SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICKI BEN-MARGI, RUTH BEN-MARGI and ALBERTO BEN-MARGI, Plaintiffs
- and -
ANDREW PAIVA, MALCOLM WHYTE, MARK ANTHONY WHYTE, CERTAS DIRECT INSURANCE COMPANY and ALLSTATE INSURANCE COMPANY of Canada, Defendants
BEFORE: Associate Justice Todd Robinson
COUNSEL: D. Green, for the plaintiffs (moving party)
P. Regan, for the defendants, Malcolm Whyte and Mark Anthony Whyte
N. Yollen, for the defendant, Andrew Paiva
HEARD: July 29, 2021 (by videoconference)
REASONS FOR DECISION
1On June 23, 2019, Micki Ben-Magi was struck by two vehicles in a pedestrian motor vehicle accident: first by a vehicle driven by Andrew Paiva and then by a vehicle driven by Malcolm Whyte. Both defendant drivers are alleged to have been participating in an illegal street race when they hit Mr. Ben-Magi. They allege that Mr. Ben-Magi was a willing participant in that street race, having been a flag bearer for the race.
2Mr. Ben-Magi and his family have sued for injuries and losses suffered as a result of the accident. In the course of litigation, it has been disclosed that, after the accident, Andrew Paiva sold his vehicle and the engine in the car driven by Malcolm Whyte was replaced. The plaintiffs bring this motion seeking to further amend their statement of claim to add a claim for punitive damages and allege spoliation of relevant evidence. Malcolm Whyte and Mark Whyte oppose all of the amendments. Andrew Paiva only opposes the spoliation amendments. The two insurer defendants take no position.
3I am granting leave to amend the statement of claim to add the proposed claim for punitive damages and to add most of the plaintiffs’ proposed spoliation allegations. I accept the defendants’ arguments, though, that leave should be denied for amendments dealing with alleged deletion of electronic communications and social media and some more general allegations of spoliation.
Analysis
4Once pleadings are closed, leave of the court is required to amend a statement of claim. Rule 26.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 provides that the court shall grant leave to amend unless it would result in non-compensable prejudice.
5Generally, the court is not to examine the factual and evidentiary merits or motives of the party seeking the amendment: Montel Inc. v. Kipawa Sales & Services Inc., 2014 ONSC 83 at para. 138(d); Essa v. Panontin, 2010 ONSC 691 at para. 8. Factors to be considered in granting leave to amend include if there is injustice that is not compensable in costs, if the proposed amendment is an issue worthy of trial and prima facie meritorious, if the amendment would not be struck had it been pleaded originally, and if the proposed amendments comply with pleadings rules, such as sufficient particularity: Montel Inc. v. Kipawa Sales & Services Inc., supra at para. 138; Marks v. Ottawa (City), 2011 ONCA 248 at para. 19.
6The plaintiffs previously amended their statement of claim to add Malcolm Whyte and Mark Whyte as defendants. Further amendments are now sought to add a claim for punitive damages and to plead additional allegations supporting spoliation of evidence and related adverse inferences. The spoliation allegations are outlined in two omnibus paragraphs, one for each of Andrew Paiva and Malcolm Whyte.
7Spoliation deals with the intentional destruction of evidence relevant to ongoing or contemplated litigation. The destruction must have been for the purpose of affecting the outcome of litigation. Since spoliation is treated as a rule of evidence, it does not need to be specifically pleaded for the resultant adverse inference to be relied upon: Gutbir v. University Health Network, 2010 ONSC 6752 at paras. 12-14. That does not preclude a party from pleading it.
8The parties dispute specific language in the two proposed paragraphs, which deal with alleged failures to preserve relevant and material evidence. The draft paragraphs were further amended after bringing this motion, prior to the hearing. The current proposed versions are as follows:
Following the subject accident, the Defendant, Mr. Paiva, sold the Paiva Motor Vehicle. The Plaintiffs plead that Mr. Paiva intentionally, recklessly, and/or negligently destroyed and/or failed to preserve material evidence relevant to existing, or contemplated, litigation for the purposes of affecting the outcome of existing and/or contemplated litigation. By selling the Paiva Motor Vehicle, Mr. Paiva intentionally, recklessly, and/or negligently destroyed and/or failed to preserve evidence that would have been relevant and material to the determination of the issues in this action, including but not limited to Mr. Paiva’s liability for the events described herein. This was done for the purposes of affecting the outcome of existing and/or contemplated litigation. Further, Mr. Paiva intentionally, recklessly, and/or negligently failed to preserve his electronic communications and social media postings relating to his participation in the race and post-accident conduct, for the purpose of affecting the outcome of existing and/or contemplated litigation. The Plaintiffs plead and rely upon the doctrine of spoliation of evidence and plead that adverse inferences should be drawn as appropriate.
Following the subject accident, the Defendant, Mr. Whyte, changed the engine, and intentionally, recklessly, and/or negligently failed to preserve the crash data recorder and/or “black box,” on the Whyte motor vehicle, for the purposes of affecting the outcome of the existing and/or contemplated litigation. Further, Mr. Whyte intentionally, recklessly, and/or negligently failed to preserve his electronic communications and social media postings relating to his participation in the race and post-accident conduct, for the purpose of affecting existing and/or contemplated litigation. The Plaintiffs plead that Mr. Whyte intentionally, recklessly, and/or negligently destroyed and/or failed to preserve material evidence relevant to existing, or contemplated, litigation. Mr. Whyte failed to preserve evidence that would have been relevant and material to the determination of the issues in this action, including but not limited to Mr. Whyte’s liability for the events described herein. Further, Mr. Whyte failed to remain at the scene of the accident and failed to report the accident to the police for the purpose of affecting existing and/or contemplated litigation. The Plaintiffs plead and rely upon the doctrine of spoliation of evidence and plead that adverse inferences should be drawn as appropriate.
9I have broken down the plaintiffs’ proposed amendments and address them as follows:
(a) adding a claim for punitive damages;
(b) adding allegations of failure by Andrew Paiva and Malcolm Whyte to preserve relevant electronic communications and social media;
(c) adding allegations of failure by Andrew Paiva to preserve his vehicle;
(d) adding allegations of failure by Malcolm Whyte to preserve the engine, crash data recorder and/or black box in the vehicle he drove; and
(e) adding allegations regarding Malcolm Whyte’s failure to remain at the scene of the accident as a matter of spoliation.
Punitive damages
10The plaintiffs seek to add a claim by Micki Ben-Margi for $1 million in aggravated, punitive, and exemplary damages. There are two aspects to the proposed amendments:
(a) First, the plaintiffs wish to plead that Andrew Paiva and Malcolm Whyte “were both driving at a high rate of speed and/or were involved in a joint venture and/or were involved in a street race” and that Mr. Whyte was “pursuing” Mr. Paiva “at a high rate of speed.”
(b) Second, the plaintiffs wish to add a new paragraph specifically alleging that “speed racing, and/or engaging in a joint venture to street race, driving in excess of 130 km per hour on a side street, and hitting a pedestrian from behind” is conduct that is “unconscionable, wanton, shocking to the conscience, and in total and reckless disregard for Mr. Ben-Margi, and deserves such an award of punitive, aggravated and/or exemplary damages.”
11Only Andrew Paiva opposes these amendments. Mr. Paiva argues that he has already been punished for his actions, since he was criminally charged and sentenced to a year of house arrest for dangerous driving. Citing Whiten v. Pilot Insurance Co., [2002] 1 SCR 18 at para. 123, Mr. Paiva submits that the onus is on the plaintiffs to demonstrate that his prior punishment was insufficient and that additional punishment is necessary. He submits that his penalty has already accomplished the objectives behind a punitive damages award, namely retribution, deterrence, and denunciation.
12In my view, Micki Ben-Margi’s entitlement to punitive damages is an issue worthy of trial and prima facie meritorious. It is premature to decide whether Mr. Paiva’s one-year house arrest was a sufficient penalty. Depending on factual findings made about the alleged illegal street race and the injuries suffered by Mr. Ben-Margi, it will be open to a trial judge to find that Mr. Paiva’s sentence was insufficient and that a further punitive award is appropriate. It will also be open to the trial judge to accept Mr. Paiva’s argument and find that he has already been sufficiently penalized. The proposed amendments supporting a claim for punitive damages have sufficient particularity. Had these paragraphs been pleaded originally, I would not have struck them. Leave is accordingly granted for the amendments.
Spoliation: Electronic communications and social media
13Each of the proposed new paragraphs on spoliation allege that Andrew Paiva and Malcolm Whyte “intentionally, recklessly, and/or negligently failed to preserve electronic communications and social media postings relating to [their] participation in the race and post-accident conduct, for the purpose of affecting the outcome of existing and/or contemplated litigation.” Neither defendant has included any any social media content, text messages, or emails about their involvement in the street race or the accident in their respective affidavits of documents.
14Prior to this motion being brought, Mr. Paiva’s counsel specifically confirmed that Mr. Paiva’s affidavit of documents discloses everything available and relevant, and that Mr. Paiva has no texts, emails, or social media. Prior to serving an affidavit of documents, Mr. Whyte’s counsel advised that he had asked his client “to produce his cell phone records for the date of the accident and any social media dealing with the accident.” While I accept that no such documents are included in the affidavit of documents, there is no correspondence in the record before me with Mr. Whyte’s counsel about the alleged production gap.
15Other than speculation by the plaintiffs that they ought to exist, there is no evidence supporting existence of any relevant text messages, emails, other electronic communications, or social media that have not been produced. The lawyer’s affidavit filed on behalf of Andrew Paiva states that Mr. Paiva advised that “he has never had any electronic communications or social media postings related to the accident of June 23, 2019.” That evidence is uncontested by anything other than the position of the plaintiffs that it is “inconceivable” there were no text messages or social media communications about the street race.
16Absent some evidence supporting existence of relevant electronic communications or social media posts, I cannot say there is an issue worthy of trial on this allegation of spoliation. Speculation about what reasonably ought to exist and incredulity about the defendants’ position does not support a prima facie meritorious claim. Leave for these amendments is accordingly denied.
Spoliation: Vehicle sale by Andrew Paiva
17It is undisputed that Andrew Paiva sold the car he was driving when he struck Micki Ben-Margi. It appears that the fact of a sale was first relayed to plaintiffs’ counsel during a case conference in this action on December 18, 2020, more than a year after the litigation had commenced. The plaintiffs’ proposed amendment specifically identifies the sale as an act of spoliation.
18There is no evidence on the date or circumstances of the sale. The only evidence on the matter is in the affidavit of Mr. Paiva’s lawyer, which states as follows at paras. 3-4:
I verily believe the addition of the spoliation allegations to the Statement of Claim is prejudicial to Mr. Paiva. He sold the car he was driving at the time of the accident in question for reasons unrelated to this litigation. It is my experience that owners of vehicles often sell their vehicles after they have been involved in accidents. This routine act of selling a vehicle is not spoliation of evidence.
Spoliation of evidence refers to the intentional destruction of evidence. Mr. Paiva sold his car to another individual. He did not intentionally destroy it.
19I am invited to accept that Mr. Paiva’s sale was in the ordinary course and for reasons entirely unrelated to existing or contemplated litigation. Not only is it premature on a pleadings motion to make such a factual finding, but there is insufficient evidence before me to support it.
20The above statements are a lawyer’s opinion (and possibly mere speculation) on Mr. Paiva’s intentions. They reflect an unattributed understanding of the purpose behind the sale. Rule 39.01(4) of the Rules of Civil Procedure provides that an affidavit may contain statements of the deponent’s information and belief, provided the source of the information and the fact of the belief are specified in the affidavit. While other parts of the affidavit expressly state what Mr. Paiva advised his lawyer, there is no similar statement regarding Mr. Paiva having advised his intention behind the sale. It is unclear how Mr. Paiva’s lawyer knows that the sale was “for reasons unrelated to this litigation.” He does not say who told him that.
21Mr. Paiva submits that, since the plaintiffs have the VIN for the car, they ought to be able to locate the current owner to inspect the vehicle. In my view, that is a separate matter from whether Mr. Paiva’s intent behind the sale was to dispose of the car so that it would be unavailable as evidence in this or other litigation.
22Mr. Paiva also argues that selling the vehicle cannot constitute spoliation of evidence, since he did not destroy it. Both the case law filed on this motion and arguments from the responding defendants focus on “destruction” of relevant evidence. However, it is not clear to me that the doctrine of spoliation is limited to intentional destruction of evidence, and cannot be applied to circumstances of intentional disposition of relevant evidence. There is no evidence from Mr. Paiva that he does not know what happened or what was intended to happen to the car after it was sold, which is information that only he could provide. I note that Black’s Law Dictionary defines spoliation as “the intentional destruction, mutilation, alteration, or concealment of evidence”: Black's Law Dictionary (11th ed. 2019), spoliation.
23On the limited case law filed for this motion, I am not prepared to hold that the plaintiffs clearly cannot succeed in demonstrating that sale of the vehicle by Mr. Paiva, if for the intention of disposing of relevant evidence, constitutes spoliation.
24Although I am granting leave to plead the allegations of spoliation about the vehicle sale, there is an exception. The second sentence of the proposed amendment about Mr. Paiva’s alleged spoliation appears related to the sale of the vehicle (since it is placed between two other sentences dealing with the sale). However, it duplicates the content of the following sentences. To the extent that the sentence is a general allegation of spoliation, it lacks sufficient particularity. To the extent that it is intended to deal with the vehicle sale, it is redundant given the following sentences and could lead to confusion on the scope of the alleged act of spoliation.
25I am mindful of the concerns expressed by the responding defendants about the impact that spoliation allegations may have on a jury. Since it is either too general or unnecessary, leave is denied to add that more general statement.
Spoliation: Engine replacement by Malcolm Whyte
26On December 3, 2020, Malcolm Whyte’s counsel wrote a letter confirming that the engine in the vehicle he was driving (a 2008 Honda Civic) was changed in October 2019. The plaintiffs allege that disposing of the engine, with corresponding loss of the crash data recorder and/or “black box” from the vehicle, constitutes spoliation.
27Mr. Whyte’s evidence on this motion is that of a law clerk. The law clerk’s affidavit states that Mr. Whyte’s counsel sent a letter dated December 3, 2020 outlining that “an engineering expert had stated that the engine of the 2008 Honda Civic did not possess an event data recorder”. The law clerk further gives evidence that, in January 2021, Rimkus Consulting Group published a document entitled, “Event Data Recorder Supported Vehicles”, which “indicates that the 2008 Honda vehicle did not have an event data recorder.” That document is appended as an exhibit. I am asked to infer from this evidence that the vehicle did not have a crash data recorder and, thereby, that the plaintiffs’ allegations of spoliation from failing to keep the recorder have no chance of success.
28I have several problems with the law clerk’s evidence on the “engineering expert”:
(a) There is nothing in evidence supporting that the individual is, in fact, an engineer and there is no evidence of their credentials or area of expertise;
(b) What the law clerk says is at least double, if not triple, hearsay. The statements in the lawyer’s letter are what the engineer is purported to have said to unidentified persons at the law firm (the letter refers only to “we” as being advised). The letter from Mr. Whyte’s counsel and the statements made in it are being tendered by the law clerk for the truth of their contents. Although hearsay in an affidavit is permissible if there is compliance with Rule 39.01(4), double hearsay does not comply with the exemption in Rule 39.01(4): Airst v. Airst, [1999] OJ No 5866 (CA) at para. 6; and
(c) The law clerk overstates what is set out in the letter. It does not say that the engine did not possess an event data recorder. The letter only outlines what an engineer advised would “typically” be available from the download of a 2008 Honda Civic black box. On the face of the letter, it says only that downloading the event data recorder or black box would typically not be available for a 2008 Honda Civic.
29With respect to the Rimkus Consulting Group document, there is no evidence on how or with what data it was prepared or from where the data was obtained. Simply because the 2008 Honda Civic is not listed in the document does not mean there is clearly no event data recorder in the specific vehicle driven by Mr. Whyte, or that no other relevant evidence would be available from the engine. As the plaintiffs point out, the lawyer’s letter acknowledges that the engineer advised that downloading the engine control module (ECM) for vehicle fault codes would typically be available for the 2008 Honda Civic, and that the ECM “may contain ‘freeze frames’ if there are engine fault codes present”.
30I cannot find on the evidence before me that there was clearly no crash data recorder or black box in the engine. I also agree with the plaintiffs that it is not clear from the evidence that they are the same thing, and that a black box would not still have been available even if a crash data recorder was not.
31Mr. Whyte argues, in any event, that the plaintiffs have failed to plead (i) that Mr. Whyte intentionally destroyed the engine, (ii) that the engine was destroyed when litigation was contemplated, and (iii) that the evidence was destroyed in order to affect the outcome of the litigation. The last point is incorrect, since the plaintiffs’ proposed amendment expressly alleges that the failure to preserve the crash data recorder or black box was “for the purposes of affecting the outcome of the existing and/or contemplated litigation.” Mr. Whyte is correct, though, that the first sentence of the paragraph dealing with his alleged spoliation does not refer to destruction of the crash data recorder or black box. That term is only used in the subsequent more general statements in the paragraph, as follows:
The Plaintiffs plead that Mr. Whyte intentionally, recklessly, and/or negligently destroyed and/or failed to preserve material evidence relevant to existing, or contemplated, litigation. Mr. Whyte failed to preserve evidence that would have been relevant and material to the determination of the issues in this action, including but not limited to Mr. Whyte’s liability for the events described herein.
32In my view, these sentences refer to the prior allegations regarding the engine, crash data recorder and black box, electronic communications, and social media, and are not merely general allegations of spoliation of unidentified evidence. The language is the same as the general language used in the paragraph dealing with alleged spoliation by Andrew Paiva. As I have already noted, that language is capable of being read as a generic allegation of spoliation, which would lack sufficient particularity. However, in my view, with deletion of the separating sentence about electronic communications and social media (for which I have denied leave to amend), the evidence referenced in these more general statements is clearly the engine, crash data recorder, and black box.
33I do not accept Mr. Whyte’s arguments that, even if there was a crash data recorder, it would clearly not be probative to Mr. Whyte’s negligence. The evidence before me supports that the engine was changed following the accident at a time when litigation might reasonably have been contemplated. It further supports the potential loss of a black box (if not a crash data recorder) and at least ECM data that might be available, either of which may reasonably be probative to negligence given allegations regarding the high speed of the cars.
34Since there is no evidence on the circumstances under which the engine was changed, I cannot say that the plaintiffs are unable to succeed in their position that Mr. Whyte changed the engine with the intention of disposing of relevant evidence to affect the outcome of prospective litigation. That may support a finding of spoliation and correlating adverse inference. It is an issue worthy of trial and, in my view, prima facie meritorious.
35Leave is granted to plead the allegations of spoliation about the crash data recorder or black box by reason of the engine change.
Spoliation: Malcolm Whyte’s failure to remain
36The plaintiffs also propose to add an allegation that Malcolm Whyte “failed to remain at the scene of the accident and failed to report the accident to the police for the purpose of affecting existing and/or contemplated litigation.” The plaintiffs speculate that, if Mr. Whyte had remained or reported the accident, then police would have been able to collect relevant evidence. They argue that Mr. Whyte’s intent by not remaining or reporting the accident was to affect potential litigation.
37The plaintiffs’ position has no apparent factual foundation and appears to stretch the concept of spoliation as set out in the case law placed before me. No or authority has been provided supporting that spoliation may extend to such a circumstance. In my view, this is not an issue worthy of trial or prima facie meritorious. Leave for this proposed amendment is denied.
38I do note, though, that if discovery or trial evidence supports that Mr. Whyte’s failure to remain or report the accident was intentional and for the purpose of concealing relevant evidence, it will still remain open to the plaintiffs to argue that spoliation does extend to such a circumstance and that an adverse inference is appropriate, irrespective of whether it is pleaded: Gutbir v. University Health Network, supra at para. 12.
Disposition
39The plaintiffs are accordingly granted leave to amend their statement of claim in the form attached as Exhibit B to the reply affidavit of Justin Linden sworn July 23, 2021, but deleting the second and fifth sentences in each of paras. 26 and 27. A draft order, approved as to form and content by counsel for the responding defendants, may be submitted by email to my Assistant Trial Coordinator, Christine Meditskos.
Costs
40Costs outlines have been exchanged and filed. I encourage the parties to settle costs. If they cannot, then written costs submissions shall be exchanged. The plaintiffs shall serve any costs submissions by November 5, 2021. The responding defendants shall serve their respective responding costs submissions by November 19, 2021. Any reply submissions shall be served by November 26, 2021. Costs submissions shall not exceed four (4) pages for primary submissions and two (2) pages for any reply submissions, excluding any offers to settle and case law. All costs submissions shall be filed by email directly with my Assistant Trial Coordinator, with proof of service.
41Unless costs submissions are exchanged and filed in accordance with the above, the parties shall be deemed to have agreed on costs.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: October 20, 2021