Ontario Court of Appeal rejects assault victim’s appeal in a lawsuit against TD Canada Trust

He was attacked one evening when he was using an ATM in TD’s Warden Avenue branch

Ontario Court of Appeal rejects assault victim’s appeal in a lawsuit against TD Canada Trust

The Ontario Court of Appeal has rejected the appeal of a man assaulted in the ATM vestibule of TD Canada Trust.

In 2013, Ferdinand Pangan and Jason Green assaulted Bruce Moffitt when he was using an ATM in the vestibule of TD Canada Trust's branch in Warden Avenue, Toronto. Moffitt sustained severe injuries and was in a coma for a month. Moffitt sued his assailants and claimed damages against TD based on the occupier's liability and negligence.

Moffitt served a jury notice. TD moved for summary judgment dismissing the action against it because there was allegedly no genuine issue requiring a trial regarding its liability. The judge granted TD's motion and dismissed the case.

Jury notice does not preclude summary judgment

Moffitt raised the matter to the Ontario Court of Appeal, contending that the motion judge committed an error in dismissing the action. Moffitt sought to set aside the summary judgment and restore the action to be tried by a civil jury. He acknowledged that delivering a jury notice did not preclude a court from granting summary judgment. He argued that a special test should apply to summary judgment motions in civil actions where a party has delivered a jury notice. He argued that summary judgment should only be granted in a civil jury action "where the evidence is such that no reasonable jury properly instructed could find for the plaintiff."

The motion judge disagreed that a special test should apply to summary judgment motions brought in civil jury actions, as that would be inconsistent with the directions of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. In that case, the SCC held that summary judgment should be granted when it is just and proportionate to do so.

The motion judge emphasized that the existence of a jury notice is simply one of the many factors to consider when determining whether to grant summary judgment, including whether it was in the interests of justice to use the expanded fact-finding powers of the court.

The motion judge did not regard the case as a complex factual dispute. He acknowledged that several groups of facts were not in dispute, including those regarding the assault, the crime levels at the TD branch and the surrounding community, and the risk assessments TD performed before and after the assault. In the circumstances, the motion judge was convinced that the summary judgment process could resolve the matter.

Moffitt argued that the motion judge's "simplistic approach" was improper in a case where the fact-finding exercise would involve weighing the reasonable risks of allowing access at night to unsupervised ATMs against the potential harm they could cause or facilitate, a classic role for a jury to perform as it engaged societal views. He further asserted that a jury likely would have brought a broader perspective to bear on the evidence in this case and would have weighed it differently than a motion judge.

The ‘Hryniak’ test

The appeal court analyzed the broad perspectives the SCC's Hryniak decision brought to evaluate civil adjudication tools. The court explained that a jury trial is not available in all civil actions. If an action qualifies for a civil jury trial, a party must elect a jury trial by filing a formal notice. The court may set aside that election at the other party's request for just or compelling reasons.

The appeal court emphasized that a jury notice does not preclude a court from granting summary judgment in an action. The parties in a civil action could move for summary judgment after delivering a statement of defence, including actions in which a party has served a jury notice. Ontario law also allows the court to interfere with a party's jury trial election for just cause or compelling reasons.

The court said it shall grant summary judgment “if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." The motion judge has evidence-weighing and fact-finding powers to assess whether a genuine issue requiring a trial exists.

The appeal court explained that Hryniak identified the test a motion judge should apply to ascertain whether a genuine issue requiring a trial exists. The decision also sets out the methodology a judge should follow to make such an assessment. Judges must first decide if a genuine issue requires a trial based only on the evidence before them, without using the judge's enhanced fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should determine if the need for a trial could be avoided using his fact-finding powers.

Moffitt argued that summary judgment should only be granted in a civil jury action if the special summary judgment test is satisfied. This test requires "the evidence is such that no reasonable jury properly instructed could find for the plaintiff." However, the appeal court rejected Moffitt’s contention. The court explained that adopting a special summary judgment test for civil jury actions would create two categories of summary judgment motions—those brought in civil jury actions and those brought in all others.

Creating two categories of summary judgment motions would undermine the needed "culture shift" directed by the SCC in Hryniak by impeding the development of adjudication models that offer convenient and cost-effective alternatives to conventional trials, whether judge alone or with a judge and jury. The court also said Moffitt's proposed special test would replace the Hryniak test and methodology with the much narrower test used for a directed verdict in a civil trial.

The court concluded that the Hryniak test and methodology apply to summary judgment motions in civil jury actions. As a result, the motion judge did not commit a legal error using the Hryniak test. The court, accordingly, dismissed Moffitt’s appeal.

 

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