COURT FILE NO.: CV-08-00963198

DATE: 2012-06-07
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MELISSA TOPP, ELAINE TOPP, SYRILL TOPP and DAVID TOPP

• v. -

COSTCO WHOLESALE CANADA LTD., et al.

• v. -

HORIZON MILLING G.P. and PURATOS CANADA INC.

BEFORE: Michael G. Quigley, J.

COUNSEL:
Kyle T.H. Smith, for the Plaintiffs/Moving Parties

Bruno Roti, for the Defendants/Responding Party

HEARD: May 24, 2012

ENDORSEMENT

[ 1 ] The plaintiff moves under Rule 20 for partial summary judgment striking out paragraph 7 of the defendant’s amended statement of defence. In that paragraph, the defendant pleads and relies on the doctrine of spoliation of evidence with respect to the plaintiff’s alleged failure, refusal and or inability to produce a small piece of plastic that is central to this lawsuit.

[ 2 ] That piece of plastic was surgically removed from the plaintiff's stomach on September 26, 2007 after she ate a sandwich bun with cheese in the middle. The cheese is admitted to have been free of contamination. The plaintiff says that piece of plastic was in the bun she used to make the sandwich that day, a bun that was purchased at a Costco retail store. That is what has prompted her to commence this action against Costco.

[ 3 ] After the surgery, the plaintiff claims to have made attempts to obtain the piece of plastic from the hospital. The hospital refused to release it to her. She claims to have requested that they retain and preserve it in contemplation of this litigation. Of note, however, is a post-operative consultation report from November 17, 2007, less than two months after the surgery, which indicates that an un-named lawyer had asked to collect the plastic specimen. That report notes that the lawyer was directed to contact the pathology department of the hospital, but there is no further evidence in the hospital records relative to inquiries being made about the piece of plastic, by the anonymous lawyer or by anyone else. Unfortunately, the plastic piece has now been lost although the hospital did take a photograph of it and that photograph has been provided to the plaintiff and the defendant. The plaintiff commenced her action on September 25, 2008, 364 days after the surgery.

[ 4 ] The parties have spent a great deal of time and money since then focused on that missing piece of plastic. The plaintiff authorized the defendant to make inquiries of the hospital regarding its whereabouts in November of 2009. The hospital advised the defendant in February of 2010 that the specimen had been lost – or at least that they no longer had it in their possession.

[ 5 ] As the defendant wished to establish a foundation for the spoliation defence, the plaintiff was asked at her discovery about the piece of plastic, about her attempts to retrieve it, about when she retained counsel and about what attempts she or her counsel made to preserve it. She refused to answer questions relative to when she retained counsel, but gave other answers, so the defendant brought a motion before Master Haberman to require answers to be given to the questions where answers had been refused. However, he dismissed Costco's motion since spoliation had not yet been pleaded.

[ 6 ] That caused Costco to move before Master Dash to amend its defence to plead spoliation. [1] At that motion, it is important to note that plaintiff’s counsel acknowledged that spoliation was a legally tenable defence in this case. Master Dash granted leave to amend to include the spoliation defence. He specifically addressed its viability as follows:

The plaintiff concedes that spoliation is a legally tenable defence. Indeed it is permissible to plead by way of defence the material facts upon which the defendant relies to assert an adverse inference caused by spoliation: Duca para 14. In my view paras. 7 and 8 of the draft amended statement of defence properly set out material facts to support a defence of spoliation. The plaintiffs take no issue with the form of the pleadings. The plaintiff argues essentially that the pleading of spoliation is incapable of success because it is not supported by the known evidence. However, in determining the tenability of a pleading it is not necessary to tender evidence to prove the amendments, nor can they be defeated by the presentation of evidence that the facts are not true and that the evidence does not support the proposed amendments. It is to be assumed the facts are true and the only issue is if the plea supports a cause of action or defence: see Plante paras. 18 and 21(b).

In my view the amendments, as pleaded, are legally tenable and set out a tenable defence. The plaintiffs argue that the evidence shows the plaintiff or her lawyer never had the plastic in their possession and it was lost by the hospital. Again that is a matter of evidence, not of legal tenability. Whether there is a positive obligation to take steps to preserve evidence in the possession of another person is not yet decided in Ontario.

In my view the amendments are legally tenable. (my emphasis).

[ 7 ] Master Dash’s ruling was not appealed. An alleged absence of cooperation by the plaintiff caused a delay until late October of 2011 in issuing and entering the Master’s order. Regardless, the defendant delivered its amended statement of defence including the spoliation defence on October 27, 2011. That step prompted the plaintiff to give notice of its intention to bring this summary judgment motion under Rule 20 to strike the paragraph of the amended statement of defence that pleads spoliation.

[ 8 ] On December 20, 2011 at Motions Scheduling Court, Justice Grace set a timetable leading up to the hearing of the motion, but he also cautioned the plaintiff's counsel about bringing this motion. He noted in his endorsement that day that it did not appear to him that Rule 20 permits a party to seek partial summary judgment on an issue raised in the statement of defence but acknowledged it was an issue best left for the motions judge.

[ 9 ] Shortly thereafter, Costco again sought to compel Ms. Topp to answer the improperly refused questions at her discovery. Master Hawkins ordered those questions to be answered within 14 days but to date, no answers have been provided.

[ 10 ] This leads to this motion on which the plaintiffs seek partial summary judgment to strike paragraph 7 of the defendant’s amended statement of defence. It reads as follows:

The Defendant states that it is entitled to inspect the piece of plastic referred to in the Statement of Claim. In the event that this key piece of evidence is no longer available for inspection, or has undergone destructive testing without the Defendant's knowledge or consent, and the Defendant is thereby denied the opportunity to inspect it, the Defendant pleads and relies on the doctrine of spoliation of evidence with respect to the plaintiff's failure, refusal and/or inability to produce the piece of plastic. The Defendant further states that in this eventuality, the plaintiffs would be unable to meet their burden of proof of showing that the piece of plastic was contained in any food product purchased from Costco. The Defendant pleads its ability to assess and defend this action has been impaired resulting in prejudice and therefore the defendant asks that this action be dismissed with costs against the plaintiffs on the substantial indemnity scale, or in the alternative, that an adverse inference be drawn against the plaintiffs.

[ 11 ] The plaintiffs rely on Burrill v. Ford Motor Company of Canada Ltd., [2] in support of their position on the test for spoliation. That case followed a 1997 British Columbia Superior Court decision in Dyk v. Protec Automotive Repairs . [3] Those cases establish that before spoliation of evidence can be found, the Court must be satisfied that evidence has been destroyed, that it was relevant, that legal proceedings were pending, and most importantly here, that the destruction of that evidence was an intentional act of the party or the party's agent indicative of fraud or an intent to suppress the truth. Moreover, even when the first three elements are present, current law prevents the destruction of evidence by third parties from giving rise to a spoliation inference against the plaintiff if the plaintiff was not in possession of the evidence and was in no way responsible for its destruction.

[ 12 ] However, I think the defendant correctly states that the test may not be quite as definitive as the plaintiff contends relative to the issue of intention. That aspect is somewhat refined by Justice Darla Wilson in her decision in Gutbir v. University Health Network , above. There, at para. 18, she observes that there must have been an intentional destruction of relevant evidence that occurred while the litigation was existing, or pending, but as well, it must be reasonable to draw the inference that the evidence was destroyed to negatively affect the result in the litigation. In other words, the test is somewhat lower than described by the plaintiff. It does not require that there have been a fraudulent effort or at least an intention to suppress the truth. It is enough if there was present an intention to influence the outcome. That said, there must be evidence of intentional destruction – an adverse inference does not arise merely because evidence was destroyed. [4]

[ 13 ] In this case, the plaintiff moves under Rule 20 on the basis that there is no evidence that the plaintiff or any agent of the plaintiff ever had power, possession or control of the piece of plastic that was extracted from Ms. Topp’s stomach, and on the basis of a claimed admission that there presently is no evidence of any intentional spoliation. As such, even though the plaintiff has previously conceded that the defence is tenable, she says that there is no genuine issue requiring a trial, at least relative to spoliation, because the fourth component of the test cannot be met .

[ 14 ] I find that the plaintiff's partial summary judgment motion must fail. Three distinct reasons cause me to reach that conclusion. First, in my view it is not open to the plaintiff to use the summary judgment process under Rule 20 merely to strike a paragraph from a statement of defence, rather than moving under Rule 21 or Rule 25.11.

[ 15 ] Secondly, where the plaintiff has acknowledged its viability, the defendant ought not to be deprived of the defence at trial, especially given the observation of Master Dash in his endorsement that the boundaries of spoliation in Ontario have not yet been determined with finality. In particular, he cautioned that whether there is a positive obligation that may be imposed upon one of the parties to take positive steps to preserve evidence that is in the possession of a third-party, remains an open question.

[ 16 ] Finally, the plaintiff’s motion must be dismissed because they come to court seeking this relief at a point in time when they remain non-compliant with another order. They have failed to answer questions, the answers to which, if provided as ordered, could well cast at least some evidentiary light on the issue of spoliation in this case. This is not putting their best foot forward, as the saying goes. I address each of these briefly in the paragraphs that follow.

[ 17 ] Dealing first with the use of Rule 20 procedure to strike a paragraph of the statement of defence, Rule 20.01(1) provides that a plaintiff may move with supporting affidavit material or other evidence for summary judgment “on all or part of the claim in the statement of claim. ” (emphasis mine). The plaintiff says that Rule 20 should not be read restrictively in this way, to limit the plaintiff to bring a motion for summary judgment in respect of claims set out in the statement of claim, as opposed to striking allegations in the statement of defence. It makes that argument on the basis of Rule 20.04(1), which provides that the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[ 18 ] Justice Grace questioned the procedural propriety of this approach at Motions Scheduling Court, but of course he left it to the motions judge to reach a determination on the question. However, the plaintiff is not actually seeking a judgment summarily on its claim here by asserting that it presents no genuine issue requiring a trial. She is merely summarily seeking to eliminate a defence, and yet that will not eliminate a trial because it will not eliminate the existence of a genuine issue that requires a trial – namely, whether Costco is liable for the plaintiff’s damages. Thus, the purpose to which summary judgment is directed cannot be achieved in this case, even if the plaintiff were to succeed on its motion.

[ 19 ] Moreover, I agree with the defendants on this point, not only because there are specific provisions of the Rules aimed squarely at striking paragraphs of pleadings or entire pleadings, as found in Rules 21 and/or Rule 25.11, rather than Rule 20, but also because the summary judgment motion effectively tries to circumvent the fact that if they disagreed with the entitlement of the defendant to plead spoliation in defence to their claim, they arguably ought to have appealed the order of Master Dash that granted the amendment set out in paragraph 7, rather than taking this end run around it.

[ 20 ] Rule 21 contains specific procedure permitting the striking of portions of pleadings. Rule 21.01(1)(b) provides that a party may move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. Similarly, it appears to have been open to a plaintiff to move under Rule 25.11 to strike out or expunge all or part of a pleading or other document in circumstances where it may prejudice or delay a fair trial of the action, where it is scandalous, frivolous or vexatious, or if it amounts to an abuse of the process of the court.

[ 21 ] The plaintiffs argue that if their interpretation does not prevail, then all matters would need to go to trial merely because a defence was properly pleaded regardless of a total absence of evidence. This proposition overstates the mark and is simplistic. A party does not become entitled to summary judgment without at least having a case themselves upon which judgment could be granted. Where a plaintiff moves for summary judgment on their claim and meets the high threshold that applies on summary judgment motions to become entitled to judgment at least on a prima facie basis, then the mere fact that a defence was properly pleaded would not stand in the way of the moving party succeeding if there was no evidence to support that pleading. That would follow because the defendant would not have been able to rebut the onus that shifted to it to show that a genuine issue that requires a trial still remained, notwithstanding the plaintiff’s argument. That is not the case here at all. There has been no assessment whatsoever of the quality or strength of the plaintiff’s case. There has merely been an effort to throw out a defence for an alleged absence of evidence, but when that cannot avoid that a trial will still be required.

[ 22 ] In my view, on this motion the plaintiffs are seeking to access the beneficial aspects of a summary judgment motion brought under Rule 20, not in order to obtain summary judgment on their claim , which will inevitably require a trial, but simply in order to strike a defence pleading. However, they do so without resorting to the specific rules addressed toward such relief in respect of a pleading that they previously admitted is legally tenable. Further, they do so in part on the basis of the alleged failure of the defendant to put forward evidence to support the spoliation defence it relies upon, when their failure to provide answers to the improperly refused questions as ordered by Master Hawkins may be at least one potential source of deprivation of at least some evidentiary light on what happened to the missing piece of plastic, and thus the viability of the spoliation defence.

[ 23 ] The second basis for my rejection of the plaintiff’s motion flows out of the first. Having previously acknowledged that the defence of spoliation was legally tenable, in my view the motion must be dismissed because the defendant should not be deprived in this case of the opportunity to raise that defence at trial. This is especially true given the caution of Master Dash in his endorsement that it remains an open question whether there is a positive obligation that may be imposed upon one of the parties to take positive steps to preserve evidence that is in the possession of a third-party. This shows that the boundaries of spoliation in Ontario may not yet have been determined with finality. The position of the defendants is that there is a positive obligation on a party to ensure that relevant evidence or potentially relevant evidence is not disposed of. Whether this position can succeed is not the point here. In these circumstances, the defendant ought not to be deprived in my view of the opportunity to make the point and potentially expand the frontier.

[ 24 ] Finally, and this flows out of both the first and the second reasons, it would be inequitable in my opinion to grant the moving party the partial summary judgment it seeks when it has failed to comply with an order of this court requiring it to answer questions that were refused on discovery. It cannot lie in the mouth of the plaintiff to say that the defendant has advanced no evidence to support a defence of spoliation when one evidentiary tidbit that might advance the defendant’s position in respect of spoliation would be evidence that might emerge from those answers. Those answers might disclose that the plaintiff had retained and instructed knowledgeable counsel at a time when the missing offending piece of plastic was still seemingly available and in the possession of the hospital’s pathology department.

[ 25 ] In my view, the notion of whether the loss of the evidence results from actions within the control of the plaintiff remains to be explored here, on the theory that we intend the outcomes of our actions or inactions. That also, as the defendant argues, is a genuine issue for that informs the true validity of the spoliation defence and that requires a trial. It would be premature to determine that question against this background of facts and circumstances.

[ 26 ] Finally, there is one further claim made by the plaintiff’s counsel that must be addressed. There is some issue whether the plaintiff’s counsel may have played some role, or failed to play some role, which may be relevant to whether the piece of plastic was retrieved and/or why it was not. Thus, Ms. Topp’s counsel argue that the issue of spoliation ought to be dismissed prior to trial since the allegations relating to the Plaintiff’s counsel “will potentially compromise [their] ability to continue representing Ms. Topp at trial.” They say this could result in the need for new counsel, which would cause an adjournment of the trial and a significant increase in legal expense for the plaintiff. In my opinion this line of argument is without any merit. First, it should be noted that the first news I learned upon commencing to hear the motion was that the trial that was scheduled for May 28, 2012, four days after I heard this motion, had already been adjourned to a date well into 2013. So clearly the spoliation issue need not be dismissed prior to trial to avoid an adjournment, since it has already been granted for other reasons. More importantly, to my mind, whether the plaintiff’s counsel or the plaintiff herself had any involvement in the destruction of the evidence, actively or passively, but for which a negative but rebuttable legal inference may be available is indeed the very central reason why the defence should not be struck and why the matter ought to be tried.

[ 27 ] In conclusion, the motion for summary judgment to strike paragraph 7 of the defendant’s amended statement of defence is dismissed. The defendant shall have its costs. It seems to me that the appropriate scale would most likely be partial indemnity. I see no circumstances, apart perhaps from the previous failure of the plaintiff to answer questions as ordered, that might support an award of substantial indemnity costs in this case. However, I acknowledge I have received no submissions on the point. Counsel are requested to determine if they can settle costs between themselves, acting reasonably, but if they have not been able to do so within 14 days of this decision, they may contact the court for further direction.

Michael G. Quigley, J.
Date: June 7, 2012

[^1]: I note that in spite of how this proceeding developed, there is good authority that as a rule of evidence, spoliation need not necessarily be pled before its resultant evidentiary inference may be relied upon. See Gutbir v. University Health Network , 2010 ONSC 6752 at para. 12 which reviews the state of the law in this province, and notes the comprehensive review of the law that can be found in McDougall v. Black and Decker Canada Inc. , 2008 ABCA 353 (Alta. C.A.).

[^2]: 2006 CarswellOnt 6216 at para. 125

[^3]: (1997), 1997 2114 (BC SC) , 151 D.L.R. (4 th ) 374 (B.C.S.C.).

[^4]: See also Muskoka Fuels v. Hassan Steel Fabricators Ltd. , [2009] O.J. No. 4782 (S.C.J.O.) .