E. Neal

In a negligence jury trial arising from an alleged fall on a public transit bus, the plaintiffs sought to rely on the doctrine of spoliation after video footage from the bus surveillance system was overwritten pursuant to the transit authority’s standard 15‑hour retention policy.

The court considered whether the defendant intentionally destroyed relevant evidence in circumstances giving rise to a rebuttable presumption that the evidence would be unfavourable.

The evidence showed the footage was automatically overwritten under established policy before any notice of litigation and without authority for supervisors to download the footage absent police authorization.

The court held there was no factual foundation for intentional destruction of evidence related to contemplated litigation.

The issue of spoliation and any adverse inference was therefore removed from the jury.

The plaintiffs brought a motion shortly before trial alleging spoliation of video evidence by the defendant relating to a bus incident in which the plaintiff claimed injury due to driver negligence.

They sought to strike the defendant’s statement of defence, alternatively an adverse inference regarding the missing video, and exclusion of testimony from certain witnesses.

The court reviewed the governing principles of spoliation and emphasized that determinations regarding whether spoliation occurred and the appropriate remedy are generally best addressed by the trial judge.

Given the proximity of the trial and the intertwined nature of any potential remedy with the trial process, the motion was referred to the trial judge for determination.

Costs of the motion were reserved to the trial judge.