COURT FILE NO.: CV-11-436012
DATE: 20211015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TRILLIUM POWER WIND CORPORATION, Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, AS REPRESENTED BY THE MINISTRY OF NATURAL RESOURCES, THE MINISTRY OF THE ENVIRONMENT, AND THE MINISTRY OF ENERGY, Defendant
BEFORE: E.M. Morgan J.
COUNSEL: Morris Cooper and Michael Cohen, for the Plaintiff
Christopher Wayland, Eric Wagner, and Roopa Mann, for the Defendants
HEARD: September 13-14, 2021
SUMMARY JUDGMENT motionS
I. The policy background
[1] This case plumbs the depths of certain much criticized policies by the former provincial government of Premier Dalton McGuinty.
[2] That government, during its second term in office, implemented a policy of approving and subsidizing wind power projects across the province. Several years later it recognized the economic turmoil created by its wind power policy by abruptly cancelling it (or a substantial part of it). The cancellation, however, was done without any advance coordination or consultation with the parties effected most – applicants in the Plaintiff’s position of having already invested in the approval process – prompting even more economic disarray. Compounding the problem, during its third term in office the McGuinty government carried out a policy of deleting email accounts and destroying handheld communication devices issued to senior staff of the Premier’s Office (“PO”), making it difficult to recreate the internal communications leading up to these decisions.
[3] The issue here is not whether the provincial government carried out ill-conceived policies and improper governmental decisions from roughly 2009 to 2013; there is little debate about that anymore. The issue here is whether these actions amounted to actionable violations of the Plaintiff’s legal rights.
II. The wind power policy
[4] The parties have brought reciprocal summary judgment motions. The one thing they agree upon is that there is no genuine issue for a trial, at least insofar as liability is concerned. The Plaintiff seeks to have liability determined in its favour and then subsequently have a trial on quantification of damages. The Defendant seeks to have the action dismissed in its entirety.
[5] The Plaintiff’s action was commenced in 2011. In 2013, the Court of Appeal dismissed much of the claim, significantly paring down the remaining causes of action: Trillium v Ontario, 2013 ONCA 683 (“Trillium Power”). The parties then undertook substantive pleading amendments in 2015. They have exchanged affidavits of documents and conducted examinations for discovery. They have also litigated a further production Order which the Plaintiff obtained against the Defendant in April 2019, and have had a contested motion over late-in-the-day pleading amendments resulting in an Amended Statement of Defense: Trillium Power Wind Corp. v. Ontario, 2019 ONSC 6905.
[6] The action arose in the wake of a change in the Ontario government’s policy with respect to the approving and subsidizing of wind power projects. That policy was originally implemented pursuant to the Green Energy Act, 2009, SO 2009, c. 12, Sched. A.
[7] According to the Preamble to the Green Energy Act, the policy was aimed at “fostering the growth of renewable energy projects, which use cleaner sources of energy, and to removing barriers to and promoting opportunities for renewable energy projects and to promoting a green economy.” This included the “feed in tariff”, or “FIT” program, which procured wind power-generated energy for Ontario consumers by guaranteeing developers an extremely a high price for electricity over a twenty-year period.
[8] The approval process for wind power projects contained a broad scope of discretion for government to choose who would accomplish the projects and how they would be designed. As described by Goldstein J. at an earlier stage of this action, “[w]ind power projects must obtain a Renewable Energy Approval pursuant to s. 47.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19…[under which] the Minister of Energy has very broad discretion to issue policies and approvals”: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2012 ONSC 5619, at para 26. On appeal, the Court of Appeal noted that, “[t]he policy expressly provided that it applied to the ‘discretionary disposition’ of Crown lands, including a lakebed”: Trillium Power, at para 10.
[9] The McGuinty government’s policy accomplished none of its stated goals. The entire policy was terminated by the Green Energy Repeal Act, 2018, SO 2018, c. 16 which, according to the government’s press release issued at the time of the statute’s enactment, “eliminates a piece of legislation that introduced disastrous changes to Ontario's energy system that led to rising electricity rates for families and businesses” and repealed “the disastrous feed-in-tariff program and skyrocketing electricity rates for Ontario families”: “Ontario Scraps the Green Energy Act”, Ministry of Energy, Northern Mines and Development, December 7, 2018, <https://news.ontario.ca/ en/release/50684/ontario-scraps-the-green-energy-act>.
[10] In the meantime, however, the Plaintiff had applied for, and had gone a substantial way toward obtaining authorization to operate a wind farm in the Lake Ontario lakebed near Main Duck Island off Prince Edward County. The proposal was premised on ultimately bringing the project into the FIT program, which would have not only made the wind farm economically feasible but would have resulted in a lucrative arrangement for the Plaintiff. The Plaintiff had therefore already made a substantive investment in performing the studies and other matters required in the approval process.
[11] As related by the Court of Appeal, the Plaintiff had obtained Applicant of Record status with the Ministry of Energy: Trillium Power, at para 16. While this status did not constitute an approval or permit the Plaintiff to make alterations on Crown lands or to start construction of its wind farm on the lakebed, it did take the Plaintiff into the testing phase of its proposed project. In that respect, it represented significant progress in the regulatory approval process.
[12] Although a number of windfarm projects were approved by the provincial government under the Green Energy Act, the Plaintiff’s proposal was unique in that it was an offshore project. Had it reached the point of approval it would have been the first such offshore project to be constructed in Ontario. It did not, however, have the chance to get to that stage.
[13] On February 11, 2011, the government, through the Minister of Energy, announced a halt – labelled a “moratorium” by the government – to its consideration of any offshore windfarm projects until such time as the environmental impact of such projects could be studied. That announcement effectively terminated the Plaintiff’s approval application. As counsel for the Defendant point out in their factum, no offshore wind power projects have ever been approved or gone ahead in Ontario either before or since that time.
III. The Plaintiff’s action
[14] As it happened, the date of the government’s announcement of the moratorium on offshore windfarm projects coincided with the closing date for the Plaintiff’s financing of its proposed project. As a result of the change in policy and the public announcement of that change just prior to the financing transaction’s closing, the Plaintiff’s financial institution, Dundee Corporation, did not close as scheduled on February 11, 2011. The Plaintiff thereby lost the financing that it had been anticipating.
[15] The Court of Appeal observed in Trillium, at para 21, that although much of the Plaintiff’s claim against the government is not justiciable, there is no doctrinal bar against the Plaintiff claiming that the Defendant hurried its decision so that it would be announced in time to undermine the financing. That is, the Plaintiff is permitted to claim that the announced moratorium on offshore windfarm approvals was done in a way that specifically deprived the Plaintiff of the resources to litigate the termination of the wind power project.
[16] The first version of the Statement of Claim stated that the Ontario government violated the Plaintiff’s rights by disguising purely political motives for the policy change beneath the veneer of environmental concerns about lakebed construction of windfarms. In effect, the Plaintiff initially contended that the merits and bona fides of the government’s decision announced on February 11, 2011 were actionable. That claim, however, was struck out by the Court of Appeal. In a decision that upheld the general immunity of governments for their “core policy decisions”, the Court opined that “the remedy for a political decision that a party does not agree with is found at the ballot box, not the courtroom”: Trillium, at para 48.
[17] The Court of Appeal did not, however, strike the Plaintiff’s claim altogether. Instead, it left a narrow window in which the Plaintiff could pursue its claim. In the Court’s words, at paras 36, 57, the Plaintiff could proceed with the action only insofar as its claim alleged that,
…the Defendant’s decision and the cancellation and confiscation in February, 2011 was specifically targeted to stop Trillium Power’s offshore wind power project in Lake Ontario before Trillium Power had the financial resources to litigate…
Trillium should be entitled to proceed based on the allegations that…the Government’s actions were targeted to stop Trillium’s offshore wind project before Trillium’s financing was in place in order to deprive Trillium of the resources to contest the Government’s decision to cancel the wind projects in Ontario [emphasis added].
[18] The Court of Appeal’s description of the one claim still open to the Plaintiff emphasized the timing of the government’s decision and public announcement to put an end to offshore projects. The crucial point is that while the government cancelled all further consideration of the Plaintiff’s proposal as part of the overall cancellation of all offshore applications, it went out of its way to do so before the Plaintiff’s financing was formally in place.
[19] As indicated, the Plaintiff’s financing was to close – to be put in place, as the Court of Appeal said – on February 11, 2011. That very day, and before the transaction could close, the Ontario government announced the termination of the offshore windfarm program. As a result, the financing deal did not close and Trillium was, in effect, deprived of resources that it expected to have at its disposal.
[20] Presumably, had the announcement been made a day later, the financing would have already gone through and the Plaintiff would have had a larger war chest with which to do battle with the government’s newly announced policy. The Court of Appeal dismissed all of the Plaintiff’s challenges to the decision to end offshore windfarms, but left open the one claim based on the timing of that decision’s announcement – i.e. that the timing of the public announcement was specifically geared toward the Plaintiff’s closing and that this accomplished the government’s purpose in undermining that closing.
[21] The litigation has proceeded apace since the Court of Appeal ruling. The parties have engaged in documentary exchange, examinations for discovery, etc. During this time, it has become apparent that, among other things, the Ontario government is unable to locate and produce any emails from the email servers of any former PO personnel. This lack of documentation is significant as PO personnel were centrally involved in considering the offshore wind decisions in issue here, including both the decision to put a stop to offshore projects and the decision to announce that policy change on February 11, 2011.
[22] Indeed, government emails produced by the Defendants and found in the email accounts of other, non-PO officials, show that three individuals in particular – Premier McGuinty’s chief of staff Chris Morley and the Premier’s aides Sean Mullin and Jamison Steeve – were closely connected with the decision-making process and either sent, received, or were copied on email messages in respect of that process. All three of these individuals have provided affidavits and been cross-examined in this proceeding, and all three deposed that they followed the then-extant protocols for their email accounts and hand-held devices when they concluded their jobs with the Premier’s office.
[23] It is a matter of public record that during the McGuinty period the practice within the PO was for the email accounts of departed personnel to be “decommissioned” – i.e. deleted in their entirety. Furthermore, there is evidence that the handheld devices used by the PO personnel at the time were, after their departures from the PO, either reset or, in the case of former Chief of Staff Morley, physically destroyed.
[24] Evidence of this practice was canvassed before the Legislative Committee investigating the deletion of documents in the context of the McGuinty government’s gas plant cancellation: Standing Committee on Justice Policy, Legislative Assembly of Ontario, 2nd Sess., 40th Parl., June 18, 2013. It was likewise the subject of an investigative report by the Information and Privacy Commission of Ontario, which concluded that the email destruction practice was a violation of the Archives and Recordkeeping Act, 2006, SO 2006, c. 34 and raised serious issues of political accountability: IPC, Deleting Accountability: Records Management Practices of Political Staff, June 5, 2013, at 32.
[25] Most notably, the device destruction and email deletion policy was also thoroughly canvassed during the course of the criminal trial of Chris Morley’s successor as chief of staff, David Livingston. It was there described by the court in rather scathing terms as a “plan to eliminate sensitive and confidential work-related data…[which] amounted to a ‘scorched earth’ strategy, where information that could be potentially useful to adversaries, both within and outside of the Liberal Party, would be destroyed”: R. v. Livingston, 2018 ONCJ 25, at para 176.
[26] In light of this state of affairs, the Plaintiff amended its claim to add the tort of spoliation. It is the Plaintiff’s position that but for the destruction, or spoliation, of relevant documentation, it would have been in a position to succeed in the claim that the Court of Appeal left open. In so pleading, Plaintiff’s counsel seek to put forward spoliation as an independent, if novel tort claim.
[27] Although controversial, an independently actionable tort of spoliation of evidence has been recognized in a handful of states in the United States: see Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189 (N.M. 1995); Smith v. Howard Johnson Co., Inc., 615 N.E2d 1037 (Ohio 1993); St. Mary's Hospital, Inc. v. Brinson, 685 So.2d 33, 35 (Fla. App. 1996); Smith v. Superior Court, 198 Cal. Rptr. 829, 835 (Cal. App. 1984), but see Cedars-Sinai Medical Center v. Superior Court of Los Angeles, 1998 Cal. LEXIS 2624.(Cal. S.C.). No such independently actionable tort has ever been recognized in Ontario.
[28] However, in Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 17170 (ON CA), 49 OR (3d) 699, at para 24, the Court of Appeal indicated that spoliation as a cause of action is a possibility which should at least be allowed to proceed to trial before any determination is made. In view of the Court’s ruling in Spasic Estate, I would not dismiss the Plaintiff’s claim at this stage on the basis that the cause of action is somewhat novel. The law must be permitted to develop, and reliable findings of fact are an important aspect of that process: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 SCR 959.
[29] Moreover, while spoliation as a self-standing cause of action is still open to question, Ontario courts have recognized spoliation as an evidentiary rule where there has been destruction of evidence by a party who reasonably anticipated litigation in which that evidence would play a part: Ziai v. Koninklijke Luchtvaart Maatschappij NV, 2007 CarswellOnt 6431, at para. 51 (SCJ). In fact, this rule of evidence giving rise to a rebuttable presumption has long been acknowledged. The Supreme Court of Canada stated as far back as St. Louis v. The Queen (1896), 1896 65 (SCC), 25 SCR 649, at 652-53 that, “the destruction of evidence carries a presumption that the evidence destroyed would have been unfavourable to the party who destroyed it, but that presumption may be rebutted”.
[30] Since there is no dispute that email accounts of relevant actors were destroyed by the Defendant, the question for the spoliation analysis is whether the presumption of adverse impact on the Defendant can be rebutted. Whether this claim is to stand on its own as a newly recognized tort or is to constitute an evidentiary presumption against the Ontario government, the basic elements of spoliation must be satisfied. As my colleague Perell J. explained recently in Yang v. Co-operators General Insurance Company, 2021 ONSC 1540, at para 102, the elements of spoliation are well known:
Spoliation has four elements: (1) the missing evidence must be relevant; (2) the missing evidence must have been destroyed intentionally; (3) litigation must have been ongoing or contemplated at the time the evidence was destroyed; and (4) it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.
IV. The financing claim
[31] To reiterate, after dismissing the balance of its claim alleging misfeasance against the government, what the Court of Appeal left open for the Plaintiff to pursue was that “the Government’s actions were targeted to stop Trillium’s offshore wind project before Trillium’s financing was in place…”. As the Court of Appeal explained it, what was from the Plaintiff’s point of view an ill-timed announcement designed by the Defendant “in order to deprive Trillium of the resources to contest the Government’s decision to cancel the wind projects in Ontario”: Trillium, at para 57.
[32] In other words, it is the timing of the government’s announcement of the policy, and not the policy itself, that is crucial to the Plaintiff’s remaining claim. While the Court of Appeal was of the view that the Defendant is immune from a suit for damages caused by its policy decision to halt offshore windfarm projects, it is not immune from a suit for damages resulting from its having intentionally timed the announcement to immediately precede the Plaintiff’s closing of its financing deal.
[33] As counsel for the Defendant point out, it is only logical that in order for the government to attempt to stop the project “before Trillium’s financing was in place”, the government would have to know when that financing was to take place. Embracing that logic, the Plaintiff has pleaded at paragraphs 24-25 and 29 of its Amended Statement of Claim that,
…Trillium Power provided a courtesy notice to the office of the Premier on the morning of Wednesday, February 9, 2011, advising that Trillium Power was set to close a significant financial investment by Dundee Corporation by the end of the day on Friday, February 11, 2011. This notification was made to Sean Mullin, Deputy Director of Policy and Senior Advisor on Finance and Energy Policy, in the Office of the Premier of Ontario. A separate and similar notification was provided to the Ministry of Energy on the afternoon of Thursday, February 10, 2011, to Andrew Mitchell, Senior Policy Advisor – Renewable Energy, in the Office of the Minister of Energy.
At 2:00 p.m. on February 11, 2011, the Government of Ontario issued a Press Release stating that the offshore wind development would be subject to a moratorium…
The damage to Trillium Power by the Government’s February 11, 2011 Press Release was profound and wide reaching. The closing of the financing transaction with Dundee did not occur, and Trillium Power was obliged to effectively cease its corporate operations and organization…
[34] The essence of this claim, then, is that the Defendant must have intentionally fast-tracked its public announcement when it received those “courtesy notices” from the Plaintiff. There is no other way that any government officials would have known when the Plaintiff’s financing deal was set to close, making this the only way that it could have acted to cancel the financing before it happened. The voicemail notices advising the government of the timing of the finance closing are, in effect, the lynchpin of the Plaintiff’s entire claim.
[35] The “courtesy notices” were further elaborated on by the principal of the Plaintiff, John Kourtoff, at his examination for discovery. It turns out that neither Mr. Kourtoff nor any other director, officer, or employee of the Plaintiff actually left the voicemail messages that constitute the crucial notice. Rather, it was Mr. Kourtoff’s understanding that the messages were left on Mr. Mr. Mullen’s and Mr. Mitchell’s answering machines by a lobbyist retained by the Plaintiff, Sandra Leffler. In other words, Mr. Kourtoff had no direct knowledge of whether those messages were actually left for those individuals and, if so, what, exactly, they said or conveyed, but he had heard second-hand that the Ms. Leffler had left them.
[36] Ms. Leffler was not called by the Plaintiff to testify in this summary judgment motion, nor did she submit an affidavit or provide any proof that she had communicated at all with Messrs. Mullen and Mitchell on February 9 and 10, 2011. Indeed, even Mr. Kourtoff, who has submitted two affidavits in this matter, has not sworn on information and belief that Ms. Leffler left the voicemail messages that the Plaintiff pleads and on which the Plaintiff so centrally relies. Rather, he simply indicated his understanding in this regard during the course of being questioned about it at discovery.
[37] Frankly, the notion that a crucially important piece of information might simply be left as a voicemail message for government employees, and that the expectation was that this information would be conveyed to top decision-makers in a complex, multi-faceted organization like the provincial government, strains credulity. But for the one and only person who could testify that the messages were indeed left and who could state what those messages actually said to be missing in action undermines what is left of this point. Counsel for the Defendant submit that under the circumstances, where the all-important notices were supposedly left by voice message by Ms. Leffler, the absence of any evidence from Ms. Leffler is fatal to the Plaintiff’s claim of interference with their financing. I have to agree.
[38] Not only has the Plaintiff failed to call Ms. Leffler or provide any evidence from her, but the Defendant in its Motion Record has included affidavits of the two supposed recipients of Ms. Leffler’s messages, Sean Mullin and Andrew Mitchell. Both of those individuals have deposed that they never received any messages from Ms. Leffler regarding the closing of the Plaintiff’s financing deal and the timing of that closing. In the absence of anything from Ms. Leffler, the Plaintiff has no evidence to counter the direct evidence of Mr. Mullin and Mr. Mitchell in support of the Defendant’s position that the timing of the February 11, 2011 public announcement about offshore windfarm projects was coincidental.
[39] In fact, Mr. Morley, the Premier’s then Chief of Staff, has submitted two affidavits in this proceeding in which he deposes that then Environment Minister, John Wilkinson, ultimately made the decision to place a moratorium on offshore windfarms. According to Mr. Morley, this decision was made in late January or early February, 2011, and Minister Wilkinson made that decision based on a concern over the lack of scientific support for offshore projects of this nature. Mr. Morley specifically testified that neither he nor the then Premier made, or were asked to approve, the moratorium decision.
[40] In terms of motivation for its moratorium announcement, the Plaintiff alleges that the Defendant was biased against it in favour of its preferred competitor in offshore wind development, Windstream Energy LLC (“Windstream”). It is the Plaintiff’s contention that Windstream’s lobbyist was better connected than its own lobbyist and that the real point of the moratorium and of targeting the Plaintiff’s financing arrangement was to ensure that Windstream remained as the only offshore wind power developer in the running for the Ontario program.
[41] In making this argument, the Plaintiff relies on testimony from Sean Mullin to the effect that, in the weeks leading up to the February 11, 2011 announcement, there was discussion among government officials suggesting that Windstream’s project might be allowed to proceed as a pilot project. There is also evidence in the record indicating that Windstream received advanced notice of the moratorium on the morning of February 11, 2011, prior to the public announcement.
[42] The evidence also shows, however, that Windstream was the only one of the offshore wind developers who had by early 2011 already secured a FIT contract. That, of course, could explain why it was being considered for special treatment – it alone among its competitors had a project whose economic success was not in doubt. In any case, Mr. Morley deposed that in the end Minister Wilkinson decided that Windstream’s project would not be permitted to go ahead, even as a pilot project.
[43] The same moratorium decision that put an end to the Plaintiff’s proposed project equally put an end to Windstream’s, as evidenced by the government’s two press releases on February 11, 2011. The fact is that all projects stopped, and Windstream never did develop its project in any form. As Defendant’s counsel states in their factum, allegations of preferential treatment are belied by that incontrovertible reality. The argument that the targeting of the Plaintiff’s financing was a result of bias in favor of a competitor turns out to be a theory, or suspicion, that the Plaintiff apparently had in mind, but that is not borne out in fact.
[44] It is by now trite law that a party seeking summary judgment must put its best foot forward: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 76, at para 15. Apparently, the best evidence that the Plaintiff has to prove that the government knew of and exploited the timing of its financing transaction amounts to virtually no evidence at all. The Defendant, on the other hand, has direct evidence that no notification by the Plaintiff about the timing of its financing ever was conveyed to government, and that the government’s decision in respect of stopping offshore projects was entirely unrelated to the politics of the Premier’s office or to the government’s dealings with the Plaintiff.
[45] In putting its own best foot forward, the Defendant has effectively stopped the Plaintiff’s claim in its tracks. Without evidence that the government acted on, or even received, any information or notice about the timing of the Plaintiff’s financing deal, the Plaintiff cannot possibly prove that the government intentionally harmed the Plaintiff by timing its own announcement in a way which would undermine the Plaintiff’s financing deal.
[46] Although this is enough to put an end to the Plaintiff’s claim in respect of undermining the financing, there are several more points made by Ontario’s counsel which would likewise make the Plaintiff’s success in this claim impossible. First, the Plaintiff would have to prove that had the financing closed it would have succeeded in reversing the government’s moratorium decision. That suggests that the Plaintiff would have used the funds supplied by Dundee Corporation to persuade government officials or, more likely, to litigate the issue against the government. Ironically, however, that is an argument that the Plaintiff is in no position to make. It did, in fact, litigate the issue against the government, and the Court of Appeal rejected all but the present narrow claim. No amount of money would have armed the Plaintiff with better arguments than the ones that they have presented at every level of court.
[47] Moreover, there is no evidence, and it is highly unlikely, that had the Plaintiff been permitted to proceed with its proposed project it would have been economically feasible or profitable. As indicated earlier, the economic viability of any windfarm project was always dependent on the FIT program and its policy of procuring energy from windfarms at an above-market price. However, the record shows that separate from the moratorium of which the Plaintiff complains here, no FIT contracts were authorized for projects the size of the Plaintiff’s proposed project after June 4, 2010.
[48] The Plaintiff’s own witnesses have confirmed that without the FIT program, the project would not have been viable. Accordingly, even if the inflow of funding from the Dundee financing would have enabled the crucial officials in the Ministry of Energy and/or the PO to allow the regulatory approval of offshore projects to advance, the financial viability of those projects would have been at an end. Without the FIT subsidy, the Plaintiff can only possibly prove that the government’s actions denied it a money-losing business venture.
[49] In all, the Plaintiff has been unable to produce any cogent evidence to support its claim that the Defendant undermined its financing and that as a consequence the Plaintiff was unable to turn its fortunes around. The claim is based almost entirely on unsupported speculation and unproven assertions.
V. The spoliation claim
[50] As set out above in these reasons, a rebuttable presumption exists against a party destroying evidence relevant to litigation. That said, the presumption does not arise whenever evidence has been destroyed: Gutbir (Litigation Guardian of) v. University Health Network, [2010] OJ No 5386 (SCJ), at paras. 18-20. It arises only where the destruction took place in contemplation of litigation and “in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation: Leon v. TTC, 2014 ONSC 1600, at para. 9.
[51] Furthermore, the adverse presumption, even if it exists, may be rebutted by the party who engaged in the destruction of evidence. This rebuttal would be accomplished by adducing “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”: Ibid.
[52] The record before me shows that the evidence that the Plaintiff contends was spoliated – i.e. the former PO email accounts from which the potentially relevant emails were purged – was destroyed or deleted as part of what was then an improper, but common practice of Premier McGuinty’s office when senior employees left government. The practice was anti-democratic and has been widely criticized as one of the most unfortunate legacies of that political era. However, there is no evidence before me that any records were deleted in an attempt to influence this particular legal action or that any document destruction was aimed at fending off the Plaintiff’s claim. In my view, no reasonable inference can be drawn that any documents were deleted or destroyed in an attempt to affect this litigation.
[53] Another way of looking at the issue is that any presumption against the Defendant due to its intentional destruction of records is rebutted by the evidence that demonstrates that the normal PO recordkeeping practice at the relevant time was to purge email accounts for departing employees and to destroy mobile devices belonging to very senior PO employees. Livingston, supra, makes this clear, as do a number of other inquiries discussed earlier in these reasons. One cannot condone the now defunct policy of email deletion, but one equally cannot relate it to the present litigation with the Plaintiff.
[54] Accordingly, while a novel cause of action such as spoliation should not be struck out at an early stage and without a full trial, any cause of action requires an evidentiary basis. However, the evidentiary basis for the Plaintiff’s spoliation claim is absent here.
[55] The evidence establishes that counsel for the Defendant has, since inception of this action, produced all that the Defendant has been able to find and produce. In fact, the Defendant’s productions have been voluminous; counsel submit that many of the missing emails from the PO’s purged hard drives have been produced, since the sender or recipient on the other end of those messages had copies.
[56] What is missing is material that otherwise might have been evidence, but that that was destroyed in the unfortunate, but ordinary course of business as it was conducted by the Premier’s Office at the time. The evidence before me, and that was before the court in Livingston, and that was presented to the Information and Privacy Commissioner as well as to the Standing Committee on Justice Policy, is that the destruction was done as a matter of routine by employees in the PO office. That is, it was done without the involvement of counsel, by persons with no particular knowledge of the Plaintiff’s claim, and with no view to influencing the case’s outcome.
[57] The evidence of intention that would be needed to support any spoliation claim is not present. Indeed, there is ample evidence that if relevant evidence was destroyed by the government, that destruction was distinctly not done with an eye on this case and therefore not with the requisite intent for a spoliation claim.
[58] The Plaintiff is in many respects a victim of governmental policy; but much as one might sympathize, it is not a victim of actionable wrongs.
VI. Disposition
[59] The Defendant’s motion for summary judgment dismissing the claim is granted, and the Plaintiff’s motion for summary judgment is dismissed.
[60] Counsel may make brief written submissions on costs. I leave it to them to determine exactly how brief. Counsel for the Defendant is requested to provide me with submissions within two weeks of today, and counsel for the Plaintiff is requested to provide me with submissions within two weeks thereafter. The submissions may be sent to my assistant by email.
Date: October 15, 2021
Morgan J.