Arbitration board dismisses spoliation motion

On May 6th, the Ontario Grievance Settlement Board dismissed a union motion for the ultimate spoliation remedy – granting of a grievance based on an abuse of process.

The Union made its motion in a seemingly hard fought discipline and discharge case. The Union’s pursuit of electronically stored information “to review the life cycle of certain documents that were exhibits in order to test the integrity and reliability of the documents” began after the employer had put its case in through 40 days of witness testimony. The ESI motion itself took 13 days, and at some point the employer agreed to conduct a forensic examination of certain data. Unfortunately, just before it was about to pull the data, three computers were wiped as part a routine hardware renewal process. Ooops.

Based on two more hearing days the Board held the destruction of the data was inadvertent and not even negligent. Arbitrator Petryshen said:

It is not surprising that the Employer or FIT did not arrange for the imaging of the three bailiff computers prior to September of 2017 because no one considered that there was a risk of losing that data.  Although management at the OTO unit and FIT knew that government computers were replaced every four years, it was reasonable for OTO management to expect that they would be notified when the computers in OTO unit were about to be refreshed. 

Although this is quite forgiving, Arbitrator Petryshen’s finding that the “the granting of grievances due to a loss of potentially relevant documents is an extraordinary remedy” is quite consistent with the prevailing law. In 2006, the Court of Appeal for Ontario quashed an arbitration award that allowed a grievance based on an employer’s inadvertent destruction of relevant evidence, and the Court of Appeal for Alberta’s leading decision in Black & Decker says that even negligent destruction of relevant evidence will not amount to an abuse of process.

Ontario Public Service Employees Union (Pacheco) v Ontario (Solicitor General), 2020 CanLII 38999 (ON GSB).

Turn in the tide on Facebook photos as evidence?

I believe we’re seeing a slow retreat from the view expressed in Leduc v Roman, a 2009 Ontario case in which Justice Brown suggested photos on Facebook are presumptively relevant (in a non-production scenario) when a Facebooking plaintiff claims loss of enjoyment of life.

Stewart v Kempster is the new Ontario case that awkwardly distinguishes Leduc and is similar to Fric v Gershman from British Columbia. Both suggest that pictures of people who claim to have suffered a loss of enjoyment of life lounging around looking happy are generally not relevant (or have limited probative value), but pictures of skydiving, surfing and other action photos might be different.

Now, from British Columbia again, we have the following statement from Dakin v Roth, a January 8th British Columbia Supreme Court trial decision in which the plaintiff produced Facebook photos that the defendant adduced, perhaps without dispute. Justice Cole says:

The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v Narayan, 2012 BCSC 734 (CanLII), 2012 BCSC 734 (at para. 30) in respect to Facebook photos: “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

Hat tip to Erik Magraken of the BC Injury Law and ICBC Claims Blog. Here is a link to an archive of Erik’s posts on Facebook photos in British Columbia personal injury cases.