COURT FILE NO.: CV-17-3440-00
DATE: 2019 02 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moffitt et. al. v. TD Canada Trust
BEFORE: LeMay J.
COUNSEL: S. Pickering, for the Plaintiff
David Olevson, 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. The parties appeared before me on January 17th, 2019 to argue issues relating to production, undertakings and items taken under advisement. This decision will resolve those issues.
[3] In the sections that follow, I will set out some of the relevant background facts, and will then address the general issues that relate to the outstanding questions that the Plaintiffs have asked. The specific dispositions on each question are set out in the attached Schedule “A”.
[4] Plaintiffs’ counsel provided me with a draft Schedule “A” as part of the motion record. I asked the Defendant’s counsel to review this Schedule and advise me as to whether he was in accord with it, and to add the relevant portions from his position to the Schedule.
[5] I have since received correspondence from the parties, in which I was advised that they were unable to agree on the contents of the Schedule “A” that I was to consider. The dispute is over the inclusion by TD of additional information in the answer or precise basis for refusal column of the chart.
[6] For the purposes of this motion, I have determined to use TD’s Schedule “A”, for three reasons. First, it more completely outlines TD’s position. Second, the inclusion of this information makes the decisions I have made easier to understand, as the information that is sought needs to be traced back to the discovery questions. Finally, it is TD’s position and there is nothing new (or prejudicial) in me receiving it as part of this document. The information that was included by TD in the final version of the Schedule “A” is in red in the original version of this decision.
[7] I should also note that the numbering on the list of undertakings that was provided by Plaintiffs’ counsel in their materials changed when I was provided with an electronic Schedule “A”. I determined that this was a clerical issue when the Schedule A was sent to me, and have changed the numbers back to correspond with what was in the motion materials.
[8] I should also note that the dates for the correspondence provided by the Plaintiff in the Schedule “A” did not match the actual dates of the letters on a number of occasions. I have not changed the dates in Schedule “A”, but I have tracked down and considered the proper correspondence relating to each question. I have generally not noted the changes in Schedule A.
Background Facts
[9] The Statement of Claim in this matter was issued on May 22nd, 2015. Examinations for discovery of both the Plaintiffs and the Defendant TD were held on January 23rd, 2017.
[10] On TD’s examination for discovery, a series of Undertakings were given, and nine items were taken under advisement. One item was refused. TD provided its answers in correspondence in August and October of 2017.
[11] In early 2018, TD booked a motion for summary judgment on this claim. That motion was scheduled for October 1st, 2018.
[12] In the meantime, counsel for the Plaintiffs brought a motion for answers to undertakings and refusals, as well as for an Order compelling further examination of a TD representative. This motion proceeded to a hearing before Seppi J. on June 28th, 2018. Seppi J. only considered the refusals, as TD had agreed to answer the outstanding undertakings. In her order Seppi J. narrowed some of the items that had been refused, and directed that certain answers be provided. I will return to her reasons below.
[13] I note that, on July 13th, 2018, Ms. Pressé (one of TD’s counsel) provided answers to all of the questions that Seppi J. had directed be answered.
[14] The Plaintiffs sought leave to appeal the Order of Seppi J. to the Divisional Court. Leave to appeal was denied on September 25th, 2018. In the meantime, the matter came before me on August 23rd, 2018 as a result of the Plaintiffs’ request to adjourn the summary judgment motion for October 1st, 2018.
[15] I granted that adjournment, but directed that the parties ask Daley R.S.J. for case-management. He appointed me to case-manage this file. I had a further telephone appearance with the parties on October 5th, 2018. As part of that timetable, answers to undertakings were due by November 1st, 2018.
[16] On November 1st, 2018, Plaintiffs’ counsel sent a document entitled “Questions on Written Examination for Discovery” to counsel for TD. It listed 40 different questions that the Plaintiffs were seeking answers to. The covering letter stated:
Further to the Order of Justice Seppi that indicated that the Plaintiff may conduct a further examination for discovery of Ms. Kavoosi, if follow-up questions are needed, and the arguments put forth by your office that such an examination ought to be done in writing, please find enclosed our Questions on Written Examination for Discovery, served upon you pursuant to the Rules of Civil Procedure.
[17] It is this list of questions that is the subject of this motion. TD took the position that it was not answering most of the questions on this list on a number of grounds, as follows:
a) The questions that were posed are not proper follow-up to answers to undertakings and items refused.
b) The questions that were posed are not proportional to the action.
c) The questions are not relevant to the action.
[18] The Plaintiff has since brought a Rule 30.10 motion against the other major chartered banks seeking production of records from them. That motion was returnable on January 31st, 2019, but has been adjourned to March 20th, 2019.
Issues
[19] I will address each of the undertakings separately, to the extent that is necessary. Prior to doing that, however, there are two issues that should be resolved, as follows:
a) Does Seppi J.’s Order determine the issue of proportionality for this action? If it does not, how should proportionality be applied in this case?
b) Is the Plaintiff entitled to a Written Examination for Discovery? If not, what limitations (if any) should be put on the Plaintiff’s ability to ask follow up questions?
[20] I will address each of these issues in turn.
Issue #1- The Scope of Seppi J’s Order
[21] In her endorsement, Seppi J. was considering a series of items taken under advisement, and which had become refusals. She directed that the first three questions be answered. The remaining six questions related to security issues at TD Bank. Seppi J. stated found that these questions should all be limited to the branch where the assault had taken place.
[22] In her endorsement, Seppi J. stated:
The amounts required have been limited based on relevance as well as proportionality. T.D is a large organization, having a myriad of facilities across the country. It is not relevant to know all of its security protocols, recommendations or consultations. What is relevant are the steps taken in securing the ATM vestibule after hours at Warden Branch.
The expense, time and work involved to compile a brief of the recommendations and assessment generally related to Bank branches which are located in various neighbourhoods across the country far outweighs any probative value this information would have in relation to the issues in the case. The expense of such an exercise would be unjustified. Security needs would logically not be the same for all the Bank’s branches.
[23] In my view, Seppi J. has determined the question of proportionality in this action, and the Plaintiff should not be entitled to revisit it. This is especially true because the Plaintiff sought leave to appeal Seppi J.’s Order to the Divisional Court, and leave was denied. The Plaintiff should not be entitled to relitigate this question, even if it is being raised in respect of different undertakings
[24] In any event, however, even if this were still an open question, I agree with the reasons set out by Seppi J. As a result, in determining whether the questions asked by the Plaintiff should be answered by TD, I will apply Seppi J.’s reasoning.
[25] In doing so, I note that the question underlying this action, as framed by Seppi J., is the issue of the security in the ATM vestibule at the Warden Branch after hours. While I have generally limited the questions to this issue, there are two circumstances where expanded questions may be asked, as follows:
a) Where there are corporate policies that were applied to the ATM vestibule of the Warden Branch, the Plaintiffs are entitled to additional information on those policies, as they pertain to the Warden Branch.
b) There are documents and issues where it appears to be difficult to extricate the information about the ATM Vestibule of the Warden Branch from information about the Warden Branch as a whole. In that case, which would include security studies, I have ordered that the entire document be produced.
Issue #2- Were the Plaintiffs Entitled to Conduct a Written Discovery?
[26] No. Oral examinations were already conducted in this case. In those circumstances, Rule 31.02(1) governs, and it states:
31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.
[27] The Plaintiffs are not entitled to both forms of discovery without leave of the Court. Leave was not sought.
[28] Plaintiffs’ counsel also argued, however, that the parties had an agreement that Written Discovery would be completed in lieu of reproducing Ms. Kavoosi, the deponent at the original discovery.
[29] The problem with this assertion is that there is no documentation in the record to support it. In my view, it is more likely that the parties agreed that they would address any follow-up issues in writing, rather than engaging in a second examination of Ms. Kavoosi. I reach this conclusion in part because the Plaintiffs took the position that Ms. Kavoosi was not adequately prepared for the discovery. It is unlikely that the Plaintiffs’ counsel would have been particularly interested in further questioning of Ms. Kavoosi.
[30] This brings me to Plaintiffs’ counsel’s concern that the answers aren’t under oath. The answers, provided by counsel, still bind TD, and can still be used at trial. I do not see this as being a significant concern. In any event, there is no absolute right to a re-attendance for a re-examination once undertakings and refusals are answered (see, inter alia, Senechal et. al. v. The Corporation of the District Municipality of Muskoka et. al. (2005 11575 (ONSC- Master) at paragraph 6)
[31] Finally, on the examination of Ms. Kavoosi, Ms. Pickering stated:
MS. PICKERING: Subject to the undertakings and refusals and any questions that may arise therefrom, those are my questions. Thank you.
[32] This statement again limits the Plaintiff’s ability to conduct further discovery. The examination rights, going forward, are limited to questions that flow from the questions that were refused. As noted by Master MacLeod (as he then was) in Senechal, supra., the party who had a question improperly refused or had to wait for an answer to an undertaking is entitled to complete their discovery.
[33] In my view, completing the discovery means asking reasonable follow-up questions. It does not entitle a party to ask different questions that they wish they had thought of previously, or to ask questions that are unrelated to the undertakings provided or the refusals that have been ordered to be answered.
[34] Again, I will apply these principles to the individual questions posed by the Plaintiff.
Specific Questions
[35] For most of the specific questions that the Plaintiff has asked, the disposition is set out in the chart. Many of them can be answered using the principles set out above. There are a few areas where some additional comments are in order.
[36] First, the Plaintiff seeks considerable information about the G4S contract. In my view, this information is not proportional, and it does not flow from the questions that were asked on discovery. I have reviewed the discovery transcript, and there were questions about security policies and practices, as well as questions about specific incidents at the Warden Branch. To conduct a review of TD’s entire contractual relationship with G4S does not naturally flow from these questions. In addition, it is not proportional to this action. The question of TD’s entire contractual relationship with G4S is not something that should be explored on one incident involving one branch. As Seppi J. noted, the expense, time and effort that would be required to review all (or even a sampling of) G4S’s responses to other incidents at other branches would not be proportional.
[37] I should also briefly address the Plaintiffs’ assertion that there was a motion to add G4S as a party in this case that was adjourned sine die. The existence of this motion does not change the analysis that I have set out in the previous paragraph. The existence of a contract is only one of many factors that can determine whether G4S had a role in this incident. There is nothing in the materials filed by the Plaintiffs (or by TD either) that would suggest that G4S had a specific role in this particular incident. Finally, I note that the motion to add G4S was originally returnable on November 21st, 2017. These questions were not raised by the Plaintiffs until almost a year later.
[38] Then, there are questions relating to robberies of the Warden branch. In their motion record, the Plaintiffs have included about robberies at the Warden branch. The Plaintiffs argue that these articles demonstrate that TD has incorrectly answered the question about whether or not there were previous incidents at the branch. I disagree. The problem with the Plaintiff’s position is that the original discovery question covered a three year period prior to the incident. The article that the Plaintiff references involved an incident on May 11th of 2010, which is more than three years before this incident.
[39] The entire question of time is an issue in the questions being asked by the Plaintiff. At discovery, the Plaintiff asked for information going back three years from the date of the incident, as well as to the discovery. I am of the view that the three year limitation on information going back is reasonable, as communities change over time. Similarly, there has to be an end date for the information relating to incidents at the Branch, and I am of the view that just under five years post-incident should be sufficient, as the relevance of the information will tend to diminish the further away we are from the incident. Nothing is required to be produced relating to changes after December 31st, 2017.
[40] In addition, the follow up questions have to do with the state of the ATM vestibule when the branch is closed. The bank robberies all took place in daylight, when the branch was in operation. As a result, I accept TD’s position that these issues are not the proper subject of questions.
[41] Finally, there are issues relating to the classification of the Warden Branch as a medium risk or a high risk branch. TD opposes answering these questions on the basis that they go beyond the scope of the very narrow issues relating to the Warden ATM vestibule.
[42] I disagree. In my view, the question is more properly considered as whether the Warden branch (and its ATM vestibule) were properly classified as medium risk (or lower) sites. If TD improperly classified the Warden branch as a medium risk site or misapplied its guidelines or policies, then this information might impact on the duty of care questions that arise in this case. As a result, questions that relate to the classification of the Warden branch for risk purposes are generally relevant and proportional.
[43] However, this is not a licence for the Plaintiffs to explore the classification of every branch in the TD system or, indeed, any other branch. The criteria used for classification are relevant and producible. The classifications of other branches are not proportional for the reasons set out herein, and the reasons of Seppi J.
[44] It should also be noted that questions asked about policy, about the administration, and about the manner in which Global Security and Investigations handled the Warden branch, and the risk across other branches more generally should be dealt with in the same way that I have dealt with the issues in the previous paragraph. General policies that specifically affect the Warden branch may be relevant. Larger inquiries that require a review of the branch network as a whole are not going to be relevant or producible.
[45] Finally, there is the question of when TD should be required to provide the answers to the questions that I have directed be answered. In my view, given that the summary judgment motion is now scheduled for September, these questions must be answered within forty-five (45) days of today’s date. The Plaintiff will have seven (7) calendar days to raise any concerns about the completeness of TD’s answers. These concerns must be raised in writing, and completely explained. Further, my assistant is to be copied on this correspondence. If there are no issues raised, then the discovery and production phase of this case will be complete, subject to the parties’ ongoing discovery obligations, and the Rule 30.10 motion.
Other Procedural Directions
[46] In the course of the argument on this motion, I addressed several issues relating to the timetabling of this matter. First, given the fact that the Plaintiff is seeking production under Rule 30.10, it was clear to me that the May 13, 2019 date for the summary judgment motion was not feasible. As a result, I am rescheduling that date.
[47] I discussed Monday, September 9th, 2019 with counsel as a possible date. I can now advise that this motion will proceed on September 9th, 2019. It will probably be in Brampton but, as I have advised the parties, the Brampton courthouse is short on courtrooms, and they may be required to travel elsewhere in Southern Ontario.
[48] I can also advise the parties that, given my schedule, it is unlikely that another date can be offered until sometime in late November, 2019 at the earliest. As a result, this motion needs to proceed on September 9th, 2019.
[49] Then, there was the issue of the expert report. At the hearing of this matter on January 17th, 2019, I made it clear that the Plaintiff was still required to provide an Affidavit outlining counsel’s efforts to retain an expert in this matter. I was (and remain) concerned that the delays in moving this case forward are as a result of the Plaintiff’s lack of diligence, both in retaining the expert and more generally in following up on issues.
[50] Plaintiff’s counsel has provided me with this Affidavit, as directed. I am satisfied that it should be sealed, and I am also satisfied that the deadline for expert reports should be extended to three (3) calendar days after the production ordered pursuant to this motion, and the Rule 30.10 motion (if any) are completed to my satisfaction. I come to this conclusion reluctantly, as there has been considerable delay in this case on the part of the Plaintiff. However, as I noted in the endorsement I released yesterday, I am not quite at the stage where I am going to impose significant consequences on the Plaintiff for these delays.
[51] At last Thursday’s Rule 30.10 motion, that matter was adjourned to March 20th, 2019. I expect that a decision on that motion will be forthcoming very quickly after the motion is argued. As a result, a tentative timetable for the summary judgment motion can now be built.
[52] On a tentative basis, the timetable for the summary judgment motion is as follows:
a) TD is to provide any answers to questions required by these reasons by March 22nd, 2019. TD is to advise my office in writing when it has provided its complete answer to the questions that I have directed be answered.
b) Any complaints or issues with the completeness of these undertakings is to be raised by the Plaintiff in writing within seven (7) calendar days of the receipt of TD’s final correspondence. The Plaintiff is to provide its reasons for seeking additional information and copy that letter to my judicial assistant. If such a request is received, I will set out a timetable with very short deadlines for submissions, but the Plaintiff’s principal submissions will be limited to the letter that they are submitting in accordance with this clause. These submissions will most likely be required in writing from both parties.
c) The expert report will be due on the later of three (3) calendar days after TD has provided its answers and I have confirmed that those answers are complete, or any production ordered under the Rule 30.10 motion is complete. There may be a variation to this time limit to account for the Easter holiday.
d) The Responding Expert report will be due from TD by June 3rd, 2019.
e) The Rebuttal Expert report will be due from the Plaintiff by June 10th, 2019. The dates in paragraph d and e may be moved up depending on the outcome of the Rule 30.10 motion. They are unlikely to be moved backwards.
f) TD’s motion record is to be served and filed by June 24th, 2019.
g) The Plaintiff’s responding motion record is to be served and filed by July 9th, 2019
h) Any reply motion record from TD is to be served and filed by July 15th, 2019.
i) Cross examinations are to be completed by July 31st, 2019, and the dates for these cross-examinations are to be agreed upon between the parties as soon as possible.
j) I have made the deadline in paragraph (i) very tight because I anticipate, given the conduct of this action so far, that there will be refusals on cross-examinations, and those will have to be adjudicated. The adjudication of those will take place at a 9:00 am appointment on the week of August 5th, 2019. A conference call around July 31st, 2019 will be scheduled at our next in-person appearance to confirm the date. The party seeking the additional answers will be required to order the transcripts on an expedited basis.
k) Factum and book of authorities to be served and filed by TD by August 22nd, 2019.
l) Factum and book of authorities to be served and filed by the Plaintiffs by September 4th, 2019.
m) Summary judgment motion to be heard on September 9th, 2019.
[53] If there are any concerns about this timetable, counsel may provide a letter outlining those concerns within 7 calendar days of today’s date.
[54] Finally, there is the issue of costs. Each party is to provide its costs submissions within ten (10) 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.
[55] Reply submissions are due seven (7) days thereafter, and are not to exceed one (1) single-spaced page.
LeMay J.
DATE: February 5, 2019
Court File No.: CV-17-3440
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRUCE MOFFITT by his Litigation Guardian, CATHERINE MOFFITT, CATHERINE MOFFITT, ELLA BAKKER-MOFFITT and LUCAS PORTER-BAKKER
Plaintiffs
- and -
TD CANADA TRUST, FERDINAND PANGAN and
JOHN DOE JASON GREEN
Defendants
SCHEDULE “A” to the reasons of LeMay J dated INSERT.
Issue & Relationship to the Pleadings or Affidavit
Question No.
Page No.
Specific Question
Answer or Precise Basis for Refusal
Disposition by Court
Liability
1
Further to the answer to question 1 as found in Ms. Choudhry’s letter, dated August 24, 2017, what is Roxanne Bacchus’ employment status with TD Canada Trust? If she is no longer employed with TD Canada Trust, what is her last known contact information?
The Defendant has answered that it cannot locate documentation setting out which staff were scheduled and in attendant at the Branch on May 28, 2013. We have made enquiries with respect to the employment status of Bacchus, Ali and Romeo. All three remain employed with TD Bank.
TD is to provide, if possible, a list of employees who were working at the branch on May 28th, 2013, and whether they are still employed with TD. TD is also to provide follow up contact information for employees no longer at TD.
The reason for this ruling is twofold. First, this appears to be a reasonable follow up question to one asked on discovery, if at the outer edge of what is reasonable. Second, TD’s counsel has indicated that they are working on obtaining this list with management.
For clarity, this is to be the best information that TD can find. No other information is required.
Liability
1
Further to the answer to question 1 as found in Ms. Choudhry’s letter, dated August 24, 2017, what is Sophia Ali’s employment status with TD Canada Trust? If she is no longer employed with TD Canada Trust, what is her last known contact information? What her position at the Branch at the time of the assault?
The Defendant has answered that it cannot locate documentation setting out which staff were scheduled and in attendant at the Branch on May 28, 2013. We have made enquiries with respect to the employment status of Bacchus, Ali and Romeo. All three remain employed with TD Bank.
This issue was argued with #1,3 and 19 on this chart. The information required is set out in my disposition of Question #1.
Liability
2
Further to the answer to question 1 as found in Ms. Choudhry’s letter, dated August 24, 2017, what is Rosemary Romeo’s employment status with TD Canada Trust? If she is no longer employed with TD Canada Trust, what is her last known contact information?
The Defendant has answered that it cannot locate documentation setting out which staff were scheduled and in attendant at the Branch on May 28, 2013. We have made enquiries with respect to the employment status of Bacchus, Ali and Romeo. All three remain employed with TD Bank.
This question was argued with #1, 2 and 19 on this chart. The answer information required is set out in my disposition of Question #1.
Liability
2
Further to the answer to question 6 as found in Ms. Choudhry’s letter, dated August 24, 2017, what was the basis used by Mr. Chin to determine the security requirements for the Warden Branch? Include all criteria, factors, and variables applied.
The Defendant has answered that they have made enquiries related to the basis Mr. Chin used to determine the security requirements for the Warden Branch ATM after the Branch closed. They have made enquiries as to who performed Mr. Chin’s duties in the 3 years prior to the assault. They will advise shortly. The Defendant has subsequently answered as follows:
• There were no formal criteria, guidelines and protocols in place. The assessments were based on best practices and the time and the professional opinion of the assessor.
• The Crime Prevention Specialist role was a new position in 2014. In 2012 TD implemented the retail location risk ratings system. Interns who performed the assessments were overseen by GSI management. Between 2010 and 2012, prior to the implementation of the risk rating system, assessments from a physical security perspective were performed in response to incidents or Branch requests. These were performed by GSI management employees who were former law enforcement professionals.
• There were no formal on-site reviews completed or required at the Warden Branch prior to 2015.
The question of what documents exist relating to the security assessment or assessments for the Warden Branch is a reasonable follow-up question to the questions asked on discovery. That question is to be answered, to the extent that TD can do so, and any relevant documents that relate to any security assessment that was performed on the Warden Branch that are still in existence are to be produced.
In addition, if the name of the person who performed the assessment is known, TD is to advise as to that fact as well. Finally, if this person is still employed with TD, then TD is to indicate that. If this person is not employed with TD, then TD is to provide follow-up contact information, if available.
Liability
2
Further to the answer to question 7 as found in Ms. Choudhry’s letter, dated August 24, 2017, what is the Warden branch’s level of risk? How was the level of risk determined? By whom and using what criteria, factors, and variables. UT to produce a copy of any documentation used to determine the risk level at the Branch, as it was during the 3 years pre-assault to date? UT to produce a copy of any assessments done to determine the risk level, as it was for the 3 years pre-assault to date? UT to produce a copy of any documentation confirming the risk level(s) for the 3 years pre-assault to date? UT to advise of any changes in the risk level(s) for the 3 years pre-assault to date and the reason for the changes?
The Defendant has answered that the question do not relate to the original question asked on discovery or the answer provided. The questions are not restricted to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and is not proportional to the action.
Answer provided: Due to the Warden Branch not being a high risk branch, it had not received a formal on site assessment.
The question of what risk level the Warden Branch had been assigned appears to be both relevant and related to questions already asked on discovery. That question is to be answered, to the extent that it has not already been answered.
In addition, any assessments that were done on the Branch for three years prior to the assault and for the period after the assault as set out in the main reasons are to be produced, if they exist.
The additional information in terms of risk level changes to date appear to be of marginal relevance, given that communities change over time. The answer is limited to the time period in the judgment.
Finally, these questions are at the outer edge of what is proper follow-up on the examination for discovery that was conducted in this case.
Liability
2
Further to the answer to question 10 as found in Ms. Choudhry’s letter, dated August 24, 2017, what is the role of G4S and their job duties? Did G4S monitor video cameras? UT to produce a copy of the contract with G4S?
The Defendant has answered that Questions 6 and 7 were answered in the original undertaking and the answers to the majority of the questions are contained in the original answer provided. The remainder of the information is not relevant or proportional.
Question 10 and answer of August 24, 2017 letter:
Question 10: Undertaking to confirm that there are no afterhours security at any TD branches.
Answer: TD contracts a third party guard service provider (G4S) to respond to alarms and incidents reported. TD generally does not have guards present in TD branches/vestibules after hours unless there are extenuating circumstances requiring it.
This question does not have to be answered. The reasons are explained in the main decision.
Liability
3
Further to the answer to question 10 as found in Ms. Choudhry’s letter, dated August 24, 2017, what extenuating circumstances would warrant guard in TD branches/vestibules after hours?
The Defendant has answered that Questions 6 and 7 were answered in the original undertaking and the answers to the majority of the questions are contained in the original answer provided. The remainder of the information is not relevant or proportional.
Initial undertaking 6: Undertaking to advise who would have made the security determinations or requirements for the Warden branch.
Answer: Mr. Arnold Chin, Crime Prevention Specialist at TD Bank
Initial undertaking 7: Undertaking to advise of any security consultants or risk assessments prior to this at the Warden branch.
Answer: Due to the Warden Branch not being a high risk branch, it had not received a formal on site assessment.
TD is to outline what the “extenuating” circumstances are that would require a guard in an ATM vestibule after hours. This appears to be both relevant, and a question that flows directly from answers given by TD. The information is relevant because, if TD did not follow its regular practice, then that might inform the duty of care analysis.
In addition, TD’s comments in response to Question #30 below appear to contain most of the answer to this question. However, a complete answer is required.
Liability
3
Further to the answer to question 10 as found in Ms. Choudhry’s letter, dated August 24, 2017, did G4S respond to any incidents reported at TD in the three years pre-assault to date?
The Defendant has answered that Questions 6 and 7 were answered in the original undertaking and the answers to the majority of the questions are contained in the original answer provided. The remainder of the information is not relevant or proportional.
TD is to advise as to whether G4S responded to any incidents at the Warden Branch in the three years pre-assault. G4S’s actions for other branches are not relevant.
Liability
3
Further to the answer to question 12 as found in Ms. Choudhry’s letter, dated August 24, 2017, under what circumstances would the cameras be required to be live monitored from their IRC? Who makes these decisions? What is their training? What criteria is used?
The Defendant has answered that the questions require speculation and are not relevant to the action.
Question 12 and answer of August 24, 2017 letter:
Undertaking to advise if the cameras are monitored.
Answer: TD's cameras are recorded and can be live monitored from their IRC when required, however the cameras are not live monitored 24/7.
TD is to advise as to under what circumstances it would be required to live monitor cameras from their IRC, and to produce any written policies in this regard.
While this goes beyond the issue of this particular ATM vestibule, it is relevant to the question of whether TD should have been monitoring the camera at the Warden branch the night of the incident, and it flows naturally from the previous answer provided by TD.
Liability
3
Further to the answer to question 13 as found in Ms. Choudhry’s letter, dated August 24, 2017, when did TD stop using card swipe to enter vestibules? Why did TD stop using card swipe to enter vestibules?
The Defendant has answered that the question is not relevant to this action.
Question 13 and answer of August 24, 2017 letter:
Undertaking to advise if any TD ATM machines require a card swipe to enter the vestibule.
Answer: Currently TD does not use these.
Portions of this question are overbroad. However, to the extent that the question relates to the Warden Branch, it is to be answered, as it is both arguably relevant to the existence of a duty of care and a natural follow up question.
To be clear, TD is to advise only as to whether the Warden Branch ever had swipe access after hours and, if so when this was removed and why it was removed.
Liability
3
Further to the answer to question 14 as found in Ms. Choudhry’s letter, dated August 24, 2017, please advise of the criteria used to determine what security should be used in the ATM vestibule up until May of 2018?
The Defendant has answered that the questions are not relevant to this action, are not restricted to the narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional. The questions are similar to those set out in questions 4 and 21. We will respond once we have the information in response to questions 4 and 21.
Question 14 and answer of August 24, 2017 letter:
Undertaking to advise of any criteria on ATM vestibule security up until May of 2013.
Answer: Branch ATMs received cameras inside them. The general surveillance camera inside the branch entrance is aimed towards the entrance and provides a view of the ATM vestibule.
This question appears to seek information similar to what was required for Questions #4 and #21. The extent of the information to be provided by TD has been set out above, in my disposition of Questions #4 and #5 (among others), and nothing further is required.
Liability
3
Further to the answer to question 15 as found in Ms. Choudhry’s letter, dated August 24, 2017, did Roxanne Bacchus, Sophia Ali, or Rosemary Rome have any prior knowledge of Bruce Moffitt, Pangan, or Jason Green prior to the incident?
Question 15 and answer of August 24, 2017 letter:
Undertaking to advise if there is any prior knowledge of Bruce Moffitt, co-defendant, Pangan, or Jason Green prior to this incident.
Answer: The Global Security and Investigation (GSI) team does not have any information on these individuals.
This question is to be answered. The answer provided does not speak to the knowledge of the TD employees, and that specific question was asked on discovery of Ms. Kavoosi (see p. 41-42, questions 115-116)
Liability
3
Further to the answer to question 16 as found in Ms. Choudhry’s letter, dated August 24, 2017, did Sophia Ali or Rosemary Rome have any knowledge of prior issues with either Fir Valley or Cataraqui Residence?
The Defendant has answered that the question is not relevant to the action.
Question 16 and answer of August 24, 2017 letter:
Undertaking to advise if the bank manager knew of any prior issues with either Fur Valley or Cataraqui Residence and prior problems.
Answer: Ms. Bacchus is unaware and did not have any knowledge of any prior issues with either Fur Valley or Cataraqui Residence and prior problems.
The precise question asked on discovery was whether the Bank manager prior to Ms. Kavoosi had any knowledge of issues with this community. My understanding is that Ms. Bacchus was the prior manager, in which case the question is answered.
Asking what others at TD knew about this is beyond the scope of what was discussed at discovery.
Liability
4
Further to the answer to question 17 as found in Ms. Choudhry’s letter, dated August 24, 2017, what efforts have been made to determine who closed the Branch on May 28, 2013? What information was obtained as a result of those efforts?
The Defendant has answered that as previously advised, the Defendant could not locate any records setting out who worked on May 28, 2013.
TD is directed to indicate what inquiries were made to answer this question. The underlying question is relevant, and Plaintiffs’ counsel is entitled to know what efforts TD made to find this information.
The results of those inquiries appears to me to be clear, which is that the information is not known.
Liability
4
Further to the answer to question 18 as found in Ms. Choudhry’s letter, dated August 24, 2017, was GSI notified of any other incidents by law enforcement in the 3 years pre-assault to date?
Question 18 and answer of August 24, 2017 letter:
Undertaking to advise who first contacted TD and what information they were given about the assault on May 28, 2013.
Answer: GSI was notified of incident by law enforcement requesting images of the incident. Attached are the two notifications which came in regarding this incident.
This question has already been answered, as TD has confirmed (in Ms. Choudhry’s letter of August 25th, 2017) that there were no incidents for the three years prior.
The Plaintiffs’ concern about a robbery in May of 2010 is addressed in the main reasons.
Liability
4
Further to the answer to question 1 as found in Ms. Choudhry’s letter, dated October 27, 2017, the undertaking was to provide the names and contact information of the staff who were present on May 28, 2013, not to locate them. Please provide their names and last known contact information.
The Defendant has answered that it cannot locate documentation setting out which staff were scheduled and in attendant at the Branch on May 28, 2013. We have made enquiries with respect to the employment status of Bacchus, Ali and Romeo. All three remain employed with TD Bank.
This was addressed with Questions 1, 2 and 3. The extent of the answer required is set out in my disposition of Question #1.
Liability
4
Further to the answer to question 4 as found in Ms. Choudhry’s letter, dated October 27, 2017, if there was no history of robberies or assaults at the TD branch in question up to the date of loss, why does the attached newspaper article indicate that there was a robbery on May 11, 2010?
The Defendant has answered that “You make reference to a newspaper article related to a robbery on May 11, 2010. That article was not attached to your questions. You also make reference to Ms. Choudhry’s letter dated August 18, 2017 wherein she provided answers. We do not appear to have that communication. Please provide a copy so that we can properly reference it and your requests. You have asked whether there were any ATM robberies in the 5 years pre-assault to date. As previously advised, there were no history of robbery reported to GSI at this branch prior to the date of loss, according to their records. Any occurrences post assault are irrelevant.”
This issue has been dealt with in the main reasons, and there is no requirement for TD to provide any further information.
Liability
4
Further to the answer to question 5 as found in Ms. Choudhry’s letter, dated October 27, 2017, who assessed the risk level of each branch on an annual basis? What are their qualifications?
The Defendant answered that they have made enquiries to confirm who assessed the risk level of this branch in the 3 years prior to the assault. They have subsequently answered “see answers to 4 and 21 above”.
The extent of TD’s obligations to respond to this question are set out in my disposition of Question #4 (among others) above.
Liability
4
Further to the answer to question 5 as found in Ms. Choudhry’s letter, dated October 27, 2017, please provide the geographic crime data used to determine the risk level of the Branch?
The Defendant answered that we have made enquiries to determine if the information is available for the 3 years prior to the assault. The Defendant subsequently answered that geographic crime data was used during this time period were not formalized, however assessors may have referenced Toronto Police crime statistics. This is not formal material/records that would have been retained.
There does not appear to be any further information required to respond to this question. Given that the information was not retained, asking where the information came from would require speculation.
Liability
4
Further to the answer to question 5 as found in Ms. Choudhry’s letter, dated October 27, 2017, what other FIs exist within a 1km radius?
The Defendant answered that is something that is public knowledge and can be obtained by any individual and not a property question of this Defendant.
TD’s position is correct. It is not the Defendant’s job to conduct the Plaintiff’s research. However, the broader question of which branches the Warden branch was benchmarked against is addressed in my disposition of Question #23 below.
Liability
5
Further to the answer to question 7 as found in Ms. Choudhry’s letter, dated October 27, 2017, as Mr. Chin was not employed with TD at the time of the assault, please advise who performed his functions in the three years pre-assault until Mr. Chin was hired? What are their qualifications? Are they still employed with TD? If not, please provide their last known contact information.
The Defendant has answered that they have made enquiries related to the basis Mr. Chin used to determine the security requirements for the Warden Branch ATM after the Branch closed. They have made enquiries as to who performed Mr. Chin’s duties in the 3 years prior to the assault. They will advise shortly. The Defendant has subsequently answered as follows:
• There were no formal criteria, guidelines and protocols in place. The assessments were based on best practices and the time and the professional opinion of the assessor.
• The Crime Prevention Specialist role was a new position in 2014. In 2012 TD implemented the retail location risk ratings system. Interns who performed the assessments were overseen by GSI management. Between 2010 and 2012, prior to the implementation of the risk rating system, assessments from a physical security perspective were performed in response to incidents or Branch requests. These were performed by GSI management employees who were former law enforcement professionals.
• There were no formal on-site reviews completed or required at the Warden Branch prior to 2015.
This was addressed with Question #4. The extent of the information that TD is to provide in response to this question is set out in my disposition of Question #4, among others.
Liability
5
Further to the answer to question 8 as found in Ms. Choudhry’s letter, dated October 27, 2017, who were the appropriate Global Security & Investigations team members consulted in the 3 years pre-assault to date? What are their qualifications?
The Defendant has answered that the names of the team members and their qualifications are not proportional to the action.
TD is correct that the general question as to which GS &I team members were consulted is not proportional to the action.
However, the specific question of whether any of the GS&I team members were consulted about the security for the ATM vestibule at the Warden Branch is relevant, and proportional. It is relevant because, if GS&I was consulted about this vestibule, what was done as a result of the consultation may be relevant to the existence of, and breach of, a duty of care.
The question to be answered in the manner that I have framed it above only.
Liability
5
Further to the answer to question 5 as found in Ms. Choudhry’s letter, dated October 27, 2017, which other Canadian Banks are benchmarked with? When benchmarking, is it other Canadian Banks within the same area?
The Defendant answered that as indicated in the previous answer, the Canadian Banks are provided by the Canadian Bankers Association and are within a 1 km radius of the branch. The Defendant has subsequently answered that in the more formalized model, GSI used available CAP index incident data available from the Canadian Bankers Association.
TD is to identify which other FI’s, if any, it benchmarked the security for the Warden Branch against.
If there was more generalized data used to benchmark the Warden branch specifically, then that data (and only that data) is to be produced. Otherwise, TD has no further obligations to respond to this question.
Liability
5
Further to the answer to question 5 as found in Ms. Choudhry’s letter, dated October 27, 2017, what other physical security controls and mitigation tactics are deployed and implemented at other Canadian Banks’ branches?
The Defendant answered that this is not within the Defendant’s knowledge and not a proper question for this Defendant.
I agree with TD’s position, and TD is not required to produce this information.
Liability
5
Further to the answer to question 9 as found in Ms. Choudhry’s letter, dated October 27, 2017, what criteria would result in a retail location being designated high risk?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
Question 9 and answer of October 27, 2017 letter:
Undertaking: To advise if any assessments or consultations with security consultants or experts were done, advise which company and their contact information.
Answer: GSI completes on-site physical security reviews for high risk retail locations. As of fall 2017, Transit 1529 has not surpassed a level of medium risk and therefore has not received an on-site physical security review.
This issue is dealt with in the main reasons. The criteria for classifying branches as low, medium and high risk are relevant, and should be produced. The classifications of other branches are not relevant, and need not be produced.
Liability
5
Further to the answer to question 9 as found in Ms. Choudhry’s letter, dated October 27, 2017, why are medium risk locations not subject to physical security reviews? What security reviews are medium risk locations subject to?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
The problem with TD’s position on this question is that the Warden Branch is a medium risk branch (at its highest). For the reasons set out in the main decision, these questions are to be answered.
Liability
5-6
Further to the answer to question 9 as found in Ms. Choudhry’s letter, dated October 27, 2017, what level risk is the Branch? What criteria was used to determine that risk level? If scored on a numerical basis, what are the cut offs for high risk versus medium risk? What numerical score did the Branch receive?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
From the answers given by TD, it appears that the Warden branch has not been rated as higher than a medium risk branch up to 2017. The criteria have already been addressed above, in my disposition of Question #25. It appears to me that all of the information envisioned by this question is also caught by Question #25, and nothing additional is required.
Liability
6
Further to the answer to question 9 as found in Ms. Choudhry’s letter, dated October 27, 2017, has the Branch surpassed a level of medium risk since the fall of 2017?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
It is now almost six years post-incident. The fall of 2017 is four and a half years post-incident. I am not persuaded that updating this question at this late date is relevant.
Liability
6
Further to the answer to question 12 as found in Ms. Choudhry’s letter, dated August 18, 2017, which other stakeholders were consulted?
The Defendant has answered that the question is not relevant nor proportional to the action.
This question is to be answered, but the answer is to be limited to consultations with other stakeholders about the Warden branch specifically, and limited to the time period set out in the decision.
Liability
6
Further to the answer to question 15 as found in Ms. Choudhry’s letter, dated August 18, 2017, were there any ATM robberies in the 5 years pre-assault to date? Were there any issues with vagrancy in the 5 years pre-assault?
Question 15 and answer of October 27, 2017 letter:
Undertaking: To advise of the criteria used to determine which locations have an after-hours security guard, and what circumstances would require some locations to have guards present in vestibules after hours?
Answer: Guards after hours are incident based. Guard deployment may vary from patrols, to guards being grounded at a specific locations. Incidents which may warrant guard deployments include customer ATM robberies, vagrancy, etc. In addition, where TD is made aware of intelligence from law enforcement on a potential crime, TD may determine guard deployment is required.
The original discovery question on this issue was for three years pre-incident. I understand that the question has been answered, and the expanded time period is not permitted. TD does not have to provide anything further.
Liability
6
Further to the answer to question 17 as found in Ms. Choudhry’s letter, dated August 18, 2017, what procedures, guidelines, and standards are used to determine which security mechanisms will be used at each bank or ATM vestibule?
The Defendant has answered that the questions are not relevant to this action, are not restricted to the narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional. The questions are similar to those set out in questions 4 and 21. We will respond once we have the information in response to questions 4 and 21.
This was grouped with Question #11 above. As noted in my disposition of Question #11, above, the information required in response to Question #4 is sufficient to address these issues, and TD is not required to produce anything further.
Liability
6
Further to the answer to question 1 as found in Ms. Pressé’s letter, dated July 13, 2018, who raised concerns with respect to safety as a result of purported activity in the parking lot? What is their contact information?
The Defendant has answered that the questions are not relevant or proportional to the action.
TD is not required to answer this question. Issues with respect to the parking lot during business hours do not appear to be connected to issues relating to the ATM vestibule after hours.
Liability
6
Further to the answer to question 1 as found in Ms. Pressé’s letter, dated July 13, 2018, what purported activities were occurring in the parking lot that gave rise to safety concerns? When did those activities begin? Who was engaged in those activities?
The Defendant has answered that the questions are not relevant or proportional to the action.
TD is not required to answer this question for the reasons set out in my disposition of Question #32.
Liability
6-7
Further to the answer to question 2 as found in Ms. Pressé’s letter, dated July 13, 2018, please provide the details of the robbery on March 14, 2015, including the location of the robbery, the time at which the robbery occurred, whether the Branch was open at the time of the robbery, who the robber was, and whether the robber lived in either Fir Valley or Cataraqui Residence?
Given the timing of the robberies, this information is irrelevant to the action.
The Defendant has answered that any information related to the post-assault robberies is not relevant or proportional to the action.
Addressed in the main reasons. Not relevant, not proper follow-up questions from discovery, and TD is not required to respond.
Liability
7
Further to the answer to question 2 as found in Ms. Pressé’s letter, dated July 13, 2018, please provide the details of the robbery on May 24, 2018, including the location of the robbery, the time at which the robbery occurred, whether the Branch was open at the time of the robbery, who the robber was, and whether the robber lived in either Fir Valley or Cataraqui Residence?
Given the timing of the robberies, this information is irrelevant to the action.
The Defendant has answered that any information related to the post-assault robberies is not relevant or proportional to the action.
Addressed in the main reasons. The answer is the same as for Question #34.
Liability
7
Further to the answer to question 5 as found in Ms. Pressé’s letter, dated July 13, 2018, as GSI did not do on-site physical security reviews until 2015, who did on-site physical reviews in the 3 years pre-assault to 2015? Which locations did they do physical reviews on? Was a physical review done on the Branch? If not, why not? If yes, please provide a copy of the report.
The question was restricted to the Warden Branch ATM vestibule after the Branch closed. As indicated no physical on-site physical inspections were done at this branch as it was not a high risk Branch.
The Defendant answered that locations other than the Warden Branch are not relevant and the Order restricts questioning to the Warden Branch ATM vestibule after the Branch was closed.
The Defendant answered that the Order restricts questioning to the Warden Branch ATM vestibule after the Branch closed. As this Branch ATM vestibule was not a high risk, no on-site physical inspections were done.
The Defendant has answered that as previously advised only high risk sites had physical reviews and as the Warden Branch was not high risk, no on site review was conducted. Reviews of other locations are not relevant.
This question appears to be answered by the information provided by TD. Nothing further is required.
Liability
7
Further to the answer to question 8 as found in Ms. Pressé’s letter, dated July 13, 2018, what constituted baseline security measures? What were the GSI standards? UT to provide a copy of the applicable GSI standards?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
Question 8 and answer of July 13, 2018 letter:
Question: To advise how it is decided which security mechanisms will be used at the Warden Branch ATM vestibule after hours, the criteria they use, how often it’s updated, who makes that decision, and provide any documentation in respect of decisions made for Warden Branch, post date of loss.
Answer:
• Baseline security measures would have been installed based on GSI standards. As of fall 2017, Transit 1529 has not surpassed a level of medium risk and therefore has not received an on-site physical security review.
• GSI Standards are reviewed annually and approved by the VP, GSI
To the extent that there are base-line standards for ATM facilities, and that these policies were applicable to the Warden Branch, then TD is to provide the standards, and confirm whether those standards were changed at any point between the incident and December 31st, 2017.
Liability
7
Further to the answer to question 8 as found in Ms. Pressé’s letter, dated July 13, 2018, what additional security measures were available for high risk locations?
TD is not required to answer this question. The Warden Branch was never classified beyond a medium risk branch and the issues of proportionality raised by Seppi J. apply here.
Liability
7
Further to the answer to question 8 as found in Ms. Pressé’s letter, dated July 13, 2018, who was the VP, GSI for the 3 years pre-assault to date? Are they still employed with TD? If not, please provide their contact information. What are their qualifications to determine GSI standards?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
The identity of the VP GSI, and his/her qualifications are not relevant to this action. The standards are producible as outlined in my disposition of Question #37.
Liability
7
Further to the answer to question 8 as found in Ms. Pressé’s letter, dated July 13, 2018, have the GSI standards changed since three years pre-assault to date?
The Defendant has answered that the questions go beyond the scope of the original question and answer. Many of the questions do not relate to the very narrow issue of the Warden Branch ATM vestibule after the Branch closes and are not proportional to the action.
This question is to be answered, as set out in my disposition of Question #37, but the answer is limited to the time period from three years prior to the incident and December 31st, 2017.
Liability
n/a
1
At this time we would ask that you provide our office with a list of which banks and/or areas that have been designated as high risk areas and the reason why they were designated high risk.
The Defendant has answered that they take the position that the information you are requesting is not relevant as it goes beyond the Warden Branch which is the subject of this incident.
TD’s position is accepted. There is no basis for inquiring beyond the criteria and looking at any specific branches. As discussed in my disposition of Question # 25 above.
COURT FILE NO.: CV-17-3440-00
DATE: 2019 02 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moffitt v. TD Canada Trust
BEFORE: LeMay J.
COUNSEL: S. Pickering, for the Plaintiff
David Olevson, for the Defendant
ENDORSEMENT
LeMay J.
DATE: February 5, 2019