Case Report – Court says duty to preserve doesn’t spring from mere happening of adverse event

27 Dec

On December 7th, the Ontario Superior Court of Justice dismissed a motion for an adverse inference based on the destruction of hospital records.

The hospital destroyed, during a routine purge, a medical chart related to a minor’s labour and delivery more than ten years after the procedure but less than ten years from the minor’s 18th birthday. The Court held that the destruction of the chart was inadvertent rather than intentional. Its reasoning is very fact-specific but for the following comment on one of the bases the plaintiff raised in support of an inference:

He also submitted that the fact of an adverse outcome [in the medical procedure at issue] is sufficient to suggest motivation to destroy records. I reject these submissions. Many medical procedures and hospitalizations may not have the desired outcome, but that does not automatically lead to the conclusion there will be litigation.

This is a (thankfully) forgiving take on the duty to preserve.

Gutbir v. University Health Network, 2010 ONSC 6752 (CanLII).


One Response to “Case Report – Court says duty to preserve doesn’t spring from mere happening of adverse event”


  1. January 7th weekend “Top 20 … plus more” – a compendium of e-discovery articles and upcoming events | The Electronic Discovery Reading Room - January 10, 2011

    […] Case Report – Court Says Duty To Preserve Doesn’t Spring From Mere Happening Of Adverse Even… by Dan Michaluk […]

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