David J. Levy

The plaintiffs brought a motion seeking answers to outstanding undertakings and refusals made by The Personal Insurance Company, a statutory third party, regarding its denial of coverage for the defendant Jouvaine M. Stennett.

The Personal argued that coverage issues are distinct from liability proceedings and that a statutory third party is not required to disclose information about its coverage position during discovery.

The court held that while coverage issues are distinct from liability, the information sought is relevant to issues engaged in the litigation and necessary for efficient case management.

The court ordered The Personal to provide answers to the undertakings and refusals within 30 days and awarded costs of $5,000 to the plaintiffs.

The appellant was convicted of operating a motor vehicle with excessive blood alcohol content.

On appeal, he raised several Charter arguments (ss. 8, 9, 10(a), 10(b)) concerning the lawfulness of the traffic stop, the roadside screening demand, the reliability of the Approved Screening Device (ASD) results, and the delay in accessing counsel.

The court dismissed all arguments, finding no basis to interfere with the trial judge's rulings, including factual findings based on credibility and the proper application of legal principles regarding police authority and Charter rights.

The accused was found unconscious in a running vehicle on a snowbank, exhibiting signs of severe intoxication.

Charged with impaired operation and operating over 80 mg%, the defence argued a Charter s. 10(b) breach, claiming the accused's waiver of the right to counsel was not informed or unequivocal due to his condition, and challenged the impairment evidence.

The court found the accused's testimony lacked credibility and reliability.

It held that the police fulfilled their duty to inform the accused of his right to counsel, and his repeated declinations were unambiguous, not triggering a further duty to inquire despite his intoxication.

The court concluded that the Crown proved impairment beyond a reasonable doubt, finding the accused's physical and mental faculties were completely impaired by alcohol.

The Charter application was dismissed, and findings of guilt were entered for both counts, with the over 80 mg% count stayed under the rule against multiple convictions.

The appellant, Orlando Tassone, appealed his convictions for stunt driving and using improper tires under the Highway Traffic Act, alleging ineffective assistance from his paralegal who he claimed prevented him from testifying.

He sought a new trial or, alternatively, a sentence reduction.

The court found that the appellant failed to prove ineffective assistance, noting his unreliable memory and the paralegal's thorough preparation and tactical decision not to call him as a witness, which the appellant had accepted.

The court also dismissed the sentence appeal, finding the original fine appropriate given the circumstances.

Maxwell Johnson was convicted of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime.

He was initially sentenced to six months' imprisonment concurrently.

He appealed the sentence, arguing the trial judge erred in applying sentencing ranges for street-level trafficking to a 'share trafficking' scenario and in reducing the weight given to his first offender status.

The Court of Appeal found errors in principle regarding the application of sentencing ranges and the consideration of first offender status.

The appeal was allowed, and a six-month conditional sentence was substituted for the original custodial sentence, to be served concurrently, followed by one year of probation.

The applicant, Roger Craig Short, charged with first-degree murder, sought to admit evidence from a failed "Project Somerton" undercover police operation (a "Mr. Big" scenario) where he did not confess.

The defence argued the statements were admissible under the Edgar exception, as unique evidence from a failed "Mr. Big" project, or as evidence of consciousness of innocence.

The court dismissed the application, finding the Edgar exception inapplicable due to lack of spontaneity and no undertaking to testify.

The "Mr. Big" argument was rejected as the project was not "unbeatable" and lacked the inducements/threats seen in Hart.

While the court initially considered admitting the evidence to counter Crown's post-offence conduct evidence, the Crown subsequently abandoned significant portions of its post-offence conduct evidence, rendering the Project Somerton evidence lacking sufficient probative value for admission.

The plaintiff sought damages for injuries from a motor vehicle collision.

Liability was admitted, and a jury awarded general damages.

The defendant moved to dismiss the general damages award, arguing the plaintiff failed to establish that his injuries exceeded the statutory threshold for permanent, serious impairment under the Insurance Act.

The court assessed the plaintiff's credibility, finding significant inconsistencies in his testimony and reporting of pre-accident history and employment.

The court also scrutinized the expert evidence, particularly rejecting the plaintiff's psychiatric expert for acting as an advocate.

Concluding that the plaintiff failed to meet the evidentiary requirements to establish a permanent, serious impairment of an important physical, mental, or psychological function, the court granted the defendant's motion and dismissed the plaintiff's claim for general damages.

The plaintiffs sought costs thrown away after a civil jury trial was adjourned due to the defendant's late filing of seven critical expert reports, in contravention of Rule 53.03.

The court found the adjournment was due to the defendant's fault or responsibility, entitling the plaintiffs to costs thrown away.

The court assessed the plaintiffs' bill of costs, applying a 35% discount due to lack of detail and the speculative nature of assessing costs thrown away, and ordered the defendant to pay $17,449.02 inclusive of HST and disbursements within 30 days.

The plaintiff sought damages for injuries sustained during a recreational non-contact hockey game, alleging that an opposing player intentionally or negligently checked him into the boards and that the league operator failed to provide a safe playing environment.

The court considered the negligence standard applicable to sporting events and the doctrine of implied consent to the inherent risks of hockey.

The evidence did not establish that the opposing player acted with intent to injure or in a reckless manner outside the ordinary risks of play.

The court further held that the league had appropriate rules, referees, and disciplinary systems, and that the plaintiff had signed a clear waiver releasing the league from liability for injuries arising from hockey participation.

The action was therefore dismissed.

The insurer applied for a declaration that the respondent pedestrian was not an insured under his mother’s automobile policy because he was not a “dependant” at the time of a catastrophic accident.

The court assessed dependency under the Statutory Accident Benefits Schedule using a functional analysis considering financial support, duration of dependency, needs, and the ability to be self‑supporting.

The evidence showed the respondent remained primarily financially supported by his mother despite attempts to establish independence.

The court further held the insurer was estopped from denying coverage after paying statutory accident benefits for five years while the respondent relied on that assumption and lost the opportunity to pursue benefits against another insurer.

The application to terminate benefits was dismissed.