Stephen Lamont

In a tobacco liability appeal, the estate challenged an order striking portions of a statement of claim alleging intentional spoliation of evidence by tobacco manufacturers.

The Court of Appeal held that the novel spoliation claim should not be struck on an interlocutory motion because it was not plain and obvious that it could not succeed, and questions about recognition of the tort should be determined at trial on a full record.

The court further held that omnia praesumuntur contra spoliatorem is a rule of evidence, not a point of law that must be pleaded, so that paragraph was properly struck.

The appeal was allowed in part, the cross-appeal was dismissed without costs, and the appellant received costs of the motion and appeal.

The testator, an 81-year-old man, left the bulk of his estate to the appellant, a 29-year-old friend.

The respondents, the testator's family members, challenged the will, alleging suspicious circumstances and undue influence.

The trial judge admitted the will to probate, finding the testator had testamentary capacity and was not unduly influenced.

The Court of Appeal ordered a new trial, holding the trial judge failed to properly apply the doctrine of suspicious circumstances to shift the burden of disproving undue influence to the appellant.

The Supreme Court of Canada allowed the appeal and restored the trial judgment, clarifying that while suspicious circumstances shift the burden of proving knowledge, approval, and testamentary capacity back to the propounder of the will, the burden of proving fraud or undue influence always remains on those attacking the will.