Date: 2006-03-31 Docket: 661/96 D.J. Gordon J. | Link

"[93] Ten years later, it is appropriate an adverse inference be drawn as to the failure to produce the documents results from the documents not supporting the plaintiff's position. [94] Further, the normal retention period for business records has now expired. There is a strong probability the February 1996 records no longer exist. The plaintiff offers no evidence to the contrary. Failure to produce, or even provide an explanation, supports such an inference. I so find. [95] Accordingly, I conclude there is actual prejudice to the defendant. Without these documents, at the very least, there is a substantial risk a fair trial will not be possible. The action is dismissed."