CITATION: Nirmalendran et al. v. T.E.C. Leaseholds Limited et al., 2021 ONSC 6823

DIVISIONAL COURT FILE NO.: 492-20 SUPERIOR COURT FILE NOS.: CV-14-505309, CV-14-505303, CV-14-505300, CV-15-542183

DATE: 20211001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Penny, and Favreau JJ.

BETWEEN:

VIGNESWARI NIRMALENDRAN, VELATHAM NIRMALENDRAN and NIRUSAN NIRMALENDRAN, Plaintiffs/Appellants

– and –

CHRISTOPHER HUSBANDS, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, TORONTO POLICE SERVICES BOARD, HAMILTON POLICE SERVICES BOARD, SURETY MARLON HUSBANDS, SURETY ANN-MARIE CAMPBELL, ONTREA/TEC ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED ONTREA INC. and T.E.C. LEASEHOLDS LIMITED, Defendants/Respondents

Ian Mair, Bronwyn Martin and Mirel Giugaru, for the Eaton Centre Defendants/Respondents

AND BETWEEN:

KING ARSAL NIRMALENDRAN-MORGAN, a minor by his Litigation Guardian, DONIKA SHEYANNE MORGAN, and DONIKA SHEYANNE MORGAN personally, Plaintiffs/Appellants

-and-

MARLON HUSBANDS, SURETY ANN-MARIE CAMPBELL, ONTREA/TEC

ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED

ONTREA INC. and T.E.C. LEASEHOLDS LIMITED, Defendants/Respondents

AND BETWEEN:

IDIL ABDULLAHI HASSAN, AMRAN ABDULLAHI HASSAN and ABDULLAHI ROBLE, Plaintiffs/Appellants

-and-

MARLON HUSBANDS, SURETY ANN-MARIE CAMPBELL, ONTREA/TEC

ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED

ONTREA INC. and T.E.C. LEASEHOLDS LIMITED, Defendants/Respondents

AND BETWEEN:

CONNOR STEVENSON, a minor by his litigation guardian CRAIG STEVENSON, CRAIG STEVENSON, JO-ANNE FINNEY and TAYLOR STEVENSON, Plaintiffs/Appellants

-and-

CHRISTOPHER HUSBANDS, HAMILTON POLICE SERVICES BOARD, SURETY MARLON HUSBANDS, SURETY ANN-MARIE CAMPBELL, ONTREA/TEC ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED, T.E.C. LEASEHOLDS LIMITED and

ONTREA INC., Defendants/Respondents

Paul Pape and Brodie Noga, Lawyers for the Plaintiffs

Kevin McGivney, David Elman and Samantha Bonanno, Lawyers for the Defendant/Respondent, Toronto Police Services Board

HEARD: July 12, 2021

REASONS FOR JUDGMENT

Overview

[1] This is an appeal (leave granted March 1, 2021: 2021 ONSC 1518) from two case conference orders of Pinto J. dated October 9 and November 6, 2020. These orders were made following telephone case conferences held in chambers before the case conference judge. In the October 9, 2020 order, the case conference judge ordered that the plaintiffs’ liability case was amenable to a summary judgment motion, as proposed by the moving defendants. He also ordered that the hearing of the motion would have to involve viva voce cross-examination of five expert witnesses proposed by the parties, addressing questions of duty and standard of care, proximity, foreseeability and causation in negligence and under the Occupiers’ Liability Act. Following a second case conference, in his November 6, 2020 order, the case conference judge denied the plaintiffs’ request for a 14- to 17-day hearing on the basis that it was beginning to “resemble a trial” and, among other things, truncated the parties’ cross-examination of the opposing expert witnesses to two hours and 45 minutes per witness.

[2] The plaintiffs appeal these orders on two basic grounds:

(1) the case conference judge lacked jurisdiction to make these orders; and

(2) the orders are, in any event, based on an error in principle or are plainly wrong.

[3] For the reasons that follow, although I would find that a case conference judge has the jurisdiction to make orders involving powers described in Rule 20.04 of the Rules of Civil Procedure, O. Reg. 575/07 (the “Rules”), it is a jurisdiction that should be exercised sparingly; to do so in the circumstances of this case was an error in principle and plainly wrong.

Background

The Action

[4] The actions arise out of a shooting at the Toronto Eaton Centre on June 2, 2012. In 2019, after a second criminal trial, the defendant, Christopher Husbands, was convicted of the shooting which killed Nixon Nirmalendran and Ahmed Hassan. Another victim, the plaintiff, Connor Stevenson (who was 13 years old at the time), was injured but survived. The actions have been brought by the families of Nirmalendran and Hassan and by Mr. Stevenson and his family seeking damages, including under the Family Law Act, R.S.O. 1990, c. F.3.

[5] There are four civil actions, commenced in 2014 and 2015. The plaintiffs in all four actions are represented by the same law firm. Discovery is complete in all four actions. These actions are scheduled to be tried together before a civil jury in September 2022. The trial records were filed by the plaintiffs in March 2019.

[6] There are four groups of defendants:

(a) the shooter, Christopher Husbands, and his two sureties, all of whom have been noted in default in the actions, although no judgment has yet been sought;

(b) two police service boards, those of Toronto (“TPSB”) and Hamilton. It is alleged that the police breached various duties of care owed to the plaintiffs by, among other things, failing to exercise adequate control and supervision over Mr. Husbands. Only the TPSB is seeking the dismissal, by way of summary judgment, of the two Nirmalendran actions and the Hassan action[^1];

(c) The Eaton Centre defendants: these entities are all alleged to be owners and operators of the Eaton Centre who exercised care, custody and control of the Eaton Centre. The plaintiffs alleged that these defendants owed common law duties of care, and duties of care arising out of the Occupiers’ Liability Act, which they breached by failing to provide a safe environment and adequate security for patrons of the Eaton Centre. These defendants are seeking summary judgment dismissals of all four actions; and,

(d) the provincial government defendants..

The Case Conference Process and the Orders Made

[7] In February 2020, the Eaton Centre defendants and the TPSB jointly requested a hearing date for proposed summary judgment motions by way of a chambers appointment hearing request form. The Respondents’ stated relief was to schedule summary judgment motions; they did not request a “mini-trial” under Rule 20.04(2.2) or a tailored summary trial under Rule 20.05(1).

[8] Following the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region (“Toronto Practice Direction”), the defendants and plaintiffs each completed Civil Practice Court (long motions and summary judgment) forms (“CPC forms”). In these forms, the Eaton Centre defendants proposed providing affidavit evidence from three expert witnesses and two lay affiants. The TPSB proposed no witnesses. The plaintiffs proposed filing affidavit evidence from two expert witnesses. Both the defendants’ and plaintiffs’ CPC forms provided estimates of how long they anticipated their witnesses would give evidence if called at the hearing. The plaintiffs took the position that if oral evidence was needed for the motion, they were entitled to their full proposed jury trial and there should be no scheduling of motions for summary judgment.

[9] Due to the COVID-19 pandemic, a telephone chambers appointment to address the defendants’ request to schedule summary judgment motions did not take place until September 2020.

[10] At the chambers appointment, the only written material before the case conference judge was the trial records, the defendants’ chambers appointment request form and the parties’ CPC forms. The case conference judge did not have before him any draft notices of motion or any affidavit evidence or expert reports.

[11] The parties made oral submissions on whether a summary judgment motion was an appropriate procedure. Although not raised in any of the written material filed, there was also a discussion about whether there should be oral evidence if the motions went ahead. The parties were not in agreement about the appropriateness of summary judgment or the length and format of oral evidence that would be necessary.

[12] The plaintiffs took the position that a decision about whether summary judgment motions should be scheduled and, if so, the appropriate procedure, should only be made after further and complete submissions. While the case conference judge declined the plaintiffs’ request to defer his decision, he did ask the parties to provide brief additional written submissions describing the areas upon which their proposed expert witnesses would testify. They did so prior to the release of his first case conference endorsement on October 9, 2020.

[13] Thus, although as noted, no evidence was available to the case conference judge, nor was there even a proposed notice of motion, he was provided with a brief description of the anticipated issues, including the type of evidence that the parties anticipated would be called.

[14] As described, the plaintiffs proposed to call:

(a) a law enforcement expert who would address the issues of:

(i) foreseeability;

(ii) duty and standard of care/adequacy of security measures at the Eaton Centre and minimum industry standards;

(iii) whether the Toronto Police Service complied with law enforcement standards; and

(iv) causation.

(b) a professor of criminology who would address the issues of:

(i) deterrence/spontaneity of the offence;

(ii) the adequacy of security measures at the Eaton Centre;

(iii) situation crime prevention strategy;

(iv) environmental crime prevention methods; and

(v) causation.

[15] Likewise, as described, the Eaton Centre defendants proposed to call:

(a) a criminologist who would provide an opinion on spontaneity, and whether Husbands’ actions could have been deterred by additional security measures;

(b) a forensic psychologist who would opine on whether the Eaton Centre security measures were reasonable from a threat assessment perspective; and

(c) a retired police commissioner who would also opine on whether the level of security at the Eaton Centre was reasonable and in keeping with the duty to provide a safe environment to shoppers and store personnel.

[16] Thus, collectively the parties intended to call five experts. In addition, the Eaton Centre defendants intended to provide the evidence of two lay affiants, one who would explain the system of security that was in place at the Eaton Centre at the relevant time, and the other, the police officer who led the video evidence that was presented at Husbands’ second criminal trial.

[17] At the first case conference, the Eaton Centre defendants argued that summary judgment motions were well suited to the threshold question of liability because facts were “not particularly in dispute”. Husbands had been convicted in criminal proceedings and the shooting was captured on video. A summary judgment motion on liability would last a few days and potentially avoid a 48-day trial.

[18] The TPSB also argued that its liability could be decided on summary judgment, which would depend on the legal question of whether it owed the plaintiffs a duty of care. Their summary judgment motion would require at most two days to argue and could proceed independently of the Eaton Centre defendants’ motion.

[19] The plaintiffs opposed the scheduling of summary judgment motions. They argued that many facts were in dispute. They argued they were entitled to a full trial of the issues before a jury, including on liability. A summary judgment motion would ultimately waste time and resources and would not properly focus on issues of police/public accountability. The plaintiffs had waited eight years to have their day in court and the defendants’ motions would only add further delay.

[20] On October 9, 2020, the case conference judge released an endorsement explaining that he had to decide three issues:

(3) whether further submissions were required to determine whether summary judgment motions should be scheduled in the four actions?

(4) assuming the answer to (1) is no, should summary judgment motions be scheduled to address the TPSB and Eaton Centre defendants’ liability? and

(5) assuming the answer to (2) is yes, what type of procedural directions should follow?

[21] The case conference judge disagreed with the plaintiffs that the summary judgment procedure should only be decided after receipt of further material. He determined that he had the power under Rule 50.13(6) to make a procedural order or give directions so long as there had been notice and it was appropriate to do so. He concluded that the parties had been afforded an adequate opportunity to make submissions on “whether summary judgment motions should be scheduled”.

[22] He found that at the first telephone case conference, counsel were provided a reasonable opportunity to canvass the relevant considerations and they made reference to case law. He confirmed that, following the case conference, the parties made additional written submissions. He was, therefore, satisfied that the parties had been provided with an adequate opportunity to address procedural concerns such that no further opportunity to make submissions was required. The case conference judge gave no specific consideration in this endorsement to the appropriateness of summary judgment motions where oral evidence would be required.

[23] The case conference judge referred to the “culture shift” set out in Hryniak v. Mauldin, 2014 SCC 7, to the effect that summary judgment ought to be considered a legitimate alternative means to adjudicating and resolving legal disputes, as elaborated by Justice Myers in Anjum et al. v. Doe et al., 2015 ONSC 5501. The case conference judge held that “[t]here is no ‘right’ to a trial in civil matters” and that a summary judgment process was an equally legitimate procedure. He decided it was unlikely that many facts would be in dispute and that proportionality favored permitting the defendants to bring their motions for summary judgment. He based this decision on the following factors:

(a) the criminal conviction against the shooter has been secured and the material from the second criminal trial was available;

(b) video evidence of the shooting was available;

(d) the question of liability was likely to be determined by “legal issues” informed by expert opinion and not primarily by differences of fact and/or credibility;

(e) the question of liability was distinct from that of damages and the damages aspect could end up taking up the majority of trial time;

(f) the relative amount of time for a summary judgment motion was estimated to be six days (although the plaintiffs submitted it would be longer) in comparison to the estimated trial time of 48 days;

(g) if no liability was found against the moving party defendants all four actions would be dismissed against the moving parties and a trial would be unnecessary; this was not a case of partial summary judgment or, to the extent that it was, proceeding with the motions was still warranted.

[24] The case conference judge went on to hold that the existence of a jury notice did not preclude the defendants from proceeding with summary judgment motions on the basis there was no genuine issue requiring trial. He distinguished Abuajina v. Haval, 2015 ONSC 7938, which the plaintiffs relied on for the importance of the jury’s fact-finding role, on the basis that Abuajina was a routine personal injury action driven by facts and likely to settle before trial, whereas the present actions were not routine and liability was likely to be determined by discrete legal concepts such as foreseeability, standard of care, and causation.

[25] The case conference judge was also of the view that, even if the summary judgment motions were unsuccessful, they might not necessarily amount to a waste of time because the judge hearing the motion could seize herself and continue hearing the matter at the trial, assuming she determined that a trial was required. The knowledge the motion judge developed about the case would, in that circumstance therefore, not go to waste.

[26] Thus, the case conference judge determined that the question of the TPSB and Eaton Centre defendants’ liability was amenable to a summary judgment procedure and that such a procedure was likely to be proportionate, more expeditious, and more affordable than a full trial.

[27] Having concluded that summary judgment motions were appropriate, the case conference judge then turned to the procedural directions that should follow. He found that the defendants’ motions could not proceed without viva voce evidence from the experts whose evidence was critical to deciding the question of liability. Accordingly, the case conference judge ordered there be viva voce cross-examinations of the parties’ experts at the hearing of the motions. He said:

As I have decided to permit summary judgment motions to proceed, the question becomes whether, as a matter of efficiency, such cross-examination of the experts should occur before or at the hearing of the summary judgment motions.

I am persuaded that it will be more efficient for the experts to be cross examined at the hearing of the summary judgment motions.

[28] The case conference judge then ordered a further case conference and directed the parties to confer and attempt to agree on remaining procedural issues, including:

(i) how many days would be required for the summary judgment motions (indicating he was not inclined to schedule more than 6 days for the summary judgment motions);

(ii) how the motion days should be utilized as between submissions and cross-examination of the expert witnesses and how the time should be allotted; and

(iii) whether brief examination in chief (i.e., 15 minutes) would be required for the experts prior to their cross-examination and whether there be would be re-examination;

[29] The parties could not agree. They provided the case conference judge with their respective answers to the questions by email. In the meantime, the plaintiffs moved for leave to appeal the October endorsement.

[30] The plaintiffs took the position that they were required to put their “best foot forward” to show that the defendants’ liability was an issue requiring a trial. They accordingly requested a hearing of 14 to 17 days which included at least seven days for the cross examination of the defendants’ expert witnesses.

[31] A second case conference was held by telephone on November 4, 2020. The case conference judge provided a written endorsement on November 6, 2020 resolving the outstanding issues.

[32] The case conference judge refused the plaintiffs’ request for a hearing of 14 to 17 days on the basis that it was starting to “resemble a trial.” He wrote:

Overall, I find that the plaintiffs’ proposal is fundamentally flawed in that it contradicts the raison d’être of summary judgment motions, namely a summary and faster process for resolving an action: Hryniak v. Mauldin, 2014 SCC 7. A 14 to 17 day hearing that would only take place 10 months from now is starting to resemble a trial, not a summary judgment process as I have directed. [original emphasis.]

[33] Instead, the case conference judge ordered that the summary judgment motions proceed over 6 days on May 20, 21 and 25 to 28, 2021. In order to achieve the ordered six-day limit, the case conference judge circumscribed the parties’ right to conduct viva voce cross-examination of the opposing experts to a total of two hours and 45 minutes for each witness, citing the need to balance sufficient time for the parties to test the experts’ evidence with the need to “conserve judicial resources”.

Issues

[34] The plaintiffs have advanced two grounds of appeal:

the case conference judge lacked jurisdiction to make these orders under Rule 20.04 because only the judge hearing the summary judgment motion has the power to make such orders; and
in any event, the case conference judge improperly exercised his discretion to permit and to structure the format for the proposed motions for summary judgment in the circumstances of this case.

Analysis

Standard of Review

[35] The standard of review on a question of law is correctness. Jurisdiction is a question of law. The standard of review on a question involving the exercise of discretion is whether the decision maker committed an error in principle or was plainly wrong. Reversing a lower court’s discretionary decision is also appropriate where the lower court gave no or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, para. 27.

Did the Case Conference Judge Lack Jurisdiction?

[36] In essence, the plaintiffs argue that, under the plain meaning of Rules 20.04(2.1) and (2.2), a judge may only order oral evidence after having: (1) reviewed the parties’ evidence; (2) concluded that there appear to be genuine issues requiring trial; and (3) decided that resort to the expanded fact-finding powers is not against the interest of justice. These are issues, the plaintiff argues, for the motion judge and the motion judge alone. Rule 20.04(2.2) does not permit an order for oral evidence on a motion for summary judgment before the motion judge decides which issues appear to require a trial: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 60-63. The plaintiffs submit that the Rules Committee chose to reserve to the motions judge orders for oral evidence. The Committee also declined to adopt a stand-alone summary trial procedure. A departure from this framework would represent a significant change to practice and procedure; such changes should be left to the Rules Committee, not judicial fiat.

[37] The plaintiffs further argue that the case conference judge relied on Anjum, where Myers J. similarly made an advance direction for oral evidence, utilizing a case conference judge’s power to issue directions under Rules 1.05 and 50.13(6). In Anjum, Myers J. held that the efficient scheduling of summary judgment motions required advance review and consideration of the need for oral evidence prior to the motion being heard. He ultimately concluded that the exceptional circumstances of the case before him necessitated such an advance order, even though neither party asked for such relief.

[38] The plaintiffs submit that Anjum is wrongly decided for two reasons: 1) it directly conflicts with the Court of Appeal’s holding in Combined Air Mechanical, adopted by the Supreme Court in Hryniak, that the decision to call oral evidence rests with the motion judge; and 2) in Robichaud et al. v. Constantinidis et al, 2018 ONSC 4204, at paras. 51-52, Justice Akbarali refused to follow Anjum, holding that the roadmap to summary judgment and the powers set out in the Rules reserve jurisdiction for making orders involving oral evidence and the other expanded powers to the motion judge alone.

[39] I begin my analysis by focussing on the relevant Rules and the Toronto Practice Direction. Rule 1.05 provides:

When making an order under these rules the court may impose such terms and give such directions as are just.

[40] Rule 20.04 provides, in relevant part:

20.04. (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) [Powers] In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.

(2.2) [Oral Evidence (Mini-Trial)] A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[41] Rule 50.13(5) and (6) provide:

(5) At the case conference, the judge or associate judge may,

(a) identify the issues and note those that are contested and those that are not;

(b) explore methods to resolve the contested issues;

(d) establish a timetable for the proceeding; and

(e) review and, if necessary, amend an existing timetable.

(6) At the case conference, the judge or associate judge may, if notice has been given and it is appropriate to do so or on consent of the parties,

(a) make a procedural order;

(b) convene a pre-trial conference;

(d) in the case of a judge,

(i) make an order for interlocutory relief, or

(ii) convene a hearing.

[42] The local practice in Toronto is that summary judgment motions are scheduled at Civil Practice Court. The applicable Toronto Practice Direction contains the following direction for scheduling summary judgment motions:

Rule 20 of the Rules of Civil Procedure contemplates that some summary judgment motions will proceed by way of a hybrid hearing (written record, plus some oral evidence) or by way of a hearing on the written record followed closely by a tailored trial of issues. Scheduling the expeditious hearing of these Rule 20 motions will require greater management by the judiciary. Accordingly, all motions for summary judgment will undergo a scheduling and monitoring process commencing with an attendance at Civil Practice Court.

[43] Rule 50.13 was promulgated by the Rules Committee subsequent to and in response to the Hryniak decision. It is an important arrow in the quiver of judges to implement case conference processes to enforce the culture shift required by the Supreme Court of Canada. It is a direct answer to the call for active case management of summary judgment motions set out in para. 70 of Hryniak: see Rubner v. Lower Fourth Limited, 2017 ONSC 7520, paras. 46-47. The same can be said for the Toronto Practice Direction.

[44] The need for proactive case management of motions for summary judgment is one of the underlying themes of Hyrniak. The jurisdiction of a case conference judge to make orders and directions for the purposes of managing litigation comes from Rule 1.04 and Rule 50.13. The Rules Committee enacted Rule 50.13 in January 2015, a year after Hryniak. It provides case conference judges with express discretion necessary to implement the “culture shift” referred to in Hyrniak. In particular, it grants a case conference judge the jurisdiction to make procedural orders and give directions involving the future conduct of litigation. Even prior to Rule 50.13, a judge engaged in case – or litigation – management possessed the inherent power to give directions regarding the mode of giving evidence-in-chief and the length of the oral examination of any witness at trial, for example. Such powers were considered a necessary incident to the judge’s ability to manage the case in a proportionate manner: Abrams v. Abrams, 2010 ONSC 2703 at para. 83.

[45] While there is considerable force to the plaintiffs’ submissions, I am not prepared to conclude that a case conference judge can never, as a matter of jurisdiction, make advance orders concerning the tendering of oral evidence on a pending motion for summary judgment. The provisions of Rule 20.04(2.1) and (2.2) make it clear that the motion judge can (and in most cases should) make these determinations. They do not, however, expressly prohibit a case management judge from employing these powers.[^2] To draw a bright, jurisdictional line between, for example, making orders limiting the length of affidavits or out-of-court cross examinations or the time that shall be allocated to each party for argument, on the one hand, and whether the parties shall or shall not tender oral evidence, on the other, is not warranted on a proper interpretation of the relevant Rules, read as a whole, and the Toronto Practice Direction. Viewing Rule 20.04(2.1) and (2.2) as a jurisdictional bar to case conference orders would not be conducive to the spirit of Hyrniak or the orderly case management of motions for summary judgment in a busy jurisdiction such as Toronto. For these reasons, I do not agree with the plaintiffs’ submissions on this issue and, therefore, would not give effect to the plaintiffs’ appeal on the basis of lack of jurisdiction.

Did the Case Conference Judge Exercise His Discretion Improperly?

(a) The Eaton Centre Defendants

[46] Having said that, however, the question remains whether the orders made by the case conference judge are justified in the circumstances of this case. I have regrettably come to the conclusion that the answer to this question is ‘No’. There are several problems with the case conference judge’s analysis that lead to this conclusion.

[47] It is important to emphasize, as the starting point for my analysis, that the case conference judge came to the conclusions he did without any of the proposed evidence before him. There is a reason Rule 20.04(2.1) and (2.2) places such emphasis on determinations by the motion judge. That is because it is only with a thorough understanding of the issues and the precise nature of the evidence, and the likely conflicts in the evidence, that an assessment can be made about whether it is in the interest of justice to exercise the powers in Rule 20.04. Those powers of course, include the power to order that oral evidence be presented in the form of a “mini-trial”.

[48] In most cases, therefore, orders under sections 24.04(2.1) and (2.2) should be made only by the motion judge and, in any event, should not be made in the absence of a notice of motion and a comprehensive assessment of the written evidence proposed to be tendered at the motion. Circumstances where such an order is appropriate might include where the parties are in agreement or where the issue in dispute is sufficiently discrete that a full assessment of the likely need for the use of the Rule 20.04 powers can be made with confidence. Such powers ought not to be exercised in a case conference where there are fundamental disagreements about the appropriate process and the disputes in the evidence involve, as they do here, essentially the full gamut of liability issues in the case.

[49] The orders made in this case, without the benefit of any appreciation of the evidence, would put the motion judge in a difficult position. She might well consider, having read the material in full and considered the powers available under Rule 20.04, that there are genuine issues for trial and that it is not in the interests of justice to employ the Rule 20.04 powers. Does the motion judge proceed with the oral evidence in any event, because it was so ordered by the case conference judge, or overrule the prior interlocutory order, and proceed as she considers appropriate in accordance with Rule 20.04 and the instructions of Hyrniak as to the summary judgment roadmap and decision tree?

[50] The absence of any evidentiary record leads directly to the next problem – the case conference judge inverted the proper analysis by first deciding there would be a motion for summary judgment with viva voce evidence and only then, with the benefit of a later and somewhat better understanding of the nature of that evidence, trying to fit the necessary hearing procedure onto the Procrustean bed of a motion for summary judgment. As the Court of Appeal remarked in Combined Air Mechanical, a party who moves for summary judgment must be able to present a case capable of being decided on a paper record. To pre-emptively suggest that further evidence is required amounts to an admission that the case is not appropriate, at first impression at least, for summary judgment: Combined Air Mechanical at para. 63.

[51] Alarm bells ought to have been going off even at the prospect of a proposed six-day summary judgment motion, much less a 14- to 17-day hearing. And when the case conference judge found himself saying to the plaintiffs, after the second case conference, that their proposal for the presentation of oral evidence at the motion was “fundamentally flawed” because it was “starting to resemble a trial”, he ought to have re-evaluated, from scratch, with the benefit of a now better understanding of the nature of the evidence, whether a “summary process” was the appropriate procedure at all. Had he done so, it seems clear to me that he would not have proceeded to make the orders that he did.

[52] Further, the case conference judge’s conclusion that it was “unlikely” that many facts would be in dispute was focused almost entirely on the circumstances of the Eaton Centre shooting itself. That, however, is by no means the only area in which there are likely to be material conflicts in the evidence. As with many negligence cases, these four actions, it seems, will largely turn on the nature of the duties owed (if any), the standard of care and whether it was breached and causation. Both the Eaton Centre defendants and the plaintiffs concede that these questions will largely turn on expert testimony. The case conference judge did not have the expert reports before him; he was, therefore, in no position to assess the nature of the evidentiary conflicts that could arise regarding this evidence.

[53] In addition, to describe the question of liability in this case as one “likely to be determined by legal issues informed by expert opinion and not primarily by differences of fact and/or credibility” seems to me to proceed from a misunderstanding of the nature of expert testimony in a case of this kind. Expert witnesses, although unique in their capacity to provide opinion evidence, are nevertheless, at their core, “fact” witnesses. The proposed experts are in no way going to be addressing “legal” issues. The case conference judge did not know what material facts the expert opinions would be based upon, what opinions they would be testifying about or what conflicts might arise from their testimony. Thus, he could not know whether the evidence of the experts would be in conflict and, if so, in what way. The case conference judge was in no position, given the state of the record before him, to conclude that it was “unlikely” that many facts would be in dispute and that “liability would likely be determined by legal issues” rather than by differences of fact. Given the theoretical underpinnings of the case conference judge’s approach to the orders made in this case, it is hard to imagine any negligence case that would not fall within the parameters established by the case conference judge for a summary judgment motion on liability by way of “mini-trial” under Rule 20.04(2.2).

[54] The case conference judge also gave short shrift to the plaintiffs’ prima facie right to a trial by jury, and no consideration at all to the fact that the summary judgment approach adopted in this case, involving a mini-trial with oral testimony on what are thought be the likely essential issues of disputed fact, results in a de facto bifurcation of liability and damages, without requiring the defendants to meet any of the tests articulated in the law for making such an order.

[55] These problems are all threshold errors of principle. They are, in any event, sufficient to satisfy me that the orders made by the case conference judge were plainly wrong. For these reasons, I would allow the plaintiffs’ appeal of the orders as they relate to the Eaton Centre defendants, overturn the case conference judge’s orders, find that the liability of the Eaton Centre defendants is manifestly not amenable to summary judgment and order that the plaintiffs’ liability case proceed to trial.

(b) The TPSB Defendant

[56] The case conference judge did not distinguish in his analysis between the proposed summary judgment motion of the Eaton Centre defendants and the summary judgment motion of the TPSB. However, the nature of the claim against the TPSB is quite different from the claim against the Eaton Centre defendants, involving allegations of failing to take into account Husbands’ history of breaching bail conditions, failing to properly supervise Husbands and monitor compliance with his bail conditions and failure to take sufficient steps to protect members of the public from the dangers posed by Husbands once released from custody. The TPSB has denied that, in the circumstances alleged in the Statements of Claim, it, or any member of the Toronto Police Service, owed any private law duty of care to the plaintiffs.

[57] On its face, the TPSB motion seeks a determination that is largely a question of law – that is, whether, on the facts as pleaded, the TPSB could be found to owe a private law duty of care to members of the public, including the shooting victims. The TPSB’s motion does not contemplate any evidence being filed and none was ordered by the case conference judge. The TPSB submits that its motion is entirely capable of being decided on a paper record without employing any of the powers available under Rule 20.04. It will require no viva voce evidence and will take, they submit now, only a day or less to argue.

[58] I tend to agree with the TPSB that its motion is distinct from the Eaton Centre defendants’ motion and ought not to be swept up in any procedural problems associated with the need for viva voce evidence from five competing expert witnesses.

[59] However, because the case conference judge’s analysis did not differentiate between the two motions, and because the issues associated with other concerns, for example, with partial summary judgment,[^3] were not addressed before the case conference judge or in this Court, I would not make any order other than to refer the matter back to Civil Practice Court for a reconsideration of the scheduling of the TPSB proposed summary judgment motion on a stand-alone basis. The primary issue of concern to me at this stage is that nothing be done that could impair, in any way, the commencement of the trial on September 22, 2022. That must be an important factor weighed in any assessment of the appropriateness of a stand-alone motion for summary judgment by the TPSB.

Conclusion

[60] For these reasons, the motion is granted and the orders of the case conference judge are set aside. The liability case against the Eaton Centre defendants shall proceed to trial. TPSB may seek a further case conference for the purpose of assessing whether, in all the circumstances, it is appropriate to schedule a motion for summary judgment focussed on the mostly legal question of whether the TPSB owed a duty of care in these circumstances.

Costs

[61] The plaintiffs are entitled to their costs from the Eaton Centre defendants: $10,000 for the leave motion and $15,000 for the appeal (all inclusive of fees, disbursements and taxes). I would make no order as to costs regarding the TPSB.

Penny J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Favreau J.

Released: October 1, 2021

DIVISIONAL COURT FILE NO.: 492-20 SUPERIOR COURT FILE NOS.: CV-14-505309, CV-14-505303, CV-14-505300, CV-15-542183

DATE: 20211001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Penny and Favreau JJ.

BETWEEN:

VIGNESWARI NIRMALENDRAN, VELATHAM NIRMALENDRAN and NIRUSAN NIRMALENDRAN, Plaintiffs/Appellants

– and –

REASONS FOR JUDGMENT

Released: October 1, 2021

[^1]: The Toronto Police Services Board is not a defendant in the Stevenson claim; the Hamilton Police Services Board is a defendant.

[^2]: The decision of Akbarali J. in Robichaud et al v. Constantinidis et al, 2018 ONSC 4204 was made in different circumstances. I fully endorse the caution with which she approached the question in that case but I do not think that our decision here is in conflict with the outcome in Robichaud, given the different circumstances in which the issue arose in that case.

[^3]: For example, in Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Court of Appeal confirmed that partial summary judgment runs the risk of duplicative or inconsistent findings at trial: paras. 28-9. Pepall J.A. also noted that a motion for partial summary judgment may (i) delay the resolution of the main action, (ii) be very expensive, (iii) take up judges’ time on an issue that does not dispose of the action, and (iv) be heard on the basis of a relatively limited record, thereby compounding the risk of inconsistent findings at trial: paras. 29-33. Partial summary judgment is an exceptional procedure to be “reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner”: para. 34.

Nirmalendran et al. v. T.E.C. Leaseholds Limited et al., 2021 ONSC 6823

Case Summary

Overview

Background

The Action

The Case Conference Process and the Orders Made

Issues

Analysis

Standard of Review

Did the Case Conference Judge Lack Jurisdiction?

Did the Case Conference Judge Exercise His Discretion Improperly?

(a) The Eaton Centre Defendants

(b) The TPSB Defendant

Conclusion

Costs

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 1