Court File and Parties
COURT FILE NO.: CV-17-3440-00 DATE: 2019 01 10 AMENDED: 2019 01 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moffitt v. TD Canada Trust
BEFORE: LeMay J.
COUNSEL: W. Foster on behalf of S. Pickering, for the Plaintiff A. Presse, for the Defendant
CORRECTED ENDORSEMENT
Corrected Decision: The text of the original decision was corrected on January 25, 2019. The decision has been amended as follows:
The last sentence of paragraph 24 should read “The deadline for producing expert reports was originally December 15 th , 2018, and was extended on December 3 rd , 2018 to three days after the decision in the undertakings motion scheduled for next week.”
The third sentence of paragraph 31 should read “The problem at this stage is that the Plaintiff’s expert report was originally due last month and I do not believe that it has been served yet, or will be available for the new deadline.”
[1] This is a claim flowing from an alleged assault on the Plaintiff 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 against the TD Bank, as well as two individuals, Ferdinand Pangan and Jason Green.
[2] I am case managing this action. This matter is set for a one day summary judgment motion on May 13 th , 2019. The parties are subject to a timetable that I have imposed, and are appearing before me on January 17 th , 2019 to argue issues relating to production and undertakings. That appearance is scheduled for 9:00 am, and I can now advise the parties that it will likely be in Kitchener.
[3] Shortly before the holiday season, I received a request from the Plaintiffs to bring a Rule 30.10 motion for third party records production from four other parties. The Defendants opposed the hearing of this motion, and argued that it is not part of the timetable and should not be permitted. In response, the Plaintiffs argue that they did not know that their motion was going to be necessary until mid-December of 2018, and it should be heard on its merits.
[4] Based on this information, I issued an endorsement on December 21 st , 2018, in which I directed the Plaintiff to serve and file an Affidavit outlining why the Rule 30.10 motion was not included in the timetable that I previously ordered and was not identified as an issue during our conference call on December 3 rd , 2018. The parties were then to provide me with submissions as to whether the motion should even be heard on the merits. In other words, should the Plaintiff be given leave, at this late stage, to bring their motion?
[5] I have received those materials. The materials provided by the parties raise two questions:
a) Was it reasonable for the Plaintiff to delay in identifying the need to bring the Rule 30.10 motion until December of 2018?
b) If it was not reasonable for the Plaintiff to have delayed in identifying the need to bring the Rule 30.10 motion, should the motion be heard on its merits in any event? If so, on what terms?
[6] I will address each issue in turn. Before doing so, however, I will briefly outline the procedural history of this action, and the nature of the production that is sought.
Background Facts
[7] The action was originally commenced in Barrie, and was transferred to Brampton. Discoveries were held in 2017, and answers to undertakings were provided in 2017.
[8] A summary judgment motion was scheduled for October 1 st , 2018. This motion was brought by TD Bank on the issue of liability. It has been rescheduled to be heard before me on May 13 th , 2019. I have imposed a detailed timetable to ensure that this motion proceeds on that date.
[9] As a result of the discoveries, a motion was brought before Seppi J. on June 28 th , 2018 by the Plaintiff for directions that refusals be answered. Some relief was provided by Seppi J. and some of the Plaintiff’s requests were dismissed.
[10] The Plaintiff appealed the Order of Seppi J. to the Divisional Court. This appeal, which was ultimately not pursued, was outstanding until after the original October 1 st , 2018 summary judgment motion date.
[11] The matter appeared before me on August 23 rd , 2018, when the Plaintiff asked for an adjournment of the summary judgment motion. I reluctantly granted that motion, in part because of the fact that the appeal of Seppi J.’s Order was still outstanding.
[12] A further case conference was held on October 5 th , 2018 for the purposes of agreeing to a timetable to move this matter forward to summary judgment. As part of that timetable, answers to undertakings were due by November 1 st , 2018 from both sides. The Plaintiff’s expert liability report (if any) was due by December 15 th , 2018.
[13] A subsequent conference call was held on December 3 rd , 2018 to ensure that matters were properly moving forward, and to address some specific issues. In particular, I set out a further timetable for the parties to address disputes that they had about undertakings, and about additional requests for information that the Plaintiff’s counsel has made. That timetable culminates in a motion next week. In my endorsement, I made it clear that I was “not prepared to adjust the timetable” for the summary judgment motion in any significant way.
[14] In our conference call on December 3 rd , 2018, plaintiff’s counsel did not advise me that a Rule 30.10 motion was being contemplated This issue did not arise until an e-mail was sent to my judicial assistant by Plaintiff’s counsel two weeks later, on the afternoon of December 18 th , 2018.
[15] On receipt of that email, I directed the parties to file materials, and am dealing with the issues I have outlined above in writing. I note that, even if this motion is allowed to proceed, it will still require the attendance of the third parties before me. This will take some time to schedule.
[16] I also note that the proposed Rule 30.10 motion is described in the Plaintiff’s materials as follows:
The proposed motion is to compel non-parties, specifically CIBC, Scotia Bank, Royal Bank of Canada, and Ban k of Montreal, to provide any risk assessments done on the neighbourhood surrounding 673 Warden Branch, pursuant to Rule 30.10.
[17] With this background in mind, I will now review the two issues that present themselves.
Issue #1- Was the Delay in Bringing The Rule 30.10 Motion Reasonable?
[18] No. The delay in bringing this motion by the Plaintiff’s counsel was not reasonable.
[19] Counsel for the Plaintiff advances two arguments as to why the delay in bringing this matter was reasonable. First, counsel argues that this is a “novel” issue. Second, counsel argues that the additional step is reasonable, and the need to take this step only crystallized in December of this year. There is no merit to either argument.
[20] First, there is the “novelty” of the issue. The Plaintiff’s request is for information about what steps the other major chartered banks take in order to ensure the security of their ATM facilities in the same neighbourhood where the attack allegedly took place.
[21] On October 27 th , 2017 , TD Bank advised, by way of a letter, that it determined its risk levels in part by intentionally benchmarking against other banks. In addition, TD Bank considers crime data for the branches of other financial institutions within a 1 kilometer radius of its branch. At the moment that this letter is received by the Plaintiff’s counsel, the issue of what steps the other major chartered banks take in order to ensure the security of their ATM facilities becomes a “live issue”. It is at this moment that Plaintiff’s counsel ought to have followed up if they were claiming that additional evidence was relevant or required.
[22] Counsel for the Plaintiff did not follow up until November 1 st , 2018 . In the Affidavit provided by Plaintiff’s counsel, the deponent states that this was done through “Questions on Written Examination for Discovery.” While counsel named their document in this manner, this is an incorrect characterization of what was being done and was also a step that was taken outside of the timetable that I had set. Counsel was asking for more information on an undertaking that had been given by the other side more than a year previously . The follow-up was simply to ask which other financial institutions existed within a one kilometer radius. It is concerning to me that the follow-up was not done for more than a year after the information was provided by TD Bank.
[23] In any event, however, Ms. Burrows’ Affidavit indicates that the Plaintiff was able to do an internet search, and determined that there were no financial institutions within one kilometer of the TD Bank Warden Avenue location. As a result, counsel should have known to follow up on this issue in late 2017.
[24] Ms. Burrows’ Affidavit goes on to state that Plaintiff’s counsel spoke to their expert “in and around December 11 th , 2018”, and this expert advised that it would be helpful to have the risk assessment for the branch, and the risk assessment for any other banks in the neigbourhood. The deadline for producing expert reports was originally December 15 th , 2018, and was extended on December 3 rd , 2018 to three days after the decision in the undertakings motion scheduled for next week.
[25] The only evidence that I have that the expert might find this information helpful comes in an e-mail. This e-mail is not sent until December 28 th , 2018, and appears to be responsive to a request from Plaintiff’s counsel, but that request is not included in the materials. In addition, the e-mail makes it clear that the expert’s review of this file only began on November 30 th , 2018.
[26] The expert didn’t start reviewing the file until fifteen days before his report was due, and didn’t identify the information as being helpful to the preparation of his report until the deadline for providing his report had almost passed. Neither of these facts justifies the Plaintiff’s delay in seeking to bring the Rule 30.10 motion. The Plaintiff has been seeking to retain an expert since at least August 23 rd , 2018, when the summary judgment motion was adjourned by me. The fact that the expert did not even begin to review the file until three months later is not explained on the record I have.
[27] In my view, this is not a novel issue, and the Plaintiff’s delay is not reasonable. On the record that I have, the only explanation that I can see for the Plaintiff’s delay in seeking to bring this Rule 30.10 motion is that they have not moved expeditiously enough to retain, instruct and share information with their expert.
Issue #2- Should Leave be Granted to Bring this Motion Even Thought the Delay in Seeking to Bring it is Unreasonable?
[28] A key consideration in whether this motion should be heard on its merits is whether there will be delay in hearing the summary judgment. Counsel for the Plaintiff argues that this motion will not delay the hearing of the summary judgment motion. I disagree for two reasons.
[29] First, the other four Banks may oppose the provision of this information which may result in delays in the hearing of the motion for the records and the summary judgment motion. The Plaintiff cannot guarantee that this information will be immediately forthcoming from any of the other organizations from which it is sought. They are entitled to procedural fairness before any decision is made and, if they oppose the motion, they are entitled to a hearing on the merits and a decision.
[30] In addition, even if the information is ordered to be produced, it may not be produced for 30 or even 60 days after the motion is heard. Given that the earliest this motion can be heard is late January, it means that if I order this information to be produced, it might not be produced until late March.
[31] This brings me to the second reason I disagree with the Plaintiff’s counsel’s position on whether the summary judgment motion is going to be adjourned- the use of this information if I order it produced. Based on the sequence of events outlined under the first issue, it appears that the Plaintiff will want to provide this evidence to his expert for comment. The problem at this stage is that the Plaintiff’s expert report was originally due last month and I do not believe that it has been served yet, or will be available for the new deadline . As a result, the Plaintiff will undoubtedly be seeking a further extension for the time to file expert reports if the information is ordered to be produced. I will address that request when it is made. At this stage, I would simply note that, if counsel for the Plaintiff was respecting the timetable I had put in place, the request would already have been made if the Plaintiff intended to make it.
[32] If an extension is granted for filing the expert reports, that would change the entire timetable. At this point, we are nearly a month past the deadline for the Plaintiff to provide his expert’s report. It will be at least another month before the information is produced, which will delay the timetable by two months. This suggests that an adjournment of the summary judgment motion is a reasonably foreseeable possibility.
[33] This brings me to the argument that Plaintiff’s counsel makes that timetables need to be flexible enough to accommodate additional steps that may arise. While timetables do need to be flexible, they must also be respected by the parties. In this case, I am not persuaded that the Plaintiff has been making reasonable efforts to adhere to the timetable that I have set out. The delays in this motion will likely entail, combined with the lack of a reasonable explanation for the delay in bringing the motion are strong reasons to deny the Plaintiff leave to proceed with the motion.
[34] However, there is also the fact that the summary judgment motion, if successful, will have a significant impact on the Plaintiff. As a result, counsel’s failure to move this matter forward in an expeditious manner, and counsel’s failure to make reasonable efforts to adhere to my timetable should not (at this point) be visited on the Plaintiff, and I am reluctantly persuaded that this motion should be heard on its merits.
[35] However, I am only prepared to allow the Plaintiff bring this motion on terms, as follows:
a) The Plaintiff shall pay costs to the Defendant for the consideration of this issue in the sum of $500.00 inclusive of HST and disbursements. These costs are to be paid within seven (7) calendar days of today’s date. While I acknowledge that the Plaintiff has been successful on its request, for leave to bring the Rule 30.10 motion, the request itself was only necessary because of the dilatory conduct of Plaintiff’s counsel. This dilatory conduct has been repeated, and requires some sanction to ensure that the Plaintiff and his counsel understand the grave concerns that the Court has with the manner in which they have prosecuted this action to date.
b) As long as the Defendant does not oppose the Plaintiff’s Rule 30.10 motion, the Plaintiff will also pay a counsel fee of $250.00 per day (or part thereof) for Defendant’s counsel to attend at Court and maintain a watching brief.
c) Counsel for the Plaintiff is required to serve and file their Rule 30.10 motion by January 16 th , 2019. A copy of the materials is to be left at Judge’s reception in Brampton for me so that I can confirm that it has been filed. There are to be no extensions to this deadline.
d) The Rule 30.10 motion is to be returnable the week of January 28 th , 2019 before me at 9:00 am. I will advise the parties on January 15 th , 2019 as to where I will likely be hearing cases that week, and the motion will be returnable in that location.
e) If counsel is seeking an extension to serve the Plaintiff’s expert report, they are to make that request by January 16 th , 2019. The request is to include an Affidavit from counsel outlining the efforts that were made in this file to retain an expert. For clarity, this Affidavit does not need to disclose information that was exchanged with potential experts, just the dates of contact, as I do not want the Plaintiff to have to waive privilege.
[36] In paragraph 34, I noted that counsel’s dilatoriness should not yet be visited on the Plaintiff. However, there is a requirement that parties adhere to the timetables set out by the Court. The Plaintiff and his counsel would be well advised to understand that further failures on the part of Plaintiff’s counsel to adhere to deadlines that I set in this case may result in consequences.
LeMay J.