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 Dutch oven.
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 evidentiary disadvantage.2
Footnotes
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 5360.
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