The tort of spoliation

The current Canadian law of spoliation was addressed in McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 CanLII (Alta.C.A.)

It was held in Muskoka Fuels v. Hassan Steel Fabricators Limited, 2009 CanLII 63125 (ON SC) that this decision does not alter the principles set down in the leading case in Ontario, which is Spasic v. Imperial Tobacco Ltd., 2000 CanLII 17170 (Ont.C.A.), nor the Supreme Court of Canada’s ruling in the leading case of St. Louis v. R. (1895) S.C.R. 649.  Those principles, as set down by Madam Justice Conrad writing for a unanimous court in McDougall v. Black & Decker Canada Inc., are as follows: 1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending. 2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.  The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case. 3. Outside this general framework other remedies may be available – even where evidence has been unintentionally destroyed.  Remedial authority for these remedies is found in the court’s rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs. 4. The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for the purposes of the law of negligence, although these issues, in most jurisdictions, remain open. 5. Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate remedy. 6. Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence.  But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process. One of the preconditions set out in Spasic Estate was “the intentional destruction of relevant evidence when litigation is existing or pending.”  The court left open the issue of whether there is a duty to preserve evidence for purposes of the law of negligence. It is rare for a claim to be struck pre-trial: Telenga v. Raymond European Car Services Ltd. (1992), 3 C.P.C. (3d) 79 (Ont. Gen. Div.). However, in particularly egregious circumstances a pre-trial remedy might be available for spoliation up to and including dismissal of the claim Cheung (Litigation Guardian of) v. Toyota Canada Inc. (2003), 29 C.P.C. (5th) 267 (Ont. Sup. Ct.); and Douglas v. Inglis Ltd. (2000), 45 C.P.C. (4th) 381 (Ont. Sup. Ct.)). Despite the ruling in Spasic Estate, which was confirmed in Robb v. St. Joseph’s Health Centre (2001) 5 C.P.C. (5th) 252 (C.A.); Robb Estate v. Canadian Red Cross Society (2001), 9 C.C.L.T. (3d) 131 (C.A.), courts have applied by way of remedy an evidentiary inference or rule whereby evidence has been rendered non-usuable at trials (Logan v. Harper, [2003] O.J. No. 4098 (S.C.J.) at para. 42]. This rule creates the rebuttable presumption that if the spoiled evidence had been available at trial, it would have been harmful to the spoliator’s case.  The British Columbia Law Institute’s “Report on Spoliation of Evidence” suggest that the origins of this evidentiary rule can be traced back to the maxim omnia praesumuntur contra spoliatorem, which means “all things are presumed against the wrongdoer.” This evidentiary rule is reflected in Rule 30.08 (1) of Ontario’s Rules of Civil Procedure, which provides that if a party fails to produce a document that is favourable to its own case, that party may not be able to use the document at trial, and if the document is unfavourable, the court has the discretion to make an order that it deems just. In addition, courts have developed procedural sanctions that address the spoliation of evidence. Common sanctions include default judgment in favour of the prejudiced party, the striking of pleadings, evidence preclusion, preservation orders and Anton Piller orders.

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