the court found in that case that there was no question in that situation that the defendants in this case had notice of potential litigation concerning the i v that was the evidence at issue there but family didn't matter because the question being potential litigants was not an element of the spoliation or they would have to agree martin removed it as a basis mark and i think very clearly removes that as a basis and very clearly states that the the source of that  significant and instead set forth two examples of something more that might be relevant to a special relationship he drew from his twenty four decision in thirteen versus keeling where the supreme court stated it is clear from the of these are examples of the relationship well even before the supreme court decided or this court addressed that question in the previous decision in this case this court or notice commonalities between those two examples of something more and observe first and this court row as it relates to the relationship wrong such conduct could perhaps speak to some an element of the alliance between the parties that is not present in this case so is the question on the lines and how those those two examples the supreme court has put forth not just in mark but even in decisions prior to that how they relate to reliance is that element of reliance that characterizes the sort of special relationship they can give rise to a duty so couldn't the complaint speak to that any indication that the planet is relying upon the defendant to preserve the evidence certainly not of the same way that when they claim to asks a defendant to preserve the evidence must does it have to be i mean the supreme court it doesn't have to be a necessarily need to be something in case the civic requests i request that you reserve the right certainly that is suffice the alternative that the supreme court has provided several times as the the actual preservation the setting aside o  procedures that are fairly sophisticated but take it in the real world you have the only person who doesn't know anything about the implications of magic words about requests to preserve how do they be able to  discussed i don't recall if you were discussed and i think it's also important to recognize that the group be contained a number of different independent grounds for a duty in that case not all of which i think were were it was a case where it is also important to recognize that there was a duty found in that case but only after the certain things had happened and there was a gap of time o office all happened very quickly but not for a moment a period of time where there was no duty to preserve the evidence yet because there had been no complaint made no and more importantly no request made for the preservation of the evidence  o protective order or even requested so within the i know no protective order is something that would be sufficient to state the plaintiff's reliance without actually being a formal request of the defendant it's similar in some ways  counting on the defendant to preserve that evidence eighty something else nothing short of the actual request that might be might still be sufficient would be a simply a statement of reliance an open statement s on the defendant's part to overcome such things as the sheer institutional inertia by which documents are often routinely destroyed or random chance as in the case of the x rays that growing case or the need to demolish an unsafe structure as in this case there are competing concerns that call for the destruction of those pieces of evidence and there was nothing certainly in this case to forestall that from happening no statement by the by the planet of reliance the sort of the last this court spoke of its previous decision as being in common factor between the supreme court's examples of plaint present the defendants period and cynthia schmidt i think the question here that you've been focusing on most is what sort of what is needed by the relationship crime to create this duty in boy days certain religion should do create a duty to preserve evidence their contracts their new cream and their statute voluntary and taking all of these relationships are either contractual or quasi contractual they create some sort of expectations on the parties he used the word alliance i think that's really what the focus has to be on here what does the plaintiff expect to happen what is the defendant fixed believe that is it expected of him in this case the only and that's really what we need to focus on here could you imagine a place that could do it i don't know maybe maybe that could be close enough in time that it could be requested in a certain way that would put people on the list but we have to look at assembly issue and number two importantly the defendant next case gave actual notice in writing to the plaintiff that that was troubling that whole service was going to be back in service completely descend usual in the facts here i think the issue that was raised by the who are in these questions that we but the issue of her quest for her preservation requests for preservation of evidence is so let's look at szymanowski and let's look at what mara said and i think the answer is and just as you know if you allude to it in one of your questions i'm su it talks about the first prong where it is the duty to trigger a notch or in three different instances that i found martin is referring to the knowledge of the defendant about the importance of the evidence and whether it's going to be used for future procedures of the hospital which i may think that's new really here i do it let's just be honest the peak and had actual knowledge and i got overwhelming evidence from their experts from their inspection of the scene from the articles that they taught their experts testify that this should have been preserved in this case that's one thing has to try to it's all in the murder from before it's not just using those that testimony about industry standards is far beyond that it's what they knew in this case this case every case it's got traction specific instances and i think it's important to understand if we if there's nothing else time and things you raise we've got an internal memory and articles that say that far sooner that should not be destroyed without no well two things i'm going to say i'm talking about their internal policies and procedures which is marcus it was something that we can look at one and two i'm looking at in this particular case what they found out with the first part said that the possible most likely cause or possible i'm control it was the request ok let's say good what does this request in the supreme court's mind have to do with models which the ruling she answer the question is whether the supreme court i suggest to you and if you look at talking about the first prophet middling voluntary and taking but they're talking about what the defendants knew about the option which is exactly what you asked justice which gets to my point what i mean to to construe the question let's put it let's put it in a kind of term differently conversing to construe the question of what is the importance of the question preserve evidence if you just take their interpretation what will i mean what's the difference between mrs combs calling on the phone man dressed up today but in terms of the inspection and the opportunity i mean if your question was in terms of complaints was that addressed why they are at all no it wasn't and the question is whether the opportunity inspected clinton raised that issue wasn't discussed they talk about the opportunity to to debate the evidence but did i would dispute the issue that there was just one complaint in the very last part there were years of complaints but and complaints afterwards that  if you have no more questions thank you so much mr ho to need to preserve the evidence coming as he said from the investigation that is simply not correct there is nothing in this record to suggest that pekin based on his investigation that it was supposed to be preserving the evidence wel after the fire took place but there was well there was also and it's crucial recognize that anything that peak in any impression it had about whether evidence as a as a general rule in  a possibility if the induction investigation the fire department had conducted a independent investigation what he didn't have it may have had some indication that there was electric hole which will roll in this fire when it did have was nation of the evidence seems like a voluntary undertaking the supreme court has categorize it as one of the special circumstances separate from ontario undertaking and that appears to be based on and i agree with this court as well for his previous decision that like contracts or agreements or phone syrian or takings or the special circumstances that this court has recognized must involve some element of reliance not there a possibility that there might be of the injured party and rely but a specific examples for resembles them in any way without any basis for a special circumstance in this case there is no duty to preserve evidence respectfully request that this court answer the sort of our questions according