SUPERIOR COURT OF JUSTICE – ONTARIO
COMMERCIAL LIST
RE: Thelma Leon and George McCalla, Plaintiffs
AND:
Toronto Transit Commission, Defendant
BEFORE: D. M. Brown J.
COUNSEL:
J. Strype and E. Neal, for the Plaintiffs
A. Davidson, for the Defendant
HEARD: February 10, 2014
REASONS FOR DECISION
Motion to dismiss an action for the alleged spoliation of evidence
[1] A few days before the start of this jury trial on January 20, 2014, the plaintiffs served a motion alleging that the defendant, the Toronto Transit Commission, had spoliated video evidence of events which took place on a Martingrove bus on August 20, 2010, the date the plaintiff, Thelma Leon, alleges she suffered an injury on the bus as a result of the driver’s negligence. In their notice of motion the plaintiffs sought the following relief: (i) the striking out of the TTC’s statement of defence; (ii) in the alternative, an order that an adverse inference be drawn against the defendant that the video would have supported Ms. Leon’s version of events; and, (iii) an order striking out the testimony of two independent witnesses whose statements later given to the TTC contradicted Ms. Leon’s version of events.
[2] This action came before the trial judge on January 20, 2014. Although the record did not contain any endorsement made by the trial judge, counsel advised that before the jury selection process had started – i.e. before the jury panel was brought into the courtroom – the plaintiffs raised the issue of their motion. The trial judge adjourned the trial until March 3, 2014 and directed that the plaintiffs’ spoliation motion be brought before a motions judge. In light of the late service of the motion, the TTC had not been able to prepare responding materials.
[3] When the motion came before me earlier this week, I had the benefit of a much more extensive record than was before the trial judge. As well, both parties had filed facta and books of authorities. The arguments of the parties disclosed that the leading case on the law of spoliation remains the decision of the Alberta Court of Appeal in McDougall v. Black & Decker Canada Inc., 2008 ABCA 353. In paragraph 29 of that decision the Court of Appeal summarized the applicable legal principles and addressed the issue of when the court should consider a party’s allegation of spoliation:
Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response.
Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.
[4] Having had the benefit of a fully briefed motion and the opportunity to consider the nature of the relief requested by the plaintiffs in the context of the action at large, I intend to follow the guidance provided by the Alberta Court of Appeal in the McDougall case and traverse this motion to the judge who will hear the trial on March 3, 2014. Were a judge to find that spoliation had occurred in this case – an issue on which I offer no view and which is highly contested – then any remedy granted would be inextricably tied to the trial process, especially when, as was pointed out in the McDougall case, the principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. Should spoliation be found to have occurred, I do not think it appropriate in the circumstances of this case for a motions judge to tie the hands of the trial judge – the larger context of the trial must be taken into account in crafting any remedy in the event spoliation was found to have occurred.
[5] As I said, I enjoyed the benefit of materials not available to the trial judge. In order to ensure an efficient start to the trial on March 3, 2014, I would recommend that the Civil Trial Co-ordinator deliver the spoliation motion materials to the judge who will hear the trial no later than Thursday, February 27, 2014. That would enable the trial judge to review the motion materials before counsel attend on March 3 and would enable the trial judge to consider and dispose of the motion before jury selection started, if the trial judge thought that to be the appropriate procedure.
[6] The costs of the motion before me are reserved to the trial judge.
D. M. Brown J.
Date: February 12, 2014