Case Report – Court says party ought to have taken counsel’s word about missing computer

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for production of a personal computer and criticized the moving party for proceeding in the face of a sworn statement by the opposing party’s solicitor that indicated the computer was gone.

The computer once contained information relevant to a loss of income claim. The plaintiff discarded it because it had broke down sometime after she printed and produced invoices from her personal business and sometime before a mediation attempt, which occurred slightly less than a year later. In the interim, the defendant made and sustained a request for electronic copies of the invoices.

When the defendant moved for production, plaintiff’s counsel wrote and later swore that the computer had been discarded and consented to allow the defendant to plead spoliation. Defence counsel persisted and generated some damning evidence in cross-examining the plaintiff’s witnesses, including a statement by the IT professional who the plaintiff relied upon, who said that he never actually examined the plaintiff’s computer.

Though the defendant was clearly onto something, Master Brott was not impressed that the defendant persisted despite the plaintiff’s agreement to deal with a spoliation claim and, in particular, plaintiff counsel’s statement that the computer was gone:

The circumstances leading up to this motion are in my view, a clear example of a proceeding going astray – of not being able to see the forest through the trees. Lawyers take oaths which require them to act in a professional manner. Defence counsel urged me to ignore the evidence of solicitor Sacks because of the contradictions obtained from the plaintiff’s boyfriend and the IT specialist. I am not prepared to ignore the solicitor’s Affidavit, nor the correspondence and telephone information from plaintiff’s counsel to defence counsel advising that the computer is no longer available. Whether the computer was in fact given to the IT specialist or is corrupted or is still available cannot be established at this stage. But what is critical is that counsel has sworn that the computer is no longer available. That should be the end of it! The rest is for trial.

… once [the Defendants] received plaintiff’s counsel’s correspondence outlining the corruption of the computer and the further information that the whereabouts of the computer were unknown and unrecoverable, the over-zealous actions of the defendants all the while knowing that even if successful, any Order could not be effective, was inappropriate. The rules encourage parties to proceed in a fair and inexpensive fashion and to attempt to resolve their disputes.

Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.).

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