Robert A. Blair

The Court of Appeal previously allowed the defendant's appeal, reducing the plaintiff's damages for breach of contract from $1,935,500 to nominal damages of $1 due to a failure to mitigate.

In this costs endorsement, the court applied the cost consequences of Rule 49.10(2) because the plaintiff obtained a judgment less favourable than the defendant's pre-trial offer to settle for $100,000.

The defendant was awarded net partial indemnity costs of $400,000.

The appellant was convicted of mischief after placing a spray-painted, beat-up van on his property line to interfere with his neighbours' attempts to sell their home, amidst an ongoing dispute over basement flooding.

The trial judge and summary conviction appeal judge rejected his defence under s. 430(7) of the Criminal Code, which protects acts done solely for the purpose of communicating information.

The Court of Appeal allowed the appeal and entered an acquittal, holding that the s. 430(7) defence applies even if the communication is intended to persuade or pressure others by interfering with their property rights, provided the act itself is peaceful and solely communicative.

The appellants, a restaurant franchisor and its food distributor, appealed a Divisional Court decision certifying a class action brought by former franchisees.

The franchisees alleged the appellants engaged in a price maintenance scheme, civil conspiracy, and breach of contract by charging exorbitant prices for supplies.

The Court of Appeal upheld the certification, finding that the motion judge erred by focusing too heavily on the individual nature of damages and failing to recognize that the breach of the Competition Act, conspiracy, and breach of contract claims constituted valid common issues.

The court also affirmed that aggregate damages provisions under the Class Proceedings Act could potentially be utilized at trial.

The U.K. Pensions Regulator and Pension Protection Fund Trustee appealed an order finding that their service of a Warning Notice breached the stay provisions in the Initial Order under the Companies' Creditors Arrangement Act.

The Court of Appeal dismissed the appeal, agreeing that the service of the Notice was a nullity.

The Court clarified that the order below does not preclude the appellants from seeking to assert a claim in the CCAA process for pension contribution shortfalls.

The appellant creditor brought an application for a bankruptcy order against the respondent debtor.

The application judge dismissed the application, finding the appellant failed to establish at least $1,000 of unsecured debt because its estimate of the security's value was absurdly low.

On appeal, the Court of Appeal held that the relevant date for valuing the security is the date of the application.

At that time, the appellant's mortgage ranked behind a Canada Revenue Agency super priority claim for unpaid GST, leaving the appellant with over $100,000 in unsecured debt.

The appeal was allowed and the bankruptcy application was granted.

The Crown appealed the sentence of six years imposed on the respondent for trafficking methamphetamine and marihuana, as well as the sentencing judge's refusal to impose a fine in lieu of forfeiture.

The Court of Appeal dismissed the appeal regarding the length of imprisonment, finding the sentence low but not warranting interference.

However, applying the Supreme Court's decision in Lavigne, the Court held the sentencing judge erred by considering the respondent's inability to pay when deciding whether to impose a fine in lieu of forfeiture.

The Court allowed the appeal on this issue, imposed a fine of $37,100, and remanded the matter to determine the time limit for payment.

The appellant appealed a decision regarding the apportionment of taxes under a commercial lease.

The Court of Appeal upheld the application judge's conclusion that there was a separate apportionment as contemplated by the lease and that the appellant had elected to recoup taxes on that basis and could not resile from that election.

The appeal was dismissed.

The appellant was convicted of conspiracy to defraud and defrauding the Government of Canada of over $3 million.

He appealed his conviction and sentence, arguing unreasonable delay under s. 11(b) of the Charter and that the trial judge erred by failing to instruct the jury that his silence at trial could not be used against him.

The trial judge had relied on Supreme Court of Canada obiter dicta suggesting s. 4(6) of the Canada Evidence Act prohibited such an instruction.

The Court of Appeal held that the SCC obiter was non-binding and conflicted with earlier binding SCC ratio, meaning the instruction could have been given.

However, the court found the jury instructions as a whole were adequate and the delay was reasonable given the complexity of the proceedings.

The appeal from conviction and the three-year sentence were dismissed.

The appellant, who was struck by a vehicle as a child pedestrian, appealed the dismissal of her action following a jury trial.

She argued the trial judge erred in permitting cross-examination on a hospital record and in the jury charge regarding the driver's duty of care and proper lookout.

The Court of Appeal dismissed the appeal, finding the trial judge's limiting instructions cured any prejudice from the cross-examination and the jury charge adequately equipped the jury to assess the driver's negligence and reverse onus.

The appellant appealed his designation as a dangerous offender, arguing he should have been designated a long-term offender.

The Court of Appeal dismissed the appeal, finding the sentencing judge did not err in concluding there was no reasonable possibility of successful treatment to control the risk the appellant posed in the community.

The accused was charged with possession of child pornography collected between 1999 and 2006.

At trial, he admitted the images were child pornography but claimed he collected them for a planned artistic exhibition to raise awareness about child exploitation.

The trial judge acquitted the accused, finding he could rely on the pre-2005 'artistic merit' and 'educational purpose' defences, as well as the post-2005 'legitimate purpose' and 'no undue risk of harm' defence.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the pre-2005 defences did not apply because the materials themselves lacked artistic or educational merit.

Furthermore, the post-2005 defence did not apply because the accused's possession of thousands of images, stored insecurely over seven years, posed an undue risk of harm to children.

A conviction was substituted.

The appellants appealed an order dismissing their motion to decline jurisdiction.

The Court of Appeal upheld the motion judge's finding that there was a real and substantial connection between the Ontario court and the claim, satisfying the test for jurisdiction simpliciter under both Muscutt and Van Breda.

The Court also found no error in the motion judge's exercise of discretion regarding the forum non conveniens analysis, noting that even if recent Supreme Court jurisprudence attenuated the juridical advantage point, there were sufficient other bases to support the decision.

The appeal was dismissed with costs fixed at $12,000.

The appellant sought leave to appeal a Superior Court decision that dismissed his summary conviction appeal from a 1999 Ontario Court decision.

The appellant failed to appear at the hearing.

The Court of Appeal heard the matter in his absence and denied leave to appeal, finding that the appeal had no merit and raised no issues of importance beyond the parties.

The appellant appealed a decision dismissing his application for certiorari, mandamus, or prohibition to stop a trial in the Ontario Court of Justice.

The application had been dismissed because the appellant left the courtroom before it was completed.

The Court of Appeal heard the appeal in the appellant's absence and dismissed it as moot and without merit, noting that the trial he sought to stop had already taken place.

Following the dismissal of the appellant's appeal regarding a claim to Casino Rama profits, the successful respondents sought costs on a full or substantial indemnity scale, citing the appellant's conduct and shifting theories.

The Court of Appeal declined to award elevated costs, finding the appellant's conduct was not reprehensible, scandalous, or outrageous.

Costs were awarded on a partial indemnity scale, fixed at $250,000 for the Chiefs of Ontario and OFNLP, and $75,000 for Ontario.

The appellants, a non-profit housing co-operative and a co-operative housing federation, appealed an order approving a receivership sale of the co-operative's assets to a municipality-controlled entity.

The appellants argued that the motion judge failed to properly consider the special nature of co-operative housing and the rights of its members.

The Court of Appeal dismissed the appeal, holding that the standard Soundair principles for approving a receiver's sale apply, and that the motion judge correctly balanced the special factors of social housing against the financial realities and statutory framework.

The appellant, having successfully appealed a Divisional Court decision, sought substantial indemnity costs of over $39,000 for the appeal and leave to appeal.

The respondent argued that no costs should be awarded due to the novelty and broader importance of the issues raised, or alternatively, that costs should be modest given the Small Claims Court origin.

The Court of Appeal agreed with the respondent that the costs award should be modest.

The court reinstated the Small Claims Court costs of $1,150, awarded Divisional Court costs of $1,200, and fixed the costs of the appeal and leave application at $2,500, all payable to the appellant.

Two insurers, Wawanesa and Lombard, appealed preliminary arbitration decisions regarding a priority dispute over accident benefits.

Wawanesa, the first insurer to receive the application, deflected it to Lombard.

Lombard paid benefits but later disputed priority without providing the required 90-day notice.

The arbitrator ruled that Wawanesa's breach of the regulation prevented it from relying on Lombard's failure to give notice, but also ruled that Wawanesa was not permanently precluded from disputing priority.

The applications judge upheld both decisions.

The Court of Appeal dismissed both appeals, finding no error in the reasoning below.

The appellant appealed an order removing him as estate trustee and appointing the deceased's daughter in his place.

The motion judge found the appellant demonstrated indifference towards the beneficiaries, was incompetent in his administration, and failed to protect the estate's principal asset.

The Court of Appeal dismissed the appeal, finding the motion judge properly applied the relevant principles and his findings were supported by the record.

Costs were awarded against the appellant personally.

The respondent brought a Small Claims Court action alleging he should not have been charged with various parking offences under the Highway Traffic Act, though he did not seek to set aside the convictions.

The Small Claims Court dismissed the action as an abuse of process, but the Divisional Court set aside that order.

On appeal, the Court of Appeal restored the Small Claims Court decision, holding that challenging the factual basis underlying convictions without directly seeking to set them aside constitutes an abuse of process and impermissible relitigation.