COURT FILE NO.: CV-17-3440-00 DATE: 2019 05 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moffitt et. al. v. TD Canada Trust
BEFORE: LeMay J.
COUNSEL: S. Pickering, for the Plaintiff A. Pressé 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, and it has been the subject of a number of endorsements. (see, for example, 2019 ONSC 280, 2019 ONSC 902 and 2019 ONSC 2548). We have a summary judgment motion that is scheduled for September 9th, 2019. In my last decision, released April 26th, 2019, I directed the Plaintiff to serve its expert reports within three days of my releasing the decision, in spite of the fact that the Plaintiff’s counsel opposed the service of any expert reports.
[3] I was expecting to receive one expert report, as the Plaintiff has only (up until its submissions on the last motion in April of this year) identified one expert report. As far as my records show, it was only in the last round of submissions (filed in early April of this year) that counsel for the Plaintiff pluralized expert reports. I took nothing from that change in vocabulary. I have also expressed concerns in a number of endorsements that the Plaintiff has been improperly delaying this matter because its expert report was not ready.
[4] On April 30th, 2019, the Plaintiff served and filed three expert reports, not all of which are dated. Defence counsel had been planning to respond to one expert, the identity of whom was made known sometime late last year. Neither the identity of, nor the existence of, additional experts were made known to either myself or Defence counsel in advance of April 30th, 2019. The schedule as constituted does not take three experts into account.
[5] I had a previously scheduled conference call with the parties yesterday morning. I advised them that this call would not be proceeding, as there was no in-Court record of the proceeding. I advised the parties that I was not prepared to have any further conference calls on this matter and that all appearances have to be in-person and in-court, where a transcript will be kept.
[6] I made that decision reluctantly. However, I have concluded that a record of all of the conversations between counsel and the Court needs to be kept in order to ensure that there is clarity in terms of what has been discussed, and what has been ordered by the Court.
[7] As a result, I have directed the parties to attend before me next Tuesday at 9:30 am in Brampton. To be clear, counsel of record for the Plaintiff is required to attend personally, which means I expect to see either Ms. Pickering or Mr. Kahler.
[8] The purpose of that appearance is to address the following questions:
a) Did Plaintiff’s counsel properly advise the Court as to their intentions with respect to expert witnesses? Have the positions that Plaintiff’s counsel has taken in respect of the expert report and the particulars been taken in good faith? b) Should the Plaintiff be given the opportunity to rely on more than one expert witness at the hearing of the summary judgment motion? c) If these expert reports are going to be permitted as evidence, should the Plaintiff be required to provide more detail with respect to them? d) If any of the expert reports are permitted as evidence on the summary judgment motion, how do we deal with the threshold questions? In particular, is it a question of law as to whether these reports are admissible on the summary judgment motion and does that question have to be determined before the motion is heard? e) Do there need to be any adjustments to the schedule?
[9] In advance of the appearance, the Plaintiff’s counsel should (but is not required to) obtain and provide an Affidavit from each of its purported experts advising as to what date the expert was retained and what date their report was completed. I appreciate that counsel for the Plaintiff may be concerned that this information is privileged and I am not directing that these affidavits be produced. However, I am advising counsel that an adverse inference in terms of when the experts were retained and why the Plaintiff was seeking to not submit its expert reports will be drawn if those Affidavits are not provided by next Tuesday.
LeMay J.
DATE: May 15, 2019