Moffitt v. TD Canada Trust

Moffitt v. TD Canada Trust

A motion judge may grant summary judgment in an action despite a served jury notice by applying Hryniak/r.20; the motion judge properly exercised r.20 enhanced fact-finding powers and discretion, properly excluded Foster's expert evidence for failure to explain methodology and meet Mohan/White Burgess criteria, and the summary judgment process used was proportionate and procedurally fair; therefore the appeal is dismissed and summary judgment affirmed.

Citation
2023 ONCA 349
Parties
Plaintiff (appellant): Bruce Moffitt (by his Litigation Guardian Catherine Moffitt); Plaintiff (appellant): Catherine Moffitt; Plaintiff (appellant): Ella Bakker-Moffitt; Plaintiff (appellant): Lucas Porter-Bakker; Defendant (respondent): TD Canada Trust; Defendant (respondent): Ferdinand Pangan; Defendant (respondent): John Doe Jason Green
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 May 2023
Procedural Posture
Civil Appeal From Summary Judgment / Court of Appeal Decision (appeal)
Outcome
Appeal dismissed; summary judgment dismissing action against TD Canada Trust affirmed
Legal Topics
Summary Judgment, Jury Trial, Expert Evidence Admissibility, Procedural Fairness, R.20 Rules of Civil Procedure, Hryniak Application, Mohan Test, Gatekeeping
Source Language
English
Civil Tort Occupiers' Liability Negligence Civil Procedure Evidence Summary Judgment Jury Trial +6 more

Case Brief

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Parties

Bruce Moffitt (by his Litigation Guardian Catherine Moffitt)

Plaintiff (appellant)

Catherine Moffitt

Plaintiff (appellant)

Ella Bakker-Moffitt

Plaintiff (appellant)

Lucas Porter-Bakker

Plaintiff (appellant)

TD Canada Trust

Defendant (respondent)

Ferdinand Pangan

Defendant (respondent)

John Doe Jason Green

Defendant (respondent)

Procedural Posture

Civil Appeal From Summary Judgment / Court of Appeal Decision (appeal)

Legal Issues

  1. 1 Whether summary judgment is available where a party has served a jury notice
  2. 2 Whether expert opinion evidence (Lance Foster) was admissible on summary judgment
  3. 3 Whether the summary judgment process used was procedurally fair to the appellants

Ratio Decidendi

A motion judge may grant summary judgment in an action despite a served jury notice by applying Hryniak/r.20; the motion judge properly exercised r.20 enhanced fact-finding powers and discretion, properly excluded Foster's expert evidence for failure to explain methodology and meet Mohan/White Burgess criteria, and the summary judgment process used was proportionate and procedurally fair; therefore the appeal is dismissed and summary judgment affirmed.

Court Disposition

Appeal dismissed; summary judgment dismissing action against TD Canada Trust affirmed

Orders

  • Appeal dismissed
  • Summary judgment dismissing TD Canada Trust from action is affirmed