COURT OF APPEAL FOR ONTARIO

CITATION: Rougemount Capital Inc. v. Computer Associates International Inc., 2016 ONCA 847

DATE: 20161110

DOCKET: C59920

LaForme, Pardu and Roberts JJ.A.

BETWEEN

Rougemount Capital Inc.

Plaintiff (Respondent)

and

Computer Associates International Inc.

Defendant (Appellant)

Michael J.W. Round and Nicholas Robar, for the appellant

Peter J.E. Cronyn, for the respondent

Heard: March 8-9, 2016

On appeal from the judgment of Justice Mary A. Sanderson of the Superior Court of Justice, dated December 17, 2014, with reasons reported at 2014 ONSC 7070.

By the Court:

INTRODUCTION

[1] Sixdion Inc. (“Sixdion”) describes itself as an Aboriginal IT company. Its goal was to market comprehensive IT systems to Aboriginal communities. Computer Associates International Inc. (“CA”)[^1] carries on the business of developing, manufacturing and licensing proprietary computer software programs in the U.S. and elsewhere. It has a subsidiary that markets and sells CA’s products in Canada.

[2] In 2004, Sixdion believed that it had a contract with CA. Sixdion claimed that CA breached the contract, resulting in Sixdion's filing for bankruptcy in 2005. Rougemount Capital Inc. (“Rougemount”), a former Sixdion creditor, purchased the action against CA from Sixdion’s trustee for $5,000. It is common ground that this entitles Rougemount to 60% of any damages assessed to have been incurred by Sixdion as a result of CA’s breach of their agreement. Rougemount claimed damages suffered by Sixdion of $20 million - $54 million as a result.

[3] The trial judge found that there was a contract that CA breached and awarded $11 million in damages. CA appeals and argues that the trial judge made fatal errors in reaching her decision on both the issue of the validity and nature of the contract and in her assessment of damages.

[4] Rougemount, on the other hand, stresses that this action is not just about the destruction of Sixdion, which flowed from CA's breach of contract. Rather, it argues that it is also about the loss of a formidable opportunity for both Sixdion and CA, as a direct result of CA's failure to fulfill its agreement.

BACKGROUND

(a) Sixdion’s business and development

[5] Sixdion was incorporated on February 22, 1996. At all material times it had three primary shareholders: Murray Dion (“M. Dion”), Lewis Staats (“Staats”), and Leo Dion (“L. Dion”). Sixdion was an Aboriginal company[^2] involved in the information and communications technology business. Initially Sixdion provided “low-tech” services. However, Sixdion’s principals testified (and the trial judge accepted) that the company was constantly developing its business model and trying to provide more sophisticated services and products.

[6] In 2004, Sixdion was at a crossroads. Its principals believed that it could achieve commercial success by capitalizing on the company’s status as an Aboriginal company (in relation to government procurement contracts) and by providing technology services for Canadian (and eventually international) indigenous populations. However, in order to exploit that potential, it needed capital investment and partnership with more established companies. It is in this context that Sixdion began to interact with CA.

(b) Negotiations and contract between Sixdion and CA

[7] Representatives of CA-Canada approached Sixdion in March 2004. They were interested in Sixdion because working with an Aboriginal company would make it easier for CA to benefit from government projects and procurement. Initially, CA wanted a marketing agreement wherein Sixdion would re-sell CA products. However, Sixdion insisted on an agreement in which CA would purchase some equity in Sixdion and be an active partner in its business.

[8] The trial judge provided a lot of detail about the negotiations between the two companies over the summer of 2004. We highlight the following salient details:

• CA-Canada was enthusiastic about the deal but CA-International (specifically the head office in New York) was not;

• Chris Devlin (“Devlin”) was a significant actor in these negotiations and CA’s main representative to Sixdion;

• Devlin told Sixdion’s principals that Gary Quinn (“Quinn”), Executive Vice-President at CA-International, had the authority to approve the deal;

• Quinn approved the deal and, on July 30, 2004, Devlin told M. Dion that Quinn had approved the deal; and,

• Devlin sent a letter dated August 11, 2004, which stated: “I am pleased to commit our partnership based on your Term Sheet delivered to me on May 6 of this year. In addition to capital we will invest technical and architectural resources to ensure that Sixdion can deliver the industries [sic] best practices in infrastructure management”.

[9] The deal comprised the following elements: Sixdion would receive $1.5 million from CA; CA would get share warrants that would provide the option to obtain up to ten percent of Sixdion’s shares; Sixdion would cooperate in selling CA products to the federal government, allowing CA to benefit from Aboriginal procurement initiatives; and CA would become a partner of Sixdion, finding other investors and businesses, and helping Sixdion develop the capacity to achieve its business objectives.

(c) Breach of agreement

[10] CA did not honour its agreement with Sixdion. It never made the payments that it had promised. Officials at CA-International began to question Quinn’s decision to approve the transaction and in October 2004, Jeff Clarke, Chief Operating Officer at CA-International, told Quinn to “kill” the deal. CA then informed Sixdion that it would not be continuing with their arrangement.

[11] The trial judge made a number of findings about the period between July 2004 (when Quinn approved the proposed deal) and November 2004 (when the deal was killed). We note the following:

• Sixdion hired additional staff and incurred additional expenses on the understanding that it would be receiving $1.5 million from CA and would be expanding its business;

• People from CA worked with Sixdion, acting as if they had reached a deal. Devlin volunteered to look for other investors. A CA employee worked with Sixdion to create and implement a business plan for the partnership; and,

• Quinn and Devlin believed that they had the authority to commit to the deal and believed that their agreement was sufficient to commit CA to the contract.

[12] As noted, CA-International decided to “kill” the deal. Sixdion, which had been facing financial difficulties this entire time, collapsed. It filed an assignment into bankruptcy in February 2005.

TRIAL JUDGE’S DECISION

[13] As mentioned earlier, Rougemount commenced the action, alleging breach of contract and seeking damages suffered by Sixdion of $20 million to $54 million as a result.

[14] CA defended Rougemount’s claim and argued that: (a) there was no binding contract between CA and Sixdion; (b) CA could rescind any contract because it was obtained through misrepresentations; and (c) Sixdion did not suffer any damages. The trial judge rejected CA’s position. She concluded that there was a valid contract and that Sixdion had not made any misrepresentations. She awarded $11 million in damages, along with prejudgment interest.

(a) Sixdion and CA entered into a binding contract

(i) Quinn had the authority to approve the proposed contract

[15] CA argued that Quinn and Devlin did not have the requisite authority to approve the proposed contract. They primarily relied on the evidence of George Cox (“Cox”), an employee at CA’s business development group, who stated that any “equity” transaction needed the approval of CA-International’s business development team and that Quinn could not approve an “equity” transaction.

[16] On the other hand, Rougemount relied on the fact that Devlin (who testified) believed that Quinn had the authority, and communications from the time of the negotiation showed that both Devlin and Quinn thought that the latter could approve the deal as a “marketing expense” or a “marketing transaction”.

[17] The trial judge concluded that Quinn had the requisite authority. She concluded that the proposed deal was a marketing deal and that, therefore, Quinn had the authority to pay the $1.5 million price out of his marketing budget. Furthermore, she concluded that Devlin and Quinn had obtained the requisite approvals.

[18] In the alternative, the trial judge concluded that Quinn and Devlin had apparent authority to bind CA. CA held out Devlin and Quinn as having the requisite authority and did nothing to suggest to Sixdion that they were not authorized to make the deal. She found that the principals of Sixdion reasonably relied on what Devlin told them in regard to Quinn and Devlin's authority.

(ii) Remaining issues regarding the contract

[19] The remaining issues regarding the validity of the contract are not relevant on appeal. We summarize them briefly. The trial judge concluded that the parties had settled all essential terms of the contract by August 11, 2004, and the contract was not conditional on any due diligence, obtaining a second investor, or amalgamation. The trial judge also rejected CA’s argument that Sixdion had induced it to enter into the agreement through misrepresentations. Therefore, the contract could not be rescinded.

(b) Sixdion’s damages

[20] The trial judge held that CA had breached its contract with Sixdion by (a) failing to pay the $1.5 million promised and (b) failing to provide the promised assistance, training and services business. The trial judge further found that CA had contributed to Sixdion’s losses in several ways: (i) CA wrongly informed one of Sixdion’s service providers (Telesat) that there was no contract, due to which Telesat insisted on more rigorous repayment terms, contributing to Sixdion’s demise; (ii) Devlin discouraged Sixdion from pursuing certain other investors, particularly competitors of CA; and (iii) in reliance on the promised business relationship, Sixdion incurred additional expenses and worsened its precarious financial situation.

[21] Broadly speaking, the damages claimed by Rougemount related to the loss Sixdion suffered because of the collapse of Sixdion’s business and Sixdion’s failure to achieve its business plan. Rougemount was seeking damages on the basis that, had CA kept to its bargain, Sixdion would have achieved all of the goals set out in the five-year business plan Sixdion had developed with CA. Therefore, the issue ended up being whether Rougemount was entitled to damages on the basis that CA deprived Sixdion of the opportunity to achieve this potential business plan (the “Business Plan”).

[22] The trial judge first addressed a number of preliminary issues regarding whether the Business Plan was a proper basis for quantifying damages:

• Would Sixdion have survived: the trial judge concluded that if CA had honoured its commitment, Sixdion would have survived through the critical period of 2004-2006 and would have become a profitable enterprise.

• Was Sixdion’s demise foreseeable: CA knew of Sixdion’s precarious financial circumstances and its need for cash. Therefore, Sixdion’s demise was a foreseeable result of CA’s breach of contract.

• Date of assessment of damages: the trial judge recognized that damages for a breach of contract are presumptively quantified with reference to the date of the breach. However, in this case, doing that would not fairly reflect Sixdion’s actual loss. The trial judge concluded that damages should be assessed as of January 31, 2010, the end of the period reflected on the Business Plan.

The quantum of damages

[23] As noted, the trial judge concluded that a fair assessment of Sixdion’s damages would be to quantify its losses based on its five-year business plan as of January 31, 2010. The trial judge concluded that there was sufficient evidence in support of this business plan. Therefore, Rougemount’s assertions were supported by evidence sufficient to discharge its onus.

[24] The parties mostly relied on two expert witnesses in support of their respective positions regarding damages. The plaintiff relied on the testimony and expert report of Stephen Pittman (“Pittman”), a chartered professional accountant and chartered business valuator. The defendant relied on Domenic Marino (“Marino”), also an accountant and business valuator. Marino, however, did not present an independent report or valuation; he only provided a “limited critique” of Pittman’s methodology.

[25] After reviewing the parties’ evidence, the trial judge concluded that it was reasonable for Pittman to rely on the assumptions contained in the Business Plan. Then, she reviewed the competing methodologies presented by Pittman and Marino, and concluded that she preferred Pittman’s.

[26] As noted, the trial judge concluded that damages should be assessed as of January 31, 2010. However, Pittman’s report was premised on damages being assessed as of 2012. The trial judge tweaked Pittman’s assessment and calculated damages as of January 31, 2010. She also made some additional adjustments to reflect the risk that she found that Sixdion would have been facing between October 2004 and January 31, 2010. Based on this, she concluded that the plaintiff was entitled to $11 million in damages.

THE ISSUES

[27] There are two questions that need to be answered on this appeal. First, did the trial judge err by concluding that Quinn or Devlin had the authority to enter into the contract with Sixdion? Second, did the trial judge err in her award of damages?

[28] As we will explain, we conclude that Quinn and Devlin did have authority to enter into the contract and that CA breached the contract. However, we also conclude that the trial judge erred in assessing damages as of 2010, rather than as of 2004, when the breach of contract occurred. Accordingly, the appeal is allowed in part with respect to damages.

DISCUSSION

(a) Did the trial judge err by concluding that Quinn or Devlin had the authority to enter into the contract with Sixdion?

[29] CA makes two submissions regarding this ground of appeal. First, it argues the trial judge wrongly concluded that the proposed deal was a “marketing deal” and not an “equity transaction”. It points out that, as a result of the contract, CA would have acquired ten percent of Sixdion’s shares. Thus, it says, it was an equity transaction, which Quinn had no authority to approve.

[30] Second, CA argues that neither Quinn nor Devlin had apparent authority. It says that there is no evidence that anyone from CA with actual authority ever represented that either Devlin or Quinn had authority. Moreover, CA asserts, Sixdion never made any attempt to inquire into their authority.

(i) Nature of the contract

[31] CA argues that the trial judge made a palpable and overriding error by disregarding the equity component of this transaction in her findings in deciding Quinn's authority. It contends, as it did at trial, that the transaction was an acquisition of ten percent of the equity interest in Sixdion. Thus, it required a process of approval that did not include Quinn. We reject this argument.

[32] The trial judge specifically identified and fully addressed CA’s view of the deal. She thoroughly reviewed the evidence related to it and, at para. 379 of her reasons, summarized her conclusion:

From the exhibits and Devlin's evidence, I infer and I find that Quinn had actual authority to authorize and incur a $1.5 million marketing expense. In essence Quinn authorized a marketing deal that gave CA the additional option of exercising the warrants if it so chose. Quinn and Devlin considered that aspect to be an additional peripheral benefit, not the essence of the deal.

[33] The contract included a purchase of share warrants that could lead to a ten percent equity interest in Sixdion only if CA chose to exercise the warrants. In other words, the trial judge did not disregard the equity component; rather, she put it in proper perspective in the larger scheme of the deal.

(ii) Actual authority

[34] CA argues that the trial judge made a palpable and overriding error in finding that Quinn had authority to approve the deal with Sixdion. We disagree.

[35] As recently noted by Weiler J.A. in 1196303 Inc. v. Glen Grove Suites Inc., 2015 ONCA 580, 337 O.A.C. 85, at para. 71:

While agency is often created by an express contract, setting out the scope of the agent’s authority, the creation of an agency relationship may be implied from the conduct or situation of the parties. Whether an agency relationship exists is ultimately a question of fact, to be determined in the light of the surrounding circumstances. [Citations omitted.]

[36] In our opinion, there is no reason for taking a different approach to determining the scope of an agent’s authority. It is a question of fact to be determined in light of the circumstances, including the conduct or situation of the parties.

[37] In this case, it is important to note that the trial judge did not receive any direct evidence about the scope of Quinn’s authority. CA did not provide any written record of its policies and did not call any senior officers or directors to testify. Rather, it called Cox, a relatively junior employee, who was the only witness who testified that Quinn did not have actual authority to approve the deal.

[38] On the other hand, Devlin testified that Quinn did have actual authority and there was support for that position in the documentary evidence from the relevant time period.

[39] The trial judge had to decide this issue on the basis of competing circumstantial evidence. Her conclusion, as quoted above, is reasonable and supported by the evidence. CA has not provided any reason why we should interfere.

[40] Given this conclusion, it is not necessary to address CA’s arguments on apparent, as opposed to actual, authority.

(iii) Did the trial judge err in her award of damages?

Standard of review

[41] Damages awards attract considerable deference. The limited scope for appellate interference was noted in Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80:

It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown that the trial judge had made an error of principle of law, or misapprehended the evidence, or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion, or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of the damages. Where one or more of these conditions are met, however, the appellate court is obliged to interfere. [Citations omitted.]

[42] Moreover, as recently observed by this court in Livent Inc. v. Deloitte & Touche, 2016 ONCA 11, 128 O.R. (3d) 225, at para. 388, quantifying damages is not an exact science and trial judges are obliged to do the best they can on the evidence, short of failing to analyze the evidence at all or simply guessing.

What is the appropriate date for the assessment of damages?

[43] The appellant submits that the trial judge erred in following the approach offered by Rougemount’s expert, thereby rejecting the date of the breach and using the date at the end of the Business Plan as the date for the assessment of damages. We agree.

[44] It is well established that the general measure of damages for breach of contract is the amount of damages that will, so far as money can, place the aggrieved party in the same position as if the wrong had not been done: Ticketnet Corp. v. Air Canada (1997), 1997 CanLII 1471 (ON CA), 154 D.L.R. (4th) 271 (Ont. C.A.), at para. 97. The focus is on the injured party’s loss and on the measure of compensation required to restore it to the position that it would have been in had the contract been performed: 642947 Ontario Ltd. v. Fleischer (2001), 2001 CanLII 8623 (ON CA), 56 O.R. (3d) 417 (C.A.) , at para. 41; Kinbauri Gold Corp. v. Iamgold International African Mining Gold Corp. (2004), 2004 CanLII 36051 (ON CA), 246 D.L.R. (4th) 595 (Ont. C.A.), at para. 53.

[45] With respect to the appropriate date for the assessment of damages, the presumption is that damages, including those for loss of a business or opportunity, should generally be assessed as of the date of breach: Johnson v. Agnew, [1980] A.C. 367 (H.L.), at pp. 400-401.

[46] The trial judge correctly noted that the presumptive rule for assessing damages is that damages for breach of contract are to be quantified at the time of breach. However, she accepted Rougemount’s submission that she could choose a date other than the date of the breach if an assessment as of that date would not fairly reflect Sixdion’s actual loss.

[47] The trial judge found that an assessment of damages at the date of breach would not fairly reflect Sixdion’s actual loss or put it in the position it would have been in but for CA’s breach. She concluded that had the contract been honoured, Sixdion’s earnings from the contract would have started shortly after July 30, 2004 and continued until at least January 31, 2010. As a result, she found that it would be unfair to assess damages as of the date of breach in 2004 and to fail to reflect the benefits Sixdion would have derived after 2004 from the CA contract. Instead, she assessed damages as of the end of the Business Plan, on January 31, 2010.

[48] The trial judge appears to have based her conclusion largely on the opinion of Rougemount’s expert, which she modified. Mr. Pittman did not assess Sixdion’s damages as of the date of breach in 2004. Rather, he valued Sixdion as it would have been in 2012 or 2014. In response to the trial judge’s question as to why he did not choose the date of breach, Mr. Pittman testified that it would not have properly reflected the “upside” of executing the Business Plan. Specifically, he opined that the discounted valuation at the date of breach was not appropriate because it would apply all of the weight to the early years when there were losses anticipated and very little weight to the latter years when all of the upside of the Business Plan would be realized. As a result, he felt it did not fairly reflect the true damages sustained by Sixdion.

[49] Rougemount submits that the presumptive rule that damages are assessed at the date of breach can be displaced where fairness requires it: Kinbauri, at paras. 66-68. Moreover, Rougemount submits that the trial judge’s determination that fairness required damages to be assessed at a later date in this case was an exercise of her discretion, based on the all of the circumstances, which should not be disturbed on appeal.

[50] We agree that the general presumption that damages will be assessed as of the date of breach may be subject to exceptions where fairness requires it. However, this presumption should not be easily displaced; any deviation from it must be based on legal principle. As the British Columbia Court of Appeal recently noted in Dosanjh v. Liang, 2015 BCCA 18, 380 D.L.R. (4th) 137, at para. 55:

[T]he presumption that contract damages are to be assessed as of the date of the breach is not so easily displaced. It is important that the law in this area be predictable, and such predictability is not served by allowing judges unbounded discretion as to the date for assessment of damages.

[51] The rationale for this general presumption was articulated by Laskin J.A., concurring in Kinbauri, at para. 125:

As Cronk J.A. points out, damages for breach of contract are generally assessed at the date of breach. An early crystallization of the plaintiff’s damages promotes efficient behaviour: the litigants become as free as possible to conduct their affairs as they see fit. Early crystallization also avoids speculation: the plaintiff is precluded from speculating at the defendant’s expense by reaping the benefits of an increase in the value of the goods in question without bearing any risk of loss.

[52] Indeed, this general presumption should only be displaced in special circumstances, such as, for example, where no market exists to replace undelivered shares at the date of breach: Kinbauri, at para. 126; or in relation to “[s]ome classes of property, including shares, whose value is subject to sudden and constant fluctuations of unpredictable amplitude, and whose purchase is not lightly entered into”: Asamera Oil Corp. Ltd. v. Sea Oil & General Corp., [1979] 1 S.C.R. 663, at pp. 664-65.

[53] The kind of special circumstances alluded to in Kinbauri and Asamera were not present in this case. The trial judge did not reference any. The circumstances of this case were no different than any other case where damages for future loss have to be determined. In concluding that the circumstances of the present case constituted the kind of unfairness that would allow an exception to the calculation of damages as at the date of breach, the trial judge erred.

[54] First, by assessing damages starting in the future in 2010, the trial judge erroneously focused solely on maximizing the potential benefits to Sixdion under the contract with CA. The trial judge failed to take into account Sixdion’s deeply troubled financial history and uncertain status going into the contract with CA and the fact that Sixdion was embarking on a new line of business.

[55] The evidence clearly established that Sixdion was in a very precarious financial position in October 2004. Its financial statements show a company on the brink of insolvency, with its liabilities well exceeding its assets and its revenues not covering its expenses. Moreover, Sixdion’s correspondence with CA during this time period is replete with references to its desperate need for financing simply to allow it to meet ordinary expenses as they came due, such as its payroll. Other than CA, Sixdion was unable to attract other investors. Sixdion voluntarily wound up its operations on October 27, 2004 and filed for bankruptcy in February 2005, with liabilities outweighing its assets by nearly $2.7 million.

[56] While her evaluation of damages was based on her findings that Sixdion would have survived and avoided bankruptcy, the trial judge could not ignore the unchallenged evidence that Sixdion was in an insecure financial position with significant liabilities that it had to satisfy, even if it managed to become profitable in the future.

[57] Further, the trial judge erred by not applying the discounted cash flow analysis prepared by the appellant’s expert. The appellant’s expert, Mr. Marino, opined that if the trial judge were to conclude that the forecasts were sufficiently reliable, the correct valuation methodology would involve a discounted cash flow analysis as set out in his calculations. Using a discounted cash flow approach and applying a venture capital discount rate of between 40% and 70% to Mr. Pittman’s averages, Mr. Marino estimated that Rougemount’s resulting share of Sixdion’s losses as at August 1, 2004, would be in a range of approximately between $0 and $2.6 milliion.

[58] The respondent’s expert, Mr. Pittman, confirmed that had he used August 2004, the date of breach, for the assessment of damages, the discounted cash flow approach applied by Mr. Marino would have been correct. He also testified in cross-examination that when venture capitalists are looking at a business with no prior history of revenue and are basing their assessment of a forecast, they would be looking at discount rates in the range of 40% to 100%.

[59] In our view, although there were some obvious issues concerning the reliability estimates contained in the Business Plan, it was open to the trial judge, in the absence of better or other evidence, to use the Business Plan as a basis for her assessment of damages. The trial judge’s reasons demonstrate that she was well aware of the Business Plan’s deficiencies.

[60] We agree that the Business Plan was subject to some inflationary puffery, given that it was an optimistic presentation of what the parties hoped would happen in the future in order to obtain CA head office’s agreement to the investment. However, we also agree with the trial judge’s observation that it was the product of Sixdion and CA and, subject to appropriate tweaking and discounts, was the only solid financial information that was available for the purposes of estimating Sixdion’s future loss of opportunity.

[61] That said, we are also of the view that the trial judge erred in failing to apply a discounted cash flow analysis as of the date of the breach. This meant that the risk and unpredictability of Sixdion’s future cash flows were ignored until a point many years after the date of breach and resulted in an artificial inflation of the damages. The approach followed by the trial judge failed to take into account the cumulative risk that the profits set out in the Business Plan might not materialize.

[62] As such, even had CA fulfilled its contractual obligations, the new business would have had significant start-up costs, including the payment of significant past liabilities to Sixdion’s creditors, and the enormous revenues predicted towards the end of the Business Plan would have taken some time to generate. Accordingly, placing Sixdion in the position that it would have occupied had the contract been performed meant taking into account the costs as well as the benefits of the new business venture. The trial judge’s approach failed to do this.

[63] We conclude that the discounted cash flow analysis prepared by the appellant’s expert, calculating damages as of the date of breach in 2004, would be the fairest method to assess Sixdion’s damages. We also agree that Sixdion’s unstable financial past and condition, as well as the uncertainty of the new venture, justifies a substantial discount.

[64] Having regard to the fact that the calculation of these damages is not an exact science, we are of the view that the mid-range of Mr. Marino’s calculation would allow for the fairest assessment of damages in all the particular circumstances of the present case. This would result in damages of $1,300,000.

DISPOSITION

[65] For these reasons, we would allow the appeal with respect to damages and order that CA pay damages of $1,300,000 to the respondent, as a result of CA’s breach of its agreement with Sixdion.

[66] The parties’ costs submissions on appeal and at trial were premised on one party being entirely successful on all issues. Given the disposition of this appeal, if the parties cannot agree on the disposition of costs, we believe that the fairest approach to both parties is that further brief written submissions be delivered.

[67] Accordingly, the parties shall deliver costs submissions of no more than five pages, not including a costs outline, concerning the disposition of the costs at trial and on appeal, as follows: the appellant shall deliver its submissions by November 14, 2016; the respondent shall deliver its submissions by November 28, 2016. There shall be no reply submissions.

Released: November 10, 2016

“H.S. LaForme J.A.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”

[^1]: We refer to CA as one entity for the purpose of these reasons. The company’s corporate structure is not explained in the trial judge’s reasons for decision or the parties’ factums; however, it seems there was some division. Where appropriate, we refer to CA-Canada and CA-International.

[^2]: The trial judge at para. 3 describes an Aboriginal company as a company with at least 51% Aboriginal ownership and control.