Spoliation of evidence in the context of an ICBC injury claim refers to the destruction, mutilation, alteration, or concealment of any evidence.
In Alsaeedi v. Lally, the Plaintiff was a pedestrian who alleged she was injured when struck by the Defendant as she walked in the crosswalk. The Defendant denied hitting the Plaintiff, claiming that she fell while running outside the crosswalk. The Plaintiff brought an ICBC claim for damages for pain and suffering, as well as various other types of damages, however the Court heard the liability component of the claim in advance of the trial on damages. The Court would eventually rule that the Defendant was not negligent. At the scene of the accident, the Plaintiff had gathered several business cards from witnesses, however the Plaintiff would be the only witness to testify during her case. ICBC’S lawyer had also raised the issue of spoliation of evidence, maintaining that the Plaintiff had destroyed, lost, or concealed evidence related to the claim made against the Defendant, with such evidence being the business cards collected at the time of the accident by the Plaintiff. However, the Plaintiff never called any of these witnesses to testify on her behalf. The Court ruled that it was not necessary to address the issue of spoliation of evidence, as one of the people whose business card was collected by the Plaintiff did in fact testify, but for the Defendant.
 The issue of spoliation raised by the defence was discussed in the Supreme Court of Canada in St. Louis v. The Queen 1896 CanLII 65 (SCC), 1896, 25 SCR 649 and stands for the proposition that spoliation raises a rebuttable evidentiary presumption that misplaced or destroyed evidence would have been unfavourable evidence to the spoliator’s case, ie. in this case, the plaintiff. The defence also referred the court to decisions of British Columbia courts on the issue of spoliation which have accepted the principle of a rebuttable presumption but conflict as to whether the presumption is triggered automatically if evidence is lost or destroyed or whether the other party must establish additional elements or evidence supporting the loss or destruction of the evidence.
 In this case, it is uncontroverted that the defendant did obtain a business card at the scene of the accident from Mr. Bennett, that Mr. Bennett was interviewed in connection with this incident by Mr. Cringle, who believed he had been retained by plaintiff’s counsel regarding an accident at the intersection in question in this case. Mr. Bennett was served with a subpoena by the defence and his evidence relating to the incident has been accepted by me and was contrary to the interests of the plaintiff. As a result, it is not necessary for me to analyze the facts and law relating to spoliation since one of the witnesses whose evidence the plaintiff may have attempted to exclude has in fact testified.