Matossian Estate v. Clark Estate, 2024 BCSC 247

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Matossian Estate v. Clark Estate, 2024 BCSC 247 Date: 20240213 Docket: S214877 Registry: Vancouver Between: Marcus von Albrecht in his capacity as Executor of the Estate of Dikran Matossian, deceased Plaintiff And David Clark in his capacity as Administrator of the Estate of Sharon Patricia Clark, deceased and David Clark Defendants Before: The Honourable Madam Justice Forth Reasons for Judgment Counsel for the Plaintiff: J. Richter Counsel for the Administrator of the Estate of S. Clark: K. Vimalesan Counsel for the Defendant D. Clark: J. Zaitsoff B.

Rowland Place and Date of Hearing: Vancouver, B.C. August 21 and 22, 2023 October 5, 2023 Place and Date of Judgment: Vancouver, B.C. February 13, 2024 Introduction .. 2 Relevant Background .. 4 The Parties and their Relationships . 4 Actions Taken by David Clark . 5 Proceedings . 9 Legal Principles .. 10 Amendments . 10 Spoliation .. 11 Spoliation an Independent Tort 12 Stare Decisis . 18 Position of the Parties .. 20 Proposed Amendments . 20 Position of the Plaintiff 21 Position of the Defendants . 22 Analysis .. 23

Statement of Facts . 23 Spoliation .. 24 Breach of Trust 25 Other Amendments Relating to Relief Sought 25 Special Costs . 26 Delay . 27 Conclusion .. 27 Introduction [ 1 ] This action involves a claim made by Dickran Matossian that he was in a marriage-like relationship with Sharon Clark (the “Deceased”) when she passed away on December 29, 2020 without a will. Mr. Matossian, who is also referred to as “Dick” or “Dik” throughout the materials, claims that he was the common law spouse of the Deceased and is entitled to claim against her intestate estate.

The defendant, David Clark, is the Deceased’s brother and her only living relative. He stands to inherit the Deceased’s estate if Mr. Matossian is found not to have been the Deceased’s common law spouse. [ 2 ] On December 16, 2022, Mr. Matossian passed away. He left a will dated November 16, 2021. The action is being continued by the executor of the estate of Mr. Matossian, Marcus von Albrecht. [ 3 ] The plaintiff filed the notice of application on June 6, 2023, seeking a variety of relief. The only part of that application heard before me was the plaintiff seeking leave to amend the notice of civil claim.

He seeks to raise the issue of spoliation, both as an evidentiary rule creating a rebuttable presumption against Mr. Clark and most importantly for these reasons, as an independent tort. [ 4 ] I am persuaded that the amendments sought in the notice of civil claim should be granted with two exceptions. First, I do not accept paragraph 2.1 of

Part 2 of the proposed amended notice of civil claim, in which the plaintiff seeks to amend for damages against Mr. Clark personally for the tort of spoliation. For the reasons that follow, I am not persuaded that this is the case that should permit an independent tort of spoliation to be advanced. Second, I do not accept paragraph 2.2 of

Part 2, in which the plaintiff seeks to amend for damages against Mr. Clark personally for breach of trust. [ 5 ] Before turning to the merits of the amendment application, there are two issues to address which were raised by the parties who reappeared before me on October 5, 2023 for a short hearing. The plaintiff’s counsel sought leave to introduce Affidavit #4 of Kristina Ohrn, sworn on August 28, 2023, to correct what plaintiff’s counsel understood was an incorrect statement made by Ms. Rowland, counsel for the defendant, at the hearing on August 23, 2022.

In my view, it was appropriate for plaintiff’s counsel to set down a hearing to clarify what took place. As officers of the court lawyers should always be vigilant in ensuring that the information presented to the Court is correct and if it needs correction or clarification to seek to do so. The affidavit should be admitted. However, in the circumstances of this application, the information on whether or not there were any discussions between the plaintiff’s counsel or any of his staff and Ms.

Rowland or her staff about coordinating a time to visit the Deceased’s home is not germane to the issue of the proposed amendments to plead spoliation. [ 6 ] The second issue that arose was in regard to a one-page letter dated February 28, 2021 from Mr. Richter to Ms. Rowland, which contained a settlement offer. The letter was attached as Exhibit A to Affidavit #1 of Maria Pozzi made on June 26, 2023 and filed on June 26, 2023. The settlement offer should not form part of the record. In my view, since the affidavit has already been filed the best option is to direct that there be a sealing order made.

The order is that Exhibit A of Affidavit #1 of Maria Pozzi is sealed. In accordance with the standard practice, the sealing order should be separately drafted and conform to the required sealing order precedent as required by Practice Directive PD-58. It is only Exhibit A to the affidavit that is sealed. Relevant Background The Parties and their Relationships [ 7 ] The Deceased had one brother, David Clark. Mr. Clark is married to Linda Clark and they have two adult children. [ 8 ] Mr. Matossian claimed that he met the Deceased in 1982. They started dating and were together for the next 38 years until she passed.

He asserted that they spent most days together, attended social events as a couple, went on a number of holidays together, and cared for each other when ill. He said they were known by others as being a couple. They each had their own home. Mr. Matossian explained that the Deceased “had an issue with hoarding” and her house was “filled to the rafters” with “not a lot of living space”. He asserted that: 157. In or around the 1980’s [sic], I asked Sharon to move in with me. We discussed the sale of her home and getting rid of much of her furniture and personal belongings.

She did not want to sell her house and go through the process of getting it ready for sale. We never seriously discussed moving in together after that. 158. Sharon was a hoarder. Her home contained the furniture and personal effects from her divorce in the early 1980s. She later

acquired most of the furniture and personal effects from her father’s estate. The house, which was not very large, was very crowded. In places there were boxes piled up 4 feet high with a walkway around the outside of the room. 159. Sharon had some very nice things including fancy and unique dresses and flamenco accoutrements. However, there was also a lot of other stuff that had never been sorted through. She struggled to bring herself to sort through those boxes from her di vorce and later her father’s estate.

I could not have moved into her house because of this crowding, but even for Sharon the house was barely liveable. I offered to help, but she would not let me. 160. I live in a spacious apartment which is not crowded and which does not contain a lot of stuff. There is no way that Sharon’s stuff would have fit into my apartment. [ 9 ] Mr. von Albrecht was a friend of Mr. Matossian and is named as the executor of his estate. [ 10 ] Mr. Clark does not dispute that Mr. Matossian and the Deceased were friends, but does dispute that they were in a marriage-like relationship. [ 11 ] According to Mr. Matossian, Mr.

Clark was estranged from his sister, the Deceased. Actions Taken by David Clark [ 12 ] The Deceased died on December 29, 2020. On January 9, 2021, Mr. Clark met with Mr. Matossian and Mr. von Albrecht. Mr. Clark asked what items Mr. Matossian wanted from Ms. Clark’s home. Mr. Clark’s evidence is that Mr. Matossian advised that he did not want anything and wanted nothing to do with any funeral arrangements or cremation. He did agree to return to Mr. Clark the jewellery he had belonging to the Deceased. [ 13 ] On January 14, 2021, Mr. Clark received a call from Mr. Richter. Mr.

Richter informed him that he was retained by Mr. Matossian and was inquiring as to what steps Mr. Clark had taken in dealing with the Deceased’s estate. At this time, Mr. Clark was not represented by counsel. [ 14 ] On January 15, 2021, Mr. Richter wrote to Kim A. Karras, a lawyer whom Mr. Clark consulted with about applying for letters of administration. In this letter, Mr. Richter asserts that Mr. Matossian meets the definition of spouse as set out at s. 2(1) (

b) of the Wills, Estates, and Succession Act , S.B.C. 2009, c. 13 [ WESA ] and claims that the entirety of the Deceased’s estate should pass to the surviving spouse. The letter confirms Mr. Matossian was not averse to Mr. Clark applying for letters of administration during litigation with the authority to call in the assets but not distribute them. The letter further states: …we put your client on notice that no assets and no documents including papers personal effects and photographs should be disposed of or destroyed. [ 15 ] Mr.

Clark admits that he and his wife spent hours sorting through multiple boxes in the Deceased’s home. It is not clear on the affidavit evidence when this process took place, but it must have been completed before the Deceased’s house was sold in October 2022. He asserts that the Deceased “was a hoarder”. He says he disposed of items of little or no financial value but kept any item that he understood may “have had a semblance of importance”. [ 16 ] On July 16, 2021, Mr. Richter emailed the defendant’s counsel, Ms.

Rowland, asking to go through the property with his client for two hours and confirming nothing would be removed (the “July 2021 Request”). The email further states: There is no administrator and therefore all assets of the estate should remain untouched and unused by either of our clients. Please advise about the following: 1. What, if anything has your client removed from the property? If your client has removed anything or disposed of anything, please provide a list. 2. What happened to the deceased’s laptops, phones or tablets?

Our view is these should be secured at a lawyer’s office and not used by either party until a satisfactory arrangement has been made. If your client has used any of these devices, what use has he made of them? [ 17 ] Later in July and again in August and October 2021, requests were made of Ms. Rowland to respond to the July 2021 Request. Mr. Richter advised that if the defendants’ list of documents was not received by October 29, 2021, the plaintiff would be applying to strike the defendants’ claim. [ 18 ] On November 1, 2021, the defendants’ list of documents was served on Mr.

Richter. [ 19 ] On November 9, 2021, Mr. Richter wrote Ms. Rowland addressing the following concerns: …it appears that many of the documents you have provided came from the home of Sharon Clark. We enclose our letter of January 15, 2021 that says on pa ge 2, Toward that end [sic], we put your client on notice that no assets and no documents including papers, personal effects and photographs should be disposed of or destroyed.

We included this paragraph so that all electronic and paper documentary evidence of the relationship between Dick Matossian and Sharon Clark be preserved, including cards, documentation, emails, logs, notes photographs, scans, texts, videos, and any other potential source of evidence be available to the court. As you know, a failure to preserve such evidence or destroy or alter it may constitute spoliation. …

Your response to civil claim is filed in the name of David Clark personally, yet your list of documents is forwarded on behalf of the Estate of Sharon Patricia Clark, deceased and David Clark. When did your client begin acting on behalf of the estate? When will we receive a notice of appointment of solicitor? Based on your list of documents, it appears that your client has gone through the home and pulled out papers to list on what should only be his personal list of documents. In our view, this is improper. Your client does not have the court’s authority to act on behalf of the estate.

Further, we are extremely concerned that your client may have used his access to the home to dispose of documents which we identified in our January 15, 2021 letter. Please confirm on behalf of your client that he has not disposed of any of the documents identified in said letter. And to address one set of documents [in] particular, where is Ms. Clark’s computer? We demand that you take immediate steps to secure that computer by being transferred to your office as it contains multiple emails which we understand confirm the relationship between Mr. Matossian and Ms. Clark.

Pursuant to SCCR 7 – 1 (10) and (11), we demand that your client provide to your office Ms. Clark’s laptop so that the emails on that laptop relating to her interaction with friends including by reference to Mr. Matossian be listed by the estate administrator. We repeat our January 15, 2021 letter that nothing is to be deleted or destroyed. If your client personally or as putative administrator is not prepared to confirm this, please advise and we will bring an application for a court order. … We have also requested access to the inside of the property to review it and take pictures.

We want to review it before the administrator disposed of anything. When may we expect a response to our request? [ 20 ] On January 11, 2022, Mr. Richter emailed Ms. Rowland confirming that there had been no response to the multiple requests for access to the Deceased’s home and requesting to access to the property. Mr. Richt er reiterated his concern that Mr. Clark may have accessed the home to dispose of documents and requested confirmation that Mr. Clark did not dispose of any documents referenced in the January 15, 2021 letter. [ 21 ] On January 14, 2022, Ms. Rowland responded to Mr.

Richter’s January 11, 2022 email. She confirmed that she was acting for Mr. Clark personally. She further noted: As for your accusations that our client destroyed documents, these are entirely unfounded. Given the huge amount of work that our client did in collecting, preserving and organizing his late sister’s documents, it is highly offensive and inappropriate to suggest he would destroy documents. [ 22 ] On February 1, 2022, Mr. Richter again requested dates to go through the house and reasserted his position that Mr.

Clark had no authority to deal with the estate since he had not applied for nor obtained letters of administration. He requested a response on what Mr. Clark did with the documents in the Deceased’s home and what happened to the Deceased’s computer. [ 23 ] On June 8, 2022, Mr. Clark was granted letters of administration of the Deceased’s estate. [ 24 ] On August 9, 2022, Mr. Clark was examined for discovery.

In part, his evidence was that: • the Deceased was a hoarder, that she held onto everything from other people since the 1960s; • after the Deceased passed he attended her home on multiple occasions, gone through all of her papers, disposed of papers, furniture and personal effects; • he spent about two months going through her personal effects and about six months going through all the papers.

He did not dispose of any “pertinent” papers and they have been stored in 13 boxes he has kept at his house; • the Deceased’s house was, at the time of the examination for discovery, staged for sale; • extensive efforts were made to get rid of the Deceased’s massive amounts of clothing and fabric. He confirmed that all of this was done before he was appointed an administrator; • some documents were shredded in the summer of 2021.

The documents consisted of personal files of conferences with clients while she was a social worker and old RBC pamphlets; • he destroyed some family photographs that had no relevance to Mr. Matossian’s relationship with the Deceased; and • he did not destroy any printed emails of the Deceased. [ 25 ] Mr. Clark’s evidence was that he sent an email from the Deceased’s computer notifying people of her passing. He then wiped the computer somewhere in the first two weeks after the Deceased’s passing. He did not keep a record or take screenshots of what was on the computer.

Proceedings [ 26 ] On May 18, 2021, the plaintiff commenced the action. He claimed he was the Deceased’s common law husband and that they

were in a committed, long-term, marriage-like relationship for 35 years, from 1985 to her death in 2020. [27] On June 18, 2021, Mr. Clark filed his response to civil claim asserting that Mr. Matossian was just a friend of the Deceased andwas not a common law spouse nor were they living in a marriage-like relationship at the time of the Deceased’s death. [28] On July 14, 2022, the trial date was set for October 2, 2023.

It was initially scheduled for eight days, but it was later lengthenedto a 12-day trial. [29] On August 9, 2022, the plaintiff gave notice of his intention to amend the notice of civil claim to plead spoliation. The plaintiffdid not receive a response on whether the defendants would consent to the proposed amendments. [30] The application to amend was filed on June 6, 2023. A hearing was originally scheduled for June 19, 2023. It was reset to June28, 2023, then to July 5, 2023 for one day. [31] On June 28, 2023, Associate Judge Vos granted leave to amend the style of cause to reflect Mr.

Albrecht being substituted forMr. Matossian as the plaintiff. [32] On July 5, 2023, Justice Ker commenced hearing the application but it was not completed. The application was reset to be heardbeginning on August 21, 2023 for two days. [33] The parties initially appeared before me on August 21 and 22, 2023. [34] On August 23, 2023, at a trial management conference (“TMC”), the trial was adjourned to July 15, 2024 for 19 days. [35] On October 5, 2023, the parties appeared before me discuss the two issues summarized above in these reasons.

Legal Principles Amendments [36] The threshold on applications to amend is low: Wiggins v. British Columbia (Attorney General), 2007 BCSC 1644 at para. 17. [37] Amendments should be permitted as are necessary to determine the real questions in issue between the parties. Factors that willguide the exercise of the Court’s discretion include:

a) the extent of the delay;

b) the reasons for the delay;

c) any explanation putforward to account for the delay; and

d) the degree of prejudice caused by the delay and extent of the connection between the existingclaims and a proposed new cause of action: Coburn and Watson’s Metropolitan Home v. Bank of America Corporation, 2016 BCSC2021 at para. 26. Spoliation [38] The case law on whether spoliation can be plead as an independent tort is divided at the appellate level across Canada, with theBritish Columbia and Ontario Courts of Appeal diverging on the proper

interpretation of the Supreme Court of Canada’s 1895 decisionof St. Louis v. The Queen (1896) 25 S.C.R. 649, 1896 CanLII 65 (S.C.C.) [St. Louis]. Given the conflicting case law and the nature of theplaintiff’s position, I will provide a

summary of evolution of the relevant case law. [39] In 1895, the Supreme Court of Canada first dealt with the issue of the destruction of documents in St. Louis, in which thepetitioner sought to recover from the Crown the balance due on a contract for public works. At the hearing, it was shown that certaintime-books and the original documents from which the accounts were made had disappeared. The lower court found that the fact thebooks and documents were destroyed by the petitioner prior to filing the petition warranted a dismissal of the petition.

The SupremeCourt of Canada, reversing the decision of the Exchequer Court, found that the evidence did not warrant the finding that the documentswere destroyed with a fraudulent intent and to prevent inquiry and that what was destroyed was supplied by other evidence.

The Courtfound that the rule, omnia prœsumuntur contra spoliatorem, did not justify the learned judge’s assumption that, if produced, thedestroyed documents would have supported that the petitioner’s accounts were falsified. [40] The Court held that the Latin maxim, omnia prœsumuntur contra spoliatorem, supports that the destruction of evidence carrieswith it a presumption that the evidence destroyed would have been unfavourable to the party who destroyed it, but the presumption maybe rebutted: St. Louis at 652–653.

The maxim originates from the Romans who applied it with severity because every business personwas supposed to keep regular records of his affairs at least in a ledger or codex: St. Louis at 667. [41] There is no reference to spoliation as a tort in St. Louis, but only as a rebuttable presumption. [42] In Dyk v. Protec Automotive Repairs Ltd. (1997), 41 B.C.L.R. (3d) 197, (S.C.), this Court found thatspoliation requires four elements:

a) that evidence was destroyed;

b) the evidence destroyed was relevant to an issue at trial;

c) legalproceedings were pending; and

d) the destruction of document was an intentional act indicative of fraud, or an intention to supress thetruth. [43] It is settled law that a rebuttable presumption of an adverse inference arises where spoliation is established, whereas the caseauthorities on whether spoliation can and ought to exist as independent tort remain divided and are summarized below. Spoliation an Independent Tort

[44] The decision of Endean v. Canadian Red Cross Society (1997), 36 B.C.L.R. (3d) 350, (S.C.) [Endean SC],rev’d in part (1998), 48 B.C.L.R. (3d) 90, (C.A.) [Endean CA] involved an application to strike pleadings on the basisthat they did not disclose a reasonable cause of action. The plaintiffs brought a tort claim for spoliation. The chambers judge dismissedthe application, finding that the pleadings disclosed a cause of action in spoliation.

The Court of Appeal allowed the appeal deciding that“…an action for damages - being punitive or otherwise - is not an appropriate response to the destruction of documents”: Endean CA atpara. 20. The Court noted that “… a rebuttable presumption cannot give rise to a separate and completed tort”: Endean CA at para. 23. Itfurther noted that “…the law as explained in St. Louis…is a flexible remedy and can be fashioned to compensate the plaintiff for any lossit may have suffered by reason of the destruction of evidence: Endean CA at para. 32 [emphasis in original].

In other words, the Court ofAppeal held that “based on its understanding of the decision of the Supreme Court of Canada in [St. Louis], that there is no independenttort of spoliation and that spoliation merely raises a rebuttable evidentiary presumption”: Holland v. Marshall, 2008 BCCA 468 atpara. 67. [45] Leave to appeal to the Supreme Court of Canada was granted in Endean v. Canadian Red Cross Society, [1998] S.C.C.A.No. 260, but the appeal was abandoned. [46] In Dawes v. Jajcaj, 1999 BCCA 237, leave to appeal to the SCC ref’d [1999] S.C.C.A.

No. 347, the British Columbia Court ofAppeal stated that there is no common law duty of care to preserve property which may possibly be required for evidentiary purposes;such an obligation can only be imposed by court order pursuant to the rules of court: at para. 69. [47] In 1998, the Ontario Divisional Court discussed spoliation in Rintoul v. St. Joseph’s Health Centre (1998), 42 O.R. (3d) 379, (S.C.). The case involved HIV tainted blood. The plaintiffs sought to amend their statement of claim to claim the tortof spoliation and against the Crown for punitive damages in respect to the spoliation of documents.

The motions court judge initiallyallowed the amendment, citing the Endean SC decision and developing jurisprudence in the United States, despite expressingreservations about a tort of spoliation being redundant and unnecessary. On reconsideration, after the release of the Endean CA decision,the motions judge noted the British Columbia Court of Appeal’s view that document destruction should be dealt with by a procedural asopposed to a substantive remedy, but declined to strike the claim.

The motion judge’s decision to allow the amendment was overturnedby the majority of the Divisional Court, concluding that “a freestanding, discrete tort of spoliation should not be createdbetween/amongst parties to the litigation”: at Rintoul 384. As a result, the appeal was allowed and the amendments relating to spoliationwere struck. However, in dissent, Justice Corbett would have upheld the motion judge’s reconsidered decision. She made the followingobservations: In Canada, the British Columbia Court of Appeal decision in Endean, in holding there is no tort of spoliation, relied upon St. Louis v.

TheQueen (1985), 25 S.C.R. 649 which discussed the rebuttable presumption omnia praesumuntur contra spoliatorem, all things arepresumed against the wrongdoer. However, in my view, St. Louis is not determinative of the issue in this case. The issue in St. Louis waswhether the evidentiary rule that all things are presumed against the wrongdoer (i.e., the destroyer of evidence) was appliedappropriately in the lower court. In that case, the spoliator of the evidence, the plaintiff, had destroyed evidence which was his propertyand which he claimed aided his case.

The trial judge held that because this evidence had been destroyed it would have disproved theplaintiff’s claim. The judge found for the defendants and dismissed the action. The Supreme Court of Canada found that the spoliation inference had been applied incorrectly in that the spoliator of the evidence hadsufficiently rebutted the presumption against him and provided other evidence which supported his case. The court overturned the lowercourt decision and found in the plaintiff’s favour. … Thus, St. Louis did not deal with the question of whether the tort of spoliation existed or could exist in Canada.

The case dealt with thequestion of the appropriate application of the spoliation presumption, an evidentiary rule. To hold that St.

Louis forecloses any possibilityof considering whether wilful destruction of documents gives rise to a remedy in the tort is not warranted on the fact alleged herein. [Rintoul at 389–390.] According to the dissenting opinion of Corbett J., “[the] view that procedural remedies are sufficient should not preclude consideration ofa substantive remedy for the wilful destruction of evidence”: Rintoul at 389. [48] Shortly after the Rintoul decision was released, the Ontario Court of Appeal rejected the analysis in Endean CA and adopted thedissent’s

interpretation of St. Louis in Rintoul in the case of Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699, (C.A.) [Spasic]. Spasic involved a claim against the defendant tobacco manufacturers for negligence and the deceitfulparticipation in a conspiracy to deceive the public about the dangers of tobacco. In addition, or in the alternative, the plaintiff plead thetort of intentional spoliation of evidence. The Ontario Court of Appeal in Spasic stated: [12] Writing in dissent in Rintoul, Corbett J. observed at p. 390, correctly in my view, that St.

Louis did not deal with the question ofwhether the tort of spoliation existed, or should exist, in Canada. The issue in St. Louis was whether the spoliation inference had beenapplied correctly by the lower courts. Referring to the principles stated in Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959, 74 D.L.R. (4th) 321 that a claim should not be struck out on the ground that it discloses no cause of action unless it is plainand obvious that it cannot succeed or merely because it is novel, Corbett J. stated at pp. 388-89: The tort of spoliation is essentially novel in Canada.

Canadian authorities have traditionally viewed the destruction of evidence as amatter of evidence giving rise to procedural remedies, including rule 30.08(2) of our rules, where warranted. This view that proceduralremedies are sufficient should not preclude consideration of a substantive remedy for the wilful destruction of evidence.

In concluding that the claim should not be struck out as failing to disclose a reasonable cause of action, she held at pp. 390-91: Given the seriousness of the claim involved and the policy objective of preserving records, particularly where the public body inquestion has a legal duty to preserve that record and to make it available to the public upon request, a tort of spoliation in some form may

be appropriate. The Ontario Court of Appeal held that the British Columbia Court of Appeal’s

interpretation of St. Louis in Endean CA is “flawed” andallowed the appeal: Spasic at paras. 24, 26. [49] Following the diverging appellate decisions in Spasic and Endean CA, the Alberta Court of Appeal provided a

summary of thelaw of spoliation in Canada: see McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras. 15–30. McDougall wasconcerned with whether an action can or should be struck, prior to trial, on the basis of spoliation. The defendants sought to have theaction dismissed, using spoliation as a pre-trial remedy, claiming it could not defend itself because evidence had been lost or destroyed ina fire: McDougall at paras. 1–2. The Court restored the claim and held that spoliation and the associated relief is a matter best left to thetrial judge: McDougall at para. 4.

As the issue of whether spoliation is a separate tort was not before the Court, it did not decide thematter.

The Court did, however, state that while a number of procedural remedies may be available when evidence has been destroyed,“…courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty topreserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open”: McDougall atpara. 29. [50] In 2008, the British Columbia Court of Appeal also commented on the issue of spoliation as a freestanding tort, without decidingthe issue in Holland, which involved claims of medical negligence against a number of defendants.

The claims were dismissed as statute-barred under the Limitation Act, R.S.B.C. 1996, c. 266 and Ms. Holland appealed. Ms. Holland argued that her medical records weredestroyed and that their destruction constituted spoliation, an allegation which had not been previously raised in arguments before thejudge who struck the claims or in the appellate materials. The British Columbia Court of Appeal adjourned the appeal so that the issue ofspoliation could be dealt with at the trial level.

The trial management judge concluded there was no legal or factual foundation for anadverse evidentiary presumption to be drawn against the defendants or for a claim for damages to be advanced based on an independenttort of spoliation: Holland at para. 11. Leave to appeal the issue of spoliation was granted and the parties reappeared before the BritishColumbia Court of Appeal, where Ms. Holland argued that: [16] … the destruction of her records would entitle her to damages based on spoliation being recognized as a tort.

Alternatively sheargued that a finding of spoliation would entitle her to a favourable evidentiary presumption in relation to one or more of the causes ofaction or claims she pleaded, in particular, fraud and breach of fiduciary duty. [51] The Court of Appeal dismissed the tort claim for damages and declined to draw an adverse inference against the defendants forthe destruction of the documents. In reaching this conclusion, the Court reviewed the case law, noting that the case authorities onspoliation “are not free of judicial or academic criticism”: Holland at para. 67.

In Holland, the Court stated: [67] … In Endean, this Court held, based on its understanding of the decision of the Supreme Court of Canada in St. Louise v. R., thatthere is no independent tort of spoliation and that spoliation merely raises a rebuttable evidentiary presumption. Leave to appeal to theSupreme Court of Canada was granted in Endean v. Canadian Red Cross Society, [1998] S.C.C.A. No. 260 (S.C.C.), but the appeal wassubsequently abandoned. Based on Spasic Estate v.

Imperial Tobacco Ltd. (2000), (ON CA), 49 O.R. (3d) 699 (Ont.C.A.), Robb Estate v, Canadian Red Cross Society (2001), (ON CA), 152 O.A.C. 60 (Ont. C.A.), and Kacperski v.Orozco, 2005 ABCA 179(Alta. C.A.) at para. 4, the respondents in this case conceded that recognition of a free-standing tort ofspoliation has not been foreclosed in Canada. [52] The division in Holland provided a helpful

summary of the arguments for and against the recognition of spoliation as a tort;however, it declined to give an opinion on whether an independent tort of spoliation could or should be recognized in British Columbiaas the issue of whether spoliation was not squarely before it on the pleadings: at para. 74. [53] Since Holland, the British Columbia Courts have addressed spoliation in a number of cases, which I review below. [54] The defendants directed me to the subsequent case of Liquor Barn Income Fund v. Mather, 2011 BCSC 618 [Liquor Barn],which deals with the adequacy of particulars for a spoliation claim.

The defendants relied upon the case to support the proposition that itis insufficient to make a general claim for spoliation, but particulars must be provided of what was allegedly destroyed and how andwhen the destruction took place. In Liquor Barn, the Court does not seem to foreclose spoliation being advanced as a separate, actionableclaim: [39] The plaintiffs say that they should not have to identify the incriminating documents because the tort of spoliation is made outsimply by the act of deletion.

However, if the plaintiffs intend to identify particular documents at trial that they say support the particularallegation that documents relating to the fraudulent scheme were destroyed, they should identify those documents, and I so order. [55] In GEA Refrigeration Canada Inc. v. Chang, 2020 BCCA 361 the Court of Appeal discussed spoliation as an evidentiary rule,without commenting on whether it could be a separate cause of action.

The Court stated that where evidence is deliberately destroyed,the trial judge may be entitled to draw an adverse inference: [91] A trial judge is entitled to draw an adverse inference from the deliberate destruction of evidence if certain conditions aresatisfied: [18] [St. Louis v. The Queen (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649 stands for the proposition that] [s]poliation in law does notoccur merely because evidence has been destroyed.

Rather, it occurs where a party has intentionally destroyed evidence relevant toongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affectthe 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, werenot aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.

McDougall v. Black & Decker Canada Inc., 2008 ABCA 353; see also Chow-Hidasi v. Hidasi, 2013 BCCA 73 at para. 29

[56] Most recently, in Panchal v. Wal-Mart Canada Corp. 2022 BCSC 1040 [Panchal #2], aff’g 2022 BCSC 71 (Chambers) [Panchal#1], Justice Norell followed the British Columbia Court of Appeal’s position Endean CA, in the context of an appeal from an order of anAssociate Judge denying in part an application for leave to amend pleadings. The plaintiff sought to amend the pleadings to pleadspoliation as an independent cause of action giving rise to punitive damages.

At the first instance, Associate Judge Harper allowed theplaintiff’s pleadings to be amended to raise the issue of spoliation and the evidentiary relief sought as a consequence, but refused to allowa claim of spoliation to be advanced as a separate cause of action giving rise to a claim for punitive damages. Justice Norell affirmed thatspoliation is not an independent tort in British Columbia given the binding precedent of Endean CA.

Stare Decisis [57] The divergent case law on spoliation as an independent tort raises another Latin maxim being stare decisis et non quieta movere(“stare decisis”), which means to stand by decisions and not to disturb settled points: B Garner et al, eds, Black’s Law Dictionary, 11thed, (St. Paul, Minn: Thomson Reuters, 2019). [58] The rationale of stare decisis was provided by Justice Laskin where he stated the need for “consistency, certainty, predictabilityand sound judicial administration” explaining that: [a]dherence to precedent promotes these values.

The more wiling a court is to abandon its own previous judgments, the greater theprospect for confusion and uncertainty… People should be able to know the law so that they can conduct themselves in accordance withit. David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 at 191–192, (CA). [59] There is vertical and horizontal stare decisis. According to the vertical convention, lower courts must follow decisions of highercourts. This stare decisis is binding. In Canada (Attorney General) v.

Bedford, 2013 SCC 72, the Supreme Court of Canada discusseddescribed the high threshold lower courts must reach to depart from a binding decision by a higher court: [44] … a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one toreach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in thecircumstances or evidence.

This balances the need for finality and stability with the recognition that when an appropriate case arises forrevisiting precedent, a lower court must be able to perform its full role. See also: R v. Kang, 2019 BCSC 2109 at para. 61. [60] The horizontal convention requires that decisions from the same level of court should be followed unless there is compellingreason not to do so. The Supreme Court of Canada in R. v.

Sullivan, 2022 SCC 19 [Sullivan] set out that a superior court judge in the firstinstance should follow prior decisions made by their own court on all questions of law unless one more or more of the exceptions in ReHansard Spruce Mills, [1954] 4 D.L.R. 590, (BCSC) [Spruce Mills] are met: at para. 44.

Pursuant to Spruce Mills,horizontal stare decisis requires that trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction, inthree narrow circumstances: the rationale of the earlier decision has been undermined by subsequent appellate decisions; some bindingauthority in the case law or some relevant statute was not considered; or the earlier decision was not fully considered: Sullivan atpara. 75. [61] In Sullivan, the Court further stated: [65] Horizontal stare decisis applies to courts of coordinate jurisdiction within a province, and applies to a ruling on theconstitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding.

While not strictly binding inthe same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity, as well as for thereasons supporting stare decisis generally (Parkes, at p. 158). A constitutional ruling by any court will, of course, bind lower courtsthrough vertical stare decisis. Position of the Parties Proposed Amendments [62] Attached as

Schedule A to the notice of application is the plaintiff’s proposed amended notice of civil claim. The disputedamendments are as follows:

PART 1: STATEMENT OF FACTS … 19. The deceased was a hoarder and her home was unlivable to the plaintiff or anyone else. 20. On Thursday, January 14, 2021, plaintiff’s counsel identified himself to David Clark as a lawyer consulted by the plaintiff. 22. Throughout 2021, plaintiff’s counsel repeatedly followed up with David Clark’s counsel about accessing the deceased’s home andspoliation. 23. Before and after David Clark was appointed administrator, and before and after David Clark received formal notice to not destroy

documents, David Clark intentionally destroyed documents and wiped computer hard drives to destroy or conceal evidence to his sole benefit. 24. David Clark intended to, and has in fact harmed the trial process leading to an unfair trial by destroying evidence when he knew that plaintiff’s counsel was actively seeking evidence. 25. Up until he was appointed administrator, David Clark had no legal or statutory authority to dispose of documents potentially relevant to the within claim. 26.

David Clark intentionally destroyed and disposed of documents and evidence that helped the plaintiff’s case and harmed his case: and refused access to the deceased’s home to obtain evidence that the plaintiff and deceased did not live together because she was a hoarder and her home was unlivable. …

PART 2: RELIEF SOUGHT … 2.1 Damages against David Clark personally for the tort of spoliation; 2.2 Damages against David Clark personally for breach of trust; 2.3 An adverse evidentiary inference and presumption against David Clark that he destroyed and concealed relevant evidence supporting the plaintiff’s case or harming his own case. 2.4 Aggravated and punitive damages against David Clark personally for the concealment, destruction and disposition of documents and evidence. 2.5 Special costs against David Clark personally for misconduct in the litigation deserving of reproof and rebuke.

Position of the Plaintiff [ 63 ] On the application, the main thrust of the plaintiff’s position is that it should be granted leave to amend the pleadings to include various forms of relief on the basis of spoliation. [ 64 ] With respect to paragraph 2.1 under relief sought, the plaintiff’s position is that the Court is not required to follow the Court’s decision in Endean CA for two reasons, the first being that a new legal issue arising from the Ontario Court of Appeal’s opinion that Endean CA was based on a misinterpretation of St. Louis .

The second reason the plaintiff says the Court is not bound by stare decisis is that, given the ease of deletion in the digital age, the circumstances and nature of spoliation have changed significantly since the Supreme Court of Canada decided St. Louis over a century ago. [ 65 ] The plaintiff argues that the Supreme Court of Canada will eventually need to address whether Endean CA or Spasic is the correct line of authority. He argues that the claim should not be struck out merely because it is novel and that the case should be allowed to proceed to trial on a complete evidentiary record with full arguments.

It argues that the Court should only disallow amendment as a last resort. [ 66 ] Further, the plaintiff argues that the defendants would not be prejudiced if the tort claim of spoliation is advanced because evidence of spoliation - as an evidentiary rule with possible cost implications - will be adduced at trial regardless. [ 67 ] With respect to paragraph 2.4, the plaintiff seeks to plead aggravated and punitive damages against Mr.

Clark personally on the basis of spoliation. [ 68 ] With respect to the Statement of Facts, the plaintiff seeks to add paragraph 19 to establish why he was not cohabitating with the Deceased, despite their marriage-like relationship. With respect to paragraphs 20 to 26, the plaintiff’s position is the facts are support the spoliation claim as they set out the plaintiff’s efforts to preserve evidence demonstrating why he and the Deceased were “living together, apart” and that that such evidence was concealed or destroyed by Mr. Clark.

The plaintiff submits that even if I do not allow the tort of spoliation to be plead in paragraph 2.1, the pleadings should be amended to include paragraphs 19 to 26 to support an adverse inference being drawn and punitive damages on the basis of spoliation. Position of the Defendants [ 69 ] The defendants’ main position is that spoliation is not an independent tort in British Columbia since both the Endean CA and Panchal decisions are binding on this Court. In any event, Mr.

Clark argues that the plaintiff failed to provide the necessary particulars of spoliation, including what he is purported to have destroyed. [ 70 ] On the amendments to the Statement of Facts, the defendants assert that the amendments at paragraphs 19 to 26 of the proposed amended notice of civil claim are flawed because they contain evidence and not material facts, and contain opinion evidence and/or conclusions of law that are unsupported by the material facts. [ 71 ] In respect to amending to seek an adverse inference, the defendants argue that the plaintiff has failed to set out the material facts in support including what evidence was destroyed and how this has harmed the plaintiff’s case.

[ 72 ] In respect to the breach of trust allegation, the defendants argue the plaintiff failed to set out any material facts that set out a breach of trust. The defendants argue that it is not clear what trust is at issue, the applicability of the trust to the plaintiff, the facts giving rise to a breach of trust, and what damages the plaintiff has suffered.

As such, this pleading should be disallowed. [ 73 ] The defendants also argued that the amendments should not be allowed because the plaintiff threatened to amend his proceedings in August 2022, but delayed bringing this application until June 2023 without giving any reason. Analysis [ 74 ] With respect to the documents destroyed, I accept that this is an issue that should be explored at trial, but I am not persuaded that an independent tort of spoliation should be recognized in this case. [ 75 ] In light of the conflicting appellate case law on the proper

interpretation of St. Louis and the changes to the current realities of document deletion in the digital age, there may well be a future case which justifies departure from the existing authorities on the recognition of a tort of intentional spoliation of evidence. I am not persuaded that this is such a case. [ 76 ] I am not convinced that the plaintiff’s claim, that he was in a marriage-like relationship pursuant to the WESA , has been completely destroyed by the actions of the defendant in destroying certain documents.

The plaintiff has other evidence available to support his claim that he was in a marriage-like relationship, including his own evidence along with documents supporting the relationship he had and other witness’ account of the relationship. I am not persuaded that the plaintiff being denied access to the Deceased’s home and taking photographs of the inside of it will have any significant consequences on the underlying claim. This is in light of the admission made by Mr. Clark that the Deceased was a hoarder and the extensive nature of the materials found in the home.

While there are no photographs to show the extent of the hoarding, given the admissions made by Mr. Clark and Mr. Matossian’s evidence I am not persuaded that the lack of photographs will be a significant hurdle for the plaintiff at trial. [ 77 ] I will now deal with each of the proposed amendments. Statement of Facts [ 78 ] Paragraph 19 sets out that the Deceased was a hoarder and her house was unlivable to the plaintiff and anyone else. In my view this assertion is a material fact in that it provides an explanation why Mr. Matossian and the Deceased were not living together during their relationship.

I see no basis to deny this amendment. [ 79 ] Paragraphs 20 to 26 set out the basis for the plaintiff’s claim for spoliation. It is appropriate for the plaintiff to put Mr. Clark on notice that he intends to argue that Mr. Clark destroyed evidence. They provide the foundation for the allegations being made that Mr. Clark intentionally destroyed documents that could have assisted in proving the claim.

I am not persuaded that in these circumstances, the plaintiff should be denied the opportunity to advance the spoliation allegations on the basis that he has not further particularized the document destruction allegations. In certain claims, it may be available to the plaintiff to provide specifics of the documents alleged to have been destroyed, but in other cases the plaintiff will not be able to provide specific particulars. The pleadings provide that the destroyed documents were related to his relationship with the Deceased and the state of her home.

In the circumstances, given his claims that he was not given access to the Deceased’s home, this is sufficient. He is entitled to advance the allegations; whether he succeeds or not is a matter for the trial judge to decide. The amendments at paragraphs 20 to 26 of the amended notice of civil claim are allowed.

Spoliation [ 80 ] Paragraph 2.1 of the relief sought seeks the following: “Damages against David Clark personally for the tort of spoliation.” [ 81 ] Pursuant to Endean CA and this Court’s judgment in Panchal #2 , the plaintiff is not permitted to claim damages on the basis of spoliation as an independent tort. For the foregoing reasons, outlined at paras. 75–77 of these reasons, this amendment is not permitted. [ 82 ] However, I note that it is necessary to provide notice to Mr.

Clark that an allegation of spoliation is being advanced against him so that he knows the case he will have to meet as well as the scope of document discovery: Panchal #1 at paras. 17, 19–20 . Associate Judge Harper opined that “there is a way to plead spoliation that makes it clear that the claim is an evidentiary claim and not a separate tort”: Panchal #1 at para. 25 . I am satisfied that paragraph 2.3 of the relief sought in the amended pleadings accomplishes this and as such, it is permitted.

Breach of Trust [ 83 ] Paragraph 2.2 of the relief sought seeks the following: “Damages against David Clark personally for breach of trust.” [ 84 ] To assert a claim for a breach of trust the plaintiff needs to plead certain material facts to establish the nature of the trust and the breach of it. There is nothing plead to support there existed any trust between the plaintiff and Mr. Clark.

On the pleadings, the nature of this trust is not clear to me. [ 85 ] Rule 3-6(18) of the Supreme Court Civil Rules states that: When particulars are necessary If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default, or undue influence, or if particulars may be

necessary, full particulars, with dates and items if applicable, must be stated in the pleading. [86] In light of the failure to plead the material facts required to support a claim for a breach of trust, this amendment is not permitted. Other Amendments Relating to Relief Sought [87] I have found that in this case, spoliation can be plead as an evidentiary claim, but not as an independent tort. It is common groundthat the court may draw an adverse inference against the spoliator; however, the plaintiff seeks to claim additional relief for thedestruction of documents.

Paragraph 2.4 of the relief sought seeks the following: “Aggravated and punitive damages against DavidClark personally for the concealment, destruction, and disposition of documents and evidence.” [88] I am mindful of Justice Norell’s analysis in Panchal #2 and her consideration of the Court of Appeal’s comments on theavailable remedies for spoliation in Endean CA. In Endean CA, the Court held “that an action for damages – being punitive or otherwise– is not an appropriate response to the destruction of evidence”: at para. 20.

With respect to what appropriate responses may be availableto the Court, it held that: [32] I am of the opinion that the law as explained in St. Louis v. R., supra, is a flexible remedy and can be fashioned to compensatethe plaintiff for any loss it may have suffered by reason of the destruction of any evidence. Examples are: (1) the possible exclusion ofexpert reports: see Dawes v. Jajcaj (1995), (BC SC), 15 B.C.L.R. (3d) 240 (B.C. S.C.); Werner v. Warner Auto-Marine Inc., supra; Dyk v. Protec Automobile Repairs (August 15, 1997), New Westminster No. S017898 [reported (1997), (BC SC), 151 D.L.R. (4th) 374 (B.C.

S.C.)]; and (2) the denial of costs: see Farro v. Nutone Electrical Ltd. (1990), (ON CA), 72 O.R. (2d) 637 (Ont. C.A.). [33] In an appropriate case, the trial judge may see fit to award special costs to approximate the actual expense to which the plaintiffmay have been put due to the destruction of the evidence. [Emphasis in original.] [89] In Panchal #2, Justice Norell accepted that the Court’s position in Endean CA applied to the situation before her, stating: [38] An action for punitive damages for spoliation is not available in B.C.

It may be that in a case where there has been spoliation, aplaintiff will be able to establish some other actionable wrong, which would support a remedy of punitive damages, but in this case, theAmendments allege that it is the destruction and Policy itself which is actionable and leads to punitive damages or increased punitivedamages.

Endean prohibits such a claim. [90] The Court preserved the claim for punitive damages for the underlying cause of action, but did not permit it to be included as aremedy for spoliation. [91] As I noted above, there may be an appropriate case in the future in which it may be appropriate for the Court to reconsiderwhether spoliation can be an independent tort; however, the facts of this case do not justify departure from Endean CA and Panchal #2.While the trial judge who ultimately determines this action, will have flexibility in crafting an appropriate remedy in response to anydestruction of evidence, damages are not among the available options.

In light of the authorities canvassed above, I decline to permit theamendment in paragraphs 2.4. Special Costs [92] Paragraph 2.5 of the relief sought seeks the following: “Special costs against David Clark personally for misconduct in thelitigation deserving of reproof and rebuke.” [93] The Court in Endean CA did not foreclose the availability of special costs as a remedy for spoliation.

In fact, the Court explicitlyheld that “[in] an appropriate case, the trial judge may see fit to award special costs to approximate the actual expense to which theplaintiff may have been put due to the destruction of the evidence”: Endean CA at para. 33. As such, the plaintiff is entitled to advance aclaim for special costs and this amendment is permitted. [94] I will now turn to the issue of delay.

Delay [95] The plaintiff did not bring this application until June 2023, less than one month before the trial, despite having learned about thedocument destruction as early as November 2021 and giving notice of his intention to amend the pleadings to plead spoliation in August2022. I note that the trial was adjourned at the TMC on August 23, 2023, since the parties agreed that there was not enough time for thecase to be tried.

In light of the adjournment of the trial to July 2024, I am persuaded that the prejudice caused by the delay is negligible.Given this finding, and the strong connection between the existing claim and the proposed amendments, I am satisfied it is in the interestof justice to allow the amendments I granted to be made in order to determine the real issues between the parties, despite the delay inbringing the application: Gatien v. Avini, 2015 BCCA 383 at para. 30. Conclusion [96] In all of the circumstances, I am persuaded that the costs of the application should be in the cause. “The Honourable Justice C. Forth”