Plaintiffs that dispose of their allegedly defective products prior to trial may have a stronger case than you think. Recent developments in Ontario law have given some leeway to parties that, for whatever reason, destroy or dispose of the central evidence in their case.
Traditionally, the law of destruction of evidence (or "spoliation") was fairly straightforward. Where evidence was intentionally destroyed by a party to an action, the court would draw an inference that the evidence would have been harmful to that party's case. In that way, courts removed any incentive for a party to destroy or cover up crucial evidence.
Recent Ontario Cases
A pair of Ontario cases over the last two years, though, have added some nuance – and introduced some difficulties – to that general principle.
In Stilwell v. World Kitchen Inc., 2013 ONSC 3354, the plaintiff sustained grave injuries when the cookware he was washing shattered in his hands. The plaintiff told his wife that he did not want to see the item in the house when he returned from the hospital, and so she threw the debris in the garbage. Although the wife sent an angry letter to the defendant manufacturer within weeks of the accident, litigation did not commence for another 16 months.
The defendant in that case relied on the doctrine of spoliation, petitioning the court to draw the inference that the cookware in question was not one of its own products, or that it had not broken in the way the plaintiff alleged. The doctrine of spoliation seemed to give the benefit of the doubt to the defendant, as it had been deprived of the opportunity to defend itself by examining the allegedly defective cookware.
However, the court refused to do so. The court ruled that the plaintiff's wife had a reasonable excuse for having destroyed the evidence and that there was nothing to suggest that either the plaintiff or his wife were contemplating litigation at the time the cookware was thrown out. In order for the doctrine of spoliation to apply, the court ruled, it was not enough that the evidence was intentionally destroyed; it must have been intentionally destroyed in order to affect the litigation. It was incumbent upon the defendant to prove that intention.
While this was not strictly new law, it did place a new emphasis on the burden borne by the party alleging spoliation to prove the other party's intentions.
A few months ago, an Ontario court picked up on the Stilwell reasoning in a slip-and-fall case, Leon v. Toronto Transit Commission, 2014 ONSC 1600. In that case, the transit commission had a policy of deleting its security camera footage every 15 hours unless a special request was made. The court in that case, as well, ruled that the plaintiff could not prove any intention on the part of the transit commission to destroy evidence in order to affect litigation. The court declined to draw any negative inference as to what would have been shown on the tape.
That case also drew attention to Gutbir v. University Health Network,  O.J. No. 5386 (Ont. S.C.), which held that a court will not assume that litigation was contemplated just because it would seem obvious that a lawsuit would follow the event.
This development seems fair at first glance – most people, of course, are not considering questions of evidence and litigation strategy while their loved ones are in the hospital – but it leads to obvious concerns for manufacturers.
If it is a manufacturer's responsibility to prove there was an intention to destroy trial evidence, but it is not enough to say that it is obvious that a lawsuit was bound to happen, then manufacturers will be stuck looking for hard evidence that litigation was contemplated prior to the destruction of the product.
That evidence will be hard to come by. It will be very rare that a plaintiff will make a demonstrable step towards litigation – such as retaining counsel or writing a demand letter – and then proceed to destroy their key evidence. Most cases involve a quick disposal (15 hours in the Leon case) and an eventual decision to sue.
The bulk of these cases, may simply proceed in the absence of the central piece of evidence, to be argued between a plaintiff with some knowledge of the product and event, and the defendant with none. These cases would essentially become credibility inquiries into the plaintiff's testimony: Did the event occur as claimed? How sure are they about the nature of the product?
It remains to be seen how counsel will deal with an increasingly generous stance towards plaintiffs that have destroyed the product at the core of their lawsuit. One might be tempted to assume that, at the very least, expert costs would go down, as there is no product to analyze – but this is not guaranteed. In the absence of a single product to analyze, defendants unable to prove that this product did not fail, may instead have to prove that these products cannot fail: a much more expensive proposition. At the same time, defendants must now go through the onerous and invasive process of seeking discovery of personal communications between the plaintiff and friends and family, as e-mails and texts may be the only "hard" evidence of an intention to sue.
This softer approach to individual plaintiffs and tort defendants has its limits, however. There is no indication as yet that Ontario courts will view spoliation by a defendant manufacturer with anything but scepticism. The plaintiff in Stilwell and the transit commission in Leon both disposed of evidence during the normal course of their lives and services, respectively. The normal course for a manufacturer, however, should still be to preserve all evidence once litigation is reasonably contemplated.
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