Case Report – Ontario court says spoliation inference doesn’t hinge on bad faith

In this product liability case, the Ontario Superior Court of Justice dismissed a defendant’s motion for a spoliation inference brought because the plaintiff destroyed a ventilation fan that it later argued had caused the damaging fire.

The plaintiff ultimately failed in making its claim that the defendant breached a duty to warn them of the inherent dangers in using the fan and the need to address these dangers through regular maintenance. The plaintiff did, however, meet its first evidentiary hurdle – proof that the fan actually caused the fire, a point disputed by the defendant partly based on the plaintiff’s destruction of the fan.

The fire occurred in mid-September. The fire inspector from the local fire department concluded the fan had caused the fire, and in early October the plaintiff’s insurer retained an expert who reached the same conclusion. In February of the following year the expert disposed of the fan after receiving an instruction from the plaintiff’s insurance adjuster. The plaintiff filed its claim over three and a half years later. Given the missing evidence, the defendant produced an expert report that was based on a review of photographs and other documentary production rather than the fan itself.

The Court made a number of broad statements in disposing of the spoliation motion. Most significantly, it held that in Ontario (as opposed to the approach seemingly favoured British Columbia) proof of bad faith is not required to support an inference that the evidence destroyed would have been favourable to the party who destroyed it. There are other elements of the spoliation decision that are more difficult to decipher but, in the end, the Court decided for the defendant on other grounds.

Dickson v. Broan-NuTone Canada Inc., [2007] O.J. No. 5114 (Q.L.) (S.C.J.).


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