In a tobacco liability appeal, the estate challenged an order striking portions of a statement of claim alleging intentional spoliation of evidence by tobacco manufacturers.
The Court of Appeal held that the novel spoliation claim should not be struck on an interlocutory motion because it was not plain and obvious that it could not succeed, and questions about recognition of the tort should be determined at trial on a full record.
The court further held that omnia praesumuntur contra spoliatorem is a rule of evidence, not a point of law that must be pleaded, so that paragraph was properly struck.
The appeal was allowed in part, the cross-appeal was dismissed without costs, and the appellant received costs of the motion and appeal.
