Robert A. Blair

The appellants, former employees whose employment was terminated following a corporate restructuring, appealed the dismissal of their application for supplementary retirement benefits under a supplementary executive retirement plan (SERP).

Following a partial wind-up of the registered pension plan, the appellants became entitled to statutory 'grow-in' benefits, allowing them to retire at age 55 with unreduced pensions.

The dispute centered on whether the SERP's formula required excluding these grow-in benefits when calculating their supplementary entitlement.

The Court of Appeal upheld the application judge's interpretation, which relied on expert actuarial evidence to conclude that the SERP's proviso mandated the exclusion of grow-in benefits from the base calculation but not from the deduction of earned registered benefits, resulting in a nil supplementary entitlement.

The appellant appealed the dismissal of his third party claim for delay.

The third party, a dissolved corporation, had successfully moved to dismiss the claim arising from a 1990 oil spill.

The Court of Appeal held that under section 242(1) of the Business Corporations Act, a dissolved corporation has the capacity to defend an action and bring a motion to dismiss without first being revived.

The Court also upheld the motion judge's finding that the appellant's delay was inordinate, inexcusable, and caused presumed and actual prejudice to the respondent.

The appeal was dismissed.

The appellant agreed to purchase a commercial property from the respondent for $9 million, subject to a vendor take-back mortgage.

The transaction failed to close after the parties could not agree on the terms of a secondary financing agreement.

The motion judge granted summary judgment to the respondent, allowing it to retain $1.2 million in deposits.

On appeal, the appellant argued the motion judge erred in interpreting the agreement's secondary financing and escrow deed provisions.

The Court of Appeal dismissed the appeal, finding the motion judge's interpretation of the strict terms for secondary financing was commercially reasonable and supported by the record.

The debtor operated a marina on premises owned by the appellant landlord.

After a receivership order was made, the receiver continued to operate the debtor's business at that location until the lease expired.

The receiver changed the locks and restricted the landlord's access.

The landlord brought a motion for occupation rent, which the motion judge dismissed on the basis that the receiver's conduct did not amount to a deprivation of use.

On appeal, the Court of Appeal held that the motion judge erred by conflating deprivation of use in a real property sense with economic detriment.

The receiver took control of the premises to the exclusion of others, constituting occupation.

The appeal was allowed and the receiver was ordered to pay occupation rent.

The appellants, a terminated insurance agent and his company, appealed the dismissal of their claim against Sun Life for post-termination commissions under the Commissions on Release (CORe) program.

The CORe agreements stipulated that payments would cease if the agent induced clients to replace their policies.

The appellant transferred over 600 clients to a new business, prompting Sun Life to terminate the payments.

The Court of Appeal held that the termination clause was an enforceable forfeiture provision, not a penalty, and that the appellants were not entitled to equitable relief from forfeiture given their flagrant breach of the agreement.

The respondent was assaulted by the appellant and his brothers at the butcher shop where they worked.

At trial, the appellant admitted to the assault but argued the respondent provoked it.

The trial judge rejected the provocation defence, made favourable credibility findings for the respondent, and found the brothers were joint tortfeasors.

On appeal, the appellant challenged these factual findings.

The Court of Appeal dismissed the appeal, finding no basis to disturb the trial judge's credibility assessments or factual conclusions regarding provocation and joint liability.

The parties appealed and cross-appealed a trial judgment dealing with equalization, spousal support, and costs following their separation.

The appellant challenged the valuation of the family's motel business and the deduction of notional real estate fees, while the respondent challenged the spousal support and costs awards.

The Court of Appeal allowed the appeal in part, finding the trial judge erred in deducting notional real estate fees from the respondent's net family property because there was no evidence a sale was likely in the foreseeable future.

The equalization payment to the appellant was increased by $40,000, but the appeal and cross-appeal were otherwise dismissed.

The appellants appealed a mini-trial judgment and costs order, arguing the trial judge erred by proceeding with the mini-trial before ruling on whether the action against one of the appellants was stayed under s. 69(1) of the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the main appeal, finding the stay applied only to the bankrupt appellant and did not preclude the stand-alone claims against the others.

The court allowed the costs appeal in part, reducing the trial costs award by $7,500 to account for the appellants' success on a continuance motion.

The appellants advanced $600,000 to the respondents during negotiations to purchase a 25 per cent interest in the respondents' business.

When the transaction failed, the appellants sued to recover the funds, arguing they were a refundable deposit or loan, while the respondents claimed they were a non-refundable down payment.

The trial judge dismissed the action in very brief reasons.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge mischaracterized the central issue and failed to provide sufficient reasons to permit meaningful appellate review.

The appellant appealed a summary judgment dismissing his medical malpractice action against his former family doctor.

The appellant alleged the doctor negligently removed surgical staples from his knee, causing permanent injury.

The Court of Appeal upheld the motion judge's findings that the action was statute-barred, as the appellant knew of the material facts giving rise to the claim more than two years before commencing the action.

The Court also agreed that the claim required expert medical evidence, as it was not one of the clearest of cases where such evidence could be dispensed with.

The appeal was dismissed.

The appellants, two bar managers, appealed their convictions and sentences for aggravated assault after punching a customer who had been ejected from the bar.

The victim suffered devastating head injuries.

The Court of Appeal dismissed the appeals, finding that the trial judge reasonably identified the second assailant from video evidence and properly concluded the appellants acted in concert, making it unnecessary to determine which blow caused the injury.

The sentences of three and three-and-a-half years were upheld as fit.

The Nortel group of companies filed for insolvency protection across multiple jurisdictions.

Following the sale of Nortel's assets, approximately $7.3 billion was placed in escrow.

The trial judge ordered that these lockbox funds be allocated on a pro rata basis among the various debtor estates, finding that Nortel operated as a highly integrated multinational enterprise and that the master research and development agreement did not govern allocation upon insolvency.

Several parties sought leave to appeal under the Companies' Creditors Arrangement Act.

The Court of Appeal denied leave, finding that the proposed appeals were not prima facie meritorious, did not raise issues of significance to the practice, and would unduly hinder the progress of the proceedings.

The appellant appealed the dismissal of her action against her former co-operative housing provider, its lawyers, a court employee, and a Landlord and Tenant Board member.

The motion judge had dismissed the action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The Court of Appeal upheld the dismissal, finding the action was an attempt to re-litigate her eviction and rent subsidy proceedings, and that the claims against the lawyers, court employee, and Board member were bound to fail due to lack of duty of care and statutory immunity.

The appellant appealed the dismissal of his application for a declaration that the name 'Domestic Violence Court' violated his rights under sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the appellant failed to demonstrate serious state-imposed psychological harm, cruel and unusual treatment, or discrimination.

The court noted that such applications risk trivializing important Charter rights.

The appellant insurer appealed a summary judgment decision finding that the defendant had cancelled her automobile insurance policy with the respondent insurer prior to a motor vehicle accident.

The appellant argued the motion judge erred regarding the onus of proof, relied on hearsay evidence, and failed to draw an adverse inference.

The Court of Appeal dismissed the appeal, finding the motion judge's conclusion that the policy was cancelled was amply supported by the record, including business records showing the cancellation request and a corresponding credit.

The appellant appealed his conviction for armed robbery.

The Court of Appeal found no basis to interfere with the trial judge's decision, agreeing that the only reasonable rational conclusion arising from the circumstantial evidence was that the appellant was a party to the offence.

The appeal was dismissed.

The appellants appealed a trial judgment awarding the respondent $200,000 for breach of a factoring agreement that was not pleaded.

The respondent cross-appealed the trial judge's finding that it was liable for intentional interference with economic relations and the award of $175,000 in damages at large to the appellants.

The Court of Appeal allowed the appeal, setting aside the $200,000 judgment because the claim was not pleaded and would have been statute-barred.

The Court dismissed the cross-appeal, upholding the finding of intentional interference with economic relations and the damages at large award, and refused to allow the respondent to raise equitable set-off for the first time on appeal.

The appellant landlord appealed a decision allowing the respondent commercial tenant to exercise a lease renewal option despite being in arrears.

The tenant had purported to exercise the option, but the landlord argued the option was void for uncertainty and that the tenant was in default of rent-related covenants.

The Court of Appeal held that while the renewal option was not void for uncertainty, the tenant was in default of its obligation to pay additional rent when due.

As the tenant failed to meet the precondition of paying all rent when due, the purported exercise of the renewal option was invalid and unenforceable.

The appeal was allowed and the tenant was ordered to vacate the premises.

In a CCAA restructuring proceeding, stakeholders sought disclosure of a settlement agreement between U.S. Steel, its Canadian subsidiary, and the Attorney General of Canada regarding undertakings under the Investment Canada Act.

The CCAA judge held that the agreement was entirely privileged under s. 36 of the ICA.

On appeal, the Court of Appeal found that while s. 36(5) protects the Crown from being compelled to disclose the agreement, this protection does not extend to the private corporations.

The appeal was allowed, and the issue of whether common law settlement privilege barred disclosure was remitted to the CCAA judge.

Livent Inc., through its special receiver, sued its former auditor, Deloitte & Touche, for negligence and breach of contract in failing to detect a massive fraud perpetrated by Livent's senior management.

The trial judge found Deloitte negligent in its conduct of the 1997 audit and awarded Livent $118 million in damages.

Deloitte appealed, arguing that the ex turpi causa and corporate identification doctrines barred the claim, and that its negligence did not cause the losses.

Livent cross-appealed the trial judge's refusal to award damages for the 1996 audit and the 25% reduction for contingencies.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that the ex turpi causa doctrine could not shield an auditor from liability for failing to detect the very fraud it was engaged to uncover, and that Deloitte's negligence was the proximate cause of Livent's increased liabilities.