Date: 2005-11-14. Docket: 0003 08116. C.P. Clarke J. | Link
Special Chambers application as part of the case management process. The plaintiffs (respondents) allege that a fire broke out in their shovel, and that the shovel was equipped with the applicant’s fire suppression system which failed to extinguish the fire. The respondents’ insurer retained an expert to investigate the fire and value the loss. The respondents subsequently sold the salvageable part of the shovel. The portion of the shovel that would have included any remains of the fire suppression system was either lost or disposed of. The court found that the experts were retained for the dominate purpose of litigation and the reports are therefore subject to litigation privilege. The applicant argues that the respondents had a duty to preserve the physical evidence because of pending or anticipated litigation. The applicant submits that as a remedy for the spoliation, privilege should be lifted from the expert reports. The court finds that the question of spoliation should be addressed at trial when all of the evidence will be available for the trial judge’s consideration. The nature or impact of the respondents’ expert evidence, and the existence and extent of any prejudice, will not be known until trial.