On August 18th, Master McLeod granted a plaintiff leave to amend its statement of claim to add an allegation of spoliation brought first on the eve of trial.
The action was brought by a doctor whose hospital privileges were revoked in 1991. He sought to add a claim that original notes of the board meeting at which his privileges were revoked were suppressed in a purposeful attempt to obscure relevant details of how the meeting unfolded. The spoliation allegation was made, in part, based on actions taken by the hospital’s former executive director and a member of the medical staff who the plaintiff alleged instigated the case against him because of a personal vendetta. The executive director was alive and denied the spoliation allegation, but the allegedly vindictive doctor had died sometime after 1991.
Master MacLeod held that the executive director had ultimate responsibility for preparation of the corporate minutes and could answer the spoliation claim. He also dismissed an argument that amendment should be denied because of the expiration of a limitation period, suggesting that spoliation should at least be available to the plaintiff as an evidentiary principle:
For the purpose of this motion it is therefore important to understand that while spoliation could be an independent cause of action in circumstances that are yet to be defined, it is not necessarily a separate cause of action. One might imagine that a court convinced that evidence has been destroyed or suppressed would first have to determine the case based on the available evidence and if the missing evidence is critical would have to decide whether to apply a spoliation negative inference. If the plaintiff is successful in proving its case on that basis, there would be no need to rely on a tort of spoliation. Moreover a court could sanction for destruction of evidence by other means including costs without resort to a novel tort. One might also suppose that spoliation could constitute an independent wrong for punitive damages purposes without being recognized as full fledged independent tort captured by the Limitations Act…
It follows that spoliation may give rise to either an evidentiary presumption or to sanctions or to both without being characterized as tortuous conduct. If an independent tort of spoliation does develop, then it is not possible to define with precision what it will ultimately look like nor when all elements of the cause of action will accrue. For these reasons, the Ontario Limitations Act, 2002 may or may not apply. The Limitations Act is not a bar to these amendments.
Consistent with his view that the litigation of the spoliation tort claim should be fully left to the trial judge, Master MacLeod also noted that the defendant could plead the Limitations Act in its defence.
Zahab v. Salvation Army,  O.J. 3250 (S.C.J.) (QL).