Case Study: Fuller V. Aphria Inc.

• Published date: 10 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Field LLP
• Author: Mr Brian Vail, QC

The Ontario Court of Appeal reiterated its disapproval of distributive cost orders but upheld a trial judge's decision to disallow the successful plaintiff the costs of an expert where the expert's evidence is of marginal value to the case.

Fuller v. Aphria Inc., 2020 ONCA 465

Facts and Issues

At trial, the judge awarded the successful Plaintiff partial indemnity costs of $74, 408.00. In making that decision the trial judge disallowed the Plaintiff's disbursement for one of the Plaintiff's experts regarding damages ($16, 950.00) finding that the expert's work had been a "mathematical exercise" as opposed to an expert opinion.

The Plaintiff appealed, arguing that "the expert's evidence contained information that was useful in the assessment of damages, even though the application judge did not accept the ultimate conclusion" and that the refusal to award costs for that disbursement amounted to "an exercise of distributive costs" (whereby a court determines costs "by success on each issue rather than by reference to overall success in the litigation)

HELD: For the Defendants; appeal dismissed.

1. The Court reiterated its disapproval of the practice of "distributive costs", but rejected the Plaintiff's argument that the trial judge employed it in this case

[5] We disagree with the appellants that the disallowance of an element of a successful party's 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.

2. The Court held that in determining whether or not to award a successful litigant costs for an expert disbursement, it should consider how useful the expert's evidence was to...