Hassan v. Husbands, 2020 ONSC 6112

COURT FILE NO.: CV-14-505300

DATE: 20201009

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IDIL ABDULLAHI HASSAN, AMRAN ABDULLAHI HASSAN and ABDULLAHI ROBLE, PLAINTIFFS

AND:

CHRISTOPHER HUSBANDS, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, TORONTO POLICE SERVICES BOARD, HAMILTON POLICE SERVICES BOARD, SURETY J. DOE #1, SURETY J. DOE #2, ONTREA/TEC ACQUISTIION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED, ONTREA and T.E.C. LEASEHOLDS LIMITED, DEFENDANTS

COURT FILE NO.: CV-14-505303

AND RE: KING ARSAL NIRMALENDRAN-MORGAN, a minor by his Litigation Guardian, DONIKA SHEYANNE MORGAN, and DONIKA SHEYANNE MORGAN personally, PLAINTIFFS

-and-

COURT FILE NO.: CV-14-505309

AND RE: VIGNESWARI NIRMALENDRAN, VELATHAM NIRMALENDRAN and NIRUSAN NIRMALENDRAN, PLAINTIFFS

-and-

COURT FILE NO.: CV-15-542183

AND RE: CONNOR STEVENSON, a minor by his litigation guardian CRAIG STEVENSON, CRAIG STEVENSON, JO-ANNE FINNEY and TAYLOR STEVENSON, PLAINTIFFS

-and-

CHRISTOPHER HUSBANDS, HAMILTON POLICE SERVICES BOARD, SURETY J. DOE #1, SURETY J. DOE #2, ONTREA/TEC ACQUISTIION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED, T.E.C. LEASEHOLDS LIMITED and ONTREA INC., DEFENDANTS

BEFORE: Pinto J.

COUNSEL: Heidi Brown and Alexandra Roman, for the plaintiffs in all the actions

Ian Mair, Bronwyn Martin and Mirel Giugaru, for the “Eaton Centre” defendants

David Elman and Samantha Bonano, for the defendant, The Toronto Police Services Board

HEARD: September 25, 2020

ENDORSEMENT

[1] A Chambers Appointment was held before me on September 25, 2020 via telephone conference to discuss and schedule summary judgment motions that the Toronto Police Services Board (TPSB) and the Eaton Centre defendants[^1] wish to bring in these four separate, but related civil actions.

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

[3] Discoveries have been completed in the four actions which were commenced in 2014 or 2015. The actions are to be tried together before a civil jury. The trial records were filed by the plaintiffs on March 28, 2019.

[4] The plaintiffs in all four actions are represented by the same law firm.

[5] There are four groups of defendants:

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

(b) The two police service boards, Toronto and Hamilton. Only the TPSB is seeking summary judgment dismissal of the two Nirmalendran actions and the Hassan action.

(d) The provincial government defendants.

[6] The same defendants are named in the four actions except, in the Stevenson action, the police board and provincial government defendants are not named.

[7] The TPSB and Eaton Centre defendants acknowledge that, if liability is established, a trial may be necessary on the issue of damages.

[8] The Eaton Centre defendants argue that summary judgment motions are well suited to focus on the threshold question of liability in these actions. They say that the facts are not particularly in dispute since the shooter was convicted following a second criminal trial. Moreover, the shooting only lasted a few seconds and was captured on video. They submit that the question of liability will largely come down to a battle of experts and it would make little sense to go through an entire trial, which is expected to last 48 days or about 10 weeks, only to determine that these defendants have no liability. Instead, a summary judgment motion lasting a few days could decide that question. They rely on the Anjum decision[^3] where in arguably similar circumstances Myers J. directed that, instead of a trial, a motion for summary judgment was to be heard with viva voce evidence in accordance with other procedural directions. The moving parties cite the "culture shift" required by the Supreme Court in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that posits that a summary judgment motion is not a lesser form of justice than a trial.

[9] The TPSB strongly agrees that the question of its potential liability can be decided via a summary judgment motion. The TPSB suggests that its liability will depend on the legal question of whether it owed a private duty of care, and a summary judgment motion would only require a day to argue, or two at the most. The TPSB also submits that its proposed motion for summary judgment can proceed independently of the Eaton Centre defendants' motion.

[10] The plaintiffs strongly oppose the scheduling of summary judgment motions and argue that the plaintiffs are entitled to a full trial of all the issues before a jury. They argue that a summary judgment motion will take longer than the moving defendants suggest, will waste time and resources, and will not properly focus on the issues of police/public accountability and occupier’s liability, particularly given the high-profile nature of the Eaton Centre shooting. They argue that that these aggrieved families have waited 8 long years to have their proper day in court via a trial on all the relevant issues. They argue that summary judgment motions would not represent the most just, expeditious and least expensive course of action as provided by Rule 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.04.

The Proposed Experts

[11] The parties have exchanged notices concerning their expert evidence, or are on the verge of completing this task. Since the nature of the expert evidence is relevant to the question of procedure, I describe the proposed expert evidence in some detail.

[12] The plaintiffs propose to call:

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

(i) foreseeability;

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

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

(iv) causation.

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

(i) deterrence/spontaneity;

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

(iii) situation crime prevention strategy;

(iv) environmental crime prevention methods; and

(v) causation.

[13] The Eaton Centre defendants propose to call:

(a) a criminologist who will provide an opinion on spontaneity, and whether Husband's actions could have been deterred by additional security measures;

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

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

[14] Collectively, the parties intend to call 5 experts.

[15] Additionally, on their summary judgment motion, the Eaton Centre defendants intend to provide the evidence of two lay affiants, one who would explain the system of security that was in place at the Eaton Centre at the relevant time, and the other, a police officer who led the video evidence that was presented at Husband's second criminal trial.

[16] I see the issues to be decided as follows:

(a) Are further submission required to determine the procedural issue of whether summary judgment motions should be scheduled in the four actions?

(b) Assuming the answer to (a) is no, should summary judgment motions be scheduled to address the TPSB and Eaton Centre defendants' liability?

No further submissions are required

[17] The plaintiffs submitted that the question of procedure is an important one that I should decide after receiving further and complete submissions. I disagree.

[18] Chambers Appointments are a form of case conference under Rule 50.13(1) of the Rules of Civil Procedure. Under Rule 50.13(6), a judge may, if notice has been given and it is appropriate to do so, make a procedural order or give directions.

[19] Here, prior to the Chambers Appointment, the plaintiffs and Eaton Centre defendants completed Civil Practice Court (Long Motions and Summary Judgment) forms which provided brief submissions on the appropriateness of summary judgment motions. Further, at the Chambers Appointment, counsel were provided a reasonable opportunity to canvass the relevant considerations and they referred to case law. Finally, following the Chambers Appointment, the parties made brief written submissions. I am satisfied that the parties have been provided with an adequate opportunity to address procedural concerns and no further opportunity to make submissions is required.

Should summary judgment motions be scheduled?

[20] To answer this question, I focus on what Karakatsanis J. of the Supreme Court referred to as the "culture shift" that is required in approaching summary judgment under Rule 20:

"The reforms embody the evolution of summary judgment rules from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes." (emphasis added): Hryniak, at para. 36.

[21] In Anjum, Myers J. expanded on this point at para. 9:

[9] It is important to stress that summary judgment is a separate process that is available when the interests of justice are satisfied. In Hryniak v. Mauldin, the Supreme Court held at para. 27 that "alternative models of adjudication are no less legitimate than the conventional trial" [emphasis added].

[10] At para. 43 of Hryniak, Karakatsanis J. is clear in stating that under the current Rules, as amended by the Rules Committee in 2010, "…a trial as not the default procedure." She wrote at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[11] In Rothwell v. Raes, 1988 4636 (ON SC), 66 O.R. (2d) 449 (S.C.), aff'd 1990 6610 (ON CA), 2 O.R. (3d) 332 (C.A.), Osler J. heard a 74-day trial concerning the plaintiff's allegation that he contracted debilitating encephalitis from a DPT vaccine. Ultimately, Osler J. decided the case based on general causation. He found that, regardless of the plaintiff's personal circumstances, the DPT vaccine simply does not cause encephalitis. In concluding his reasons, Osler J. lamented that the plaintiff and his family had to endure the stress and strain of a 74-day trial and bear the inordinate expense of submitting to the full measure of the civil litigation process, only to be found to fail due to the lack of causal relationship between the vaccine and the disease from which he suffered. How could the plaintiffs or the defendants have been prejudiced if the case had been resolved on that single issue without a 74-day trudge through the plaintiff's painful circumstances?

[12] I pause to consider that the plaintiff may find himself deprived of a jury trial on liability by this decision. There is no "right" to a trial in civil matters: Baghbanbashi et al. v. Hassle Free Clinic et al., 2014 ONSC 5934 at para. 20. Parties' entitlements to a trial or to a jury trial are subject to the terms of the statutes and rules under which these processes are created and governed. Hryniak determined that under Rule 20, where a judge is satisfied that it is in the interests of justice to proceed summarily for all or part of an action, proceeding in that manner better fulfills the goals of the civil justice system than does a slower and more expensive trial. It is interesting to observe that at para. 29 of Hryniak, Karakatsanis J. used an example involving a jury trial as an indication of a disproportionate process.

[22] Accordingly, in approaching the question of the appropriate procedure, and in responding to the plaintiffs’ plea for a trial in terms of increased public accountability, I conclude that there is no "right" to a civil trial, and a summary judgment process is no less legitimate than a trial. I find that the issue comes down to whether the dispute resolution process "gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute": Hryniak at para. 50.

[23] Here, while the plaintiffs suggest that many facts are in dispute, I am not persuaded that this is likely to be the case. Moreover, the principle of proportionality strongly favours permitting the moving parties to bring their motions for summary judgment for the following reasons:

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

(b) video evidence is available of the shooting itself;

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

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

(f) the relative amount of time for a summary judgment motion is estimated to be 6 days (although the plaintiffs submit it may be longer) in comparison to the estimated trial time of 48 days;

(g) if no liability is found against the moving party defendants, all four actions are dismissed against the moving parties and a trial is unnecessary; this is not a case of partial summary judgment or, to the extent that it is, proceeding with the motions is still warranted: Griva v. Griva, 2016 ONSC 1820.

[24] The parties disagree on the significance of a jury notice. The moving defendants argue that the filing of a jury notice does not preclude summary judgment motions proceeding: Anjum at para. 2. However, relying on Abuajina v. Haval, 2015 ONSC 7938, the plaintiffs submit that I should not so easily dismiss the importance of the jury's fact finding role.

[25] I would distinguish Abuajina from the present case for several reasons. In Abuajina, a pedestrian knock-down personal injury case, both parties agreed that credibility was an important issue. That is not the case here. As well, in Abuajina, no video footage was available, unlike here. Finally, in Abuajina, Mew J. described the case as "a fairly routine personal injury action" – which I take to mean a heavily fact-driven case with a high probability of pre-trial settlement – whereas the case at bar, based on the expert evidence proposed, is not a routine case and liability is likely to be determined by discrete legal concepts such as foreseeability, standard of care and causation.

[26] Additionally, I am also of the view that even unsuccessful summary judgment motions here may not necessarily amount to a waste of time. In Hryniak, Karakatsanis J. suggested that "where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge": at para. 78. In my view, there is presumptively no reason why the motions judge should not continue as the trial judge, assuming that she determines that a trial is still required. This will ensure that "the knowledge she has developed about the case does not go to waste": Hryniak, at para. 71.

[27] For all the above reasons, I find that determination of the TPSB and Eaton Centre defendants' liability is amenable to a summary judgment procedure, and that such a procedure is likely to be proportionate, more expeditious, and more affordable than a full trial.

What type of procedural directions should follow?

[28] While the parties disagree over the suitability of summary judgment motions, they nevertheless agree that expert evidence will be critical to deciding the question of liability in this case. As indicated above, the parties intend to present the evidence of five experts and have it subjected to cross-examination. As I have decided to permit summary judgment motions to proceed, the question becomes whether, as a matter of efficiency, such cross-examination of the experts should occur before or at the hearing of the summary judgment motions.

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

[30] I am also of the view that, on the question of a timetable leading up to the hearing of the summary judgment motions and on related procedural questions, it would be beneficial for the parties to determine if they can come to an agreement on these points rather than my attempting to provide those directions at this point. I say this as there appear to be several unknowns, including the timing of receipt of material from Husbands' second criminal trial.

[31] An order shall go as follows:

(a) The parties shall schedule another case conference before me no later than October 23, 2020.

(b) Prior to the case conference, the parties shall confer and determine if they can come to an agreement on the following points:

(i) How many days are required for the summary judgment motions? I am not inclined to schedule more than 6 days for the summary judgment motions.

(ii) How will the motion days be utilized as between submissions and cross-examination of the expert witnesses?

(iii) Will brief examination in chief (i.e. 15 minutes), be required for the experts prior to their cross-examination? Will there be re-exam?

(iv) In what order will the TPSB and the Eaton Centre defendants’ motions proceed and, relatedly, in what order will counsel address the court?

(v) What is the allotted time for submissions, viva voce evidence of the experts, and for which counsel?

(vi) When is the anticipated date by which the parties will be prepared to argue the summary judgment motions, assuming a block of consecutive court dates is set aside?

(vii) Given the nature of the security evidence, will any confidentiality type of order (sealing order, in camera court session, non-publication order) be necessary?

(viii) Given the likely strong public interest in the motions, and assuming COVID-19 safety protocols are still necessary, is a virtual or an in-court hearing contemplated?

(c) On the day prior to the next case conference, counsel for the moving defendants shall advise the court if the parties have reached an agreement, in whole or in part, with respect to the above questions and provide me with the proposed agreement. If the parties are unable to reach agreement, the parties shall provide me with their respective proposals.

[32] Costs of the Chambers Appointment are reserved to the motions or trial judge.

Pinto J.

Date: October 9, 2020

[^1]: ONTREA/TEC Acquisition Limited, CF/TEC Acquisition Limited, ONTREA/TEC Holdings Inc., CF/TEC Holdings Inc., Cadillac Fairview Limited, Ontrea Inc. and T.E.C. Leaseholds Limited.

[^2]: Two of the four actions are brought by the family members of the deceased Nixon Nirmalendran: Vigneswari, Velatham and Nirusan Nirmalendran are Nixon’s mother, father and brother respectively, the plaintiffs in CV-14-505309; and Donika Sheyanne Morgan and King Arsal Nirmalendran-Morgan are Nixon’s common-law spouse and minor son, the plaintiffs in CV-14-505303. Idil Hassan, Amran Hassan and Abdullahi Roble are the deceased Ahmed Hassan’s two sisters and father respectively, the plaintiffs in CV-14-505300. Connor Stevenson is the injured minor; Craig Stevenson, Jo-Anne Finney and Taylor Stevenson are Connor’s parents and sister, all plaintiffs in CV-15-542183.

[^3]: Anjum v. John Doe, 2015 ONSC 5501, affirmed in Mars Canada v. Bemco Cash & Carry Inc., 2018 ONCA 239, at paras. 30-40.

Hassan v. Husbands, 2020 ONSC 6112

Case Summary

ENDORSEMENT

The Proposed Experts

No further submissions are required

Should summary judgment motions be scheduled?

What type of procedural directions should follow?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 3