A June 30th Manitoba Court of Queen’s bench decision nicely illustrates that an adverse inference for spoliation requires proof of intentional misconduct.

The Court held that the plaintiff contributed to her slip and fall injury because she was wearing her sunglasses at dusk. The defendant’s evidence supporting this conclusion went in through a witness who viewed the incident as it occurred via feed from a surveillance camera and testified that the plaintiff was wearing her sunglasses. The defendant also adduced a photo frame taken from the surveillance tape that showed the plaintiff holding her sunglasses in her hand after the accident. The defendant destroyed the tape itself, however, even though it had made a preservation request to its security department.

The Court rejected the plaintiff’s argument for an adverse inference because it had not proved the tapes were destroyed intentionally (citations omitted):

…there is no evidence that the tape was intentionally or deliberately destroyed so as to justify any spoliation inference, i.e., the presumption that intentionally destroyed evidence would tell against the spoliator. I cannot infer that the evidence was destroyed to affect the litigation. There is no indication that Ms. Park had anything to do with the tape being unavailable (the only evidence the court heard in this regard was hearsay – Ms. Park was told it was taped over). Nor can I conclude that the unavailability of her notes was due to any deliberate act. In any event, Ms. Park saw the incident as it occurred through the camera and she was subject to cross-examination. She maintained that Ms. Kulynych was wearing sun-glasses. I found her to be convincing in her evidence and forthright and reliable.

The Court did not consider whether a remedy should be granted under the abuse of process doctrine in consideration of the apparent prejudice to the plaintiff, though the Alberta Court of Appeal’s leading Black & Decker case suggests that an abuse of process remedy will also only be available if there is proof of intentional spoliation.

Kulynych v. Manitoba Lotteries Corp., 2009 MBQB 187 (CanLII).

On February 13th, Mr. Justice Peter Lawers of the Ontario Superior Court of Justice rejected a motion to dismiss a personal injury claim based on the defendant’s allegation of spoliation. The idea that spoliation claims should generally be settled at trial is not remarkable, but the Court did reject the defendant’s argument that spoliation claims relating to records of loss of earnings should be treated differently: 

I am also alive to the real concern of the defendants, expressed on the issue of prejudice by Mr. Forget; in a case involving loss of income, the defendant should not be forced to gamble that the jury will appropriately punish the plaintiff for his failure to keep proper records when a loss of income case is normally based thereon.

Mr. Stephenson notes the irony in that position, since the plaintiff objected to the defendants’ jury notice on the basis that, as noted in the endorsement of Ferguson J., dated December 20, 2007:

That evidence would unfairly influence the verdict if trial were by jury.  He relied on the evidence indicating the failure of the plaintiff to keep proper records that is potentially adversely affecting a jury’s assessment of his credibility or reliability – he used the term “trustworthiness.”

In upholding the jury notice, Ferguson J. held that:

The evidence of the plaintiff’s bookkeeping practices is directly relevant to his claim for damages and any affect of that evidence on his credibility and reliability is clearly a relevant factor which the jury may consider.

I agree.

Also notable is the ambiguity in the claim, which seems to be more about bad record keeping than spoliation itself: “The heart of the problem from the viewpoint of the defendants is the lack of documents relating to Mr. Carleton’s income.” If there is no duty to keep records, there can be no valid spoliation claim when records are not available for production. This seems to be a simple case where bad business record keeping may prevent a plaintiff from meeting its burden of proving loss.

Carleton v. Beaverton Hotel, 2009 CanLII 4245 (CanLII).

On November 18th, the British Columbia Court of Appeal dismissed an appeal in which allegations of spoliation were made. The outcome is not remarkable, as the claim was based on the routine destruction of records pursuant to policy before litigation was reasonably contemplated. In a testament to how interesting this issue has become, however, Madam Justice Rowles went on gratuitously about spoliation in great detail, describing the debate about the doctrine in both Canadian and American law. If you too are interested in the issue, this case is worth a read.

Holland v. Marshall, 2008 BCCA 468 (CanLII).

This might be the first award in which the Ontario Superior Court of justice has considered a tort claim for spoliation since the Ontario Court of Appeal held, in Spasic Estate, that a claim based on the tort of spoliation should not be struck out for failing to disclose a reasonable cause of action.

The case is about a claim to the proceeds of an estate. The plaintiff established that the defendant arranged to have the testator’s computer wiped after the plaintiff threatened litigation and after he had received correspondence from the plaintiff’s counsel. The plaintiff also established that there was at least one e-mail destroyed (which was later produced from a third-party) which supported his claim that the defendant asserted undue influence over the testator.

In very brief treatment the Court seems to accept that a claim for tort damages for spoliation can be made out on mere proof of bad faith destruction of evidence. However, in rejecting the claim it implied that prejudice is also a requirement. It said:

In my opinion, this e-mail is no more unfavourable to William Jr. than other e-mails that he did produce that show his involvement with William Sr.’s dispute with Frank. In light of this and in view of the significant documents that William Sr. did produce, I am unable to conclude that William Jr. intentionally destroyed relevant evidence.

The Court did not consider whether the defendant had a positive duty to take reasonable steps to preserve the testator’s computer or the nature and extent of such a duty.

Tarling v. Tarling, 2008 CanLII 38264 (ON S.C.).