154 University Ave, Suite 500
Toronto ON  M5H 3Y9

The crime was indisputable: in the ATM vestibule of a TD Bank, two men attacked the plaintiff Bruce Moffitt before running away with his wallet, backpack, and the shoes off his feet. A few moments later, the men returned to steal his football. The CCTV caught the whole thing on camera, and the assailants were soon arrested and found guilty.

The incident left Moffitt seriously hurt, and he and his family sought damages from both the attackers and the TD Bank where the assault took place. Relying on the Occupiers’ Liability Act, the plaintiff alleged that TD Bank failed to adequately secure the area. The claim meant the bank was also liable for the incident—at least according to Moffitt. TD Bank moved for summary judgment, arguing that there was no genuine liability issue that required a trial, so the case should be dismissed. Justice LeMay, who heard the motion, agreed. He exercised his discretionary fact-finding powers under Rule 20, and made a number of procedural rulings to customize the process for this particular hearing.

To begin with, Justice LeMay permitted expert evidence to be led on the motion. The experts filed affidavits to which they appended their expert reports, and Justice LeMay then allowed cross-examination of the experts to take place in open court. He also exercised his role as gatekeeper and excluded one of the plaintiff’s experts.

The plaintiffs’ experts opined that TD bank should have had a card swipe entry, security guard, panic button in order to protect clients’ safety. However, it was not clear to Justice LeMay that on a balance of probabilities, any of those add-ons would have prevented Moffitt’s injuries. The vestibule was already furnished with bright lighting, mirrors, and signs stating the area was monitored by video surveillance; these are reasonable deterrents in the branch’s low-crime neighbourhood. Given there have been very few incidents of violence at the branch itself, Justice LeMay held that the assault on Mr. Moffitt was a random event.

In the result, Justice LeMay granted summary judgment in favour of TD. By doing so, he confirmed that TD had met the standard of care in the Occupiers’ Liability Act. It had taken reasonable care to see that the ATM vestibule was reasonably safe for persons using it.

The plaintiffs appealed the decision, arguing, among other things, that the motion judge had erred in law by granting summary judgment in the face of their jury notice, which required a jury, not the judge, to make findings of fact. They also argued the judge had conducted the pre-motion case management process in a manner that was unfair.

The Court of Appeal dismissed the plaintiffs’ appeal, ruling against the plaintiffs on all arguments. This decision is important for a couple of reasons. First, it demonstrates that simply because a jury notice has been filed does not prevent the court from granting summary judgment in an appropriate case. The Court of Appeal said that Rule 20 assigns to judges, and not to juries, the task of determining prior to a trial whether there is a genuine issue requiring a trial. For a judge to perform that task does not undermine that party’s right to a jury trial.

Second, Justice LeMay’s approach serves as an exemplar of the culture shift prescribed in Hryniak v. Mauldin, the goal of which was to strike a proper balance between procedure and access to justice in the civil justice system. The motion judge’s creative use of the powers provided to him under Rule 20.04 illustrates how the court can fashion a bespoke process to adjudicate a summary judgment motion: viva voce cross-examination on expert reports allows the court to consider conflicting evidence, to evaluate the experts’ credibility, and to assess the weight of their competing opinions.

Moffitt v. TD Canada Trust shows how an alternative summary judgment process can be crafted that is proportionate to the issue, fair and just to the parties, without the expense and delay of a trial.

The plaintiffs’ experts opined that TD bank should have had a card swipe entry, security guard, panic button in order to protect clients’ safety.