Court File and Parties

COURT FILE NO.: CV-17-3440-00 DATE: 2019 04 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Moffitt et. al. v. TD Canada Trust

BEFORE: LeMay J.

COUNSEL: S. Pickering, for the Plaintiff A. Presse for the Defendant

ENDORSEMENT

[1] This is a claim flowing from an alleged assault on the Plaintiff, Bruce Moffitt in May of 2013. The assault allegedly took place in a TD Automated Teller Machine (“ATM”) vestibule at 673 Warden Avenue in Toronto. The action was originally started in 2015, and was brought by Mr. Moffitt and various family members against the TD Bank. The action was also brought against two individuals, Ferdinand Pangan and Jason Green. TD is the only Defendant involved in the proceedings at this stage, however.

[2] I am case managing this action. By way of a decision dated February 5th, 2019 (reported at 2019 ONSC 902), I resolved the issue of outstanding follow up questions to the answers that TD had been ordered to provide by Seppi J. As part of that decision, I made the following directions:

a) TD was to provide its answers to the questions I had directed be answered within forty-five (45) days of February 5th, 2019

b) If the Plaintiff had any concerns about the completeness of these answers, then the Plaintiff was to raise those concerns within seven (7) calendar days of receiving TD’s answers. I required that these issues be raised in writing, and completely explained

c) If there were no issues with respect to TD’s answers, then the Plaintiff’s expert report would be due three (3) calendar days after TD’s answers were completed.

[3] TD duly provided its answers in the allotted time. Counsel for the Plaintiff has raised concerns about the completeness of TD’s answers. As a result, pursuant to my directions the Plaintiff filed a detailed Affidavit sworn by Mr. Lane Foster, one of the lawyers with the law firm representing the Plaintiff. This Affidavit sets out a series of concerns with TD’s answers. This Affidavit was filed on March 29th, 2019.

[4] By way of an endorsement dated April 2nd, 2019, I directed the Plaintiff to provide any additional submissions respecting the allegedly incomplete answers by noon on April 3rd, 2019. I then directed TD to provide its response by April 5th, 2019 and the Plaintiff to provide any reply by April 8th, 2019.

[5] I had also invited any party who was seeking an oral hearing to request same. However, I also cautioned the parties that any party who sought an oral hearing would face the prospect of substantial indemnity costs if they could not justify an oral hearing. Neither party requested an oral hearing.

[6] In addition, I directed the parties to provide me with submissions on the issue of whether I should direct the Plaintiff to provide his expert report forthwith, even if I find that TD has not completely answered all of the questions pursuant to my February 5th, 2019 decision.

[7] In the sections that follow, I will address the following issues:

a) The underlying principles that should be applied to this motion.

b) Specific directions relating to specific questions that the Plaintiff is seeking to have answered.

c) Should the Plaintiff be required to provide its expert report forthwith, even though all of the questions have not been completely answered?

Issue #1 - The Underlying Principles

[8] In my February 5th, 2019 decision, I noted that the principle of proportionality governed in this case, and limited the scope of the information that the Plaintiff was entitled to receive. In many cases, the scope of the information that I ordered TD to produce was limited to facts relating to the ATM vestibule of the Warden Branch after hours.

[9] This proportionality limitation was not just imposed by me. Indeed, as I have noted my colleague Seppi J. also imposed a similar limitation in a decision she rendered on June 28th, 2018. The Plaintiff sought leave to appeal Seppi J.’s decision, and leave was denied by the Divisional Court.

[10] As a result of this judicial history, TD has relied on proportionality in its submissions. The Plaintiffs reject this reliance, arguing as follows:

The Defendant continues to raise the argument of proportionality, when it has failed to provide any evidence to allow the Court to assess the factors under Rule 29.2.03, as required by Midland Resources Ltd. v. Shtaif, 2010 ONSC 3772 (Tab 1) and Seelster Farms Inc. v. Ontario, 2015 ONSC 908 (Tab 2). Thus it cannot argue that being required to provide information or documentation in their own possession is not proportional, other than if it goes beyond the limits of proportionality as set out in prior Orders. The Plaintiffs submit that none of the further questions asked go beyond those limits.

[11] There are two problems with the Plaintiff’s argument. First, the decision in Midland Resources Holding Ltd. v. Shtaif (2010 ONSC 3772) addresses requests made at discovery in the first instance. While Master Muir correctly states (at paragraph 15) that the Court should consider the factors in Rule 29.2.03 in assessing which questions should be answered, the Master’s determination is made in response to a first motion seeking answers to undertakings and refusals.

[12] In this case, I am on the third motion seeking additional follow-up information. Both Seppi J. and I have already delineated the boundaries of proportionality in this action. There is nothing improper in TD objecting to further questions and further requests for follow-up information on the basis that the Plaintiff’s questions lie outside of the boundaries that have been delineated by the Court.

[13] The second problem with the Plaintiff’s argument is related to the first problem. The Plaintiff has sought to appeal Seppi J.’s findings on proportionality. The Divisional Court denied leave last fall. The Plaintiff has sought to re-litigate the proportionality issues before me, and I found that Seppi J.’s decision was both binding on me and correct (see paragraphs 23 and 24 of my February 5th, 2019 reasons).

[14] The Plaintiff’s argument that TD must prove its claims relating to proportionality is a further attempt to re-litigate the proportionality question. Finality is an important judicial principle. Once a decision is made, it should not constantly be revisited. The boundaries of the questions that are proportional remain as set out in the previous decisions in this case.

[15] The second principle that applies in this case relates to the scope of the questions that the Plaintiff can ask at this stage. In my February 5th, 2019 decision, I found that the Plaintiff was not entitled to a written examination for discovery, and that the questions asked in follow-up had to be properly based on the information flowing from refusals given at discovery. The Plaintiff is not entitled to use this process as an opportunity for a further discovery. Discovery has already been held.

[16] This principle continues to apply. In particular, the Plaintiff is not allowed to re-conduct a discovery at this stage in order to ask questions that the Plaintiff should have asked, or should have known to ask, on discovery. In some cases, it is clear that the Plaintiff is seeking to do just that.

[17] One example will suffice to illustrate the problem. The Plaintiff has produced a document from the Toronto Police Service (“TPS”) at Exhibit “H” of Mr. Foster’s Affidavit. That document, which is dated January 31st, 2019, nearly two years after discovery, sets out an incident history for the address where the TD Warden branch is located. The Plaintiff seeks to ask follow up questions based on this document.

[18] I had no explanation in Mr. Foster’s Affidavit as to why the TPS’s information relating to the location where TD’s Warden Branch is was not obtained before discovery. Further, I see no justification to permit a follow up question through the discovery process on information that the Plaintiff should have known, and should have asked the Defendant questions about at the time that discovery was conducted.

[19] This type of question is not permitted as a follow-up to discovery.

Issue #2 - Specific Questions

[20] The Plaintiff did not provide me with a chart setting out the questions they wanted answered and their positions on those questions. As a result, I have created my own chart based on the materials that the parties have filed. It sets out the information sought, the position of each party and my disposition.

[21] To the extent that I have been able to dispose of particular issues using the general principles set out in the previous section, I will not provide any further reasons in this section. However, some of the questions that were refused require a more detailed explanation. In providing that additional detail, I note that the question numbers refer to the chart attached to my February 5, 2019 reasons.

[22] I start with Question 5, paragraph 23 of Mr. Foster’s Affidavit. The Plaintiff is seeking the Retail Risk Ratings for 2010 and 2011. The Defendant argues that this information has already been provided, as it is set out in the 2012 Retail Risk Rating, which has already been provided. In their reply submissions, the Plaintiff states that the information about 2010 and 2011 in the 2012 Retail Risk Rating is not as detailed as the information that was provided for 2012.

[23] There are two problems with the Plaintiff’s claim that TD’s answer to this question is deficient. First, it appears to me that TD’s argument could have been anticipated by the Plaintiff. As a result, it was incumbent on the Plaintiff to attach the document to its original Affidavit so that the Court had a copy of it. Second, even if this argument could not have been anticipated, the Plaintiff did not provide (or seek leave to provide) the document in its reply submissions, even after it knew what TD’s argument would be.

[24] This lack of information is not helpful to the Court in adjudicating this matter. It is possible that the Plaintiff would argue that it was the Defendant’s fault that this information was not provided to the Court. That argument would concern me, as it must be remembered that my direction of February 5th, 2019 stated that the Plaintiff must “completely explain” their position regarding any deficiencies. It is clear that the Plaintiff was aware that some documents would be required to provide the Court with a complete explanation of their position, as they attached almost 20 documents to Mr. Foster’s Affidavit. There is no explanation for why the 2012 Retail Risk Rating document was not included in the Plaintiff’s materials.

[25] However, I do not want to prejudice the Plaintiff by dismissing this request out of hand. TD is to file the relevant document within seven (7) calendar days, and I will review it and determine whether any further information is required from TD.

[26] On this point, I note that it is possible that the document I am looking for is set out at Tab “Q” of Mr. Foster’s Affidavit. It was not clear from the materials whether this was the case. If so, the parties are to confirm that this is the complete document.

[27] Then, there is Question 21, paragraphs 41 and 42 of Mr. Foster’s Affidavit. The same issue is raised with respect to Question 4, paragraph 22 of Mr. Foster’s Affidavit.

[28] In its original submissions, the Plaintiff sought additional information with respect to the analysts’ qualifications. Specifically, the Plaintiff stated that TD “provided one sentence about the qualifications of the analysts”. In response to this argument, the Defendant has stated that the analysts’ names and qualifications have been provided.

[29] The Plaintiff did not provide any reply submissions on what was deficient about TD’s one sentence answer regarding the qualifications of the analysts. In light of that lack of information, I cannot find that TD’s answer to this part of the question is deficient in any way.

[30] This brings me to the question of the interns. The Plaintiff seeks the names of the interns, contact information if they are no longer employed with TD, and a full description of their qualifications. In support of this request, the Plaintiff points to Rule 31.06(2) of the Rules of Civil Procedure, which states:

Identity of Persons Having Knowledge

31.06 (2) A party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 31.06 (2).

[31] The Plaintiff argues that the interns made choices on what data to input into the system and what to leave out. As a result, they are people who could have information that is relevant to this action, and the Rules require disclosure of contact information for these individuals.

[32] I reject the Plaintiff’s argument for three reasons. First, there is no indication in any of the material that I have that the interns actually had any discretion as to what information to enter into the computer system. As a result, I cannot see what relevant information they would have about this action. This question is akin to asking for the name and contact information of the administrative assistant who had prepared TD’s Risk Guidelines. It is not who created the document, or the database that is relevant, but rather the contents that are relevant.

[33] Second, even if the interns had some discretion as to what information to enter or not enter, I see no grounds to find that they would have any even arguably relevant information, as I have not been informed by the Plaintiff as to what information they did enter, or how that would be relevant to the action.

[34] Finally, there is the issue of proportionality. As I have indicated above, the decisions respecting proportionality that have been made by both Seppi J. and myself continue to be binding on the parties. The names of interns who entered data are very far removed from any question relating to the ATM vestibule of the Warden Branch, and even the other security information that I have ordered to be produced.

[35] Nothing further is required with respect to the interns or the analysts.

Benchmarking Against Other Financial Institutions

[36] This is a significant issue between the parties. There has been much energy expended on the question of whether TD benchmarked the Warden Branch against other financial institutions.

[37] TD’s answer has always been that it benchmarks its branches against other financial institutions within a one kilometer radius. In the course of this litigation, it has become clear that there are no other financial institutions within one kilometer of the Warden Branch.

[38] As a result of that fact, the Plaintiff seeks the answers to additional questions, as follows:

a. Who TD benchmarked the security for the Warden Branch against?

b. In the alternative, confirmation that TD failed to benchmark against any other financial institutions in respect of the security of the Warden Branch?

c. If there are no other financial institutions in the 1 km radius, how does that affect the point system?

d. What is the pre-determined threshold for an additional point based upon the CAP Index Score?

[39] TD argues that the first two questions have been answered, and I agree. It is clear that there were no other banks that were used as benchmarks for this branch.

[40] It is the third and fourth questions that are in issue. With respect to the third question, all that TD says is that it has sufficiently answered the further questions that I originally ordered to be answered. I disagree. The third question posed by the Plaintiff is a reasonable follow up question that is based on the information and documents produced as a result of these processes. It also could relate directly to the security of the ATM vestibule at the Warden Branch. Therefore, this question is to be answered.

[41] The fourth question concerns information from the Canadian Bankers Association that is now in TD’s possession, power or control. TD is opposed to releasing this information on the following grounds:

a) It is unnecessary to produce this actual CBA data as it was only part of the information that TD considered in assessing risk.

b) TD cannot release the data without the consent of all financial institutions.

c) Release of the data could compromise the security of Canadian financial institutions should it fall into the wrong hands, and the information could be used for criminal intent.

[42] I reject all three of these arguments. The data is to be produced, subject to a caveat that I will come to at the end of my discussion on this point.

[43] TD’s first argument contains the explanation for why the argument must fail. The CBA data is only “part” of what TD based its decisions on. However, it is clearly (even on TD’s submissions) part of the information used to reach a decision. In addition, the information being sought could relate directly to the ATM vestibule at the Warden Branch. Certainly, TD has not argued that this information is not related to the ATM vestibule at the Warden Branch. This information is therefore relevant and covered by the exceptions to the proportionality principle as set out in my reasons of February 5th, 2019.

[44] The second argument, that all other financial institutions must consent to its production, also fails. The information is in the possession, power and control of TD. The fact that a third party (or group of third parties) have an interest in the documentation does not mean that the party that actually has the documentation can refuse to produce the documentation based on the interest of the third party without satisfying the Wigmore criteria.

[45] Finally, there is the argument that the release of the information could compromise the security of Canadian financial institutions. On the record that I have, this is not a ground to prevent the disclosure of the documents. It may be, however, grounds for controlling the use and dissemination of the documents.

[46] I cannot yet tell if there is any merit to TD’s argument that disclosing these documents publicly would create the issues that TD has raised. Counsel for the Plaintiff has correctly pointed out that they are bound to the deemed undertaking rule, which is sufficient protection for the information at this point.

[47] However, in order to ensure that the risk of compromising bank security is limited, I will specifically order (on a temporary basis) that these documents are to be kept confidential and not to be included in the Court record unless a Court orders otherwise.

Retail Branch Risk Rating Methodology

[48] TD provided a document entitled “TD Bank Financial Group Retail Branch Risk Rating Methodology Global Security and Investigations” dated April 2011.

[49] In response to this production, the Plaintiff seeks the following additional information:

a. Was this ever implemented or did it remain as a draft?

b. Is this the methodology that was used in assessing the risk level of the Warden Branch in the 3 years prior to the date of loss?

c. Why is reducing unnecessary travel a factor considered when the purpose identified is to identify and characterize branches based upon “specific quantifiable crime events that have or could, in whole or in part have material and or reputational impact the safety and security TD personnel, clients, operations, imaging and or branding”?

d. Why are other threats, such as threatening behaviours, suspicious activity, or unwanted persons, not factored in?

e. Why is there no consideration provided into other attributes of the neighbourhood, such as would be provided in the CAP Index?

f. Why is the loss event history only considered for the past 6 months?

g. Is the 0.5 point for other financial services within 1 km radius for the mere presence of other financial institutions, the lack of other financial institutions, or problems at other financial institutions? How would the lack of other financial institutions factor into this point system?

[50] TD argues, correctly in my view, that the first two questions have been answered. They are certainly answered in TD’s submissions on this motion. Nothing further is required from TD on these questions.

[51] TD opposes the Plaintiff’s request to answer any of these questions on the basis that TD has complied with its obligations to produce the relevant documents, and the Plaintiff therefore knows how TD assessed the risks. In TD’s view, asking questions about what could have been done in hindsight is not appropriate.

[52] The Plaintiff says that the questions that they are seeking answers to would have been asked in discovery if the documents had been properly produced. As a result, they are reasonable follow-up questions. In support of this position, the Plaintiff relies on the decision in Senechal v. Muskoka (District Municipality) (, 2005 CarswellOnt 1414).

[53] In my view, there are two problems with the Plaintiff’s position. First, some of these questions are clearly beyond the scope of what is appropriate discovery in this case. It must be remembered that, with some limited exceptions, the questions that the Plaintiff has been entitled to ask in follow up have been limited to issues relating to the ATM vestibule at the Warden Branch. In my view, the questions that the Plaintiff is asking go to security issues more generally, and are beyond the scope of proportionality in this case. This ground is sufficient to dispose of the questions that the Plaintiff is seeking to ask on this point.

[54] Second, given the number of motions that have been involved in the discovery process, I am concerned that the questions being posed by the Plaintiff could be endless. At this point, we are six years after the incident occurred and more than two years after examination for discovery was conducted. At a point, discovery has to end and the parties need to move forward with the action.

[55] As a result, of the remaining questions, only question g needs to be answered by TD. I am directing that this question be answered as it might provide information that is relevant to the ATM vestibule at the Warden Branch.

TD Bank Global Security and Investigations Security Risk Management Standard

[56] TD produced a document entitled “TD Bank Group Global Security and Investigations Security Risk Management Standard” dated September 8th, 2012.

[57] In response to the production of this document, the Plaintiff seeks the following information:

a. Whether security programs or plans were created for or in relation to the Warden Branch? If so, what did those plans entail? What were the work plans for producing risk assessments? What were the resource and funding requirements for the risk assessments? What were the timeframes for reporting results?

b. Did the security threat risk assessment apply to risks to patrons or just to TD’s assets?

c. Did the security threat risk assessment applied to Warden Branch include a valuation analysis? What was the result this analysis?

d. Did the security threat risk assessment applied to Warden Branch include an impact analysis? From whose viewpoint was the impact considered?

e. Was a vulnerability assessment conducted?

f. Did the security threat assessment of Warden Branch include known threats (as opposed to history of past occurrences as they were identified separately)? What were the known threats?

[58] TD is opposed to these questions on the basis that they have provided the relevant documents already, and that these questions are beyond the scope of discovery. The Plaintiff advances the same arguments as are set out at paragraph 52, above.

[59] In my view, the questions that relate to the Warden branch specifically may result in answers that deal with the ATM vestibule at the Warden Branch. As a result, questions c, d, e (limited to the Warden Branch) and f are relevant and should be answered. The remaining questions are not relevant to the issues and are not proportional. Therefore, they do not need to be answered by TD.

[60] The Plaintiff is also seeking production of TD’s Risk Appetite Statement. The Plaintiff seeks this document on the basis that the risk appetite statement might provide details of TD’s risk tolerance with respect to patrons, and that this might provide evidence relating to the issues in this case.

[61] In my view, this request is too remote. There is no evidence (or even claim) that this document was used to produce any reports, or establish any guidelines for the ATM Vestibule at the Warden Branch after hours. The purpose of ordering the policy documents to be produced was to ensure that the Plaintiff could understand the policies surrounding the security in the ATM vestibule at the Warden Branch. The Plaintiff’s request is directed more at a complete review of TD’s general security procedures. This request is not proportional, and is denied.

Retail Security Risk Rating and Treatment Guides

[62] TD produced a document entitled “Retail Security Risk Rating and Treatment Guidelines”. It is dated April 2, 2014.

[63] In response to the production of this document, the Plaintiff seeks answers to the following questions:

a. How is the lack of any other banks within a 1 km radius treated?

b. Why are events at other locations within a 1 km radius not considered?

c. Under robbery prevention, the treatment described for a medium risk location is “ESP or Dye Pack”. What treatment is used to prevent robberies of patrons at ATMs?

d. In what circumstances would a permanent guard deployment occur at a low or medium risk branch?

e. What is CDU/CRU?

f. What is door contact, seismic detector, and heat detector play? And what role do they play in the security of the ATMs?

g. When deploying guards, it indicates that retail branch requests would be considered. Were there any requests in the three years pre-date of loss to December 31, 2017 for security guards at 673 Warden? Who made the requests (including name, information as to whether they are still employed with TD, and contact information if they are not still employed with TD)? Why was the request made?

[64] The Plaintiff argues that the document produced by TD gives rise to relevant questions relating to how the lack of other branches in the area is treated, as well as why other locations are not considered.

[65] TD argues that the information sought by the Plaintiff goes beyond the scope of the questions that I directed be answered. TD also argues that the documents set out the criteria and no further information is required.

[66] In my view, questions a and g could relate to the Warden Branch and, more particularly, to the ATM vestibule in the Warden Branch. Those questions are to be answered, but only as they apply to the Warden Branch.

[67] In terms of question b, the phrase “other locations” appears to me to be overly broad. It appears to be a request for TD to explain why they did not benchmark against events in the neighbourhood. Given the vagueness of this request as well as the fact that it would require a very diffuse consideration of events outside of TD’s premises, I am of the view that this question is not proportional.

[68] The remainder of the Plaintiff’s questions relate to the development and application of policy more generally. In my view, the Plaintiff is seeking answers to these questions in order to conduct a complete review of TD’s security procedures. In the circumstances, that is beyond the scope of proportionality as it has been defined in this case, and those questions do not need to be answered. Other than answering questions a and g to the extent that I have outlined, nothing further is required from TD.

Global Security and Investigations Operating Procedures

[69] TD produced a document entitled “Global Security & Investigations Operating Procedures”. This document is dated July 23rd, 2014.

[70] In response to the production of this document, the Plaintiff sought answers to the following additional question:

a. Is data obtained from and in respect of HSBC? This is not mentioned in counsel’s answers, as described above, but is listed in this document.

[71] TD did not take a specific position on this document and counsel for the Plaintiff did not pinpoint where the reference to HSBC was in the document. However, I have reviewed the entire document and I see no mention of HSBC in the document at Tab P of Mr. Foster’s Affidavit. Nothing further is required from TD for this question.

Retail Risk Ratings for the Warden Branch

[72] TD produced a document entitled “Retail Risk Ratings for the Warden Branch from 2012-2017”.

[73] In response to the production of this document, the Plaintiff sought answers to the following additional questions:

a. The 2012 Risk Rating indicates it considers factors from 2009 to 2012. In light of the hold up on May 11, 2019, why is “TD Armed Robbery” or “TD Robbery” identified as “0”?

b. In light of the vehicle theft on March 20, 2012, why is “TD Robbery” or “TD Break & Enter” identified as “0”?

c. The 2012 Risk Rating indicates it considers factors from 2009 to 2012. In light of the break and enter on April 1, 2011, why is “TD Break and Enter” identified as “0”?

d. The 2012 and 2013 Risk Rating indicate one other financial institution within a 1 km radius- which financial institution is this?

e. The 2013 Risk Rating indicates 1 TD Robbery, is that the subject assault/robbery?

f. Why does the 2014 Risk Rating indicate “0” TD Armed Robbers or TD Robbery in light of the March 25, 2014 holdup?

[74] The Plaintiff asserts that all of these questions go to the issue of whether TD’s employees properly assessed the risk level according to their own methodology.

[75] TD argues that most, if not all, of these questions concern evidence that was provided by the Plaintiff after the discovery. As a result, TD argues that these questions should not be answered because they are not proper follow-up to discovery questions and because they are speculative, as these incidents have not been proven.

[76] I make no comment at this point on the value of the letter from the TPS. However, as I have set out at paragraphs 17-19 above, if the Plaintiff wished to ask questions about the information in the January 31st, 2019 letter from the TPS, then they had an obligation to have this information available at discovery in 2017. The questions relating to the information in the January 31st, 2019 report are not permissible follow-up questions.

[77] However, questions that follow-up on data that was already available, or was internal to the report can be answered, as these would be reasonable follow-up questions. As a result, TD is directed to answer questions d and e from the above list only. The remaining questions do not have to be answered by TD.

Issue #3 - When is the Plaintiff’s Expert Report Due?

[78] In my endorsement of April 2nd, 2019 I also directed the parties to provide submissions on whether I should order the Plaintiff to produce his expert report within three calendar days. The last of those submissions were due on April 9th, 2019.

[79] TD argues that, in spite of the fact that a summary judgment motion was scheduled a year ago, they still do not have the Plaintiff’s expert report, or an understanding of the basis for the Plaintiff’s claim. As a result, TD is requesting that I order the Plaintiff to provide his expert report forthwith.

[80] The Plaintiff argues that they should not have to serve interim reports because they are ready to serve their expert reports as soon as TD provides all of the relevant information and there is on concern that any delay is related to the unavailability of the expert report. However, the Plaintiff argues that they should not have to produce interim reports because the additional data that they have requested might change the expert’s assumptions. Therefore, the Plaintiff should be entitled to have the entire picture before submitting their expert reports.

[81] The Plaintiff asserts, in the alternative, that if the expert reports are required to satisfy me that the Plaintiff is not simply delaying this matter in order to complete the expert reports that I should order these reports produced to the Court only and sealed.

[82] I reject both of the Plaintiff’s submissions for the following reasons.

[83] First, in addressing this issue, the question of delay once again raises its head. The Plaintiff argues that it is the Defendant that is delaying this matter. In particular, the Plaintiff argues:

My friend has alleged that the Plaintiffs have dragged their feet, including in respect of when the Examinations for Discovery occurred, even though it was Mr. Zuber’s calendar that caused it to be booked long into the future and it was his office that asked for it to be re-scheduled. My friend then alleges that the Plaintiffs failed to ask the questions that are now being asked. If the Defendant had produced the documentation that has always been in its possession, that has always been relevant, and that has now been produced before the Examination for Discovery, these questions would have been asked then. If the Defendant had produced a representative who had relevant knowledge or who had taken the time to inform herself of the answers to relevant questions, these questions could have been asked then. Instead, nearly all of the questions had to be asked by way of undertakings, which naturally gives rise to follow-up questions. All of the identified questions flow naturally from the information and documentation that was produced, pursuant to the order of the Honourable Justice LeMay. It is unclear and inconceivable as to how the Plaintiffs could have asked questions that go to whether the methodology was reasonable or whether it was appropriately applied, when they did not even know what the methodology was.

The Defendant alleges that the Plaintiffs’ actions or lack of action have unnecessarily delayed the litigation, but yet it is the Defendant who has refused to provide relevant information or documentation. Both the Honourable Justice Seppi and the Honourable Justice LeMay have ordered the Defendant to produce further relevant information and documentation. If the Defendant would simply put forth all relevant information and documentation, the parties could move beyond the discovery stage.

[84] I have already rejected some of these arguments in previous decisions. I reject the rest of them. In my view, almost all of the delays in this case are the responsibility of the Plaintiff, and Plaintiff’s counsel.

[85] I have set out my concerns with delays in other decisions. In particular, I outlined my concerns about the slow pace of the Plaintiff’s efforts to obtain an expert report in other reasons. However, I would note the following:

a) The Plaintiff delayed substantially before proceeding with its motion before Seppi J. Indeed, the motion for further undertakings before Seppi J. appears to have been timed to cause a delay in the summary judgment motion. It certainly had the effect of causing a delay in the summary judgment motion, and would not have if it had been brought in a timely way.

b) Since the appearance before me in August of 2018 and my appointment as case management judge, the Plaintiff has been prosecuting this action in a dilatory way. In particular, the Plaintiff’s approach to the Rule 30.10 motion has been concerning to the Court and I have articulated those concerns in my other decisions.

c) I observed in August of 2018 that part of the reasons that the Plaintiff was seeking a delay was to provide an expert’s report, which is a task that should have been completed in advance of the October 2018 summary judgment date.

d) Even on this motion, the Plaintiff failed to provide a complete record for the Court (see paragraphs 22-24 for example).

e) In this motion, the Plaintiff raised a number of issues that had either already been addressed or were easily addressed by TD. It is also clear that the Plaintiff has made the issue of missing documents and information in this motion more complicated and significant than it needed to be. In that regard, the Plaintiff’s positions with respect to contact information for interns are particularly noteworthy, as is the Plaintiff’s attempt to re-litigate the question of proportionality.

f) It is clear that, even at the end of January this year, the Plaintiff is still in the evidence gathering phase of their case preparation. Given that discoveries were held two years ago, and the summary judgment motion was scheduled for last October, this is a very dilatory approach to the litigation.

[86] In contrast, TD has generally (although not always) responded promptly to documentary and scheduling requests from the Plaintiff and directions from the Court. In my view, there is no basis for the Plaintiff’s assertions that TD has been delaying this matter at this point.

[87] By the time we reach the summary judgment motion in this matter, it will have been almost a year since the original hearing date was heard, and more than a year since that date was adjourned. If the Plaintiff’s expert’s report is not produced quickly, then this timetable may be pushed back further, or TD may not have sufficient time to have its own expert’s report completed

[88] The delays that have already been incurred, and the Court’s concern about further delays, are grounds to direct that this report be produced promptly.

[89] This brings me to the argument that it would be prejudicial for the Plaintiff to have to produce an expert report and then modify it with new information. I reject that submission. Updating expert reports after new information is provided is something that happens regularly in litigation, and it is something that can be explained by way of evidence before the trier of fact, either on a summary judgment motion or at a trial.

[90] Third, the prejudice to TD in not having this report, or at least a preliminary version of it, is significant. TD is entitled to know the expert evidence that supports the Plaintiff’s position well in advance of any summary judgment motion. At this point, the deadlines for materials for the summary judgment motion are quickly approaching.

[91] Finally, the questions that TD has been left to answer deal with some discrete issues. However, the broad outlines of both TD’s policies and the way it handled the ATM vestibule at the Warden Branch are both clear and the Plaintiff’s expert should have no issues providing a report at this point.

[92] As a result, the Plaintiff’s expert report is due three (3) calendar days from the release of these reasons. Given that they are being released on a Friday, the expert report is due on Monday April 29th, 2019. However, I am prepared to provide the Plaintiff with an additional day. The expert report must be served and filed by no later than 4:30 p.m. on Tuesday April 30th, 2019. Original copies, together with Original copies of the signed Form 53 must be served on the Defendant and filed with the Court office by 4:30 pm. on April 30th, 2019.

[93] There are some additional pieces of information that TD has been ordered to be produced. On reviewing them, it is possible that they might affect the expert’s report although I am not persuaded of that at this point. However, I will permit the Plaintiff to file a supplemental report covering only the new information three (3) calendar days after TD has delivered the final answers.

[94] I would note three points with respect to this supplemental report:

a) If the report goes beyond the scope of the new information provided by TD, then it will be struck without leave to deliver a new report.

b) If the third calendar day falls on a weekend, then the deadline for the supplemental report is noon on the first business day after the weekend. The service and filing requirements for this supplemental report are the same as those set out in paragraph insert.

c) The Plaintiff must file its supplemental expert report without the right to pose any additional follow-up questions to TD arising out of the answers that I have ordered. Any further questioning can be addressed in the course of cross-examinations on the Affidavits on the Summary Judgment motion.

[95] If the Plaintiff does not meet this deadline for serving and filing their expert report, or any supplemental report, for any reason then the Plaintiff must immediately seek leave to bring a motion to extend the timelines for service and filing and the explanation must be provided in an Affidavit. Given the inordinate delays in this case, I am unlikely to grant leave without a compelling explanation.

[96] The inordinate delays in this case are also the reason that I have provided very strict guidelines for both the filing of the main expert report and any supplemental report.

Conclusion and Costs

[97] For the foregoing reasons, I order as follows:

a) TD is to provide the answers set out in these reasons, and in the chart attached as Appendix “A” within twenty-one (21) calendar days of today’s date.

b) The parties are to work together and prepare a draft Order outlining the questions to be answered. That order is to be provided to me jointly within seven (7) calendar days of today’s date.

c) If the parties cannot agree on the form of the Order, they will each provide a clean copy and a blacklined version of their Order. The blacklined version will show the differences between their Order and the Order proposed by the other side. I will then prepare the final order from those Orders.

d) The Plaintiff is to serve and file original copies of both the expert report and the Form 53 by no later than 4:30 p.m. on Tuesday April 30th, 2019

e) The Plaintiff may file a supplemental expert report within three (3) calendar days of TD providing the answers set out in subparagraph (a).

[98] Finally, there is the issue of costs. Each party is to provide its costs submissions within seven (7) calendar days of the release of these reasons. Those submissions are not to exceed two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[99] Reply submissions are due five (5) calendar days thereafter, and are not to exceed one (1) single-spaced page.

[100] If costs submissions are not received in accordance with this time-table, I will presume that the parties have resolved the issue of costs, and no costs will be payable.

[101] Finally, I note that hard copies of the costs submissions are to be filed with the Trial Office. In addition, my assistant is to be provided with an electronic copy of these submissions.

LeMay J. DATE: April 26, 2019

Appendix “A” to Reasons Dated April 26th, 2019

Request Production of Documents similar to the GSI Operating Procedure- Retail Location Risk Ratings dated July 23, 2014 Retail Security Rating and Treatment Guidelines dated April 2, 2014

Plaintiff’s Position The failure to disclose the previous documents does not show the criteria used to establish the risk level

Defendant’s Position This was the first version of each document. Prior to the creation of these documents two other documents (both produced) were in place.

Disposition TD’s answer and productions are sufficient, and no further documentation is required. I note that the Plaintiff has claimed, in its submissions, that TD has only produced the documents for after the date of loss. I reject that argument as being unsubstantiated, given that TD has provided a specific title and date for the documents that it has produced relating to documents used before the incident. I also note that the Plaintiff has not provided any reply submissions on this point.

Request Names, contact information and qualifications for the interns who inputted data, as well as the qualifications of the analysts who reviewed that data.

Plaintiff’s Position The names and addresses of the interns are required under Rule 31.06(2). The information is in the possession of TD, so there is no reason not to disclose it.

Defendant’s Position The information is neither relevant nor proportional in this case.

Disposition Detailed reasons on this question are set out in my reasons. Briefly, however, the information sought respecting the interns is neither relevant nor proportional, and no further information is required. The information respecting the analysts was not pursued by the Plaintiff in its reply submissions. As a result, I have not been pointed to any specific deficiencies with respect to this evidence, and am not prepared to direct that any further particulars be provided.

Request Production of the Retail Risk Ratings for 2010 and 2011 for the Warden Branch

Plaintiff’s Position Only the ratings as far back as 2012 have been provided. In response to TD’s position, the Plaintiff argues that the Retail Risk Rating for 2012 does not provide a breakdown as to the risk assessment score for 2010 and 2011, or provide data by the year.

Defendant’s Position The ratings for 2012 contain the 2009 to 2011 data.

Disposition As per written reasons.

Request Information on Whether TD has implemented a guard in a TD Vestibule after hours, regardless of whether it is on a full-time basis.

Plaintiff’s Position TD responded that no full time guards were required, and an explanation is required.

Defendant’s Position TD provided an explanation in their letter and this should be sufficient.

Disposition The answer was provided by TD in their correspondence of April 5th, 2019 and nothing more is required.

Request Information on why TD did not station guards at the TD vestibule after hours after a series of incidents in 2011 to 2013.

Plaintiff’s Position This is reasonable follow-up to the answers that TD provided and the questions should be answered

Defendant’s Position The information in the TPS letter is not proven and calls for speculation. In addition, this information should have been collected earlier.

Disposition The Plaintiff’s request for further information is denied. As discussed in the reasons, this is an example of the Plaintiff seeking a “re-do” of the discovery. The information in the Toronto Police Services letter of January 31, 2019 should have been obtained by the Plaintiff in advance of discovery.

Request Information as to whether G4S security responded to any incident at the Warden Branch in the three years pre-assault

Plaintiff’s Position TD has not answered this question, as its answer focused only on the work that G4S did after hours.

Defendant’s Position The question is properly answered, and that the issue is related to security at the ATM vestibule after hours only.

Disposition TD is to answer the question more broadly. The chart attached to my reasons of February 5th, 2019 directs a broader answer. When I prepared my reasons the last time, I was of the view that this question fell within the exception set out at paragraph 25(b) of my reasons. This is information that may be difficult to extricate from the larger document. I remain of that view.

Request Did Rosemary Roma, Roxanne Bacchus or Sophia Ali know Bruce Moffitt, Jason Green or Ferdinand Pangan

Plaintiff’s Position The answer provided by TD that Ms. Roma was on vacation until the first week of April is insufficient.

Defendant’s Position After the answers were provided in March, a further answer was provided addressing this question

Disposition Nothing further is required.

Request Given that there are no other Financial Institutions within a 1 km radius of the Warden Branch, the Plaintiff seeks answers to a series of follow up questions

Plaintiff’s Position Set out in the decision

Defendant’s Position Set out in the decision

Disposition Additional information is required as set out in the written reasons.

Request The names of the interns who were involved in entering the data for the risk level assessments

Plaintiff’s Position As set out above

Defendant’s Position As set out above

Disposition As set out above and in my reasons. Nothing further is required.

Request Additional Information is sought with respect to the document entitled “TD Bank Financial Group Retail Branch Risk Rating Methodology Global Security Discussions”

Plaintiff’s Position As set out in reasons

Defendant’s Position As set out in reasons

Disposition No additional information is required at this stage

Request Additional information is sought with respect to the document entitled “TD Bank Group (TD) Global Security and Investigations Security Risk Management Standard”

Plaintiff’s Position As per decision

Defendant’s Position As per decision

Disposition As per decision.

Request Additional information is sought with respect to the document entitled “Retail Security Risk Rating and Treatment Guidelinies”

Plaintiff’s Position As per decision

Defendant’s Position As per decision

Disposition As per decision.

Request Additional information is sought with respect to the document entitled “Global Security and Investigations Operating Procedure”

Plaintiff’s Position As per decision

Defendant’s Position As per decision

Disposition As per decision.

COURT FILE NO.: CV-17-3440-00 DATE: 2019 04 26 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Moffitt v. TD Canada Trust BEFORE: LeMay J. COUNSEL: W. Foster, for the Plaintiff , for the Defendant ENDORSEMENT LeMay J. DATE: April 26, 2019