by way of cross-appeal

Heard: January 8, 2020

On appeal from the judgment of Justice James Diamond of
    the Superior Court of Justice, dated January 14, 2019, with reasons reported at
    2019 ONSC 7725, 2019 ONSC 808, and 2019 ONSC 1844.

Huscroft J.A.:

overview

[1]

The appellants lost several million dollars when they sold their shares
    in Performance Sports Group (PSG) at a loss. They sued the respondent
    accounting firm, Grant Thornton LLP (GT), alleging that the loss was caused by
    GTs refusal to complete a survey of PSGs business practices the appellant Roustan
    had engaged the firm to conduct. Roustan argued that, had he known the results
    of the survey, he would have arranged to sell his shares well before PSG
    sustained the losses that caused its share price to tumble.

[2]

The trial judge concluded that although GT breached the contract to
    complete the survey, the appellants did not suffer any damages as a result of
    the breach. Thus, he dismissed the action and awarded GT $175,000 in costs, on
    the basis that it was the more successful of the two parties.

[3]

The appellants argue that the trial judge erred in finding that GTs
    breach did not cause their loss and in failing to award damages for lost
    opportunity, share loss, special damages, and nominal damages. The respondent
    GT seeks leave to cross-appeal, arguing that the trial judge erred in awarding
    it only a portion of its costs on the basis that there was mixed success.

[4]

I would dismiss both the appeal and the cross-appeal for the reasons
    that follow.

background

[5]

The appellant Roustan was the Chairman of the Board of PSG from
    2008-2012. PSG is a sports equipment company that manufactured and sold Bauer
    hockey equipment. In 2014, Roustan owned approximately 1.4 percent of PSGs
    common stock through the vehicle of a trust.

[6]

In January 2015, Roustan wrote to PSGs then-current Chairman,
    requesting that he be re-appointed to the PSG Board of Directors. While his
    request was pending, PSG announced that it planned to become a retailer of
    hockey equipment, while continuing to supply products for sale by retail partners.
    Roustan strongly opposed this plan, and in May 2015 he retained GT to conduct a
    survey of ten of PSGs major retail partners to obtain their views on PSG and
    its practices. Roustan intended to distribute GTs report to PSGs officers,
    directors, and shareholders at an upcoming meeting.

[7]

Roustan devised a 30-question survey for GT to administer, which among
    other things asked: whether the retailer had ever been asked by PSG to move any
    orders forward to an earlier quarter; whether the retailer trusted PSG to be
    both a product supplier and retail competitor at the same time; and whether the
    retailer trusted the CEO of PSG. The survey was to be answered in confidence
    and Roustan was not to be informed which retailers had given specific answers
    to the questions.

The engagement letter

[8]

The appellant Roustan signed the engagement letter with GT on May 12,
    2015. The letter included the following three provisions:

[9]

The reputation clause:

In addition, Grant Thornton reserves the right, in whole or in
    part, to decline the performance of any Service(s) if, in the sole discretion
    of Grant Thornton, the performance of any of the Service(s) may cause Grant
    Thornton to be in violation of any applicable law, regulations, professional
    standards or obligations or which may otherwise result in damage to Grant
    Thornton's reputation.

[10]

The termination clause:

Either The Company or Grant
    Thornton may terminate the Engagement upon fourteen (14) days prior written
    notice to the other party. In addition to the foregoing, Grant Thornton may
    also terminate the Engagement in the event of a breach of any term of the
    Engagement by The Company which is not cured by The Company within ten (10)
    days of receipt of written notice as to the breach.

[11]

The limitation clause:

In any action, claim, loss or
    damage arising out of the Engagement, you agree that our liability will be
    several and not joint and several and you may only claim payment from us of a
    proportionate share of the total liability based on degree of fault as finally
    determined.

The total liability assumed by us for any action, claim, loss
    or damage arising out of or in connection with the Engagement, regardless of
    the form of action, claim, loss or damage, be it tort, contract or otherwise,
    shall in no event exceed the aggregate of the professional fees paid to us
    under the terms of the Engagement. In addition, we shall not under any
    circumstances, be liable for any special, direct or consequential damages
    including, without limitation, loss of profit or revenue, failure to realize
    expected costs reductions or savings or similar losses of any kind.

The conduct of the survey

[12]

By May 15, 2015, seven of ten retailers contacted by GT had replied to
    the survey. On May 18, 2015, PSG wrote to GT informing it that the survey
    risked significant harm to PSGs relationships with its retailers and
    demanding that GT cease and desist with the survey. PSG also asked that it be
    provided with the identity of the shareholder for whom the survey was being
    conducted, a list of the retailers that had been contacted, the survey
    questions, and any reports or draft reports that had been prepared.

[13]

GT continued to perform the survey despite PSGs letter, following up
    with an eighth retailer and beginning to prepare a draft report. On May 21,
    2015, the Chairman of PSG sent an email to GTs CEO. He stated that GT was
    engaged in an effort to disrupt PSGs business plans and retail relationships
    on behalf of Roustan and expressed the view that the survey was motivated by
    PSGs refusal to appoint Roustan to the Board, his opposition to PSGs business
    plans, and his personal animosity. The Chairman of PSG wrote:

The survey questions appear designed to advance Mr. Roustan's
    personal agenda and seem to be written in a manner to elicit negative responses
    from PSG's retailers, insinuating that PSG and its management are
    untrustworthy, sabotaging PSG's retail relationships, and fabricating support
    for Mr. Roustan's campaign against PSG's plans to open Bauer retail stores.

Questions that ask whether PSG has been honest and by what
    percentage retailers intend to reduce their purchase from Bauer, for example,
    are consistent with an attack on the company, not a professional market survey
    that one would expect to receive from a firm such as Grant Thornton. Moreover, the
    public release of answers to these biased, illegitimate questions would pose
    significant risk to PSG's business relationships, business plans, and
    shareholder value.

[14]

On May 25, 2015, a representative of GT asked Roustan whether he would
    change the title of the report from survey to questionnaire and asked him
    not to disclose the report beyond PSGs institutional shareholders. Roustan
    agreed to the first request but not the second.

GT withdraws its services

[15]

On May 28, 2015 GT wrote Roustan, informing him that it was withdrawing
    its services and refunding the $2,000 deposit he had paid. Citing the reputation
    clause, the letter stated that the decision to terminate the agreement was
    reached after concluding that continuing with this engagement will result in
    damage to Grant Thorntons reputation.

Post-termination events

[16]

Roustan asked GT to release the results of its survey to him prior to
    his upcoming meeting with PSG even if its report was not complete, but GT
    refused to do so. Roustan then attempted to conduct his own survey of PSGs
    retail partners using an online survey tool called SurveyMonkey. This survey
    used the same questions as the GT survey and five of PSGs ten major retailers
    responded to it. Three of those five retailers answered that they had been
    asked to move orders to an earlier quarter, something Roustan regarded as
    channel stuffing.

[17]

Roustan attended a meeting with the PSG Board on June 5, 2015 but failed
    to convince the Board to abandon its proposed sales plan. PSG proceeded to
    implement the new sales plan in the late summer of 2015. On June 12, 2015,
    Roustan prepared a draft letter to PSGs Board of Directors. The subject of
    that letter was Possible Sales Manipulation. Roustan outlined the informal
    survey of PSGs retailers that he had conducted and mentioned concerns that had
    arisen from the survey, including the concern that PSG had asked several
    retailers to move orders forward into an earlier quarter. He said that this was
    very alarming to me and I believe should be alarming to you. The letter went
    on to say that he believed extreme discounting was taking place to make
    quarterly numbers. The impression, he said, was that PSG was improperly
    manipulating prices  in essence, running a Ponzi scheme of sorts  and further
    investigation was required.

Roustans stockholding

[18]

Roustan did not sell any of his shares in PSG following his meeting with
    the Board. On the contrary, between the meeting on June 5, 2015 and November
    30, 2015 he purchased additional PSG shares, taking advantage of a decline in PSGs
    share price.

[19]

The price of PSG shares continued to drop in 2015. On March 18, 2016,
    PSG shares lost 66 percent of their value in one day, in response to a downward
    revision of PSGs revenue and earnings guidance. Roustan liquidated his shares
    that month. PSG filed for protection under the
Companies Creditors
    Arrangement Act
, R.S.C., 1985, c. C-36
later that year.

The trial judges decision

[20]

The appellants sued GT for breach of fiduciary duty and breach of
    contract, alleging that Roustan lost between $9.5 and $12.4 million as a result
    of the drop in PSGs share price.

[21]

The trial judge dismissed the appellants claim against GT for breach of
    fiduciary duty. He found the parties relationship was contractual in nature
    and that GT had never undertaken to act in the appellants best interests or
    solely for his benefit. The trial judge declined to create a new type of
    fiduciary relationship. GT had no power over Roustan beyond the rights it had
    under its contract with him. It was simply carrying out a survey of questions
    he had written, and the vulnerability necessary to ground a fiduciary
    relationship did not exist.

[22]

However, the trial judge went on to conclude that GT had breached its
    contract in exercising its discretion to withdraw its services. He found that
    GT was not entitled to withdraw its services in accordance with its reputation
    clause, as it asserted in its May 28, 2015 letter. The trial judge rejected
    the submission that the survey was potentially defamatory of PSG and its CEO
    and that GTs reputation would be at risk by participating in publication of
    the survey results. He found that nothing that occurred following the commencement
    of the survey should have come as a surprise to GT in any event. Specifically,
    GT knew that: Roustan opposed PSGs proposed sales initiative and was seeking
    to obtain evidence to help him oppose it; Roustan intended to distribute the
    survey results at his meeting with the Board, so they would likely enter the
    public domain; PSG would have reacted unfavourably to this; and some of the
    survey questions, which GT had approved, potentially disparaged both PSG and
    its CEO.

[23]

Accordingly, the trial judge found that GT had not exercised its
    discretion to terminate the contract reasonably and in good faith. All of the
    reasons proffered by GT for relying on the reputation clause were known to GT before
    the contract was entered. As the trial judge put it: At the outset, GT knew,
    underwrote and assumed the very risks which it now seeks to resurrect as
    grounds for terminating the Engagement Letter. The implicit threat of
    litigation by PSG was not a new fact that allowed GT to exercise its discretion
    anew.

[24]

The trial judge found, further, that GT could not rely on the limitation
    clause in the contract limiting its exposure to damages to the aggregate of the
    fees paid to it under the contract, as the limitation clause did not apply to
    the particular factual circumstances of the dispute. However, he concluded that
    the appellants were not entitled to damages for PSGs breach of contract in any
    event.

[25]

The appellants theory of damages that was presented at trial was that
    if GT had disclosed the survey results to Roustan  and in particular, that
    five of the eight major retailers had confirmed that PSG was engaging in
    misrepresenting the strength of their business by channel stuffing  then
    Roustan would have begun to liquidate PSG shares at that time, resulting in a
    much smaller loss. However, the trial judge did not find that the relevant
    question in the survey led to the channel stuffing conclusion. There was no
    evidence that product orders had in fact been moved, that deep product
    discounts had been promised, or that there was a repeat practice of doing so.

[26]

The trial judge found that the claim failed even looking at the issue
    from Roustans subjective perspective. Roustan purchased additional shares of
    PSG after the June 5, 2015 meeting, even though he had information from his
    SurveyMonkey survey that was essentially the same as the GT survey would have
    revealed. The trial judge noted that, subjectively, Roustan viewed the
    SurveyMonkey information as credible.

The r. 59.06(1) motion

[27]

Following release of the decision, the appellants brought a motion under
    r. 59.06 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    arguing that the trial judge had failed to adjudicate four issues raised in
    their action: nominal damages, special damages, damages for purchase of new
    shares, and damages for loss of chance.

[28]

The trial judge held that the appellants theory of damages was based on
    fictitious losses and that an award of nominal damages should be rejected as
    well, citing this courts decision in
Rosenhek v. Windsor Regional Hospital,
2010 ONCA 13, 257 O.A.C. 283, leave to appeal refused, [2010] S.C.C.A. No. 89, for
    the proposition that an award of nominal damages presumes that there are
    perhaps some unquantified damages which a party has failed to prove. The trial
    judge rejected the appellants claim for special damages because the appellants
    failed to establish a causal link between the services performed for the
    appellants and GTs breach of contract. He refused to entertain the appellants
    request for damages for the purchase of the additional shares, because he found
    that Roustan purchased the shares for his own strategic investment goals in a
    declining market. Finally, the trial judge refused to entertain the appellants
    request for damages for loss of an opportunity to secure resignations of PSG
    Board members and to convince PSG to abandon its new sales strategy, a theory
    not pursued at trial and for which there was insufficient evidence in any
    event.

Costs

[29]

The trial judge concluded that there was mixed success in the
    proceeding. He found that GT had breached the contract but also that no damages
    flowed from any of his findings. He rejected the other claims made by the
    appellants, both at trial and on their r. 59.06 motion. In summary, the trial
    judge concluded that GT was the more successful party and was entitled to a
    portion of its costs on a partial indemnity basis.

[30]

Taking all these considerations into account, and noting the numerous
    issues, the complexity of the case, and the size of the appellants claim, the
    trial judge awarded GT costs fixed at $175,000. He specifically rejected GTs
    claim for disbursements relating to expert opinion evidence that he had
    rejected as irrelevant and inadmissible.

Issues on appeal

[31]

The appellants advance two principal arguments on appeal. First, they
    say that the trial judge erred in determining causation of the loss in the
    value of the shares that they incurred. Second, the trial judge erred in
    failing to award damages for lost opportunity, share loss, special damages, and
    nominal damages.

The causation issue

[32]

The appellants assert that the trial judge made several palpable and
    overriding errors. Specifically, the trial judge:

·

failed to find that affirmative answers to the channel stuffing
    question could lead to a conclusion that it was occurring as a practice;

·

wrongly found that the SurveyMonkey information was substantially
    or essentially the same as the information that GT would have provided had it
    completed its report; and

·

wrongly found that Roustan subjectively believed that the
    SurveyMonkey results were credible information, despite finding that Roustan
    was a sophisticated investor and that he purchased additional shares on margin
    after receiving the SurveyMonkey results.

[33]

I see no such errors.

[34]

First, it was for the trial judge to interpret the meaning and
    significance of the channel stuffing question. He found that the relevant
    question did not ask whether the retailers were offered deep discounts; it did
    not ask whether the retailers had in fact moved any orders into an earlier
    quarter; and it did not establish a practice in any event, because a retailer
    could have answered yes to the question while only having been asked to move an
    order forward on a single occasion. These findings were open to the trial
    judge. Moreover, it was for the trial judge to determine what, if anything, was
    to be inferred from the retailers answers to the survey. He was not obliged to
    accept either Roustans view that PSG was engaged in channel stuffing or his
    evidence as to the effects of engaging in channel stuffing.

[35]

Second, the trial judge was entitled to conclude that despite GTs failure
    to complete the survey, Roustan obtained essentially the same information as a
    result of the SurveyMonkey survey. The trial judge noted that 60 percent of the
    retailers who responded to the SurveyMonkey survey answered the channel
    stuffing question affirmatively, whereas 62.5 percent of the respondents to
    the GT survey answered affirmatively. The conclusion that the information is
    essentially the same cannot be characterized as an error, much less a palpable
    and overriding error that would justify overturning the trial judges decision.

[36]

Third, the trial judge cannot be said to have erred in concluding that
    Roustan believed the SurveyMonkey information was credible. The trial judge
    rejected Roustans evidence that he could not rely on the SurveyMonkey answers
    because the retailers had been threatened by PSG, noting that no evidence had
    been presented to show that PSG threatened any major retailers. Moreover, the
    draft letter Roustan prepared, but did not send to the Board, amply supports
    the conclusion that he had a subjective belief that the SurveyMonkey
    information was credible. In that letter, Roustan describes the information
    that several retailers have been asked to move orders forward as very alarming
    to me, adding that he had received credible information which led me to
    believe that extreme discounting is taking place, which he speculated could be
    PSG dumping products. The letter went on to state that the information gave
    rise to the perception that PSG was improperly manipulating prices  conduct
    [that] emulates a Ponzi scheme of sorts.

[37]

The appellants parse this letter, emphasizing the tentative nature of
    some of its language. But the trial judges interpretation cannot be impugned
    on this account. The trial judges finding as to Roustans subjective belief is
    amply supported by the record.

[38]

The appellants argument also fails for another reason. The appellants
    argued that if GT had disclosed the survey results, they would have begun to
    liquidate their shares at that time. But as the trial judge concluded, this was
    wholly inconsistent with Roustans action in buying a further 163,962 PSG
    shares on margin following his unsuccessful meeting with PSG on June 5, 2015.
    The appellants argue that it would have been irrational for a sophisticated
    investor like Roustan to purchase additional shares if he believed the
    SurveyMonkey information. This argument seeks to make a virtue out of Roustans
    improvident decision to purchase additional shares of PSG. The purchase of
    additional shares does not undermine the trial judges findings, let alone
    demonstrate palpable and overriding error.

[39]

At the end of the day, the appellants simply invite this court to
    relitigate the case. The appellants go so far as to assert that all the
    findings made in support of the trial judges causation conclusion are tainted
    by palpable and overriding error. None of them are, and there is no basis for
    this court to interfere with them.

The r. 59.06 motion

[40]

The appellants argue that the trial judge erred in dismissing their motion
    under r. 59.06 by applying the wrong test. This was not a case in which they
    alleged that the judge erred in his reasons, nor did the appellants seek to
    vary matters that had been decided. The motion concerned four matters that had
    not been adjudicated upon. In these circumstances, the appellants say, the
    trial judge had a broad discretion to grant relief on their motion if it was in
    the interests of justice to do so.

[41]

The trial judge did not apply the wrong test. He recognized that r. 59.06
    was to be used for the purpose of correcting errors in a judgment, not in the
    reasons, as this court explained in
Meridian Credit Union Ltd. v. Baig
,
    2016 ONCA 942. In that case, the court explained that there is no
    jurisdictional impediment to a court reconsidering a decision if an order has
    not been taken out and entered, but a party seeking to re-open an appeal faces
    a high hurdle. As the court noted at para. 7, citing
Mujagic v. Kamps
,
    2015 ONCA 360, 125 O.R. (3d) 715, leave to appeal refused, [2015] S.C.C.A. No.
    330, a trial judge may re-open an appeal prior to the entering of an order
    sparingly and only where it is clearly in the interests of justice to do so.

[42]

In this case, given that a judgment had not been taken out and entered,
    it was open to the trial judge to entertain the appellants motion. He
    proceeded to consider and reject all the grounds raised by the appellants. I
    will address the alleged errors in the order raised by the appellants.

Loss of opportunity

[43]

The appellants argue that the trial judge erred in refusing to entertain
    their alternative claim for loss of opportunity to use the GT report to secure
    resignations from the PSG Board of Directors, thereby changing the direction of
    the Board and avoiding the share loss later incurred. The appellants submit
    that they were entitled to damages for the loss of a chance, which they assess
    at least 50 percent of the loss of share value  approximately $4.7 million.
    The appellants acknowledge an inadvertent failure to address this matter in their
    closing submissions.

[44]

The respondents point out that the appellants did not claim this relief
    in their 72-page written argument or oral submissions and characterize the
    motion as an attempt to reopen final argument.

[45]

I agree.

[46]

The trial judge cannot be faulted for not addressing a matter that the
    appellants admitted was not pursued at trial or in their written or closing
    oral submissions, despite it being raised in their pleadings. The trial judge
    found that because the matter was not before the court, it was not a matter
    that had been overlooked by the court, and as a result he was not prepared to
    entertain the request. But the trial judge provided cogent reasons for
    concluding that the claim would have failed in any event. He found that there
    was insufficient evidence in the record to support a claim of damages for a
    loss of opportunity. Specifically, he found that [n]othing was going to change
    the course of PSGs new sales strategy. That finding is fatal to the claim for
    damages for loss of opportunity and there is no basis to interfere with it.
    Moreover, as the respondent notes, Roustans evidence was that if he had the GT
    survey information, he would have sold his shares before his meeting with the Board.
    He could not get damages for the loss of an opportunity that he would not have
    pursued.

Damages for the loss of value on the 2015 share purchase

[47]

The appellants argue that GT should be liable at least for the damages
    resulting from Roustans purchase of additional shares on margin, because he
    would not have purchased these shares if GT had completed the survey.

[48]

There is no merit to this submission. The trial judges finding that
    Roustan purchased the shares despite his concerns that channel stuffing was
    occurring is entitled to deference and is dispositive of this claim for
    damages.

Special damages for professional fees

[49]

The appellants submit that they were entitled to approximately $300,000 for
    professional fees they incurred in bringing the action. They say that the trial
    judge misconstrued the case law and failed to give effect to Roustans
    uncontroverted evidence concerning the professional services he retained in
    pursuing the action.

[50]

The trial judge found that it was difficult, if not impossible, to find
    a causal link between the services performed for the appellants and GTs breach
    of contract. Moreover, the trial judge found that the appellants evidence was
    far from clear and cogent, and lacking in particulars. In short, he found
    that the appellants failed to meet their onus to establish that they were
    entitled to special damages. This was the trial judges call to make and there
    is no basis to interfere with it on appeal.

Nominal damages

[51]

Finally, the appellants argue that the trial judge erred in refusing to
    award nominal damages. The appellants say that, having established a valid
    contract and a breach, they were entitled to nominal damages, as such damages
    are always available:
Mars Canada Inc. v. Bemco Cash & Carry Inc.
,
    2018 ONCA 239, 140 O.R. (3d) 81, at para. 33; see also
Place Concorde East
    Ltd. Partnership v. Shelter Corp. of Canada Ltd.
(2006), 270 D.L.R. (4th) 181 (Ont. C.A.), at para.
    76.

[52]

It is well established that nominal damages may be awarded where a
    breach of contract has been established but damages flowing from that breach
    have not. Nominal damages are a trivial amount  typically one dollar  and
    serve a symbolic rather than a compensatory purpose: they mark a breach of
    contract in the same way that a declaration would. See, generally, S.M. Waddams,
The Law of Damages
, 5th ed. (Toronto: Thomson Reuters, 2012), at c. 10.10-10.30;
    James Edelman,
McGregor on Damages
, 20th ed. (London: Thomson Reuters
    (Professional) UK Limited, 2018), at c. 12-001-12-013.

[53]

The award of nominal damages might be important in some cases. For
    example, in the context of an ongoing contract in order to clarify future
    performance obligations, or to vindicate a partys rights. But there are no
    such special circumstances in this case. The appellants did not bring their
    action merely to seek a judicial statement or declaration that the respondent
    had breached the contract; they brought their action with the intention of
    claiming over $9 million in damages as compensation for losses they claim to
    have suffered as a result of the respondents breach of contract.

[54]

The trial judge declined to exercise his discretion to award nominal
    damages on the basis that the appellants failed to prove that the respondents
    breach of contract caused their losses. The trial judge appears to have thought
    that the courts discretion to award nominal damages depends on the existence
    of unquantified damages. It does not.

[55]

But the trial judges error is of no moment, for the award of nominal
    damages would have served no purpose in this case. The appellants appear to
    assume that an award of nominal damages would have turned their substantive
    lack of success into a basis for awarding them costs. It would not. Even if the
    trial judge had awarded the appellants nominal damages, it would still be
    within the discretion of the trial judge to make no award of costs to the
    appellants, or to make the award of costs to the respondent that he did on the
    basis of the extreme disparity between the amount claimed and the amount
    recovered in the proceeding: r. 57.01(1)(a).

The cross-appeal

[56]

The respondents cross-appeal seeks leave to appeal the trial judges
    costs order. The respondent says that the trial judge erred in finding that 1)
    the reputation clause in the engagement letter did not authorize its withdrawal
    from the engagement; 2) it was not entitled to rely on the limitation clause in
    the contract; and 3) its expert evidence was irrelevant and inadmissible. These
    errors, the respondent says, caused the trial judge to conclude that success
    was mixed, and to award it $175,000 instead of $485,736.42 on a partial
    indemnity basis.

[57]

The first two arguments do not concern the costs order. Instead, they
    concern the trial judges reasons for dismissing the action and, as such, they
    are not properly the subject of a costs appeal. The only basis on which leave
    to appeal the costs order could be granted is the respondents third argument,
    which concerns the trial judges decision not to award special damages for the
    expert evidence.

[58]

The test for leave to appeal costs is well established. Costs awards
    should be set aside on appeal only if the trial judge erred in principle or
    made an award that is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The trial judge found that the
    expert evidence was of little to no evidentiary value, as it was both irrelevant
    and arguably inadmissible. There is no error in principle here, nor is the
    award plainly wrong. The award of special damages was a matter within the trial
    judges discretion and his decision is entitled to deference. The trial judge
    gave clear reasons for fixing the costs in the amount that he did.

[59]

I would deny leave to appeal the costs order.

CONCLUSION

[60]

I would dismiss the appeal and cross-appeal.

[61]

In light of the divided success, each party should bear its own costs.

Released: March 9, 2020 (G.H.)

Grant Huscroft J.A.

I agree. David Brown J.A.

I agree. I.V.B. Nordheimer
    J.A.


