via CanLII – 2008 BCCA 468 (CanLII).

Holland v. Marshall, 2008 BCCA 468 (CanLII)

[77]           Some early Canadian spoliation cases lend some support for the Report’s recommendation in that the cases required the spoliator to have acted deliberately and with fraudulent intent, but once the alleged spoliator’s action resulted in another party being deprived of the ability to prove or disprove some part of the case, the burden of proof with respect to intent was to be born by the alleged spoliator as the creator of the predicament: see Robert Kligman, “Spoliation: Does the Punishment fit the Crime?” (1999) 22 Advocates’ Q. 109 at 109-110, citing Lindsay v. Davidson (1911), 1911 CanLII 105 (SK CA), 1 W.W.R. 125 (Sask. C.A.); R. v. Chlopek (1912), 1 D.L.R. 96 (B.C.C.A.); and Cotter v. Osborne (1909), 10 W.L.R. 354 (Man. C.A.).

[78]           In Dyk, the judge held that spoliation required intentional destruction indicative of fraud or an intent to suppress the truth.  This conclusion was primarily based on a review of United States decisions, from which the judge concluded that mere negligence was an insufficient basis for drawing the spoliation inference.  In Dawes, the Insurance Corporation of British Columbia (“ICBC”) had destroyed the vehicle at issue in the motor vehicle accident litigation before the plaintiff was able to have his experts inspect it.  ICBC’s expert had prepared a report on his inspection of the vehicle, which was damaging to the plaintiff’s case.  Justice Boyd dismissed the plaintiff’s claims regarding spoliation in part on the basis that the destruction had not been shown to have been done in bad faith or with malice, and admitted ICBC’s expert report.  The plaintiff appealed, arguing on the authority of American case law that evidence adduced by the party who destroyed the vehicle should be excluded, even if the destruction was only negligent rather than deliberate.  This Court did not rule on whether there was a negligence theory of spoliation in Canada as well as the bad faith test, holding that there was no proof of negligence in the case as ICBC had no common law duty of care not to destroy property which may possibly be required for evidentiary purposes.  The trial level decisions in Dyk and Dawes holding that for a finding of spoliation there is a requirement that the destruction must be intentionally done through bad faith, and not as a result of mere negligence, have been followed in other jurisdictions at the trial level: see Osepchuk v. Tim Hortons, 2003 ABQB 364 (CanLII); Enterprise Excellence Corp. v. Royal Bank of Canada (2002), 2002 CanLII 49637 (ON SC), 20 C.P.R. (4th) 34 (Ont. S.C.J.).  However, in Dickson v. Broan-NuTone Canada Inc., [2007] O.J. No. 5114 (S.C.J.) at para. 42, Justice Himel stated that he was “not convinced that the Ontario jurisprudence requires evidence of an intention to defraud in order for the spoliation inference to apply”.

[79]           Bart Wilhoit in “Spoliation of Evidence: the Viability of Four Emerging Torts” (1999) 46 UCLA L. Rev. 631 at 647-648, notes that some American jurisdictions allow an inference or presumption when the spoliator acted only negligently, but Judge, at 445, points out that application of the spoliation inference is found predominantly in intentional destruction cases and that accidental or negligent loss of evidence is rarely punished by adverse inference.  Some commentators argue that an injured party should be compensated for negligent, as well as intentional, spoliation:  Judge, at 464-467, and Stefan Rubin, “Tort Reform: a Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence (1999) 51 Fla. L. Rev. 345 at 369.  The basis for this argument is that from a remedial perspective it makes no difference whether the spoliation occurred intentionally or negligently; the plaintiff suffers the same damage.

[80]           Whether the case authorities on which Brooke J. relied may have placed unwarranted limits on the evidentiary presumption and its application is not a question we have to decide in this case.  That is so because of the nature of Ms. Holland’s argument.  Her submission is that the destruction of her hospital records would provide support, by way of adverse inference, for her pleas of fraud or breach of fiduciary duty.  In the face of the evidence, I am of the view that Ms. Holland’s submission, which is grounded in assertions of deliberate destruction of evidence to defeat her claims, is untenable.

[81]           As stated earlier in these reasons, the Hospital had a policy in place at the time Ms. Holland’s records were destroyed.  The policy was to destroy adult records after the lapse of 11 years and infant records, after 26 years.  Justice Brooke found that before Ms. Holland’s records were destroyed, litigation was neither threatened nor reasonably apprehended by the Hospital or any of the other defendants.  In this case, the circumstances surrounding the destruction of the records would not support an inference that they were destroyed fraudulently or with the intent of defeating a claim.

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