During the course of a personal injury action, the route follows a typical fashion: the statement of claim creates an action, a statement of defence is filed, and the pleadings ‘close’, allowing for the matter to move through the legal system’s defined course.

But what happens when evidence relating to the claim is destroyed or sold after the close of pleadings? In the recent decision of Ben-Margi v. Paiva, the plaintiff was a pedestrian and injured as a result of being struck by two vehicles back-to-back.

The two defendant drivers, Mr. Pavia and Mr. Whyte were allegedly engaged in a street race at the time of the accident, and struck the plaintiff, Mr. Ben-Margi. The defendants allege that Ben-Margi was the flag bearer for the race.

In the midst of litigation, it was disclosed that Mr. Paiva sold his vehicle. Additionally,  Mr. Whyte had the engine on his vehicle replaced.

The plaintiffs brought a motion to amend their statement of claim to add a claim for punitive damages as well as allegations regarding spoliation of relevant evidence, including failing to preserve social media evidence and electronic communications, the selling of Mr. Pavia’s vehicle post-loss, failing to preserve black box data resulting from the change in engine in Mr. Whyte’s vehicle post-loss, and Mr. Whyte’s alleged failure to remain at the scene of the accident.

Mr. Whyte opposed all of the amendments while Mr.  Paiva only opposed the spoliation amendments. 

Justice Robinson confirmed that once pleadings have closed, leave of the Court is required to amend a statement of claim. Further, the Court should not examine the factual and evidentiary merits or motives of the party seeking the amendment.

When considering whether to allow an amendment to be made to a claim following the close of pleadings, Justice Robinson accepted the following factors for contemplation:  whether there is injustice that is not compensable in costs, whether the proposed amendment is an issue worthy of trial and prima facie meritorious, whether the amendment would not be struck had it been pleaded originally, and whether the proposed amendments comply with pleadings rules, such as sufficient particularity [see also Montel Inc. v. Kipawa Sales & Services Inc.,  2014 ONSC 83 at para. 138Marks v. Ottawa (City)2011 ONCA 248 at para. 19].

Punitive damages are somewhat unique in a motor vehicle accident context. These are typically only awarded in cases where the conduct of the alleged tortfeasor offends the ordinary standards of morality or decent conduct in the community. Mr. Paiva opposed the proposed amendment as he had been criminally convicted and sentenced to a year of house arrest for dangerous driving, which in his view had accomplished the objectives behind a punitive damages award, namely retribution, deterrence, and denunciation. In allowing Mr. Ben-Margi’s claim for punitive damages be added, Justice Robinson determined this issue worthy of trial and prima facie meritorious.

With respect to the spoliation of electronic communications and social media, the plaintiff speculated that the defendants had text messages, emails, other electronic communications or social media posts that had not been produced. The defendants confirmed they did not have any documentation of this nature, therefore none were included in their respective Affidavits of Documents. The plaintiffs’ position was that this was inconceivable. Justice Robinson denied this proposed amendment, noting that, absent some evidence supporting the existence of relevant electronic communications or social media posts, this was not an issue worthy of trial on this allegation of spoliation.

Turning next to the sale of Mr. Paiva’s vehicle, it was argued by the defence that the sale of the vehicle was an ordinary transaction and unrelated to the existing litigation. Justice Robinson found this argument premature on a pleadings motion with insufficient evidence before him to support same. While concerns were highlighted by Mr. Pavia that his intentions for his selling the car would be difficult or impossible to prove, Justice Robinson found he could not hold that the plaintiffs clearly could not succeed in demonstrating that sale was an attempt to cause spoliation of evidence. Justice Robinson allowed the spoliation claim for the sale of the vehicle be added to the claim. He did not permit a general allegation of spoliation to be added as it lacked sufficient particularity

The issue of My. Whyte’s engine being changed, resulting in the lost of black box data recordings, largely hinged on information provided through Mr. Whye’s counsel and a document outlining “Event Data Recorder Supported Vehicles”.  Mr. Whyte argued that his 2008 vehicle did not contain a black box and as such, there could be no spoliation of evidence. However, Justice Robinson found that the evidence upon which Mr. White relied was not compelling for a variety of reasons – there was no evidence supporting that the author of the document was an engineer, no evidence of their credentials or area of expertise, and no evidence on how or with what data the report was prepared or from where the data was obtained. Since there was no evidence on the circumstances of the engine being replaced, the Judge could not say that the plaintiffs were unable to succeed in their position regarding Mr. Whyte’s spoliation. The issue worthy of trial and, in Justice Robinson’s view, prima facie meritorious. This amended was granted.

Finally, the proposed amendment to allege Mr. Whyte’s failure to remain at the scene constituted spoliation did not succeed. There was no evidence put forward beyond the plaintiffs’ supposition that Mr. Whyte’s failing to remain at the scene hindered the collection of evidence. Justice Robinson found this to be a stretch of the concept of spoliation as set out in the case law. He did add a final note that, if discovery or trial evidence supported that Mr. Whyte’s failure to remain was for the purpose of concealing relevant evidence, it was still open to the plaintiffs to argue that spoliation did extend to such a circumstance, and that an adverse inference be drawn.

This case confirms the factors and evidentiary standards required to amend a statement of claim following the close of pleadings. One need not provide evidence that the additions would be successful at trial. Rather, if there is a genuine issue open for the trier of fact, it will likely be added to the claim. However, mere supposition or speculation of facts does not reach the evidentiary threshold for an amendment to pleadings and will not be granted. While a defendant may face criminal consequences stemming from a motor vehicle accident, punitive damages are also available to plaintiffs in the civil context. The Court will allow claims of this nature to be plead, so long as they are sufficiently particularized.

See Ben-Margi v. Paiva, 2021 ONSC 6975 (CanLII)


  • Arijana Schrauwen

    Following a jaunt overseas to complete her Master’s degree, attend law school, and discover her love for popular Scottish soda Irn Bru, Arijana began practicing plaintiff personal injury at a prominent northern Ontario law firm. She migrated to Toronto in 2019, switching to insurance defence work at a downtown Toronto boutique, specializing in Accident Benefits, tort, and subrogation.