James Cavanagh

The defendants, Aviva Canada Inc. and Pilot Insurance Company, brought summary judgment motions to dismiss two actions by the plaintiff arising from a motor vehicle accident.

The insurer denied coverage, alleging the plaintiff failed to notify them of a material change in risk (using a personal vehicle for a driving school) and made false statements about his claim.

The court dismissed the motions, finding that the statutory condition regarding change in risk did not apply to uninsured coverage.

Furthermore, the court held that genuine issues requiring a trial existed regarding whether the failure to notify was intentional and whether the plaintiff willfully made false statements, as these issues required credibility assessments best suited for a trial judge.

A teenage plaintiff became paraplegic after falling from a tree in a municipal park.

The plaintiffs alleged the municipality breached its duties under the Occupier’s Liability Act by failing to monitor the park, trim or remove the tree, or prohibit tree climbing.

The court held that the municipality’s inspection and maintenance practices were reasonable and that the risk of injury from climbing the tree was not reasonably foreseeable given the absence of prior complaints or incidents.

The court rejected arguments that the municipality should have altered or removed the tree or enacted prohibitions on climbing.

The action was dismissed, although the court stated that if liability had been established the plaintiff’s contributory negligence would have been assessed at 67 percent.

The two defendants, aged 18 at the time, were convicted of robbing a 15-year-old student of his cell phone at their high school.

The Crown sought 2 to 4 months in jail followed by 18 months probation, while the defence sought probation.

The court considered the defendants' youth, first-time offender status, and post-offence conduct.

Emphasizing specific deterrence and rehabilitation, the court sentenced both defendants to three years of probation with strict conditions, including restitution of $350 each, a 10-year weapons prohibition, and a DNA order.

The Crown appealed an acquittal on a charge of impaired operation of a motor vehicle by a drug under s. 253(1)(a) of the Criminal Code.

The appeal court found the trial judge failed to consider the cumulative effect of the evidence regarding whether the accused’s impairment was caused by drugs, including eyewitness evidence of impaired driving, expert evidence regarding the presence of drugs, and a statement to police.

The trial judge also failed to rule on the voluntariness and admissibility of the accused’s statement after a voir dire.

These errors constituted errors of law that materially affected the acquittal.

The acquittal was set aside and a new trial ordered.

Following a criminal trial for robbery arising from a school incident, identity was the only live issue.

The court considered eyewitness evidence from the complainant and a corroborating student witness, evidence from school officials, and the photo line-up evidence.

Applying the reasonable doubt standard and the framework in R v W (D), the court rejected the denial evidence and found the identification evidence reliable.

The court held that the Crown proved all elements of robbery beyond a reasonable doubt and convicted both defendants.