Under the terms of s. 185(4) of the OBCA, “a shareholder
who complies with this section is entitled, when the action
approved by the resolution from which the shareholder dissents
becomes effective, to be paid by the corporation the fair value of
the shares held by the shareholder in respect of which the shareholder dissents, determined as of the close of business on the day
before the resolution was adopted”.1
 Shortly after the closing of the transaction, Aquam offered
to purchase the outstanding shares of the respondents at a share
price of US$0.03 per share, which offer was summarily rejected.
 Section 185(18) of the OBCA further provides that in the
event that dissenting shareholders reject an offer of purchase, the
Company is obliged to bring an application to “. . . fix a fair value
for the shares of any dissenting shareholder” as of the valuation
date, which the parties have agreed is April 17, 2017, the day
before the transaction (the “valuation date”).
 The sole issue in the instant application, as one might
expect, is the value that I am obliged to ascribe to the respondents’ shares or the “en bloc” fair market value of the Company as
of the valuation date. As in many cases involving “valuations”,
I am faced with the difficult task of having to come to grips with
the opinions of the experts retained by the parties.2 The law is
clear, however, that because each case is unique and mathematical
1 R.S.O. 1990, c. B.16.
2 Section 185(25) permits the court to appoint its own appraiser to “assist”
in the fixing of fair value, a solution I toyed with. As a half way measure,
I persuaded counsel to call each of the appraisers, Robert Low and Wayne
Rudson, to testify before me in a brief viva voce hearing, namely to provide
me with answers to “calculation” questions that I had previously set out in
earlier correspondence. These witnesses were very helpful in providing the
backdrop to conclusions each had set out in his report and, indeed, as will
be explained later in these reasons, undertook calculations based on our
discussions during the hearing.
On another note, I would urge the Commercial Court to eschew valuation
hearings that are limited to the reports or affidavits filed by experts. First,
the weight of the case law indicates that viva voce evidence of experts is the
preferred course to follow. Second, in the interests of costs and court time, the
reports can be tabled in chief, crosses undertaken before the hearing, as in
this case, or live and before the judge, leaving time for the judge to ask questions for explanation purposes in the event that she or he is still struggling
with the issues and concepts. In any event, the court should have the reports
well in advance so that the judge can attempt to understand their essence.
I would also suggest — although this is a view not universally accepted —
that the experts meet in advance of trial, without the lawyers, to see if they
can come up with a modest agreed statement of principles, and leave for judicial determination but few issues upon which agreement cannot be achieved.