



COURT OF APPEAL FOR ONTARIO

CITATION: Fuller v. Aphria Inc., 2020 ONCA 465

DATE: 20200716

DOCKET:
C67236

Tulloch, van Rensburg and Zarnett JJ.A.

BETWEEN

Jon-Paul Fuller and JPF Komon Kaisha Inc.

Applicants (Appellants)

and

Aphria Inc. and Pure Natures Wellness Inc. d/b/a
    Aphria

Respondents (Respondents)

Earl A. Cherniak, Q.C., Jason M. Squire and Lindsay A.
    Woods, for the appellants

Eric S. Block, Jacqueline Cole and Patrick Healy, for
    the respondents

Heard: February 6, 2020

On appeal from the order of Justice Laurence A. Pattillo
    of the Superior Court of Justice, dated June 21, 2019, with reasons reported at
    2019 ONSC 3778, 147 O.R. (3d) 106.

COSTS ENDORSEMENT




[1]

By a decision dated June 23, 2020, we allowed the appeal in part, awarded
    costs of the appeal to the appellants, and invited written submissions on costs
    of the proceedings in the Superior Court: 2020 ONCA 403. We have now received
    those submissions.

[2]

The appellants request costs in their favour on a partial indemnity
    basis in the sum of $91,358.38 for fees and disbursements. The respondents
    agree that the appellants should receive costs on a partial indemnity basis,
    but submit that they should be in the amount of $74,408.00.

[3]

The single item that accounts for the difference in amount (roughly
    $16,950.00) is a disbursement to the appellants expert who gave evidence on
    the issue of the quantum of damages. The respondents contest that disbursement
    on the basis that the experts evidence was rejected by the application judge. When
    he assessed damages (an assessment that was not disturbed on appeal), the application
    judge referred to the work the expert had undertaken as a mathematical
    exercise rather than an expert opinion.

[4]

The appellants say the disbursement should be allowed on two grounds.
    First, they submit that the experts evidence contained information that was
    useful in the assessment of damages, even though the application judge did not
    accept the ultimate conclusion. Second, they say that to disallow the
    disbursement would be to engage in an exercise of distributive costs, which has
    been disapproved by this court.

[5]

We disagree with the appellants that the disallowance of an element of a
    successful partys costs on the basis contended for in this case would amount
    to a distributive costs order. The latter involves an issue by issue review of
    the result of litigation, with the costs being determined by success on each
    issue rather than by reference to overall success in the litigation:
Armak Chemicals
    Ltd. v. Canadian National Railway Co.
, 1991 CarswellOnt 440 (C.A.), at
    paras. 13, 19-20;
Wesbell Networks Inc. v. Bell Canada
, 2015 ONCA 33,
    at para. 21.

[6]

There is no suggestion here that the appellants should not receive costs
    because of a lack of success on any issue. The appellants were ultimately
    successful on the issues of liability and damages (although not in the quantum
    they sought). The question here is different. It is whether the appellants
    should be reimbursed for a specific disbursement, that is, whether the
    disbursement goes beyond what should be properly recoverable by a successful
    party in a partial indemnity costs award.

[7]

In determining whether and to what extent disbursements to an expert 
    should be allowed, the court considers, among other things, whether the expert
    made a contribution to the case and whether the evidence was of marginal value
    or crucial to the case:
Hamfler v. 1682787 Ontario Inc.
, 2011 ONSC
    3331, at para. 17;
R & G Draper Farms (Keswick) Ltd. v. Nature's Finest
    Produce Ltd.
, 2016 ONCA 626, 133 O.R. (3d) 395, at para. 20. We agree with
    the respondents that the disbursement to the expert should not be recoverable
    in this case. It is difficult to see any value contributed by the evidence of
    the expert. The evidence essentially consisted of the multiplication of
    publicly available share prices by the number of options the appellants held,
    and the subtraction, from the resulting total, of the exercise price. We agree
    with the description of that exercise as a mathematical one, not opinion
    evidence. To the extent the mathematics produced amounts based on the share
    prices at which the appellants claimed they would have disposed of the shares,
    they were premised on an assumption that was not proven to the satisfaction of
    the application judge and were thus not useful. To the extent the experts
    evidence contained other calculations based on share prices on different dates,
    or raw material from which still other calculations could be done, again, that
    raw material was simply publicly available share price data and the
    calculations were simply mathematics; expert evidence was not required.

[8]

Accordingly, we award costs of the application to the appellants in the
    sum of $74,408.00 for fees and disbursements. The appellants should also
    recover HST on the applicable amounts.

M. Tulloch J.A.

K. van Rensburg J.A.

B. Zarnett J.A.


