Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings — erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go missing, judges and litigants alike descend into a world of ad hocery and half measures — and our civil justice system suffers. To guard against this, each party in litigation is solemnly bound to preserve potentially relevant evidence.1

Spoliation is the act of tampering with evidence, which involves an intentional act in which a person alters, conceals, falsifies, or destroys evidence with the intent to interfere with a legal investigation or proceeding.2 Spoliation has been described as a form of cheating, which threatens to undermine the integrity of the civil justice process. There are and should be consequences where a party to litigation intentionally destroys evidence.

Canada's courts recognize the public interest in full discovery between parties to litigation. Full disclosure prevents surprise and "trial-by-ambush," while encouraging early settlements, and reducing court costs.3 The proper functioning of the civil litigation process depends upon parties complying with their automatic, immediate, and ongoing obligation to disclose all relevant documents in their possession, control, or power, and to produce relevant documents that are not privileged.4

However, in order for this vital document disclosure and production process to take place, relevant documents and electronic evidence must first be preserved. Document preservation issues affect many civil and commercial litigation proceedings.

Unfortunately, some litigants will not draw the line at failing to preserve. If you know or suspect that a litigation adversary has intentionally concealed or destroyed key evidence — or, you have done so — your litigation may be on a collision course with the doctrine of spoliation.

Spoliation overview

Those locked in litigation with a "spoliator" may be disheartened to learn that, unlike in Alberta, Manitoba and Nova Scotia, Ontario's courts have not yet recognized a free-standing tort of spoliation.5 It is not yet considered to be its own cause of action, which might lead to an award of damages against the spoliator. However, the Ontario Court of Appeal has left the door open for spoliation to be pursued as a novel claim, provided the plaintiff can establish that willful, intentional destruction or suppression of evidence resulted in the inability of the plaintiff to establish or prove the other torts raised in the plaintiff's claim.6

Fortunately, the law provides other remedies for spoliation.

The law of spoliation

A leading case on the doctrine of spoliation in Canada is the Alberta Court of Appeal's decision in McDougall v. Black & Decker Canada Inc.,7 from which the following principles may be drawn:

  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. (For your daily dose of Latin: this is the doctrine of omnia praesumuntur contra spoliatorem — "all things are presumed against a wrongdoer" — but, as a rule of evidence, the doctrine should not be plead in your Statement of Claim.)8)

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. (For example, the spoliator might lead evidence to support an innocent explanation for the destruction of the evidence.9)

  1. 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.
  2. 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 purposes of the law of negligence, although these issues, in most jurisdictions, remain open.
  3. Generally, the issue 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 response.
  4. 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.10

In regards to the potential for unintentional or negligent spoliation, the Alberta Court of Appeal held that "the unintentional destruction of evidence is not spoliation," and does not attract the presumption against the party who caused the evidence to be lost.11

Spoliation concerns: What can you do?

If you have reason to be concerned that a litigation adversary may destroy key evidence, you might consider the following:

  1. Put them on notice at an early stage — write the other side, and inform (or remind) them of their document production and preservation obligations. If destruction of evidence takes place, this correspondence may assist your efforts to establish that the spoliation was intentional.
  2. Incorporate broad document preservation obligations into a court order — if the preservation obligation is incorporated into a court order, or court-ordered discovery plan, this will make the destruction of evidence not only non-compliant with the applicable rules of court, but also in breach of the court's order. In an extreme case, this may open the door to prosecuting the spoliator for contempt of court.

Spoliation has occurred: What are your options for relief?

When faced with the intentional loss or destruction of evidence, your default approach may be to proceed to a hearing without the benefit of the evidence, and to encourage the court to presume that the lost or destroyed evidence would not help the spoliator's case.

The law does not go so far as to require the court to presume that the evidence would help your case, but the presumption against the spoliator may be a significant benefit — especially where the case is close, and the evidence had the potential to be exculpatory.

Moreover, although not a specific form of direct legal relief, where spoliation can be demonstrated it says something fundamental about the bona fides of the other side which may provide "soft" support for your position by influencing the trier of fact's perspective about the parties.

Other options for relief in the face of actual or potential spoliation include the following:

  1. Pre-trial relief: Anton Piller Order — an Anton Piller Order is an extraordinary pre-trial remedy that provides the right to search premises and seize evidence. It is usually sought without notice to the affected party. It is an affirmative step to prevent  the destruction of evidence where a risk of destruction can be demonstrated, as opposed to providing relief after the fact. Anton Piller Orders are, however, awarded very sparingly, and entail significant risk — not least of which, the potential for a significant cost or damages award, if the order turns out to have been unwarranted. It will be an extreme case — featuring, e.g., fraud, or brazen threats to destroy evidence — that would justify seeking an Anton Piller Order.
  2. Other pre-trial relief  — most court decisions have concluded that the issue of spoliation is best left for trial, where a full record is available to be considered by the trial judge.12 With this said, Ontario's courts may rely on their inherent authority, or their remedial authority found in the Rules of Civil Procedure,  to craft an appropriate remedy for spoliation, such as the exclusion of expert reports, or the awarding or denial of costs.13
  3. General remedies for non-disclosure —  the Rules of Civil Procedure provide for a number of potential sanctions that can be imposed where a party fails to disclose or produce a document, including: (a) allowing a cross-examination on the party's affidavit of documents, (b) ordering the preparation of a further and better affidavit of documents, (c) prohibiting the party from using a document at trial, (d) revoking the party's right to initiate or continue an examination for discovery, and (e) dismissing the action or striking out the statement of defence.14

There are several factors which are considered in determining the appropriate sanction for non-disclosure:

  • the quantity and quality of the abusive acts;
  • whether the abusive acts flow from neglect or intent;
  • prejudice generally, and specifically the impact of the abuse on the opposing party's ability to prosecute or defend the action;
  • the merits of the abusive party's claim or defence;
  • the availability of sanctions short of dismissal that will address past prejudice to the opposing party; and
  • the likelihood that a sanction short of dismissal will end the abusive behaviour.15

Miller Thomson's litigators have extensive experience addressing document preservation issues, and seeking the various remedies discussed above. If you have any questions, or are in need of advice or assistance with spoliation issues in connection with ongoing or contemplated litigation, please contact Miller Thomson's  Litigation team.

Footnotes

1.  Keithley v. The Home Store.com, Inc.,  2008 U.S. Dist. LEXIS 61741 (N.D. Cal. Aug. 12, 2008), quoting United Medical Supply Co. v. United States,  77 Fed. Cl. 257, 258-59 (Fed. Cl. 2007).

2. See, e.g., McDougall v. Black & Decker Canada Inc., 2008 ABCA 353.

3. Iannarella v. Corbett, 2015 ONCA 110 at paras 33 & 42.

4. Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 at paras. 41-48.

5. Armstrong v. Moore, 2020 ONCA 49 at para. 37; See, e.g., Kacperski v. Orozco 2005 ABCA 179, at paras. 3-4, 9; Cummings v. MacKay,  2003 NSSC 196,  at para. 16; varied (but not on the spoliation issue) by Cummings v. MacKay et al., 2004 NSCA 58, at paras. 9, 36. See also Western Tank & Lining Ltd. v. Skrobutan et al,  2006 MBQB 205, at para. 22, where Scurfield J. commented that "[a]cts of spoliation can constitute an independent tort."

6. Spasic Estate v. Imperial Tobacco Ltd., 2000 CanLII 17170 (On CA), at paras. 21-24.

7. McDougall v. Black & Decker Canada Inc., 2008 ABCA 353.

8. Spasic supra  note 6 at para. 25.

9. See: St. Louis v. The Queen, [1896] CarswellNat 23, 25 SCC 649 at 652-654; McDougall supra  note 7 at para 29.

10. McDougall supra  note 7 at para 29.

11. Ibid at paras 24 & 25.

12. See, e.g., Dreco Energy Services Ltd. v. Wenzel, 2006 ABQB 356 (CanLII), at paras. 43, 49-50; North American Road Ltd. v. Hitachi Construction Machinery Company, Ltd.,  2005 ABQB 847 (CanLII), at paras. 20-23; Cheung v. Toyota Canada Inc., 2003 CanLII 9439 (ON SC), at paras. 20-21, 23.

13. Mann Engineering Ltd. v. Desai, 2021 ONSC 7580, 2021 CarswellOnt 16711 at para 131; see also The Sedona Canada Principles: Addressing Electronic Discovery, January 2008 (Sedona, Arizona: The Sedona Conference, 2008), at p. 37, available at www.thesedonaconference.org.

14. See, e.g., Rules 2.01 (Effect of Non-Compliance), 30.06 (Where Affidavit Incomplete or Privilege Improperly Claimed) and 30.08 (Effect of Failure to Disclose or Produce for Inspection) of the Rules of Civil Procedure, R.R.O.1990, Reg. 194.

15.  Zelenski v. Jamz et al.; Zelenski v. Houston, 2004 MBQB 256 (CanLII) at para. 19.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.