Jay v. DHL, 2009 PECA 02
The plaintiff, a courier service provider brought an action against the defendant when a substantial service contract was awarded by the defendant to a competitor. The plaintiff claimed damages stemming from breach of contract and loss of opportunity. Production of waybills and invoices were argued as being central to establishing the quantum of damages. The motions judge ordered the defendant to produce such documentation. The defendant sought variation of the order arguing that, due to document retention policies, hard copies of the documents had been destroyed and that, due to a computer crash, e-copies had become unidentifiable and practically inaccessible.
When full production was not achieved, the plaintiff was successful in striking the statement of defence. The motions judge held that expense does not excuse a failure of adequate production and that, despite the crash, the inability to produce was a product of the defendant’s doing.
On appeal, the P.E.I. Court of Appeal reversed the decision to strike of the statement of defence. In the Appeal Court’s opinion, the defendants had provided advance caution of the difficulties in retrieving such documents, and were operating on a ‘best efforts’ basis. By committing significant expenses and time to satisfying the order the defendants satisfied the order as qualified. The striking of the statement of defence, moreover, would render the defendants unable to respond to questions of liability and damages to which the unproduced documents did not relate.
However, the failure to produce was sanctioned – (i) documents that were subsequently produced by the defendant could not be used by the defendant, if favourable to their case, without leave, (ii) the plaintiff was entitled to ask for a favourable presumption as to the calculation of damages where evidence presented by the plaintiff was not capable of being rebutted by defendant evidence, and (iii) the plaintiff was awarded costs associated with the motion for production up to and including the appeal being considered.