A June 30th Manitoba Court of Queen’s bench decision nicely illustrates that an adverse inference for spoliation requires proof of intentional misconduct.
The Court held that the plaintiff contributed to her slip and fall injury because she was wearing her sunglasses at dusk. The defendant’s evidence supporting this conclusion went in through a witness who viewed the incident as it occurred via feed from a surveillance camera and testified that the plaintiff was wearing her sunglasses. The defendant also adduced a photo frame taken from the surveillance tape that showed the plaintiff holding her sunglasses in her hand after the accident. The defendant destroyed the tape itself, however, even though it had made a preservation request to its security department.
The Court rejected the plaintiff’s argument for an adverse inference because it had not proved the tapes were destroyed intentionally (citations omitted):
…there is no evidence that the tape was intentionally or deliberately destroyed so as to justify any spoliation inference, i.e., the presumption that intentionally destroyed evidence would tell against the spoliator. I cannot infer that the evidence was destroyed to affect the litigation. There is no indication that Ms. Park had anything to do with the tape being unavailable (the only evidence the court heard in this regard was hearsay – Ms. Park was told it was taped over). Nor can I conclude that the unavailability of her notes was due to any deliberate act. In any event, Ms. Park saw the incident as it occurred through the camera and she was subject to cross-examination. She maintained that Ms. Kulynych was wearing sun-glasses. I found her to be convincing in her evidence and forthright and reliable.
The Court did not consider whether a remedy should be granted under the abuse of process doctrine in consideration of the apparent prejudice to the plaintiff, though the Alberta Court of Appeal’s leading Black & Decker case suggests that an abuse of process remedy will also only be available if there is proof of intentional spoliation.
Kulynych v. Manitoba Lotteries Corp., 2009 MBQB 187 (CanLII).