BC access decision quashed for improper consideration of expert evidence

On January 8th, the Supreme Court of British Columbia quashed an access decision because the Commissioner admitted opinion evidence, but did not consider it to be expert evidence.

The Court differed with the Commissioner in finding that the opinion was “necessary” to resolve an issue about whether the disclosure of sales data, by postal code, could reasonably be expected to cause economic harm to the British Columbia Lottery Corporation. The Commissioner held that the opinion was unnecessary because it went to the very question before her. The Court held that the opinion was necessary because it went to constituent facts such as whether the data had monetary value and could provide grey market competitors with a competitive advantage. Given the opinion met the criteria for admissibility, the Court held the Commissioner erred in law by failing to consider it as expert evidence. It said, “Opinion evidence is only admissible as expert evidence.”

British Columbia Lottery Corporation v Skelton, 2013 BCSC 12 (CanLII).

Case Report – Duty to mitigate weighs against preservation of evidence

In this October 5th Ontario Superior Court of Justice decision, Patillo J. held that a party’s duty to mitigate loss weighed against its duty to preserve relevant evidence.

The case is about damage to high-priced Persian carpets caused while they were under the defendant’s carriage. The defendant made two claims of spoliation, both of which were rejected.

First, the defendant asked that an adverse inference be drawn because the plaintiff could not produce records of similar carpet purchases. Patillo J. disagreed with the defendant’s assertion that the missing records would have been evidence of the value of the carpets that were damaged and rejected its request.

The defendant also claimed that evidence of damage to the carpets was unavailable because the plaintiff sold the carpets shortly after it delivered them into the plaintiff’s possession. Patillo J. held that the dispute was live when the carpets were still in the defendant’s possession. Moreover, he held that the plaintiff was blameless for selling the carpets because it had a duty to mitigate and put the defendant on notice of its mitigation plans:

In my view the presumption does not arise in this case in respect of the carpets. KLM submits that the issue of discoloration and whether the damage to the carpets was irreparable only arose in December 2000. In my view it was clear that the issue of damage to the carpets was one that had been in existence from the time that the carpets were returned by the US Customs Authority in April 2000. Following their return, KLM had the carpets in its possession for many months before World of Art reclaimed them. It retained Mr. Mekhael, its carpet expert, in April 2000 for the express purpose of determining the extent of the damage to the carpets. He looked at the carpets on at least two occasions before December 2000. He had ample time to inspect the carpets and document their condition.

Mr. Ziai testified that he thought Mr. Mekhael wanted to put chemicals on the carpet to test it and that is why he refused permission for testing on December 1, 2000. On December 2 and 3, 2000, after Mr. Mekhael had been refused permission to test a carpet, the carpets were put on public auction by World of Art. KLM’s lawyers were present at the auction. There was nothing to prevent KLM from buying a carpet if it felt it was necessary. The offer to purchase it made on December 8, 2000, was not firm in that it contained no specific price. In any event, if testing of the carpets was so important to KLM, it still had time to move in the Action for an order to preserve property and/or to test. World of Art and Mr. Ziai were proceeding to mitigate World of Art’s damages by selling the carpets. KLM knew that but took no steps to secure a carpet for testing beyond its general offer to purchase. In the circumstances, I am hard pressed to understand how the presumption in respect of spoliation arises.

Ziai v. Maatschappij (KLM Royal Dutch Airlines), 2007 CanLII 41896 (ON S.C.).