Case Commentary and Analysis Moffitt v TD Canada Trust, 2021 ONSC 6133

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Case Commentary and Analysis

Moffitt v. TD Canada Trust, 2021 ONSC 6133

Moffitt v. TD Canada Trust, 2023 ONCA 349

 

Our Exclusive Member in Toronto, Canada was retained to defend the Toronto Dominion Bank in relation to an assault and robbery at an Automated Teller Banking Machine. We successfully brought a summary judgment motion on the matter, which was appealed by the plaintiff. The Ontario Court of Appeal gave its ruling in May of this year and upheld the lower court’s decision to dismiss the matter.

The following is a summary and case comment on the two decisions.

Factual Background

On a May evening in 2013, Mr. Moffitt was using an Automated Teller Banking Machine (hereinafter “ATM”) at the Toronto Dominion Bank (hereinafter “TD Bank”) branch located on Warden Road, in the east end of Toronto, Ontario. While using the ATM Mr. Moffitt was assaulted by two other individuals in the TD Bank vestibule. His injuries were extensive and criminal charges were laid against the two assailants, Ferdinand Pangan and Jason Green. They were charged and convicted.

Mr. Moffitt then commenced a civil action for personal injury damages as against TD bank in negligence, stating that:

  • TD owed Mr. Moffitt a duty of care. 
  • TD breached that duty of care in several ways, namely:
    • Breaches of the duty to properly analyse the risks to customers at the ATM site.
    • Breaches of the duty to provide proper security at the ATM site; and,
    • Breaches of the duty to protect Mr. Moffitt from harm or to warn him of impending harm either immediately before or during the assault.

TD Bank denied any such breach. In the alternative, TD Bank pled that Mr. Moffitt cannot establish causation due to the random nature of the assault that took place, as well as the fact that Mr. Moffitt physically engaged with Mr. Pangan first.

TD Bank denied it breached its standard of care and brought a summary judgment motion on the issue. Expert evidence was tendered by both sides, in the areas of security, environmental criminology, public safety, risk measurement and emergency management. Some of the plaintiff’s expert testimony was excluded by the motion judge for various reasons, which are detailed further below.

The Issues

There were five issues in dispute at the motion:

  1. What evidence is admissible on a motion for summary judgment?
  2. Is this an appropriate case for summary judgment?
  3. What is the standard of care (of TD Bank) in this case?
  4. Did TD Bank breach this standard of care?
  5. Did any breach of the standard of care contribute or cause Mr. Moffitt’s injuries in any way?

Summary Judgment

Regarding issues 1 and 2, the motions judge determined, and later the Ontario Court of Appeal confirmed:

  • There is no special test for the granting of summary judgment when jury notice has been served. The Rules do not create a distinction between summary judgment for civil cases where jury notice is served and all other cases, and neither should the court.
  • The basis of Hryniak v Mauldin is to be followed, in that summary judgment should be granted when it is just and proportionate to do so. The distinction as proposed by the plaintiff would undermine the purpose of summary judgement, which is timely and cost-effective adjudication.
  • Consideration of jury notice is a factor in granting of summary judgment, but not a determinative one.
  • The Hryniak approach remains:
    • Do the claims or defence give rise to a genuine issue requiring trial?
    • If a judge concludes there is no genuine issue requiring a trial based on the evidentiary record, there will be a compelling reason to grant summary judgment.
    • The question of whether the summary judgment process “is a proportionate, more expeditious and less expensive means to achieve a just result”.
      • This will require a motion judge to compare the advantages and disadvantages of using the summary judgment process to determine the outcome of the case.

Standard of Care

The court considered the determinations made in Mustapha v Culligan, which established that the four elements of negligence are:

  • A defendant owed the plaintiff a duty of care.
  • A defendant’s behaviour breached the standard of care.
  • A plaintiff sustained damage.
  • That a plaintiff’s damages were caused, in fact and in law, by the breach of the duty of care.

Duty of care, in this case, arises from the Occupiers Liability Act, RSO 1990 c O2 Section 3(1):

  • Occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

TD Bank was an occupier, and Mr. Moffitt entered on the premises; TD Bank has a clear duty of care. The standard of care, however, fell to the question of whether TD Bank took reasonable steps to ensure Mr. Moffitt’s safety. This is measured against the objective standard of the reasonable person. It is noted that reasonableness does not equal perfection.

A defendant’s conduct is negligent if it creates an unreasonable risk of harm to the plaintiff. The plaintiff claimed the following breaches of the duty of care:

  • Breach of the duty to properly analyse the risks to customers at the ATM site;
  • Breach of the duty to provide proper security at the ATM site;
  • Breach of the duty to protect Mr. Moffitt from harm or to warn him of impending harm either immediately before or during the assault.

The court viewed the issue as this: What was the risk of harm to the plaintiff at the ATM machine on the night of the incident?

The court noted that, at law, just because an event takes place, it does not mean that it was reasonably foreseeable. Possibility does not equate to foreseeability.

TD Bank’s Duty to Assess the Risks

TD Bank was required to examine the general environment of the branch and determine what action should be taken in response to any relevant findings. The plaintiff and defendant both supplied various evidence to support and deny, respectively, that further security measures were necessary at the Warden branch.

This evidence included police reports, records, witness examinations of two Branch Managers of the Warden Branch, CAP reports (crime forecasting), CBC news reports, Toronto Police crime rates, affidavit evidence, other news sources, tangentially related legal decisions, gang-related videos, and other police call records.

On examination, the court found much of the plaintiff’s evidence unconvincing. On the other hand, the court considered the actual model of risk assessment that TD Bank used in the years preceding the incident and found that the branch had been correctly assessed as “low risk”. Even with the possibility that the branch’s assessment would have changed based on more accurate data reporting, it would have nevertheless remained in the lower end of the medium-risk category. The court also noted that a “low-medium-high” risk assessment was more nuanced than “low-high”, as the latter could result in a single incident changing an entire branch’s categorization.

In the circumstances, the branch had adopted the following measures:

  • Signage and advisory of video surveillance.
  • Bright lighting and high visibility.
  • Mirrors to assist with security issues.

The plaintiff claimed these measures to be insufficient. The court disagreed, noting that the branch was reasonably identified as a low-risk branch. However, the plaintiffs also presented several further measures that are suggested as being appropriate under the circumstances, each of which was defeated in turn:

  • Security guard(s).
  • Swipe entry/ability to lock ATM area.
  • Live CCTV monitoring.
  • Panic alarms.

Due to the low-risk assessment of the banch, security guards and CCTV monitoring would not have been a reasonable measure, nor would the latter have assisted in preventing random acts of violence in any meaningful way. Swipe entry/lockable ATM areas and panic alarms were also impractical, unreasonable, or non-assistive in preventing this type of assault. The court concluded that these measures may have protected the plaintiff from harm, but the unforeseeable nature of the assault in question indicates that they were not necessary for the bank to have employed.

Concluding on duty of care, the court noted that this was the first time an assault of this nature had ever occurred in this vestibule. TD Bank could not have foreseen this assault and therefore did not have a duty to warn the defendant. The court determined that TD Bank did not breach its duty of care in this case.

Appeal

On appeal, the plaintiffs raised three issues:

    1. the availability of summary judgment in a civil action in which a party has served a jury notice;
    2.  (ii) the motion judge’s exclusion of expert evidence; and,
    3. (iii) the fairness of the summary judgment process used in the case.

The Court of Appeal made the following findings:

    1. Summary judgment motions in civil jury actions do not require the application of the special test espoused in the decision of Roy v. Ottawa Capital Area Crime Stoppers. The Hryniak test and methodology apply to summary judgment motions brought in civil jury actions. Consequently, the motion judge did not commit legal error by applying the Hryniak test.
    2. The motion judge assessed the admissibility of each expert’s opinion evidence by applying the two-stage method – the four Mohan (R.V. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9) factors and the discretionary gate-keeping cost/benefit analysis described in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. The motion judge also gave detailed, structured reasons explaining which portions of the opinion evidence from two of the experts he was admitting and why he was excluding other portions of their evidence. The appellants had not demonstrated any reversible error made in the motion judge’s decision, and the motion judge had applied the correct legal principles.
    3. There was no evidence before the court to substantiate a claim that the plaintiffs did not receive a fair hearing.

The appeal was dismissed, and the decision of the lower court was affirmed.

Conclusion

These cases serve as landmarks for both summary judgment motions and occupiers’ liability in the context of financial institutions.

With regards to summary judgment motions, the court determined that jury notice should not have a determinative impact on whether summary judgment is granted. The methodology of Hryniak v Mauldin remains the authority on this point.

With regards to occupier’s liability, the court established that a proper assessment of the inherent risks of operating an unsupervised ATM are essential in establishing a duty of care for the bank.

If a bank uses adequate measures to consider whether a location is likely to allow harm to an individual and concludes that certain extra measures are not necessary, practical, or effective, they may be able to avoid being held liable for unforeseeable assaults or other claims.

Moffitt v. TD Canada Trust, 2021 ONSC 6133

Moffitt v. TD Canada Trust, 2023 ONCA 349

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