On May 21st, the Ontario Superior Court of Justice held that a kennel failed to meet it’s standard of care based on an inference it drew because of a missing record.
The plaintiff brought an action against the kennel after her dog needed to be euthanized shortly after its stay. Her theory was that the kennel should have been more attentive to her dog’s physical deterioration and intervened. The kennel argued that the deterioration occurred rapidly. However, it was hampered in making this argument because it had lost its record of the dog’s care.
The deputy judge did not make an express finding of bad faith, but did note that the owner’s evidence on the loss of the record was was “vague.” The record’s probative value being apparent, he drew an adverse inference and held that its loss “tipped the balance” in favor of the plaintiff on the issue of care.
This case is not earth-shattering, but is a nice scenario for raising the issue about whether negligent or reckless loss of a record is enough to support a spoliation remedy. In light of the Alberta Court of Appeal’s Black & Decker decision, the vague evidence finding was likely essential to the remedial award in this case.
Arnold v. Bekkers Pet Care Inc., [2010] O.J. 2153 (S.C.J.).
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