McDougall v. Black & Decker Canada Inc.,

• Judge: Côté, Conrad and Rowbotham, JJ.A.
• Neutral Citation: 2008 ABCA 353
• Citation: (2008), 440 A.R. 253 (CA),2008 ABCA 353,302 DLR (4th) 661,[2009] 1 WWR 257,440 AR 253,97 Alta LR (4th) 199,61 CCLT (3d) 96,[2008] CarswellAlta 1686,[2008] AJ No 1182 (QL),171 ACWS (3d) 821,62 CPC (6th) 293,[2008] A.J. No 1182 (QL),440 A.R. 253,(2008), 440 AR 253 (CA),302 D.L.R. (4th) 661
• Date: 30 October 2008
• Court: Court of Appeal (Alberta)

McDougall v. Black & Decker Can. Inc. (2008), 440 A.R. 253 (CA);

      438 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. NO.015

Gordon McDougall and Lolita McDougall (appellant) v. Black & Decker Canada Inc., Black and Decker (U.S.) Inc. and Black & Decker Inc. (respondents)

(0703-0077-AC; 2008 ABCA 353)

Indexed As: McDougall v. Black & Decker Canada Inc. et al.

Alberta Court of Appeal

Côté, Conrad and Rowbotham, JJ.A.

October 30, 2008.

Summary:

The plaintiffs' home was destroyed by fire. The local fire department opined that the fire was caused by improperly disposed smoking materials or a malfunctioning cordless drill manufactured by the defendants. By the time that the plaintiffs sued the defendants, what remained of the house had been demolished to facilitate reconstruction. Further, parts of the allegedly defective drill, which had been retained by an investigator hired by the plaintiffs' insurer, had gone missing. The defendants applied to dismiss the action on the basis of spoliation.

The Alberta Court of Queen's Bench dismissed the action on the basis of spoliation. The plaintiffs appealed.

The Alberta Court of Appeal allowed the appeal and reinstated the claim. Whether spoliation occurred, and what relief should follow, should have been left to the trial judge to determine on the basis of all of the surrounding facts. However, the defendants were not without a remedy. They were entitled to examine the insurer's investigator on his observations of the fire scene (including the state of the drill) and his care of the drill. The investigator was to produce any pictures of the scene or the drill and any engineering reports.

Actions - Topic 1632

Cause of action - Torts - Spoliation - The Alberta Court of Appeal summarized the law of spoliation as follows: "1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending. 2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case. 3. Outside this general framework other remedies may be available - even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the court's rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs. 4. The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open. 5. Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response. 6. Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court's general discretion with respect to costs and the control of abuse of process." - See paragraph 29.

Practice - Topic 2235.3

Pleadings - Striking out pleadings - Grounds - Destruction or spoliation of evidence - The plaintiffs' home was destroyed by fire that the local fire department opined was caused by improperly disposed smoking materials or a malfunctioning cordless drill manufactured by the defendants - By the time that the plaintiffs sued the defendants, what remained of the house had been demolished to facilitate reconstruction - Further, parts of the allegedly defective drill, which had been retained by an investigator hired by the plaintiffs' insurer, had gone missing - The defendant's application to dismiss the action on the basis of spoliation was allowed by a Chambers judge - The Alberta Court of Appeal allowed the plaintiffs' appeal and reinstated the claim, stating that "as a general rule, determining whether spoliation has occurred, and what relief should follow, if any, is a matter best left to the trial judge who can consider all of the surrounding facts. While the court always has the inherent jurisdiction to strike an action to prevent an abuse of process, it should not do so where a plaintiff has lost or destroyed evidence, unless it is beyond doubt that this was a deliberate act done with the clear intention of gaining an advantage in litigation, and the prejudice is so obviously profound that it prevents the innocent party from mounting a defence. These conditions are not close to being met in this case" - However, the defendants were not without a remedy - They were entitled to examine the insurer's investigator on his observations of the fire scene (including the state of the drill) and his care of the drill - The investigator was also to produce any pictures of the scene or the drill and any engineering reports.

Practice - Topic 2235.3

Pleadings - Striking out pleadings - Grounds - Destruction or spoliation of evidence - [See Actions - Topic 1632 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 14].

St. Louis v. Canada (1896), 25 S.C.R. 649, refd to. [para. 15, footnote 1].

Ship Ophelia, Re, [1916] 2 A.C. 206; 32 T.L.R. 502 (P.C.), refd to. [para. 15].

Allen v. Tobias, [1958] HCA 13; 98 C.L.R. 367, refd to. [para. 15, footnote 2].

Endean v. Canadian Red Cross Society et al. (1998), 106 B.C.A.C. 73; 172 W.A.C. 73; 157 D.L.R.(4th) 465 (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. [para. 19].

Schatz v. Doust (2002), 227 Sask.R. 1; 287 W.A.C. 1; 2002 SKCA 129, refd to. [para. 20].

Spasic Estate v. Imperial Tobacco Ltd. et al. (2000), 135 O.A.C. 126; 188 D.L.R.(4th) 577 (C.A.), refd to. [para. 21].

Lamont Health Care Centre et al. v. Delnor Construction Ltd. et al. (2003), 349 A.R. 309; 29 Alta. L.R.(4th) 113; 2003 ABQB 998, refd to. [para. 23].

Rivet v. British Columbia, 2007 BCSC 731, refd to. [para. 26, footnote 3].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 26, footnote 3].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

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, refd to. [para. 26, footnote 3].

North American Road Ltd. et al. v. Hitachi Construction Machinery Co. et al. (2005), 385 A.R. 314; 2005 ABQB 847, refd to. [para. 27].

Telenga v. Raymond European Car Services Ltd. (1991), 3 C.P.C.(3d) 79 (Ont. Gen. Div.), refd to. [para. 28].

Cheung et al. v. Toyota Canada Inc. et al., [2003] O.T.C. 112; 29 C.P.C.(5th) 267 (Sup. Ct.), refd to. [para. 28].

Douglas et al. v. Inglis Ltd. et al., [2000] O.T.C. 199; 45 C.P.C.(4th) 381 (Sup. Ct.), refd to. [para. 28].

Counsel:

R.T. McKall, for the appellant;

D.J. Wilson, for the respondent.

This appeal was heard on February 5, 2008, before Côté, Conrad and Rowbotham, JJ.A., of the Alberta Court of Appeal.

On October 30, 2008, Conrad, J.A., delivered the following judgment for the Court of Appeal.