Benjamin Waterman

This is a costs endorsement following an appeal where the appellants were substantially successful on the quantum of damages.

The parties could not agree on costs.

The court fixed costs at $27,000, inclusive of HST and disbursements, to be paid by the respondent to the appellants, emphasizing that the amount should be fair and reasonable rather than an exact measure of actual costs.

This is a second appeal concerning the assessment of damages in a dispute between pig farmers (appellants) and a supplier (respondent) over the delivery of diseased animals.

The appellants argued for a reasonable apprehension of bias by the trial judge and errors in the damages assessment.

The Court of Appeal dismissed the bias claim and the arguments regarding the date of damages assessment and the consideration of hindsight evidence.

However, the Court found that the trial judge erred in calculating lost profits for a specific period by misapprehending an expert report, leading to an incorrect deduction.

The appeal was allowed in part, correcting the damages award in favour of the appellants.

The plaintiff corporation, a producer of early wean pigs, brought an action against the defendant livestock breeder for unpaid invoices totaling approximately $48,855.

The plaintiff alleged the parties entered into an oral contract for the outright purchase of the pigs.

The defendant denied the contract, claiming it merely allowed the plaintiff to assemble pigs in its leased nursery and counterclaimed for feed costs.

Following a three-day trial, the court found the plaintiff's witnesses credible and the defendant's witnesses unreliable.

The court concluded an enforceable oral contract existed, granted judgment for the plaintiff in the amount of $48,885.40, and dismissed the defendant's counterclaim.