Court File and Parties

COURT FILE NO.: CV-10-411636

DATE: 20140313

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thelma Leon and George McCalla, Plaintiffs

AND:

Toronto Transit Commission, Defendant

BEFORE: Penny J.

COUNSEL:
E. Neal and P. Fidler for the Plaintiffs

A. Davidson and L. Qaqish for the Defendant

HEARD: March 12, 2014

ENDORSEMENT

[1] This is a negligence case in which the plaintiff alleges she was injured in a fall caused by the TTC.

[2] At the outset of trial, I made a ruling on the plaintiff’s motion to strike out the TTC’s defence on the basis that the TTC destroyed video evidence of what took place on the bus at the relevant time.

[3] I gave oral reasons on March 4, 2014 dismissing the motion.

[4] I held that the issue of the TTC’s requisite intent, to make out spoliation, was an issue of fact for trial and that the issue of the destruction of the video evidence could be pursued at trial.

[5] I also held that consideration of how the jury was to be instructed as to the use of this evidence would be the subject of further submissions following the evidence and prior to counsels’ closing submissions and the charge to the jury.

[6] Evidence was heard on this topic and I heard further submissions from counsel on what was to be left to the jury and how the jury was to be instructed on this issue.

[7] I gave an oral decision earlier today removing the spoliation issue from the jury, with written reasons to follow. These are those reasons.

[8] The Supreme Court of Canada’s decision in St. Louis v. R., stands for the proposition that when it is shown that evidence has been intentionally destroyed, a rebuttable presumption of fact arises that the evidence would tell against the party destroying the evidence. This is called spoliation.

[9] Spoliation in law, however, 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 unfavorable to the party destroying it. This presumption may be rebutted by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which a party either proves his case or repels the case against them.

[10] When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who destroyed it. The unintentional destruction of evidence is not spoliation. It is not appropriate to presume the missing evidence would tell against the person destroying it where the destruction is unintentional, see McDougall v. Black & Decker, 2008 ABCA 353.

[11] The history of video surveillance at the TTC arose from an increase in the number of assaults occurring against TTC operators. A joint task force of the TTC and the transit workers union was formed to review assault prevention options. One of the recommendations of the task force was the implementation of video surveillance.

[12] After reviewing the task force recommendations, the TTC began installing video cameras on its vehicles, along with other security measures, in an attempt to reduce operator assaults.

[13] There were four cameras in this bus: one at the rear facing forward, one at the front facing back, one at the rear door and one at the front door. The cameras are connected to a hard drive on the bus. The data from the camera is written onto the hard drive. The hard drive records data for 15 hours of operational time. This is referred to as the retention period. Unless specific steps are taken to obtain the data from the hard drive during the retention period, new data overwrites the old data and the old data is lost.

[14] As a result of a complaint to the Privacy Commissioner of Ontario in the mid-2000s, the Privacy Commissioner launched an investigation into the TTC’s use of video cameras to determine whether TTC practices were in accordance with legislative requirements. Section 28(2) of the Municipal Freedom of Information and Protection of Privacy Act provides:

No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity.

[15] The TTC took the position that the collection of personal information on its video cameras was in compliance with s. 28(2) of the Municipal Freedom of Information and Protection of Privacy Act because the primary purpose of the cameras on surface vehicles was to act as an aid to law enforcement.

[16] The Privacy Commissioner conducted an investigation and issued a report in 2008. One of her recommendations was that the TTC have a retention period for video images of 15 hours on buses and streetcars and 72 hours in subway stations. The TTC accepted and adopted that recommendation.

[17] The Privacy Commissioner also issued generic guidelines for the use of video surveillance cameras in public places in 2007. One of these guidelines stipulates that any information obtained by way of video surveillance systems may only be used for the purposes of the stated rationale and objectives set out to protect public safety and detect, deter, and assist in investigating criminal activity.

[18] As a result of these recommendations and guidelines, the TTC’s policy is that new data overwrites the old data on bus cameras, and that any prior video recorded more than 15 hours earlier is not retained unless it is specifically requested by someone authorized to do so.

[19] In creating the TTC download procedures concerning video on buses and streetcars, the TTC had to balance an individual’s right to privacy while on the system with law enforcement concerns to obtain evidence to assist in law enforcement. In order to enhance privacy considerations, TTC policy is that bus operators do not have access to the hard drive. The hard drive is accessible only by TTC supervisors who are trained and authorized to remove the hard drive and retain video footage when a prescribed request is made.

[20] Mr. Lavecchia, the driver of the Martingrove bus on August 20, 2010, testified that he could not gain access to the hard drive containing the camera video footage. He did not have a key to the locked cabinet containing the hard drive. According to Mr. Lavecchia, only the Toronto Police Service could authorize a download of the video footage, with the assistance of a supervisor who could open the cabinet, remove the hard drive and perform the download. In this case, there were no charges laid and the Toronto Police Service did not authorize or request a download of the video.

[21] TTC supervisor Phil Bannerman attended at the scene of the incident on August 20, 2010. He interviewed the bus driver, Ms. Leon and two eyewitnesses. The information he received from the eye witnesses confirmed that Ms. Leon did not fall. This was also supported, he said, by the information relayed to him by the police officer who had arrived before him at the scene.

[22] Mr. Bannerman testified that before 2012, there was no downloading of video footage permitted without authorization from the Toronto Police Service. He said that in about 2012, the process was changed so that the TTC claims department and supervisors could authorize a download.

[23] On August 20, 2010, however, when he arrived at the scene, the Toronto police had already interviewed Ms. Leon and the witnesses. Based on those interviews, the police officer told Mr. Bannerman that he did not think Ms. Leon had fallen and was not going to be filing a report. The police did not request or authorize any download of the video.

[24] In addition, Mr. Bannerman’s evidence was that no one said anything about possible litigation or made any mention of possible claims. Mr. Bannerman testified that his occurrence reports must be filed regardless of whether there is any threat of litigation.

[25] Mr. Fuller, the manager of Transit Control Centre in 2010, testified as well. His evidence was that all emergency requests are funneled through the Control Centre. He said that the Centre typically responds to at least 300 incidents a week. The Centre administers TTC policies but, with respect to video surveillance, the Centre’s staff did not have any authority to order downloads. Mr. Fuller confirmed Mr. Bannerman’s evidence that, in 2010, only the TPS could authorize a download. Mr. Fuller said that until that policy changed in 2012, Mr. Bannerman could have been disciplined for authorizing a download on his own.

[26] No further action was taken on the video issue and, presumably, after 15 hours of additional operation, the video footage from the afternoon of August 20, 2010, was overwritten in accordance with TTC policy.

[27] It is common ground that the first notice the TTC received that Ms. Leon planned to commence litigation against the TTC was on October 6, 2010 – almost two months after the incident.

[28] The plaintiff initially argued that Mr. Bannerman, by forming a view about Ms. Leon’s credibility vis-à-vis that of the driver and the two eyewitnesses, must have known that litigation by Ms. Leon was likely. The plaintiff took the position that by failing to “request” the video footage, Mr. Bannerman “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 litigation.” In the face of Mr. Bannerman’s evidence at trial, however, the argument changed.

[29] Following Mr. Bannerman’s evidence at trial, Ms. Neal accepted that Mr. Bannerman did not have the requisite intention to make out a case for spoliation. Her argument was that even though Mr. Bannerman thought only the police could authorize a download, in fact TTC policy permitted a supervisor to do so. Reference was made to a policy taken from the TTC website on January 14, 2014. Although Mr. Fuller recognized the policy, he could not say that this policy was in effect on August 20, 2010.

[30] Ms. Neal argued that the intention to destroy video footage could be inferred from the alleged failure of the TTC to make supervisors aware that they could request video footage on their own. From this, she says, there is an issue of fact to be put to the jury; that is, whether the TTC intentionally destroyed the video to affect this litigation by not informing Mr. Bannerman that he had the authority to do the download on his own. If the jury were to find that the TTC did fail to advise Mr. Bannerman of this, the jury, she argued, should be instructed to draw the adverse inference that the video would have shown evidence that was adverse to the TTC.

[31] In my view, no reasonable trier of fact, acting judicially and properly instructed on the law of spoliation, could conclude that Mr. Bannerman, or the TTC, intentionally destroyed video evidence relevant to ongoing or contemplated litigation. I say this in part because the factual foundation for Ms. Neal’s argument has not been established. It is not clear that the policy she produced from 2014 was in force in 2010. Her position on this is, in any event, contrary to the sworn evidence of both Mr. Bannerman and Mr. Fuller, which was not undermined at trial. It is also not clear from the document itself that the supervisor had any authority to order the download on their own, even if it was the correct policy.

[32] In addition, there simply was no ongoing or contemplated litigation on August 20, 2010. Mr. Bannerman interviewed two eyewitnesses who both said Ms. Leon did not fall. Indeed, one of these witnesses said that he assisted Ms. Leon and prevented her from falling. There is no evidence that Ms. Leon threatened or even mentioned litigation at the time. The police told Mr. Bannerman they were not filing a report. The police did not request, or even mention, the video. The TTC has over 500 million rides per year. Mr. Bannerman said that he investigates up to 40 incidents per month. Mr. Fuller said the TTC handles at least 300 incidents a week. There was no reason for Mr. Bannerman to retain the video footage in 2010.

[33] In Stillwell V. World Kitchen, Inc., 2013 ONSC 3354, 2013 O.J. No. 2620, I.F. Leach J. dealt with a similar problem. In that case, Mr. Stillwell sustained a very serious cut as a result of washing the defendant’s cookware item, which had broken, in the kitchen sink. He lost significant quantities of blood in and around his kitchen sink as he struggled to make his way outside and obtain assistance, leaving the broken pieces of cookware behind in the bloody sink. He was rushed to the hospital where emergency treatment was applied and he was prepared for surgery on an urgent basis.

[34] When his wife returned home, she found all of the blood and the broken pieces of cookware. Mrs. Stillwell testified that 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. There was so much blood she described the scene as looking like “someone had been murdered”. After returning from the hospital, Mrs. Stillwell removed the items from the sink, wrapped them up in newspaper, sealed the package with duct tape and put it in the garbage. Neither Mr. nor Mrs. Stillwell gave any thought to a possible lawsuit before or for a considerable time after, the pieces of the cookware had been thrown out.

[35] I.F. Leach J. set out the law of spoliation. He could find nothing in the evidence at trial to suggest any intention by Mr. or Mrs. Stillwell to destroy evidence with the intent intention of affecting ongoing or contemplated litigation. He found that there was no evidence on which a jury, acting judicially, could find such an intention.

[36] As he put it in para. 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 pickup is at all relevant, and that they discarded the evidence to gain an advantage in that contemplated litigation?

In my view, there is no such evidence.

[37] In my view, the inference the plaintiff asks me to draw to give rise to the requisite intent - that Mr. Bannerman “must have known” that litigation was going to result - is on much weaker facts than I.F. Leach J. dealt with in the Stilwell case. If no inference could be drawn in that case, none could be drawn here.

[38] D. Wilson J. in Gutbir v. University Health Network, 2010 ONSC 6752 also came to a similar conclusion following the completion of evidence at a jury trial. In that case, the hospital had destroyed infant records in contravention of hospital policy. D. Wilson J., however, held in a ruling following the evidence but before closing submissions, that there was no factual underpinning, on the evidence, that would give rise to the availability of a negative presumption arising from spoliation. She said, at para. 21:

Mr. Siebert argued that simply by reason of the fact that Zamora was born with deficits, the hospital should somehow have been alerted to the possibility that there might be a lawsuit. He also submitted that the fact of an adverse outcome is sufficient to suggest motivation to destroy records. I reject these submissions. Many medical procedures and hospitalizations may not have the desired outcome, but that does not automatically lead to the conclusion that there will be litigation. In this case, on the evidence, there was no complaint made by the plaintiffs to the hospital concerning the care received during Mrs. Gutbir’s labour and delivery. On the contrary, the evidence for Mr. Gutbir was that it was not until 2001 that he and his wife contemplated a lawsuit arising from the birth of their daughter.

[39] In my view, exactly the same thing can be said about Mr. Bannerman and the TTC in this case. The mere fact that Ms. Leon said she was injured from an alleged fall on the bus is insufficient, standing alone, to give rise to an apprehension of intended litigation or to found an intention to destroy records in the face of contemplated litigation.

[40] I do not say that no inference could ever be drawn in the absence of actual notice of existing or contemplated litigation. However, on these facts, it is simply not possible for any reasonable trier of fact to draw an inference that the TTC knew, on August 20, 2010, that litigation would be brought or that the video was destroyed intentionally to affect contemplated litigation. Any such conclusion would, at best, have been pure speculation.

[41] In the circumstances, I find 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 defendant’s case.

[42] It is for this reason that I am removing this question from the jury and will direct the jury that no inferences may be drawn from the fact that the video footage was not retained. Counsel in their closing submissions are to make no mention of the destruction of the video, or of spoliation, or in any way to suggest that the TTC intentionally destroyed evidence or that it had something to hide in this connection. Indeed, no mention of the issue should be made at all.

Penny J.

Date: March 13, 2014