Critical Ontario Appeal Decision On Preservation Of Property

• Published date: 18 March 2021
• Law Firm: Dickinson Wright PLLC
• Author: Mr Brian Radnoff and Jacky Cheung

Preservation of property during litigation is dealt with under rule 45 of the Ontario Rules of Civil Procedure. The traditional test under rule 45 was designed for situations where the thing being preserved was the subject of the litigation, such as an asset over which ownership was disputed. This test was not appropriate for all of the situations when rule 45 motions might arise. The Ontario Court of Appeal recently determined that a single test for rule 45 motions does not exist. The governing test will vary depending on the purpose of the motion. Accordingly, the test on a rule 45 motion for preservation of an asset at issue in the claim will not apply to a rule 45 motion seeking to preserve evidence for trial and inspection. Moreover, the Court also confirmed, without providing detail, that litigants have an obligation to preserve evidence pending trial.

A. Background

In BMW Canada v Autoport Limited,¹ the plaintiff sued the defendant after nearly 3,000 vehicles belonging to the plaintiff (the 'Vehicles') were allegedly damaged under the defendant's care. The plaintiff claimed a total loss for all of the Vehicles, which it claimed could not be sold or scrapped for parts. The plaintiff intended to destroy them on the basis that they were not required...