The destruction of evidence, either intentional or through negligence, impedes the ability of the trier of fact to find the truth and reach a just determination of the issues.

The destruction of evidence during ongoing or contemplated litigation, intentional or otherwise, may result in sanctions against a party.

Spoliation will be established where a party intentionally destroyed evidence relevant to ongoing or contemplated litigation. There is a presumption that the evidence would have been unfavourable to the party who destroyed it.

Unintentional destruction of evidence may still result in sanctions against a party. The court has discretion with respect to the award of costs should the conduct of a party lengthen or delay proceedings.

Spoliation

Spoliation occurs “where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation.” (See the Supreme Court of Canada case St. Louis v R. (1896), 25 S.C.R. 649 (S.C.C.))

Note that it is a requirement that the destruction of the evidence be intentional.

Spoliation can occur in a number of ways. Items can be destroyed or disassembled. Documents can be shredded or erased. Modifications can be made to the evidence. Evidence can be altered or destroyed in order to create other types of evidence, such as an expert report.

Once spoliation is established, there is a presumption that the evidence would have been unfavourable to the party who destroyed it (St. Louis v R.). The party must rebut this presumption by demonstrating there was no intention to affect the case or leading other evidence to prove the case.

Evidence of spoliation may assist a party in a pre-trial motion determining issues before trial or on a motion for summary judgment.

However, in McDougall v Black & Decker Canada Inc., (2008), 62 C.P.C. (6th) 293, the Alberta Court of Appeal ruled that the issue of whether destruction of evidence was intentional or otherwise should generally be determined at trial. The court stated at paragraph 4 that “while the court always has the inherent jurisdiction to strike an action to prevent an abuse of process, it should not do so where a plaintiff has lost or destroyed evidence, unless it is beyond doubt that this was a deliberate act done with the clear intention of gaining an advantage in litigation, and the prejudice is so obviously profound that it prevents the innocent party from mounting a defence. ...”

This approach was adopted in the Ontario Superior Court of Justice case Muskoka Fuels v. Hassan Steel Fabricators Ltd., [2009] O.J. No. 4782 (QL), in which the court ruled that the imposition of any sanctions should be determined a trial with the benefit of the complete evidentiary record.

Unintentional Destruction of Evidence

In the 2002 Saskatchewan Court of Appeal case Doust v. Schatz, (2002), 32 R.F.L. (5th) 317, the court ruled that “a party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action. The process of discovery of documents in a civil action is central to the conduct of a fair trial and the destruction of relevant documents undermines the prospect of a fair trial.” If a party fails to fulfill that duty, the party may be subject to sanctions even if the destruction of evidence was unintentional.

In situations involving the unintentional destruction of evidence, there is no presumption which arises that the evidence would have been unfavourable to the party.

The Rules of Civil Procedure provide the court with potential sanctions in circumstances involving the unintentional destruction of evidence. Rule 57.01 empowers the court with discretion with respect to costs of an action. For greater certainty, in awarding costs of an action, the court may consider the “conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;” and “any other matter relevant to the question of costs.”

The court may also prevent the party from presenting the testimony or conclusions of its own expert which were based on the destroyed evidence.

Conclusion

The destruction of evidence, either intentional or through inadvertence, may impede the court’s ability to determine the dispute.

In the absence of intention, spoliation will not be found. The court will likely prefer to hear any submissions relating to the destruction of evidence during trial, with the benefit of the complete evidentiary record.

A cost award against the party who destroyed the evidence is the most likely sanction to be imposed by the court.