Plaintiff was vessel owner who left his fishing vessel with defendant for routine maintenance. Defendant lifted vessel out of water and purported to secure it in cradle. About two weeks later, vessel fell during high wind and suffered damage to fibreglass hull. Defendant disposed of cradle material before marine surveyor attended to inspect vessel about two days after incident. Plaintiff brought action against defendant for damages for negligence. Action allowed. Plaintiff was awarded total of $269,206.85 as claimed. Adverse inference was drawn that evidence was intentionally destroyed to affect litigation. Defendant ought to have known that litigation would be contemplated by plaintiff and that disposing of cradle material would affect any future claim made by plaintiff. It was not necessary for party to receive actual notice of litigation. Rebuttable presumption was raised that evidence was unfavourable to defendant. Defendant had not provided sufficient evidence to rebut this presumption.
Forsey v. Burin Peninsula Marine Service Centre (Oct. 20, 2014, F.C., E. Heneghan J., File No. T-298-12) 246 A.C.W.S. (3d) 699.