Spoliation

For a recent summary of the doctrine of spoliation, see the decision in Stillwell v. World Kitchen, [2013] ONSC 3354 (S.C.J.).

The plaintiff brought an action against the manufacturer of a dutch oven that broke into four pieces as he was washing it, causing a severe laceration to his wrist.  The plaintiff told his wife to dispose of the product shortly after the incident.  He testified that he gave no thought to a lawsuit at the time; he simply did not want to see the pot when he returned home from surgery.

At trial, one of the issues was whether the jury should be charged on spoliation.  Justice Leach held he would not charge the jury on spoliation.  Spoliation gives rise to a rebuttable presumption of fact that the missing evidence, had it been preserved, would have been unfavourable to the party that destroyed it; however, an adverse inference does not arise merely because the evidence has been destroyed.  There must be intentional destruction in circumstances where it can reasonably be inferred that evidence was destroyed to affect the litigation.  There was no evidence that the plaintiff intentionally destroyed the dutch oven, so the doctrine of spoliation would not be put to the jury.

Invasion of Privacy Recognized as a Tort

The Ontario Court of Appeal has recognized a tort of invasion of privacy.

In Jones v. Tsige, 2012 ONCA 32 (C.A.), the plaintiff discovered the defendant had been surreptitiously looking at her banking records. The parties worked at the same bank and Tsige was in a relationship with Jones’ ex-husband. Despite these connections, the parties did not know each other. Tsige claimed she had a financial dispute with Jones’ ex-husband and was accessing the account to confirm whether he was paying child support to Jones. Tsige was contrite and apologized for her actions.

A motions court judge dismissed the action on a motion for summary judgment on the basis that Ontario does not recognize a tort of invasion of privacy. The Court of Appeal allowed the appeal.

Justice Sharpe cited Professor Prosser in setting out four categories of invasion of privacy:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

This case falls within the “intrusion on seclusion” category. In order to make out a cause of action, a plaintiff must show:
1. an unauthorized intrusion;
2. that the intrusion was highly offensive to the reasonable person;
3. the matter intruded upon was private; and,
4. the intrusion caused anguish and suffering.

Justice Sharpe held that damages for intrustion on seclusion should be modest, and up to the range of $20,000. The quantum will depend on factors such as the nature of the intrusion, the effect on the plaintiff, the relationship between the parties, distress or embarassment suffered by the plaintiff, and the conduct of the parties, including any apology by the defendant. Justice Sharpe granted summary judgment to Jones in the amount of $10,000.

Will we see the floodgates open with these types of claims now? Privacy seems to be a “hot button” issue right now, and it seems that we may see more cases involving breaches of privacy in the future.

- Tara Pollitt