The plaintiffs moved for partial summary judgment under Rule 20 of the Rules of Civil Procedure seeking to strike a paragraph of the defendant’s amended statement of defence pleading spoliation of evidence.
The motion arose from a product liability action alleging that a piece of plastic found in a sandwich bun caused injury, where the plastic specimen removed during surgery was later lost by the hospital.
The court held that Rule 20 summary judgment is not properly used merely to strike a defence pleading where doing so would not resolve the underlying claim or avoid a trial.
The court also found that the defence had previously been acknowledged as legally tenable and that factual issues concerning the loss of evidence and potential obligations to preserve evidence remained unresolved.
The motion was dismissed.
