Date: 2000-07-21. Docket: C31079. Borins, MacPherson and Sharpe JJ.A. | Link

Tobacco liability case continued by the estate of a woman who died of lung cancer. Appeal from a motion judge’s decision to strike out paras. 8 to 15 of the statement of claim which allege the defendants intentionally destroyed evidence relating to the dangers of cigarettes. The motions judge found that spoliation is not a reasonable cause of action; it is not an independent tort. The appellate court found that paras. 8 to 15 should not have ben struck out and that the claim should proceed to trial. “[T]here is no need to embark on a detailed consideration of the strengths and weaknesses of the law, including the Canadian law, on the tort of spoliation. If it is established that the conduct of the respondents resulted in harm to the plaintiff by making it impossible for her to prove her claim, then it will be for the trial judge, in the context of a complete record, to determine whether the plaintiff should have a remedy. This is how the progress of the common law is marked in cases of first impression, where the court has created a new cause of action where none had been recognized before.”