Law360 Canada (June 17, 2026, 12:25 PM EDT) --

John L. Hill

After a lengthy trial, Jeffrey Brian Ber was found guilty on Sept. 18, 2024, of two counts of fraud over $5,000 and one count of accepting a secret commission. He appealed to the Alberta Court of Appeal, arguing that the trial judge committed several legal and evidentiary errors that undermined all the verdicts. Did Ber lie to his employer or his clients? Did he receive an under-the-table payment from a beneficiary of his wrongdoing?

The Appeal Court’s decision was delivered on June 12 (R. v. Ber, 2026 ABCA 192).

Ber was employed as a licensed investment adviser with TD Wealth. Many of his clients followed him to TD when he joined the firm in 2016, and their investment profiles, including risk tolerances, were entered into the TD system at that time. Ten of his clients had investment objectives that limited their portfolios to 20 per cent low-risk, 60 per cent medium-risk and 20 per cent high-risk investments.

As a licensed adviser, Ber was subject to the rules of the Investment Industry Regulatory Organization of Canada (IIROC), which prohibited discretionary trading without specific client authorizations regarding the quantity, security, price and timing of a trade. IIROC also required advisers to exercise due diligence to ensure that investment recommendations were suitable for each client’s financial circumstances, investment knowledge and risk tolerance. Ber was also bound by TD’s Code of Conduct, which prohibited forgery, falsification of records and the creation of inaccurate documents.

In early 2017, Blackbird Energy, a small publicly traded company on the Toronto Venture Exchange, sought to raise $80 million through a share offering, with TD serving as co-lead financier. Ber had a prior relationship with Blackbird Energy. The offering, which closed on March 14, 2017, was classified as a high-risk investment.

Ber purchased Blackbird Energy shares for several of his clients, selling millions of dollars’ worth of their existing blue-chip investments to fund the purchases. Many of these transactions pushed client portfolios above their stated risk tolerances. Ten days after the transactions were completed, Ber received a payment of approximately $104,000 from Blackbird Energy.

The Court of Appeal upheld Ber’s two fraud convictions, finding that the trial judge had carefully applied the correct legal principles and committed no reviewable error in concluding that Ber had acted dishonestly. The court noted that Ber admitted he had failed to disclose his relationship with Blackbird Energy, and the trial judge was entitled to reject his explanation for that omission. The trial judge also rejected Ber’s claim that his clients’ risk tolerances had been entered incorrectly when they transferred to TD Wealth, preferring the evidence of TD supervisors and the clients themselves. As a result, the trial judge found that Ber had purchased Blackbird shares in amounts that exceeded his clients’ stated risk tolerances and were inconsistent with their financial circumstances and investment objectives.

The court also upheld the finding that Ber exceeded even his own claimed “overweight strategy,” under which he said clients could hold up to twice their normal allocation of high-risk investments. For seven of the 10 investors who testified, Blackbird holdings were far above those levels. The appellate court rejected Ber’s argument that the trial judge had miscalculated the percentages of Blackbird shares held in client portfolios, finding that the evidence fully supported the trial judge’s conclusions.

A central issue at trial was whether Ber had the authority to carry out the transactions. The trial judge reviewed each investor’s evidence and contrasted it with Ber’s testimony. She found that Ber frequently failed to provide clients with the details required by industry regulations, including the amounts of securities to be sold and purchased, as well as the resulting percentage of Blackbird shares in their portfolios. In most cases, she accepted the investors’ evidence over Ber’s, concluding that he either exceeded the authority given to him or acted without authority. She also found that his client notes were vague and “blanket” in nature, leaving her with no confidence that he had conducted the detailed discussions required by industry rules.

The trial judge further found that Ber failed to comply with TD Wealth’s record-keeping requirements and created, or participated in creating, falsified risk-tolerance documents for several clients. Taken together, these actions constituted dishonest conduct. She concluded beyond a reasonable doubt that Ber knowingly exceeded client instructions, disregarded risk profiles, failed to exercise the diligence required of an investment adviser and acted with subjective awareness of the dishonest nature of his conduct as defined in R. v. Zlatic, [1993] 2 S.C.R. 29.

The Court of Appeal rejected Ber’s argument that the trial judge failed to apply the criminal standard of proof. Reading the reasons as a whole, the court found that the trial judge properly assessed credibility, rejected Ber’s evidence where appropriate, accepted the evidence of clients and TD personnel where it conflicted with his account, and reached her conclusions beyond a reasonable doubt. The court emphasized that fraud does not depend on proof of a secret commission. The fraud against the clients arose from Ber’s unauthorized and unsuitable purchases of high-risk Blackbird shares, his sale of existing investments to fund those purchases, and his failure to disclose material information. The fraud against TD Wealth arose from his failure to disclose his relationship with Blackbird and his falsification of client documentation. Accordingly, the convictions on both fraud counts were affirmed.

The Court of Appeal reached a different conclusion on Ber’s conviction for accepting a secret commission. The trial judge found that the approximately $104,000 payment Ber received from Blackbird Energy was compensation for placing Blackbird shares in client accounts, not payment for consulting work he claimed to have performed between 2013 and 2016. However, the Court of Appeal identified a significant flaw in that reasoning.

Evidence from Blackbird’s chief financial officer and controller, both professional accountants responsible for the company’s financial reporting, showed that the payment had been classified and reported as a consulting expense in the publicly traded company’s financial statements. They testified that they took the accuracy of those statements seriously and were satisfied that the payment was properly characterized as consulting fees. The trial judge neither contradicted nor expressly rejected that evidence.

The appellate court held that the trial judge failed to reconcile this important evidence with her conclusion that the only reasonable inference was that the payment was a commission for the 2017 share placement. Because that finding was essential to the secret commission conviction, the verdict on that count could not stand. The court therefore set aside the conviction for accepting a secret commission and ordered a new trial on that charge, while dismissing the appeal regarding the two fraud convictions.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness (Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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