COURT OF APPEAL FOR ONTARIO
ABELLA, BORINS and SHARPE JJ.A.
BETWEEN:
C. GRAY RINTOUL, TREVOR RINTOUL and TRACEY RINTOUL by their Litigation Guardian C. Gray Rintoul, LYNNE FERREIRA and LISA EDGINGTON
Appellants by Cross-Appeal (Plaintiffs)
- and -
ST. JOSEPH’S HEALTH CENTRE, SARNIA GENERAL HOSPITAL, ST. JOSEPH’S HEALTH CARE CENTRE, THE WELLESLEY HOSPITAL, THE CANADIAN RED CROSS SOCIETY, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, BAYER CORP. and BAYER INC.
Respondents by Cross-Appeal (Defendants)
AND BETWEEN
ALMA ROBB as Executrix of the Estate of L. WAYNE ROBB, deceased, ALMA ROBB, DOUGLAS ROBB, HEATHER ROBB, by her Litigation Guardina Alma Robb, EDNA ROBB and GEORGE ROBB
- and -
ST. JOSEPH’S HEALTH CARE CENTRE, VICTORIA HOSPITAL, THE CANADIAN RED CROSS SOCIETY and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Respondents by Cross-Appeal (Defendants)
AND BETWEEN
CHRISTOPHER FARROW, also known as CHRISTOPHER LE BLANC, STEPHANIE BEAULIEU and STEVEN FARROW by their Litigation Guardian JOANNE FARROW, and the said JOANNE FARROW
Appellants by Cross-Appeal (Plaintiffs)
- and -
THE CANADIAN RED CROSS SOCIETY and THE HOSPITAL FOR SICK CHILDREN and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Respondents by Cross-Appeal (Defendants)
Counsel:
Mario Pietrangeli and James Maloney, for Her Majesty the Queen in Right of Ontario, Respondent by Cross-Appeal (Moving party)
Kenneth Arenson, for the Appellants by Cross-Appeal (Respondents)
Heard: February 5, 2001
SHARPE J.A.:
1Her Majesty The Queen In Right of Ontario (Ontario) moves to quash those portions of the plaintiffs’ cross-appeals seeking awards of punitive, exemplary or non-compensatory damages for the tort of spoliation. The plaintiffs did not initially plead spoliation, but well in advance in trial they obtained an order granting them leave to amend their statement of claim to assert such a claim. That order was set aside on appeal by order of the Divisional Court on October 15, 1998 ((1998), 1998 18875 (ON SC), 166 D.L.R. (4th) 158). Writing for the majority, O’Driscoll J. held that spoliation should be seen as an evidentiary rule raising a presumption against the party guilty of the destruction of evidence and not as a stand-alone, independent tort. Corbett J. dissented and would have allowed the claim to proceed to trial. The Divisional Court’s judgment was handed down on the eve of trial and the plaintiffs did not seek leave to appeal.
2Ontario says that as between the parties, the issue of the plaintiffs’ claim for damages for spoliation was conclusively determined by the order of the Divisional Court and that the cross-appeal asserting such a claim should be quashed.
3The judgment of the Divisional Court did not preclude the plaintiffs from attempting to prove spoliation as a fact. The Divisional Court adopted the following statement of the law in Endean v. Canadian Red Cross Society (1998), 1998 6489 (BC CA), 157 D.L.R. (4th) 465 at 468 (B.C. C.A.): “In Canada, the law is that the destruction of documents in appropriate cases carries a procedural as opposed to substantive remedy.” As a result, although no independent tort of spoliation was pleaded, considerable and attention was given to the plaintiffs’ allegation that Ontario was guilty of destroying evidence. In her reasons for judgment, the trial judge observed that “the issue of the spoliation or destruction of evidence strongly influenced the tone of this litigation. It is uniquely difficult and arose throughout the trial”. The trial judge proceeded to consider the evidence relating to spoliation in some detail. Contrary to the plaintiffs’ contention, the trial judge found that “there is no admissible evidence to support a conclusion that Ontario spoliated or destroyed evidence”.
4The trial judgment was released on June 21, 2000. One month later, this court held in Spasic Estate v. Imperial Tobacco (2000), 2000 17170 (ON CA), 49 O.R. (3d) 699 that a claim for damages based on the tort of spoliation should be permitted to proceed to trial. An order striking a pleading asserting a claim for damages for spoliation was set aside. With respect to the Divisional Court’s judgment in the present case holding that the plaintiff should not be allowed to amend its claim to include such a plea, Borins J.A. stated as follows at 708:
In my view, the trial judge should not be bound by the result in Rintoul. While we are not required to overrule Rintoul, I believe that there is good reason to doubt the correctness of the result reached by the majority.
5The plaintiffs say that they should now be permitted to take advantage of the change in the law reflected by the Spasic decision. As spoliation was relevant to the claims that were asserted, there is a factual record on the matter. Obviously, the plaintiffs would have to overcome the trial judge’s factual finding that there was no destruction of evidence by Ontario, but the plaintiffs are not asking this court to deal with a factual issue that was unexplored at trial.
6In a significant number of recent cases, it has been accepted that issue estoppel or res judicata may not apply to bar a claim where there has been a change in circumstances, including a change in the law. The leading authority is the decision of the House of Lords in Arnold v. National Westminster Bank plc., [1991] 2 A.C. 93 at 110 where Lord Keith adopted what had been said by Browne-Wilkinson V.C. at first instance ([1989] Ch. 63 at 70-1):
In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case.
Arnold was cited by Laskin J.A. in Minott v. O’Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321 at 340 (C.A.) for the proposition that “if the decision of a court on a point of law in an earlier proceeding is shown to be wrong by a later judicial decision, issue estoppel will not prevent relitigating that issue in subsequent proceedings.” See also Bear Island Foundation v. Ontario, (1999), 1999 9307 (ON CA), 126 O.A.C. 385 at 393 (C.A.). The principle has been applied by the British Columbia Court of Appeal to allow a party with a case “in the system” to take advantage of a change in the law despite a prior adverse ruling: Hunt v. Atlas Turner Inc., 1995 1800 (BC CA), [1995] 5 W.W.R. 518; Hocklin v. Bank of British Columbia (1999), 1995 6268 (BC CA), 123 D.L.R. (4th) 538; Stellar v. Botham Holdings Ltd., 1994 3184 (BC CA), [1994] 8 W.W.R. 639.
7While I express no view as to the plaintiffs’ prospect for success, considering these authorities, it would not, in my view, be appropriate to grant Ontario’s motion to quash the appeal. As pointed out by this court in Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 at 3 “[a] motion to quash an appeal may usefully be brought where the moving party contends that the court cannot or should not hear the merits of the appeal” - for example, where the court is without jurisdiction to entertain the appeal. In light of the cases to which I have referred permitting relitigation of issues following a change in the law, the impugned portions of the cross-appeal do not fall into this category. The issue of damages for spoliation, including the question whether the plaintiffs are now barred from asserting the claim on account of the judgment of the Divisional Court, can be determined only after full argument in the ordinary course.
8Accordingly, I would dismiss Ontario’s motion to quash portions of the cross-appeal with costs.
“Robert J. Sharpe J.A.”
“I agree R.S. Abella J.A.”
“I agree S. Borins J.A.”
RELEASED: February 23, 2001