Moffitt v. TD Canada Trust, 2023 ONCA 349

In this case, the Plaintiff was at a TD branch in Scarborough in May 2013, using a bank machine in the vestibule during the evening. As he was leaving, he started a fight with two young men waiting behind him. The Plaintiff was badly beaten as seen on surveillance video, leaving him with lasting impairments. The Plaintiff’s attacker was charged and subsequently convicted, having to serve significant jail time. The Plaintiff sued the two young men, who never defended the action, as well as TD. The Plaintiff alleged that TD had failed to keep him safe, by not having a security guard in place, not having conducted a “risk assessment” and letting the bank machine be open at night in a supposedly high crime neighborhood. David Zuber brought a summary judgment motion on behalf of TD which was ultimately heard in March 2020. The motion judge, Justice LeMay, took over a year to write his decision, and released it in September 2021, granting TD’s motion for summary judgment motion and dismissing the action.

The Plaintiff appealed based on three issues: (i) the availability of summary judgment in a civil action in which a party served a jury notice; (ii) the motion judge’s exclusion of expert evidence; and (iii) the fairness of the summary judgment process used in this case. The Court of Appeal found no merit to any of the Plaintiff’s arguments and dismissed the appeal in favour of TD.

This will likely be the leading case on the importance of jury notices in the context of a summary judgment motion.