Holland v. Marshall et al., (2008) 262 B.C.A.C. 134 (CA)

• Judge: Rowles, Levine and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 18, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 262 B.C.A.C. 134 (CA);2008 BCCA 468

Holland v. Marshall (2008), 262 B.C.A.C. 134 (CA);

    441 W.A.C. 134

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. NO.033

Jonathon David Holland (by his custodial parent and guardian ad litem Zsuzsanna Holland), and the said Zsuzsanna Holland (appellants/plaintiffs) v. Dr. Linda Maureen Marshall, The Cariboo Memorial Hospital and Health Centre - Interior Health Authority, and Dr. Glenn A. Fedor (respondents/defendants) and The College of Physicians and Surgeons of British Columbia, Dr. Roger A.G. Hicks, Dr. Suzanne Judy Bannerman, Dr. Paul R. Sobkin, Dr. Noel J. Donnelly, and Dr. Albert S. Kelly (defendants)

(CA034582; CA035819; 2008 BCCA 468)

Indexed As: Holland v. Marshall et al.

British Columbia Court of Appeal

Rowles, Levine and Groberman, JJ.A.

November 18, 2008.

Summary:

In 2005, Holland commenced a medical malpractice action on her own behalf and on behalf of her 17 year old son. The action alleged negligence respecting the son's birth in 1987. The defendant hospital and the defendant doctors applied for the dismissal of Holland's claim on the basis that her action was commenced after the expiration of the limitation period.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. B67, allowed the application. Holland appealed. Holland abandoned the appeal against all the defendants except two doctors, the hospital and the health authority. At the appeal hearing, Holland asserted for the first time that her medical records had been destroyed and that the destruction constituted spoliation.

The British Columbia Court of Appeal, in a decision not reported in this series of reports, ordered that, inter alia, the issue of spoliation be referred to the trial court and that the appeal be adjourned until the issue was dealt with. Holland did not apply to amend the statement of claim to allege spoliation. However, at the same time that discovery applications were being heard, arguments were advanced and evidence was adduced respecting the destruction of the medical records.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 14, dismissed the discovery applications and dismissed what the court described as the application for a finding of spoliation. Holland obtained leave to appeal from the order dismissing her application concerning spoliation. The spoliation appeal and the appeal respecting Holland's personal claim for damages were heard together. Holland asserted that the destruction of her records entitled her to damages based on spoliation being recognized as a tort. Alternatively, she asserted that a finding of spoliation entitled her to a favourable evidentiary presumption respecting one or more of the causes of action or claims that she had pleaded, in particular, fraud and breach of fiduciary duty. Holland asserted that if the latter argument succeeded, her claims of fraud and breach of fiduciary duty would not have been dismissed as statute-barred because the limitation period that applied in the case of those causes of action was not the same as negligence.

The British Columbia Court of Appeal dismissed the appeals. Regardless of whether spoliation was recognized as an independent tort, there was no foundation to support such a cause of action in this case. Moreover, the evidence adduced concerning the destruction of the records did not provide support for a claim based on breach of fiduciary duty or fraud. Nothing in the evidence supported an inference that the records were destroyed for reasons other than adherence to the administrative policy respecting destruction of adult records.

Actions - Topic 1632

Cause of action - Torts - Spoliation - Holland appealed the dismissal of her medical malpractice claims and a finding that the destruction of her medical records did not constitute spoliation - Holland asserted that the destruction of her records entitled her to damages based on spoliation being recognized as a tort - Alternatively, she asserted that a finding of spoliation entitled her to a favourable evidentiary presumption respecting one or more of the causes of action or claims that she had pleaded, in particular, fraud and breach of fiduciary duty - Holland asserted that if the latter argument succeeded, her claims of fraud and breach of fiduciary duty would not have been dismissed as statute-barred because the limitation period applicable for those causes of action was not the same as negligence - The British Columbia Court of Appeal reviewed the law respecting the existence of an independent tort for spoliation - Regardless of whether spoliation was recognized as an independent tort, there was no foundation to support such a cause of action here - Moreover, the evidence adduced concerning the destruction of the records did not provide support for a claim based on breach of fiduciary duty or fraud - Nothing in the evidence supported an inference that the records were destroyed for reasons other than adherence to the administrative policy respecting the destruction of records - See paragraphs 58 to 81.

Evidence - Topic 3018

Documentary evidence - General - Spoliation of evidence - [See Actions - Topic 1632 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - Holland appealed the dismissal of her personal claims in a medical malpractice action - At the appeal hearing, Holland asserted for the first time that her medical records had been destroyed and that the destruction constituted spoliation - The Court of Appeal referred the issue to the trial court and adjourned the appeal - Holland did not apply to amend the statement of claim to allege spoliation - However, at the same time that discovery applications were being heard, arguments were advanced and evidence was adduced respecting the destruction of the records - The trial management judge dismissed what was described as an application for a finding of spoliation - The British Columbia Court of Appeal observed that the way in which the spoliation claim came before the court was, as a matter of process, problematic - Absent an amendment to the pleadings being sought and made, it was unclear how the Rules of Court permitted a determination of the issue - If Holland had successfully applied to amend her statement of claim, and if the defendants had responded by filing amended statements of defence, it would have been open to either Holland or the defendants to apply in a summary trial under Rule 18A to have both the legal and factual issues concerning spoliation, as disclosed by the amended pleadings, determined - Holland's failure to move to amend her pleadings to allege the tort of spoliation, or to amend to allege negligent, fraudulent or improperly motivated destruction of the records, effectively precluded the use of a process such as a summary trial to determine an issue or by a defendants' motion to strike under rule 19(24) - See paragraphs 62 to 65.

Practice - Topic 2150

Pleadings - Amendment of pleadings - Necessary amendment not made - [See Practice - Topic 2110 ].

Cases Noticed:

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 42].

Wittman v. Emmott (1991), 53 B.C.L.R.(2d) 228 (C.A.), refd to. [para. 42].

Clover v. Hurley (1993), 23 B.C.A.C. 155; 39 W.A.C. 155 (C.A.), refd to. [para. 42].

Vance v. Peglar et al. (1996), 78 B.C.A.C. 299; 128 W.A.C. 299; 22 B.C.L.R.(3d) 251 (C.A.), refd to. [para. 42].

Kruk v. Ho et al. (2008), 255 B.C.A.C. 223; 430 W.A.C. 223; 2008 BCCA 201, refd to. [para. 42].

Ounjian v. St. Paul's Hospital et al., [2002] B.C.T.C. 104; 2002 BCSC 104, refd to. [para. 45].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 48].

St. Louis v. Canada (1896), 25 S.C.R. 649, refd to. [para. 55].

Endean v. Canadian Red Cross Society et al. (1998), 106 B.C.A.C. 73; 172 W.A.C. 73; 48 B.C.L.R.(3d) 90 (C.A.), leave to appeal granted (1998), 235 N.R. 400; 120 B.C.A.C. 158; 196 W.A.C. 158 (S.C.C.), refd to. [paras. 55, 67].

Dyk v. Protec Automotive Repairs et al., [1997] B.C.T.C. Uned. C09; 41 B.C.L.R.(3d) 197 (S.C.), refd to. [para. 55].

Dawes et al. v. Jajcaj et al. (1999), 122 B.C.A.C. 43; 200 W.A.C. 43; 66 B.C.L.R.(3d) 31; 1999 BCCA 237, affing. [1995] B.C.T.C. Uned. E84; 15 B.C.L.R.(3d) 240 (S.C.), leave to appeal refused (2000), 255 N.R. 195; 143 B.C.A.C. 222; 235 W.A.C. 222 (S.C.C.), refd to. [para. 55].

Spasic Estate v. Imperial Tobacco Ltd. et al. (2000), 135 O.A.C. 126; 49 O.R.(3d) 699 (C.A.), refd to. [para. 67].

Robb Estate et al. v. Canadian Red Cross Society et al. (2001), 152 O.A.C. 60 (C.A.), refd to. [para. 67].

Kacperski v. Orozco et al., [2005] A.R. Uned. 78; 2005 ABCA 179, refd to. [para. 67].

Smith v. Superior Court (1984), 198 Cal. Rptr. 829 (Ct. App.), refd to. [para. 68].

Cedars-Sinai Medical Center v. Superior Court (Bowyer) (1998), 18 Cal.4th 1 (Cal. Sup. Ct.), refd to. [para. 68].

Temple Community Hospital v. Superior Court of Los Angeles County (1999), 20 Cal.4th 464 (Cal. Sup. Ct.), refd to. [para. 68].

Trevino v. Ortega (1998), 969 S.W.2d 950 (Tex.), refd to. [para. 68].

Martino v. Wal-Mart Stores Inc. (2005), 908 So.2d 342 (Fla.), refd to. [para. 68].

Glotzbach v. Froman (2006), 854 N.E.2d 337 (Ind.), refd to. [para. 68].

Gribben v. Wal-Mart Stores Inc. (2005), 824 N.E.2d 349 (Ind.), refd to. [para. 68].

Ortega v. New York (City) (2007), 2 No. 118 (N.Y.), refd to. [para. 68].

Petrik v. Monarch Printing Co. (1986), 501 N.E.2d 1312 (Ill. App. Ct.), refd to. [para. 71].

Lindsay v. Davidson (1911), 1 W.W.R. 125 (Sask. C.A.), refd to. [para. 77].

R. v. Chlopek (1912), 1 D.L.R. 96 (B.C.C.A.), refd to. [para. 77].

Cotter v. Osborne (1909), 10 W.L.R. 354 (Man. C.A.), refd to. [para. 77].

Osepchuk v. Tim Hortons 1645 et al., [2003] A.R. Uned. 238; 2003 ABQB 364, refd to. [para. 78].

Enterprise Excellence Corp. et al. v. Royal Bank of Canada, [2002] O.T.C. 390; 20 C.P.R.(4th) 34 (Sup. Ct.), refd to. [para. 78].

Dickson v. Broan-NuTone Canada Inc., [2007] O.J. No. 5114 (Sup. Ct.), refd to. [para. 78].

Authors and Works Noticed:

British Columbia Law Institute, Report on Spoliation of Evidence (2004), B.C.L.I. No. 34, p. 44 [para. 72].

Jones, Craig, The Spoliation Doctrine and Expert Evidence in Civil Trials (1998), 32 U.B.C. L. Rev. 293, para. 64 [para. 76].

Kligman, Robert, Spoliation: Does the Punishment fit the Crime? (1999), 22 Adv. Q. 109, pp. 109, 110 [para. 77].

Nesbitt, Virginia, A Thoughtless Act of a Single Day: Should Tennessee Recognize Spoliation of Evidence as an Independent Tort? (2007), U. Mem. L. Rev. 555, p. 582 [para. 70].

Nesson, Charles, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action (1991), 13 Cardozo L. Rev. 793, p. 793 [para. 70].

Nolte, Steffen, The Spoliation Tort: an Approach to Underlying Principles (1995), 26 St. Mary's L.J. 351, pp. 401, 402 [para. 70].

Sanchirico, Chris, Evidence Tampering (2004), 53 Duke L.J. 1215, pp. 1280, 1281 [para. 69].

Rubin, Stefan, Tort Reform: a Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence (1999), 51 Fla. L. Rev. 345, p. 369 [para. 79].

Sommers, Richard, and Seibert, Andreas, Intentional Destruction of Evidence: Why Procedural Remedies are Insufficient (1999), 78 Can. Bar Rev. 38, p. 39 [para. 70].

Wilhoit, Bart, Spoliation of Evidence: the Viability of Four Emerging Torts (1999), 46 U.C.L.A. L. Rev. 631, pp. 647, 648 [para. 79].

Counsel:

Zsuzsanna Holland, appearing in person;

C. Forth, for the respondent, The Cariboo Memorial Hospital and Health Centre - Interior Health Authority;

K.F. Douglas and S. Davies, for the respondents, Dr. Linda Maureen Marshall and Dr. Glenn A. Fedor.

These appeals were heard in Vancouver, British Columbia, on October 6-7, 2008, by Rowles, Levine and Groberman, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered on November 18, 2008, by Rowles, J.A.