On February 13th, Mr. Justice Peter Lawers of the Ontario Superior Court of Justice rejected a motion to dismiss a personal injury claim based on the defendant’s allegation of spoliation. The idea that spoliation claims should generally be settled at trial is not remarkable, but the Court did reject the defendant’s argument that spoliation claims relating to records of loss of earnings should be treated differently:
I am also alive to the real concern of the defendants, expressed on the issue of prejudice by Mr. Forget; in a case involving loss of income, the defendant should not be forced to gamble that the jury will appropriately punish the plaintiff for his failure to keep proper records when a loss of income case is normally based thereon.
Mr. Stephenson notes the irony in that position, since the plaintiff objected to the defendants’ jury notice on the basis that, as noted in the endorsement of Ferguson J., dated December 20, 2007:
That evidence would unfairly influence the verdict if trial were by jury. He relied on the evidence indicating the failure of the plaintiff to keep proper records that is potentially adversely affecting a jury’s assessment of his credibility or reliability – he used the term “trustworthiness.”
In upholding the jury notice, Ferguson J. held that:
The evidence of the plaintiff’s bookkeeping practices is directly relevant to his claim for damages and any affect of that evidence on his credibility and reliability is clearly a relevant factor which the jury may consider.
Also notable is the ambiguity in the claim, which seems to be more about bad record keeping than spoliation itself: “The heart of the problem from the viewpoint of the defendants is the lack of documents relating to Mr. Carleton’s income.” If there is no duty to keep records, there can be no valid spoliation claim when records are not available for production. This seems to be a simple case where bad business record keeping may prevent a plaintiff from meeting its burden of proving loss.