What would be one’s view on a third-party liability claim, when a utility pole located outside on the street falls on a third-party property, thereby damaging the property, due to heavy rain and severe windstorm with winds gusting up to 100km/hr? Well! For most, it may fall under the defence of “Act of God” or “Force Majeure” [Do you know the Difference?]. However, what if, the pole was not in the best of its condition and was not maintained properly or for that matter was left to decay by the pole owner? What if this maintenance issue and/or decay contributed, materially, to the incident, but the attending adjuster did not give enough heed to preserve the evidence, or for that matter, the pole was disposed off by a third party before the adjuster could have attended the site, or the pole owner was not given an opportunity to inspect the pole since the incident was not reported to the owner until after months, though within the limitation period?
Such a situation may give rise to the application of the legal maxim - omnia praesumuntur contra spoliatorem (all things are presumed against the wrongdoer).
In McDougall v. Black & Decker Canada Inc., 2008, the Court of Appeal of Alberta stated at Para 18, inferring from the leading case by the SCC:
Spoliation in law does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.
However, it must be noted that the tort of spoliation is not an independent or standalone tort.
In Hydro-Québec c . Bell Canada, 2019, for the first time in Quebec, a case was dismissed by the Court of Quebec due to failure of the Plaintiff to preserve the evidence, leading to the spoliation of evidence.
The facts of this interesting case are as under:
During a windy and rainy evening in the summer of 2014, a pole belonging to Bell Canada (“Bell”) collapsed in Montreal-North destroying the Hydro-Québec's (“Hydro”) equipment attached to it, as well as damaged a nearby building.
Alleging that the fall of the post stemmed from its decay, Hydro brought in an action against Bell for the cost of replacing the equipment it lost during this event.
EVIDENCE AND NOTIFICATION OF CLAIM TO BELL
Due to an existing agreement between Bell and Hydro, the latter repaired/replaced the pole without notifying Bell until after two months, when an intent to claim was sent by Hydro to Bell for the lost equipment attached to the pole. Bell paid for the pole but denied any liability for payments pertaining to the equipment owned by Hydro, that was attached to the pole, that got damaged in the incident. Inter alia, Bell contested that they were not given an opportunity to inspect their own pole that was disposed, inadvertently, by a third-party sub contractor whose services were hired by Hydro, essentially invoking the principle of spoliation of evidence.
POSITION OF THE PARTIES
Pole was not maintained and was in a bad decaying state that materially contributed to the incident. Hydro alleged that “[TRANSLATION] the column collapsed due to its state of obsolescence and advanced degradation due to its internal decay”.
Bell maintained that it did not commit any fault, that the pole was properly maintained and supervised. Further, it was alleged that Hydro failed to inform Bell of the incident in a timely manner and disposed of the damaged pole without giving Bell an opportunity to examine the same.
Each of the parties submitted expert opinions and both the opinions mentioned that it is not possible to comment upon the state of decay of the pole with certainty, without examining the same. The court stated, relying on the testimony of a Hydro employee:
Indeed, decay is a physical phenomenon that is part of common knowledge. Although it can be studied in more detail from a scientific perspective, no particular knowledge is required to perceive the concrete materialization of the decay of wood.
Bell was not able to satisfactorily provide any evidence to substantiate that this 34-year-old was well maintained and was not in a state of decay.
The main issue based on which the court gave its decision was whether Hydro’s failure to preserve the evidence (pole), thus depriving Bell to examine it and successfully use the evidence in defending the action, was a material prejudice, substantial enough to dismiss the action?
Based on the Hydro employee testimony, expert opinions and a photograph, the court inferred that the post that collapsed was rotten but to a degree that is impossible to assess and that the decay may have caused, or at least would have helped in bringing about the incident.
Presumption of Fault
The court stated:
Given that the evidence suggests that at the time of its collapse, the post showed signs of decay that would, at the very least, have contributed to its collapse, and given that it did not show any inspection. During the 34 - year period from the installation to the fall, Bell failed to rebut the presumption of fault under section 1465 of the Civil Code of Quebec . He is therefore liable for the damage caused by the fall of this post.
Further, the court held:
Notwithstanding the above, the court continued to examine the consequences of late reporting of the incident and unavailability of the Pole, depriving Bell from an opportunity, to examine the scene, to gather evidence and to inspect the pole. These consequences were considered crucial to the case.
Dismissing Hydro’s action against Bell, the court stated:
…the evidence that should have been preserved is not a secondary element of the litigation, or an element merely to corroborate testimony or other evidence. This is the very good of which Bell had custody and whose autonomous fact engages its responsibility. The unavailability of the post does not entail for Bell a purely theoretical prejudice.
….the fact that Hydro has, by itself or through a subcontractor, disposed of the post before Bell can examine it and make all the necessary expert a factor sufficient to release it from its responsibility for the collapse of its post.
This case could have grave implications with respect to product liability scenarios, especially where presumption of liability is found against a party (as was the case with Bell), where destruction of an evidence may lead to dismissal of an action against the manufacturer and/or supplier and/or other parties, and destruction will not imply only an adverse inference anymore, as had been the case in Quebec.