Date: 2008-02-13 Docket: S1 GS-18505. Kenneth R. MacDonald J. | Link

In a case involving loss of opportunity costs (among other claims), the plaintiff has sought disclosure of evidence of revenue by other contractors working for the defendant in the form of copies of waybills and associated invoices showing the weight and dimensions of the packages delivered. The plaintiff has been requesting this information since 2003 and successfully moved for an order for its production in January 2006. Having not received it by late October 2006 the plaintiff moved to strike out the statement of defence. The court delayed judgment to give the defendants more time to produce the documents. The plaintiff again moved to strike the defendants' pleadings in May 2007 and that motion was heard in November 2007. At that hearing the Senior VP of the defendant reviewed the processing of waybills and invoices in Canada. Since 2000 paper copies of waybills had been scanned and destroyed after 9 months. The policy continued even after the plaintiff had specifically requested the information in 2003. Paper waybills represent about 30% with the remaining transactions being processed electronically. All computer facilities are centralized in the U.S. In October 2005 the computer system crashed, losing critical information. Evidently backup processes had not been strictly followed, and although the images could be recovered, the indexes by which the transactions/waybills would be searched were irretrievable. Using alternate approaches the defendant has been able to produce some of the information, but not the dimensions and weight requested. The court dismissed the statement of defence and recommends that the plaintiff proceed with a motion for default judgment.