COURT FILE NO.: 43208

DATE: 2013/06/06

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: LANNY STILWELL and MOIRA NEALE

Plaintiffs

• and –

WORLD KITCHEN, INC., NEWELL RUBBERMAID INC., ARC INTERNATIONAL NORTH AMERICA INC. and CORNING INCORPORATED

Defendants

BEFORE: JUSTICE I. F. LEACH

COUNSEL: Michael D. Smitiuch and Peter Cho, for the Plaintiffs

R. Brian Foster, Q.C., for the Defendant World Kitchen, Inc.

Young Park and Kathryn McCulluch, for the Defendant Corning Incorporated

HEARD: June 5, 2013

E N D O R S E M E N T – S P O L I A T I O N

[1] This is a product liability case, arising from injuries sustained by the plaintiff Lanny Stilwell on September 11, 2000.

[2] Mr Stilwell and his spouse, (formally named in these proceedings as the co-plaintiff Moira Neale, but now Mrs Stilwell), allege that Mr Stilwell was injured while he was alone in the couple’s home, washing what the plaintiffs say was a “Visions Dutch Oven” in the kitchen sink. The item allegedly then failed, breaking into four large pieces, and severely lacerating Mr Stilwell’s wrist.

[3] The pieces of the broken product were discarded by Mrs Stilwell, (in circumstances I will outline in greater detail below), shortly after the accident, and prior to commencement of any formal litigation.

[4] The plaintiffs’ claims against the defendants World Kitchen, Inc. and Corning Incorporated, for negligence and breach of warranty, have proceeded to trial before a jury. The trial began on May 7, 2013, and closing arguments are scheduled to begin tomorrow.

[5] I provided counsel with drafts of my intended jury charge, and received further submissions from counsel in that regard today.

[6] In particular, having regard to disposition of the failed product, counsel argued the issue of spoliation, and about what should be said to the jury in that regard (if anything) during the course of my charge.

Interim Endorsement

[7] Having regard to time constraints and the need for counsel to have my ruling on the spoliation issue as soon as possible, (in order to make any necessary and appropriate adjustments to their intended closings), I provided counsel with the following interim endorsement:

For written reasons to follow, the jury will not be charged on the doctrine of spoliation, including the adverse inference or presumption that would follow from application of that doctrine; i.e., that the discarded evidence would “tell against” the alleged spoliator plaintiffs, (for example, by confirming that it was not a Visions Dutch Oven and/or that it failed for reasons for which the defendants should not be held responsible, such as serious impact).

Counsel similarly should not make express or implied reference to spoliation, or to any such adverse inference or presumption during their closings.

This ruling does not prevent or restrict comments by counsel as to other implications that may flow from the absence of the broken product, including the lack of such evidence to corroborate the plaintiffs’ allegations that the product was a Visions Dutch Oven or the cause of its failure, or the difficulties faced by the defendants in not having that evidence available to challenge the plaintiffs’ claims in that regard. Defence counsel also certainly can argue that the product was not a Visions Dutch Oven, and/or that it failed for reasons not warranting a finding of negligence or breach of warranty.

However, what cannot be suggested directly or indirectly is that discarding of the broken product should give rise to any presumption that the discarded product would have confirmed certain facts “telling against” the plaintiffs, in the defendants’ favour.

[8] What follows are the written reasons for that decision.

Evidence

[9] As noted above, the incident giving rise to this action occurred on September 11, 2000, while Mr Stilwell was alone in the plaintiffs’ home, allegedly washing an item of cookware in the kitchen sink.

[10] Whether the item in question was a Visions Dutch Oven, (in respect of which the defendants acknowledge they would have some duties as a manufacturer or distributor), and the cause of the item’s alleged failure are matters that are very much disputed in this litigation.

[11] What was not really disputed is that Mr Stilwell sustained a very serious physical injury in his home that morning, requiring very urgent medical attention.

[12] In that regard, Mr Stilwell testified, (and numerous other witnesses confirmed), that he had severed a number of arteries, and lost significant quantities of blood in and around his home as he struggled to make his way outside and obtain assistance as soon as possible, leaving the broken pieces of the cookware item in the bloody sink behind him.

[13] A neighbor eventually saw Mr Stilwell and rushed him to hospital, where emergency treatment was applied and he was prepared for further surgery on an urgent basis. The neighbor then returned to the Stilwell’s house, where she waited outside for Mrs Stilwell’s return.

[14] According to testimony from Mrs Stilwell and her mother:

a) When they returned to the house, they were met outside by the waiting neighbor, who told them of Mr Stilwell’s accident and condition, and indicated that he was at the hospital without identification.

b) Mrs Stilwell and her mother entered the home briefly, observing the vast quantities of blood described above, in a trail that led back through the home to the kitchen sink. They each say they looked in the sink and saw, covered with blood, what they allege was Mrs Stilwell’s broken Visions Dutch Oven. According to Mrs Stilwell, it looked as if someone had taken a knife and cut the item into four pieces, “like a pie”, with each piece obviously having very sharp edges.

c) Neither Mrs Stilwell nor her mother touched or disturbed the broken pieces at the time. They instead hurried to obtain Mr Stilwell’s wallet and identification and to clean up as much of the blood as possible before leaving for the hospital. (The Stilwells’ two young boys were expected home from school shortly, and there was concern about their reaction to a scene that was described as looking “like someone had been murdered”.)

[15] According to testimony from Mr Stilwell and Mrs Stilwell, she was able to meet and speak with him at the hospital, before and after his surgery. Both say, in various ways, that Mr Stilwell was traumatized by the incident. (Mrs Stilwell says that, for a time after his release from hospital, Mr Stilwell would not even drink from a glass.)

[16] Both also say that, during the course of the couple’s conversation at the hospital, the afternoon or evening of the accident, Mr Stilwell told Mrs Stilwell in no uncertain terms to get the broken pot out of their house or he would not come home. Mrs Stilwell testified that Mr Stilwell gave her that instruction during their short conversation prior to his being anaesthetized for surgery.

[17] In his evidence-in-chief, Mr Stilwell said he gave no thought to any possible lawsuit or claim at the time of his instructions to Mrs Stilwell to dispose of the broken pieces, on the day of the accident. He was just thinking of his health at the time. The incident was a “very bad memory”, and he therefore “didn’t want to see [the broken pot] in the house any more”.

[18] In cross-examination, Mr Stilwell was asked whether he seriously meant that he would not come home if the broken pieces of glass were not removed from his home, and whether he truly was “afraid of broken pieces of glass”. Mr Stilwell was adamant that he was. According to him, given the serious near-death situation he had just experienced, he “wanted it out of my [his] house”.

[19] In her testimony at trial, Mrs Stilwell could not recall with certainty whether Mr Stilwell, in giving his instruction to her at the hospital, had referred just to the broken “pot”, or to “pots” in the plural, (as she owned more than one Visions Cookware item). Her belief at the time was that he wanted the broken pot out.

[20] In the meantime, the couple’s pastor, (who also testified at trial), had been telephoned and asked for assistance in intercepting and looking after the couple’s boys. He attended briefly at the Stilwell home, (where he says he also saw substantial blood and broken pieces of an item in the kitchen sink), before picking up and taking care of the boys for the night.

[21] According to further testimony from Mrs Stilwell, (supported in part by testimony from her mother), while Mr Stilwell spent the night in hospital, she and her mother returned home from the hospital late at approximately 11:30pm on the date of the accident, and began working into the early hours to clean all traces of the accident from the house so that the boys could return the next day.

[22] As for the pieces of broken item, Mrs Stilwell says she removed them from the kitchen sink one piece at a time, using thick gloves, before wrapping each piece in newspapers, approximately 1” thick, which she then sealed with duct tape. She then put all four pieces in a used dog food bag, which she also then rolled shut and taped with duct tape. That bag was then placed inside a garbage bag, and placed outside for the next scheduled garbage pick-up, the following Thursday. (The accident occurred on Monday morning. Mrs Stilwell placed the garbage bag containing the pieces of the broken item outside early on Tuesday morning; i.e., on September 12, 2000. It was picked up by the garbage service the following Thursday; i.e., on September 14, 2000.)

[23] In her evidence-in-chief, Mrs Stilwell testified that, when she discarded the broken pieces of the item directly involved in Mr Stilwell’s accident, she had no intention of starting a lawsuit, or of gaining any advantage in a lawsuit or claim. At the time, based on her understanding of what she had been told at the hospital, she thought Mr Stilwell would be healed and back to a normal life within 6-10 weeks.

[24] I note that Mrs Stilwell’s evidence concerning her intentions, at the time she discarded the pieces of the broken item, was not directly challenged or questioned in any way during the course of her cross-examination. She was cross-examined at length, in relation to numerous issues and matters, but not about that. Certainly, no suggestion was put directly to her that she had discarded the broken pieces, (leading to the destruction of that evidence), in contemplation of litigation, or with the intention of gaining an advantage in any such litigation.

[25] As for her unbroken Visions cookware items, (which ultimately were retained and made exhibits at trial, as well as the subject of expert witness examinations), Mrs Stilwell says she wanted to discard them as well immediately after the accident, given what had happened. As noted above, she was not sure whether the instructions given by Mr Stilwell in the hospital had been intended to refer to those items as well, but she “wasn’t taking the chance” of disobeying his instructions in that regard.

[26] However, according to her, she also had concerns that someone might remove the unbroken Visions cookware items from the recycling bin and try to use them, and she did not want someone else to be hurt in the same way.

[27] Sometime on September 12, 2000, (after discarding the broken item pieces in the manner described above), Mrs Stilwell therefore removed the unbroken Visions cookware items from their storage area in the kitchen, placed them together in a box, and put the box in a “partial” basement crawl space, approximately two feet deep, located under part of the house. According to Mrs Stilwell, as far as she was concerned, that crawl space was not part of their basement and the boxed Visions cookware items therefore were “not in the house”. In cross-examination, Mrs Stilwell candidly acknowledged that she deliberately “hid” the items from her husband in that way.

[28] On September 27, 2000, (approximately 16 days after the accident), Mrs Stilwell sent an email message, addressed “Dear Sir”, and the subject of which was “Vision pots”, to an email address she had obtained from the internet. (According to her, the message was sent to the only place she could find, when she entered “Visions” in her searches.) The message, in its entirety, reads as follows:

Dear Sir,

I have used the vision pots for years without any complaints until 2 weeks ago when my husband was drying dishes. The dutch oven broke in his hands (into 4 large pieces). It severed his right radial artery, 6 tendons and all the nerves. His surgery lasted 5½ hours and his recovery time is expected to be between 18 and 24 months. Needless to say after this incident we no longer use vision or corningware and have advised all our friends to get rid of it. Before my husband came home from the hospital I had to get rid of all the visions products in our home. This has made him paranoid to say the least, even worse is the thought that our kids usually do the dishes. At this point the Doctors aren’t sure whether he will regain the use of his dominant arm and maybe on disability for the rest of his life. There is something to be said for old fashioned metal pots. As for our household your products will never again be used.

Sincerely M.L. Neale

[29] I note that this message mentions nothing about any possible claim or litigation, and contains no request whatsoever for compensation of any kind. Nor does the message even request a response.

[30] Mrs Stilwell testified that, when she sent the message, her only purpose was to warn those responsible for Visions cookware that there was a problem with the product, so that they could prevent others from experiencing a similar incident.

[31] Mrs Stilwell was cross-examined at length about her email of September 27, 2000, and about various inconsistencies between some of her indications in the message and other evidence. For example, it was emphasized that the accident happened 16 days earlier and not “2 weeks ago” as the message said. It was stressed that her message said Mr Stilwell was “drying” dishes at the time, whereas she and Mr Stilwell later indicated that he was “rinsing” or “washing” the item at the time. It was also emphasized that she had in fact not really “got rid of all the visions products in her home”, as the unbroken items were still in her possession.

[32] Mrs Stilwell conceded these inconsistencies and inaccuracies in her email message, (although she maintained that the unbroken items were indeed no longer “in her home”, as far as she was concerned, given their location in that crawl pace area). At one point during this cross-examination, the questions posed by defence counsel characterized these inconsistencies as Mrs Stilwell “lying” to the recipient of the email, (World Kitchen), and Mrs Stilwell responded “Yes sir”.

[33] However, in her earlier answers, Mrs Stilwell also had emphasized that she did not think such particular details were important, given that the purpose of her email message was to warn the makers of the Visions product that there was a dangerous problem with their product.

[34] I note that Mrs Stilwell’s stated intentions in that regard were not directly challenged or questioned during cross-examination, (despite the many other questions put to her about the email’s content).

[35] On September 29, 2000, Jillian Aylesworth, a representative from the World Kitchen Help Center responded by email to Mrs Stilwell’s message, indicating a desire to speak with Mrs Stilwell, and inviting a telephone call. Contact information was provided.

[36] Notes of a telephone conversation apparently prepared by Ms Aylesworth on October 9, 2000, and filed on consent as an exhibit at trial, describe the results of a “Call to Mickey Neale”, and refer to “Calling regarding consumer’s email”. (These references suggest that it was Ms Aylesworth who placed the call in question, although Mrs Stilwell testified at trial that she had called in response to the email inviting her to do so.)

[37] I will not reproduce the lengthy notes of Ms Aylesworth, (who was not called as a witness at trial), in detail here. Suffice it to say that they read like a rough and informal transcription of comments, (including questions and answers), being said back and forth between Ms Aylesworth and Mrs Stilwell during the telephone conversation. The notes include the following passages:

a) “that pot is gone [do you still have pieces of the pot]… he wouldn’t even come out of the hospital with that thing in the house… it’s made him so paranoid… he won’t even drink out of a glass now… I packed the other ones in a box…”

b) “I didn’t send you an e-mail expecting anything.”

c) “if somebody goes to buy them, tell them that can happen…he was lucky he made it to hospital…maybe that whole set had a flaw in it…one out of how many million can have a flaw in it…”

d) “I explained to the consumer that without the return of the broken dutch oven to our Quality Assurance Department for examination, I could not speculate as to what could have caused the situation that her husband experienced. The pieces have been discarded.”

[38] Mrs Stilwell was cross-examined at length about these notes as well, with questions focusing in particular on her stated description of the incident, and her subsequent observations and discussions with others.

[39] Yet Mrs Stilwell was not asked directly, during that portion of the cross-examination, about her intention underlying her contact with World Kitchen.

[40] On their face, the contemporaneous comments documented in the notes are consistent with Mrs Stilwell’s evidence at trial that her intent in that regard was only to warn World Kitchen of a potential problem with the Visions product, with a view to protecting others. Moreover, during the conversation, as documented by Ms Aylesworth, Mrs Stilwell expressly disclaimed that she sent her earlier email “expecting anything” from World Kitchen.

[41] Subsequent correspondence confirms that Ms Aylesworth regarded the situation as one involving a possible claim for compensation.

[42] In particular, on October 13, 2000, Ms Aylesworth sent the Stilwells a letter which includes the following paragraphs:

Without the return of the damaged dutch oven, we are unable to determine whether the incident that you described was caused by a manufacturing nonconformity or by something beyond our control. Our responsibility is based upon the findings of our Quality Assurance Department. Under the circumstances, we are unable to consider compensation for the personal injury that Mr. Stilwell incurred.

As a gesture of goodwill, you may return the remaining items in your cookware set to use and select other products equal in value from our catalog. …”

[Emphasis added.]

[43] This letter, and the emphasized sentence in particular, then were put to Mrs Stilwell in cross-examination, apparently to suggest that Mrs Stilwell had sought compensation during her telephone discussion with Ms Aylesworth.

[44] However, Mrs Stilwell did not concede this and, to the contrary, firmly denied the suggestion. She was adamant that she did not demand compensation at the time. In that regard, she pointed again to the content of her original email, as well as Ms Aylesworth’s notes documenting Mrs Stilwell’s express indication, during her telephone conversation with Ms Aylesworth, that she “was not calling with expectations”. Mrs Stilwell repeated that she did not send her email “expecting anything”, and that, at the time of her email and call, “never asked for anything”.

[45] When asked why Ms Aylesworth would have mentioned compensation in her letter of October 13, 2000, Mrs Stilwell replied that she had “no idea what was going through her [Ms Aylesworth’s] head”.

[46] Again, Ms Aylesworth herself never testified at trial.

[47] However, a subsequent further note by Ms Aylesworth, apparently made on May 3, 2001, says: “Customer never returned the remaining pieces in her set. Closing file.”

[48] In her testimony, Mrs Stilwell said she never returned the remaining items to World Kitchen because she “didn’t want any more” product sent in return, given that her “husband almost died because of this”.

[49] At a date not in evidence, the Stilwells obviously consulted and retained legal counsel, as formal litigation was commenced on January 9, 2002, (approximately 16 months after the accident).

[50] That litigation was commenced against a different World Kitchen corporate entity and, after receipt of further information from World Kitchen counsel, it was discontinued and replaced by a fresh action, (the one now before the court), commenced on December 9, 2003. The defendant World Kitchen, Inc. was a party defendant from the outset. The defendant Corning Incorporated was added by pleading amendments in August of 2008.

[51] From the outset of its defence, Corning Incorporated has pled and relied upon the doctrine of spoliation. At trial, World Kitchen, Inc. has relied on the same doctrine.

Position of the Parties

[52] In essence, the defendants submitted that they had established a sufficient evidentiary for application or possible application of the spoliation doctrine, as far as the discarded broken/failed product is concerned.

[53] The defendants accordingly asked that I charge the jury on the spoliation doctrine, and the adverse inferences that could and should be drawn in the circumstances if the jury found that the facts justified application of the doctrine, and if the inferences were not then successfully rebutted by the plaintiffs.

[54] The plaintiffs argued that the evidence at trial provided no requisite factual basis capable of giving rise to the negative presumption arising from the spoliation doctrine, such that putting that doctrine to the jury would be inappropriate, needlessly confusing and unfairly prejudicial in the circumstances.

Analysis

[55] “Spoliation” refers to the intentional destruction of relevant evidence when litigation is existing or pending. Where the preconditions of spoliation are established, the principal remedy is the imposition of a rebuttable presumption of fact that the missing evidence, had it been preserved, would have been unfavourable to the party that destroyed it; i.e., that it would not assist but “tell against” the person who destroyed it. See, for example: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, [2009] 1 W.W.R. 257 (Alta.C.A.), at paragraph 29; Gutbir v. University Health Network, [2010] O.J. No. 5386 (S.C.J.), at paragraph 13.

[56] However, the authorities also make it clear that an adverse inference does not arise merely because evidence has been destroyed. See, for example: St Louis v. R. (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649, at p.677; McDougall v. Black & Decker Canada Inc., supra, at paragraph 18; Gutbir v. University Health Network, supra, at paragraph 20; and Topp v. Costco Wholesale Canada Ltd., 2012 ONSC 3354 (S.C.J.), at paragraph 12.

[57] To the contrary, the authorities consistently emphasize that the spoliation doctrine or rule of evidence is not engaged unless and until the party seeking to rely on it establishes the requisite evidentiary foundation.

[58] See, for example, the following comments by the Alberta Court of Appeal in McDougall v. Black & Decker Inc., supra, at paragraph 18:

Spoliation does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it.

[Emphasis added.]

[59] As emphasized by the comments of Justice Wilson in Gutbir v. University Health Network, supra, (citing an earlier decision by Justice Healey with approval), this also represents the law of Ontario:

The more recent Ontario case of Muskoka Fuels v. Hassan Steel Fabricators Ltd., [2009] O.J. No. 4782 (S.C.J.) adopted the principles necessary to establish spoliation as set out in Mcdougall (sic), supra. Justice Healey noted that in order to rely on the evidentiary doctrine of spoliation, the party who wishes to rely on it must establish the necessary elements “starting with evidence of intentional destruction …” An adverse inference cannot be drawn simply because evidence was destroyed.

[Emphasis added.]

[60] The Gutbir decision also illustrates that a jury should not be charged on spoliation, or instructed that it can draw an adverse inference from the destruction of evidence, unless the party seeking to rely on the spoliation doctrine satisfies the trial judge that the evidence at trial has established the necessary elements and factual underpinning giving rise to the availability of a negative presumption arising from spoliation.

[61] In the Gutbir case, Justice Wilson found no evidence that the relevant destruction of evidence occurred in the case of existing or contemplated litigation, no evidence that there was any “intentional destruction” of evidence in the sense required, and no evidence that the destroyer did so in order to influence the litigation. Accordingly, based on the evidence heard in the case, Justice Wilson found there was “no basis in law on which a jury could draw the negative spoliation inference arising from the destruction”, and declined the request to have spoliation and the possibility of drawing such an inference put to the jury. See Gutbir v. University Health Network, supra, at paragraphs 21-24.

[62] Having carefully reviewed the trial evidence in this case, I think the same conclusion applies.

[63] There is no question that the pieces of the broken item, discarded by Mrs Stilwell, would have been extremely relevant and probative evidence in this litigation. As the defendants have emphasized repeatedly during the course of trial, an examination of those pieces would have established conclusively whether or not the item was in fact a Visions Dutch Oven, (as opposed to a possibly similar looking item manufactured by a competitor), and also would have assisted greatly if not conclusively in establishing the cause of failure.

[64] There is also no question that the evidence effectively was lost and destroyed through the actions taken by Mrs Stilwell at Mr Stilwell’s request.

[65] However, application of the spoliation doctrine still requires evidence of the requisite intention.

[66] In particular, despite the suggestions to the contrary made by the defendants, I find absolutely nothing in the evidence at trial to suggest any intention by Mr or Mrs Stilwell to destroy evidence with the intention of affecting ongoing or contemplated litigation. More to the point, in my view there is no evidence on which a jury, acting judicially, could find such an intention.

[67] The central question is whether Mr and Mrs Stilwell had such an intent at the time the relevant evidence was destroyed.

[68] In this case, as noted above, Mrs Stilwell had taken all relevant steps to discard the evidence within 24 hours of the accident. (The garbage was not picked up from the Stilwells home until September 14, 2000, but in my view little or nothing turns on that.)

[69] Both Mr Stilwell and Mrs Stilwell expressly testified under oath that they had no contemplation of litigation, and no intention to destroy the evidence to gain an advantage in such litigation, at the time it was discarded. They provided a rational explanation, (albeit not one accepted by the defendants), for why and how the evidence was discarded.

[70] Not only was the plaintiffs’ testimony of their intention at the relevant time not contradicted by other evidence, but the suggestion of their having any other intention at the relevant time was not even put to them in cross-examination, which in my view also gives rise to the principled concerns underscoring the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.).

[71] Nor, I think, does any of the evidence relating to subsequent communications between Mrs Stilwell and Ms Aylesworth give rise to any evidence of Mrs Stilwell subsequently having any contemplation of litigation, at the time of such later communications, which might somehow justify an inference that she had such a contemplation and therefore possibly the requisite spoliation intention earlier and, in particular, at the time she discarded the relevant evidence.

[72] As noted above, Mrs Stilwell consistently denied having any such contemplation or intention during the course of her communications with Ms Aylesworth, and the content of her contemporaneous email and Ms Aylesworth’s contemporaneous notes confirms rather than contradicts Mrs Stilwell’s assertion. She testified that she had an entirely different purpose at the time, (to warn the product manufacturers in an effort to prevent other consumers suffering a similar fate), and the email and notes created at the time are entirely consistent with such an intention.

[73] Although defence submissions attempted to make much of certain inaccuracies in Mrs Stilwell’s email and/or her telephone comments to Ms Aylesworth, as well as Mrs Stilwell’s answer apparently agreeing with defence counsel’s characterization of such inaccuracies as “lying”, in my view none of these inaccuracies lend any support for the proposition that, at the time the requisite evidence was discarded, Mrs Stilwell had the intention requisite for application of the spoliation doctrine. Again, that suggestion was not even put to Mrs Stilwell during the course of cross-examination on such inaccuracies.

[74] In my view, broad suggestions that “credibility” has been put in issue by Mrs Stilwell’s acknowledged inaccuracies in her email or telephone comments, which have no apparent bearing or relevance to the existence or not of the requisite spoliation intention, at the relevant time, do not somehow sufficiently “open the door” to possible application of the doctrine for the defendants. Something much more definite and supportive of such an intention is required.

[75] The suggestion that Mrs Stilwell was contemplating a claim at the time of her communications with World Kitchen finally was put to Mrs Stilwell only when she was asked about Ms Aylesworth’s letter of October 13, 2000, and its reference to World Kitchen’s professed inability to “consider compensation” in the circumstances. In response, however, Mrs Stilwell then expressly and repeatedly disclaimed that she had any such intention at the time, or that she advanced any request for compensation (or anything for that matter) at the time.

[76] Where then, in all of this, is the evidence that the plaintiffs were contemplating litigation within 24 hours of the accident, (when the evidence was discarded), or even within 48 hours of the accident, (if the delay in garbage pick-up is at all relevant), and that they discarded the evidence to gain an advantage in that contemplated litigation?

[77] In my view, there is no such evidence.

[78] To the contrary, not only can I find no such evidence, but it seems to me that there is quite simply no “air of reality” to the suggestion that, in the immediate aftermath of the dramatic events of September 11, 2000, (or indeed, within hours of Mr Stilwell’s accident and before his first surgery), the first and dominant thought of these plaintiffs was towards litigation, and the destruction of evidence to gain an advantage in such litigation because the plaintiffs somehow knew or thought such evidence would tell against them.

[79] In the circumstances, I agree with the plaintiffs’ submission that putting the doctrine of spoliation to the jury, with the mention of rebuttable adverse inferences, would be inappropriate, needlessly confusing, and unfairly prejudicial to the plaintiffs’ case.

[80] For the above reasons, I released my interim endorsement and decision, noted above.

“Justice I.F. Leach”

Justice I. F. Leach

DATE: June 6, 2013