Court File and Parties

COURT FILE NO.: CV-14-505300, CV-14-505303, CV-14-505309, CV-15-542183 DATE: 2020-11-06

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- 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-14-505309 AND RE: VIGNESWARI NIRMALENDRAN, VELATHAM NIRMALENDRAN and NIRUSAN NIRMALENDRAN, 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-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 Richard Bogoroch, for the plaintiffs in all the actions Ian Mair and Bronwyn Martin, for the "Eaton Centre" defendants David Elman and Samantha Bonano, for the defendant, The Toronto Police Services Board

HEARD: November 4, 2020

Endorsement

[1] Another case conference was held before me on November 4, 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] In my October 9, 2020 endorsement, I decided that the TPSB and Eaton Centre defendants' summary judgment motions could proceed and, at paragraph 31(b) of that endorsement, I requested that the parties see if they could come to an agreement regarding certain procedural issues. I indicated that if there was no agreement, the parties should provide me with their respective proposals in advance of the next case conference.

[3] On October 21, 2020, the plaintiffs advised me that they were seeking leave to appeal my October 9 decision to Divisional Court. The parties advised that they expect a decision from the Divisional Court on the leave issue in January or February 2021.

[4] As there was no stay of my October 9 decision, I advised the parties that it was my intention to proceed with scheduling the summary judgment motions, however, I sought the parties' position on whether, in the circumstances of the pending appeal: (a) the next case conference scheduled for October 23 should proceed; (b) if I ordered that it proceed, when it should proceed; and (c) if I ordered that it proceed, why the plaintiffs could not provide their position regarding the scheduling of the summary judgment motions and the answers to the procedural questions on a without prejudice basis.

[5] The parties provided me with their responses which led me to proceed with a case conference, albeit rescheduled from the original October 23 date to November 4, 2020.

[6] On October 22 and November 3, the moving and responding parties respectively provided their answers to the procedural questions. There was no consensus and, in fact, complete disagreement between the two sides on everything from how many days should be scheduled for the motions, to which side should go first.

[7] On the November 4 case conference, the parties had an opportunity to further explain their positions. Broadly speaking, the plaintiffs, arguing in the alternative to their position that a trial, not summary judgment motions, is the appropriate procedure, sought a hearing of the summary judgment motions that would last between 14 to 17 days to accommodate the 5 experts presented by both sides who would be cross-examined viva voce at the hearing. As well, the plaintiffs sought a much longer timetable that would culminate in summary judgment motions being heard in mid-September 2021. Conversely, the moving parties sought a hearing over 6 days that would be heard in May 2021.

[8] Overall, I find that the plaintiffs' proposal is fundamentally flawed in that it contradicts the raison d'être of summary judgment motions, namely a summary and faster process for resolving an action: Hryniak v. Mauldin, 2014 SCC 7. A 14 to 17 day hearing that would only take place 10 months from now is starting to resemble a trial, not a summary judgment process as I have directed.

[9] Considerable time on the case conference was spent trying to balance providing sufficient time at the motions for the experts' evidence to be tested, with conservation of judicial resources. After a lengthy discussion on the case conference and after canvassing counsel's likely availability, I advised the parties of my decision regarding scheduling issues, which decision I have incorporated in my order at the conclusion of this endorsement.

[10] In my order, I have also sought to balance, from a scheduling perspective, the possible outcomes of the plaintiffs' appeal of my October 9 decision. If the plaintiffs are ultimately successful on their appeal, which means that the summary judgment motions do not proceed, my within order should not have caused them to waste resources; but conversely, if the plaintiffs' leave to appeal (or the appeal itself) is dismissed, the time between now and the dismissal should not be wasted waiting for the Divisional Court's decision.

[11] The parties advised me that they have been requested to attend Trial Scheduling court on November 18, 2020. The plaintiffs' position is that, despite their pending leave to appeal motion and the actions potentially being decided by way of summary judgment, it would make sense to secure trial dates now at Trial Scheduling court, rather than only doing so many months down the road when the trial date ultimately secured would be even further away. Conversely, the TEC defendants submitted that attendance at Trial Scheduling at this time is premature, and likely a waste of time. XXXX

[12] Further to question 7 of paragraph 31(b) of my October 9 endorsement, a discussion also took place at the case conference about the possibility of a sealing or related order being sought in respect of sensitive security or other information concerning the Toronto Eaton Centre. In their written responses to this question, the TEC defendants requested a sealing order, however, the plaintiffs opposed this request. Ultimately, I directed that it is the responsibility of any party that seeks such an order to bring a motion sufficiently in advance of the hearing of the summary judgment motions. The scheduling of such a motion, if pursued, should be discussed at a subsequent case conference.

[13] An order shall go as follows:

(a) The hearing of TPSB and TEC defendants' summary judgment motions shall be scheduled over 6 days namely May 20, 21, 25, 26, 27 and 28, 2021.

(b) The order of proceeding and time limits of evidence and argument shall be as indicated on the document attached as Schedule "A" to this endorsement, or as varied in the discretion of the motions judge.

(c) The moving parties' motion materials shall be served by Thursday, December 31, 2020.

(d) The responding plaintiffs' motion materials shall be served by Monday, March 1, 2021.

(e) The moving parties' reply materials (if any) shall be served by Friday, March 19, 2021.

(f) Cross-examinations of lay witnesses shall be completed by Friday, April 9, 2021.

(g) The moving parties' facta shall be served by Friday, April 23, 2021

(h) The responding plaintiffs' factum shall be served by Thursday, May 6, 2021.

(i) The moving parties' reply facta, if any, shall be served by Thursday, May 13, 2021.

(j) The parties shall provide a folder at www.sync.com and upload all parties' documents as set out in the directions attached to this endorsement.

(k) The hearing shall take place in a courtroom at 330 University Avenue, Toronto unless, for reasons related to the COVID-19 pandemic or other exigent reasons, the hearing needs to take place virtually.

(l) The parties shall advise me promptly as to the outcome of the plaintiffs' leave to appeal motion to Divisional Court, following which a case conference before me shall be promptly scheduled to discuss any further procedural issues.

[14] Costs of the case conference are reserved to the motions or trial judge.

Pinto J.

Date: November 6, 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.