Robert A. Blair

This complex appeal arises from a multi-million dollar commercial real estate fraud perpetrated by Norma and Ronauld Walton over several years.

The appellants (DBDC Applicants) and respondents (Schedule C investors) were all victims of the fraud.

The central issue on appeal concerns the priority of claims against proceeds from the sale of properties acquired as part of the fraudulent scheme.

The appellants sought damages against the Listed Schedule C Companies on the basis of knowing assistance in breach of fiduciary duty, while the respondent DeJong sought constructive trusts over certain properties.

The majority allowed the appeal in part, finding the Listed Schedule C Companies jointly and severally liable for $22.6 million in damages for knowing assistance, but set aside the constructive trust awards to DeJong.

The dissent disagreed with the knowing assistance finding, arguing the net transfer analysis was insufficient to establish participation by the Listed Schedule C Companies in the breach of fiduciary duty owed to the appellants.

The appellants (franchisor and related entities) appealed a motion judge's decision that the respondents (franchisee and principals) validly rescinded a franchise agreement under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000.

The motion judge found the franchise disclosure document (FDD) was so inadequate as to amount to no disclosure because it failed to include the terms of the head lease and did not provide cost estimates for converting an existing restaurant to an ASWR outlet.

The Court of Appeal allowed the appeal, finding that while the FDD may have contained deficiencies, these were not so serious as to amount to a complete lack of disclosure.

The court distinguished the case from prior jurisprudence by noting the franchise agreement contained collaborative site selection and opt-out provisions that protected the franchisee's ability to make an informed decision.

The court awarded damages to the franchisor for unpaid construction invoices and the head lease deposit, less any benefits derived from operating the franchise.

The appellant was convicted of bank robbery and related offences following a trial by judge alone.

The main issue at trial was the identity of the robber, with evidence being circumstantial.

The trial judge found the appellant guilty based on DNA evidence linking him to a pocket knife left at the crime scene and a t-shirt found in the getaway vehicle.

On appeal, the appellant challenged the reasonableness of the verdict.

The majority upheld the conviction, finding that the cumulative circumstantial evidence excluded any reasonable alternative to guilt.

A dissenting judge would have allowed the appeal, finding that the DNA evidence lacked a temporal connection to the robbery and that alternative explanations remained reasonable.

A CCAA monitor brought an oppression action under the Canada Business Corporations Act against the parent company (Essar Global) and related entities, alleging that a port transaction transferring critical assets to an Essar-controlled entity was oppressive to Algoma's stakeholders (trade creditors, employees, pensioners, and retirees).

The trial judge found the monitor had standing as a complainant, the action was properly brought as an oppression remedy rather than a derivative action, and the port transaction and its change of control provision were oppressive.

The court granted a remedy modifying the transaction to remove the change of control veto and provide Algoma with termination rights after GIP's loan was repaid.

The appellants appealed on multiple grounds, including standing, characterization of the claim, reasonable expectations analysis, and the appropriateness of the remedy.

The Court of Appeal upheld the trial judgment in all respects.

The appellant appealed his convictions for sexual interference, invitation to sexual touching, and sexual assault of his step-granddaughter, who was approximately nine years old at the time of the offences.

The trial judge admitted similar fact evidence from two adult nieces of the appellant who testified to similar inappropriate touching when they were children.

The appellant raised four grounds of appeal: (1) erroneous admission of similar fact evidence due to collusion; (2) failure to properly address material inconsistencies in the complainant's testimony and over-reliance on demeanour; (3) impermissible inference of guilt from rejection of the appellant's testimony; and (4) unsafe and unreasonable verdict.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The appellant mortgaged his family homestead farm for $350,000 and subsequently defaulted on the mortgage.

The mortgagees obtained a default judgment for foreclosure.

The appellant moved to set aside the default judgment, which was dismissed by the motion judge.

On appeal, the Court of Appeal found that the motion judge made four material errors in his analysis: (1) mischaracterizing the appellant's mental frailties as merely a competency issue rather than considering their impact on his responsiveness; (2) viewing the appellant's substantial interest in the property solely as sentimental attachment rather than recognizing the substantial equity remaining after mortgage repayment; (3) confining the "reasonable prospect of repayment" analysis to refinancing rather than considering repayment through sale; and (4) failing to properly weigh the magnitude of the windfall to the mortgagees against the severe prejudice to the appellant.

The Court found that a sale of the property would generate net equity of approximately $250,000 to $337,000 after full repayment of the mortgage, and that the mortgagees would suffer no prejudice while the appellant would lose his life's savings.

The appeal was allowed and the foreclosure was converted to a judicial sale.

The appellant father sought to vary a child support order retroactively and have arrears rescinded after the children ceased to be "children of the marriage" under the Divorce Act.

The motion judge dismissed the application for lack of jurisdiction, relying on S. (D.B.) v. G. (S.R.).

The Court of Appeal allowed the appeal, holding that the Superior Court has jurisdiction under section 17(1) of the Divorce Act to vary or discharge child support arrears even after children are no longer "children of the marriage" distinguishing the variation provision from the original order provision based on statutory language and child support principles.

The appellant was convicted of criminal harassment under s. 264(1) and (2)(d) of the Criminal Code for creating a private Yahoo!

Group website that portrayed the complainant in a false and sexually degrading manner.

The sole ground of appeal was whether the trial judge erred in finding that the actus reus of the offence had been established.

The appellant argued that establishing the actus reus requires proof of subjective intent to engage in threatening conduct.

The Court of Appeal upheld the conviction, holding that the actus reus of threatening conduct under s. 264(2)(d) is assessed objectively, not subjectively, and does not require proof of the accused's specific intent to instil fear.

An appeal from a motion judge's decision certifying a class action and granting partial summary judgment against an anaesthesiologist in a bacterial infection outbreak case.

The motion judge certified the class proceeding and found the defendant breached his duty of care regarding infection prevention and control practices.

The appellate court allowed the appeal on procedural fairness grounds, finding that the motion judge reformulated the certified common issue without notice to or submissions from the parties, and then decided the summary judgment motion on the basis of this new formulation.

The court held that this violated procedural fairness and entitled the defendant to a new hearing.

Appeal from conviction and sentence for possession for the purpose of trafficking and possession of proceeds of crime.

The Crown conceded that the two convictions for possession of proceeds of crime could not stand and those convictions were set aside with acquittals entered.

The convictions for possession for the purpose of trafficking were upheld as the trial judge had a reasonable basis to uphold the warrant issuance and police had reasonable grounds to arrest and conduct searches incident to arrest.

The sentence was reduced from 14 months on each count to 6 months less one day on each count running consecutively, resulting in a global sentence of 12 months less two days, to account for the appellant's risk of deportation and demonstrated rehabilitation.

The appellant appealed his conviction for fraud entered by the Superior Court of Justice.

At trial, the appellant admitted to dishonest acts but contested whether he possessed the necessary mens rea for fraud.

The trial judge found that he did.

On appeal, the appellant raised two main arguments: first, that the trial judge erred in treating evidence about a remuneration scheme as hearsay when led to show the appellant's state of mind; and second, that the trial judge erred in relying on the Crown's suggestion that the appellant should have called other managers as witnesses.

The Court of Appeal dismissed both arguments and upheld the conviction.

The Crown appealed an acquittal on a question of law alone, arguing that the trial judge applied a categorical rather than contextual approach to assessing whether a Charter section 8 breach had been established.

The Court of Appeal found that the trial judge did apply a contextual approach and therefore no question of law arose on the appeal.

The appeal was dismissed.

The appellant appealed a disposition order from the Ontario Review Board dated January 5, 2017, which ordered his detention at Waypoint Centre for Mental Health Care – Provincial Forensic Division.

The appellant did not challenge the Board's finding that he posed a significant threat to public safety but argued that his transfer from CAMH to Waypoint was not necessary and appropriate for managing that risk.

He contended that the Board failed to consider the context of his behaviour and that the announcement of his transfer triggered his deterioration.

He also argued the Board did not give sufficient weight to the disruption of his therapeutic and familial relationships.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and amply supported by evidence.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated October 16, 2016.

The appellant sought an absolute discharge from a conditional discharge, arguing the Board's decision was unreasonable.

The Board upheld the conditional discharge, finding the appellant remained a significant threat based on expert evidence that absolute discharge would lead to medication non-compliance and increased marijuana use, resulting in decompensation and threatening behavior.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable and supported by evidentiary foundation.

The appellant sought leave to appeal his sexual assault conviction from the Summary Convictions Appeal Court.

He raised four issues: (1) admission of fresh expert evidence regarding the complainant's medical condition; (2) admission of the complainant's undisclosed criminal record; (3) admissibility of the complainant's videotaped hearsay statement under the Khelawon framework; and (4) whether a Charter s. 11(b) delay violation occurred.

The Court of Appeal dismissed all grounds of appeal, finding no error in the lower courts' decisions and holding that the Jordan framework did not apply retroactively to trials completed before its release.

The appellant, a pediatrician, was convicted at trial of sexual assault following a genital examination of a 15-year-old patient during an initial consultation for attention deficit disorder.

The trial judge found that the appellant did not forewarn the patient of the genital examination and did not palpate the patient's testicles, and concluded the touching was gratuitous and for a sexual purpose.

The Court of Appeal found the trial judge misapprehended material evidence regarding the reliability of the complainant's testimony, the significance of the appellant's contemporaneous medical notes, and the expert evidence regarding the medical necessity and appropriateness of the examination.

The court concluded that on a correct apprehension of the evidence, no reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.

This is a costs endorsement following an appeal decision dated June 30, 2017.

The appellants (Iranian government entities) appealed orders from the Superior Court of Justice.

The Court of Appeal dismissed most appeals but allowed appeals in actions commenced by certain respondents, striking those actions.

The court awarded costs to the respondents on a partial indemnity basis, rejecting the appellants' argument that no costs should be awarded due to novel issues and declining to award substantial indemnity costs or costs to respondents whose actions were struck.

The appellant attempted to selectively accept portions of the respondent's settlement offer that favored him while rejecting other essential terms, relying on a severability clause that had been included in error.

The motion judge refused to enforce the partial acceptance, finding it would be blatantly unfair to allow the appellant to cherry-pick favorable terms while requiring the respondent to continue litigating.

The Court of Appeal upheld the motion judge's discretionary decision, finding no error warranting interference.

The respondent moved to quash an appeal from the dismissal of a motion for an interlocutory injunction.

The Court of Appeal granted the motion to quash, finding that the order dismissing the interlocutory injunction was interlocutory in nature and therefore outside the jurisdiction of the appellate court.

The court held that the characterization of an order as final or interlocutory depends on its legal nature rather than its practical effect.

The court also rejected the appellants' concern that the motion judge's reasons conclusively determined the issue of confidentiality, noting that the issue remained open for trial.

The appellant appealed an order of the Superior Court of Justice declaring her a vexatious litigant under section 140 of the Courts of Justice Act.

The appellant sought an adjournment claiming she did not receive the respondent's materials.

The Court of Appeal dismissed the adjournment request, noting the appellant's history of making similar claims and that materials were properly served.

The court found no merit in the appeal, holding that the vexatious litigant order was fully justified by the appellant's lengthy history of vexatious proceedings and that the order did not deny actual justice or fairness.