Product manufacturers claiming spoliation have not received much
assistance from Canadian courts. The recent Ontario Superior Court
decision in Stilwell v. World Kitchen Inc.1 continues
that trend, finding that a plaintiff that intentionally destroyed
an allegedly defective Dutch oven would face no sanctions.
The plaintiff alleged that he was washing a Dutch oven in their
kitchen sink when it broke into four large pieces, severely
lacerating the plaintiff's wrist. The plaintiff instructed his
wife to discard the Dutch oven the afternoon or evening of the
accident, as he would otherwise not return home as he claimed to be
so traumatized by the experience that he did not wish to see the
During a jury trial, the defendants sought to have the judge
provide instructions on the doctrine of spoliation, including that
there would be a rebuttable, adverse inference or presumption that
the discarded Dutch oven was either not manufactured and sold by
the defendants and/or that it failed for reasons for which the
defendants should not be held responsible (such as a serious
impact). The judge permitted defence counsel to state that there
was a lack of evidence that the product was not manufactured and
sold by the defendants, or that the defendants faced difficulties
in trying to defend the case without being able to analyze the
product. Thus, although the defendants could make similar defences
in the absence of a spoliation finding, the judge refused to
instruct the jury regarding the presumption against the plaintiffs
that would have flowed from a finding of spoliation.
The plaintiffs' evidence was that they had no intention of
commencing a lawsuit at the time that the plaintiff told his wife
to dispose of the Dutch oven. 16 days after the incident, the
plaintiff's wife sent an email to one of the defendants in
which she advised them of the incident, and claimed that she would
never use the defendants' products again. The email did not
mention any possible claim or litigation. The plaintiffs commenced
litigation 16 months after the incident.
The Court held that spoliation refers to "the intentional
destruction of relevant evidence when litigation is existing or
pending." The Court noted that such an adverse inference does
not arise merely as a result of the destruction of evidence.
Rather, it only arises when a party seeking to rely on it can
establish the requisite evidentiary foundation.
The Court accepted that the broken product could have been
"extremely relevant and probative evidence", as an
inspection may have conclusively determined whether the product was
manufactured and sold by the defendants, and may have helped to
determine the cause of failure. However, the judge found no
evidence of intention ("no air of reality") to destroy
evidence in order to impact on contemplated litigation at the time
that the product was destroyed. As a result, the judge rejected the
defendants' request to place spoliation before the jury.
Although this case appears to properly follow established
jurisprudence, it leaves manufacturers and retailers in a difficult
position when an injured plaintiff has destroyed a product. In this
case, the defendants had no evidence to prove why the product
failed, or even that they manufactured and sold the product. A
defendant appearing before a jury in these circumstances may have
difficulty defending liability where they are at such a significant
1 2013 ONSC 3354
2 After a 22-day trial, the jury ultimately found that
the product was manufactured and sold by the defendants and awarded
the plaintiff over $1.1 million, subject to a 25% contributory
negligence finding, largely on the basis that the plaintiff likely
subjected the product to an "impact". See 2013 ONSC
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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