Party can assert a duty to ensure relevant evidence held by another is preserved

On June 7th, the Ontario Superior Court of Justice dismissed a partial summary judgement motion, thereby allowing a defendant to plead that the plaintiff had committed spoliation by failing to obtain a piece of plastic she had ingested after it was surgically removed. The plaintiff argued that the pleading should be struck because there was no claim that she ever had power, possession or control of the piece of plastic (which was lost by the hospital at which she was treated). Justice Quigley held that summary judgement is not a means to strike part of a defence and that the defence pleaded was novel yet “legally tenable.”

Melissa Topp v. Costco Wholesale Canada Ltd., 2012 ONSC 3354 (CanLII).