This decision concerned a motion brought by Sears Canada to
strike certain allegations contained in the statements of claim of
three separate plaintiffs. The plaintiffs were alleging that
Sears had adopted a corporate policy or practice of terminating
employees for just cause as a means of evading its statutory
and common law obligation to provide reasonable notice or pay in
lieu thereof. Sears' position was that the allegations
were an abuse of court process and would prejudice and delay the
trial by making discovery assume potentially monstrous
proportions. Sears argued that the circumstances leading to
the termination of other employees was not relevant.
Sears presented a number of cases mainly in the insurance policy
context in which motions to strike were granted on the basis that
the allegations would lead to wholesale investigations of all the
personnel files of a defendant (Gnanasegaram v. Allianz
Insurance Co. of Canada) or would amount to an open ended
fishing expedition into the defendant's claims history
(Howells v. Manufacturers Life Insurance Co.).
The plaintiffs argued that the allegation of systemic practice
was relevant to their claim of bad faith. They made reference
to a number of cases in which allegations of systemic wrong were
not struck but allowed to continue on the basis that they could be
relevant to an analysis of bad faith.
The court found that the plaintiffs presented the more
compelling cases. Sears' cases were distinguished on the
basis that most were from the insurance policy context and that,
based on each case's unique factual situation, the number of
"similar" cases may have been hard to identify.
However, in the case at hand there were less than 200 cases to be
examined that were potentially relevant and that the actual
production would likely involve much less than 200 files.
The court found that the case at hand largely turned on whether
there was a risk of limitless discovery or discovery of monstrous
proportions. It finds that because parameters can be placed
on the discovery process and because there are less than 200
potentially relevant files, a "wait and see" approach
should be adopted and that oppressiveness or delay should be
resolved only if such issues actually arise. Accordingly,
Master Sproat dismissed the motions brought by Sears against the
Patzer v. Hastings Entertainment Inc., 2011 BCCA 60
This case is an appeal from an order dismissing an action in
which Patzer sought judgment against Hastings on the basis that a
ticket voucher from a computer-run ticket machine had been issued
to him in the amount of $6.5 million. After depositing a
number of betting slips in the machine, Patzer was given a winning
voucher for the amount above. The trial judge found that the
voucher had been issued as a computer or mechanical error.
Further at issue was Patzer's allegation that the doctrine of
spoliation applied so as to give him a remedy since Hastings had
destroyed all deposited betting slips for the day in question and
Patzer was therefore unable to prove how much he had won. The
trial judge found that the doctrine of spoliation did not
On appeal, Patzer argued that the trial judge erred in finding
that the tickets were destroyed in the ordinary course of
business. The Court of Appeal held that there were no errors
in the reasoning of the trial judge with respect to the facts, the
law or the application of the law with respect to the doctrine of
spoliation. The court further holds that Patzer was unable to
prove that the tickets he inserted into the machine were winning
tickets and as such is unable to prove that contract documents have
been destroyed. Therefore the question of spoliation does not
even arise. However, the court goes further and considers the
spoliation argument as if it were necessary. The court finds
that the tickets were destroyed in the ordinary course of business
and therefore their destruction was not an act of spoliation.
The tickets were routinely sent for recycling within a week or two
of the date of insertion into the machine. Further, Patzer
waited two years to commence the action and so it would have been
more than reasonable for Hastings to have destroyed the tickets by
then especially after an employee had already informed Patzer that
the ticket had been issued in error.
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