S. Pickering

Following a successful summary judgment motion dismissing the plaintiffs' action, the defendant TD sought partial indemnity costs of $231,077.50.

The plaintiffs argued for a reduction based on the principal plaintiff's impecuniosity, the novelty of the case, and excessive time claimed.

The court found that while the plaintiff's financial circumstances warranted some moderation, the novelty of the case did not justify a reduction as basic negligence principles applied.

The court also found some of TD's claimed time excessive, but noted the plaintiffs' conduct caused significant delay.

The court awarded TD costs of $130,000 inclusive of disbursements and HST.

The plaintiff was severely assaulted by another customer in the vestibule of a TD Bank ATM late at night.

The plaintiff sued TD Bank for negligence and breach of the Occupier's Liability Act, alleging inadequate security measures.

TD brought a motion for summary judgment to dismiss the action.

After conducting a voir dire to determine the admissibility of five expert reports, the court found that the assault was a random, unforeseeable event and that TD's security measures were reasonable for a low-risk branch.

The court granted summary judgment and dismissed the action against TD.

The plaintiff brought a motion to strike the defendant's jury notice due to significant trial delays caused by the COVID-19 pandemic.

The plaintiff argued that waiting for a jury trial would cause substantial financial prejudice, as his future income loss would convert to past income loss subject to statutory deductions.

The court found that the practical reality in the Central East Region meant a jury trial would be delayed until at least late 2022, whereas a judge-alone trial could proceed much sooner.

The motion was granted and the jury notice was struck to ensure the timely delivery of justice.

The defendant sought to proceed with a summary judgment motion, but an issue remained regarding the cross-examination of experts.

The plaintiff argued the matter was too complicated for summary judgment and should proceed to trial.

The court rejected this argument, holding that the defendant was entitled to have its motion heard.

The court directed that the experts be cross-examined in open court on all issues relating to their reports, not just their qualifications, to allow the court to exercise its gatekeeper function regarding the admissibility of the evidence.

The plaintiffs brought a motion to compel answers to follow-up questions posed in a written examination for discovery, following an earlier oral examination and a previous court order regarding refusals.

The underlying action involves an alleged assault in the defendant bank's ATM vestibule.

The court held that the plaintiffs were not entitled to conduct a full written discovery after an oral discovery without leave, but were permitted to ask reasonable follow-up questions arising from undertakings and refusals.

The court applied the principle of proportionality, limiting the scope of questions primarily to the specific branch where the incident occurred, and provided a detailed schedule ruling on each of the 40 disputed questions.