The recent decision of the Alberta Court of Appeal in McDougall v. Black & Decker Canada Inc. (2008), explored the issue of lost or destroyed evidence and whether an action can or should be struck prior to trial, on the basis of spoliation. The decision confirmed the definition of spoliation as the intentional destruction of relevant evidence when litigation exists or is pending. It also held that in the absence of exceptional circumstances, the question of whether spoliation has occurred and the remedy that should follow should be determined at trial.


On January 4, 2004, a fire destroyed the McDougalls’ home. The local fire department investigated and determined that the fire was caused either by an improperly disposed of cigar or a malfunctioning cordless electric drill manufactured and distributed by Black & Decker Canada Inc. (“Black & Decker”).

In late 2005, the McDougalls filed a Statement of Claim against Black & Decker alleging that the malfunctioning drill had caused the fire. However, by the time the lawsuit was commenced, what remained of the house had been demolished to facilitate reconstruction. Moreover, certain parts of the suspect drill, which had been retained by a private investigator hired by the McDougalls’ insurance company, had gone missing.

Black & Decker alleged that the McDougalls had destroyed evidence when they knew litigation was contemplated, thus denying them the opportunity of inspection. It applied to have the action dismissed on the basis of spoliation, claiming it was unable to defend itself because it could not properly investigate the fire scene or the drill, to determine the probable cause of the fire.

A chambers judge granted the pre trial application to have the action dismissed. The McDougalls appealed.


The Alberta Court of Appeal determined that “[w]hile 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.” In coming to this conclusion, the court summarized the law in Canada with respect to spoliation as follows:

  1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation exists or is 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.
  3. There may be other remedies, including for example the exclusion of experts’ reports or cost consequences, even where evidence was not intentionally destroyed.
  4. As of yet, intentional destruction of evidence does not give rise to a tort.
  5. Generally, the issue of whether spoliation has occurred, and what remedy should be given, are matters best left for trial.
  6. Pre trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence.

The Court of Appeal stressed that spoliation should not be confused with the unintentional destruction of evidence and that generally, the question of whether spoliation has occurred and its impact, are determinations best left to the trial judge. Issues such as whether there was the requisite intention to destroy evidence and the extent of the prejudice suffered by the non-offending party as a result must be resolved before a court can pass judgment on the issue of spoliation. Furthermore, establishing intention and prejudice requires greater evidentiary foundation than what can be offered by way of affidavit.

While the court did not rule on the issue of spoliation, leaving the matter to be dealt with by the trial judge, it alluded to two facts that could weigh against Black & Decker.

First, with respect to the issue of intent, the court held that although the house was intentionally demolished so that a new home could be built, without more, this should not give rise to a presumption that the destroyed evidence would have been prejudicial to the McDougalls’ claim. While the destruction in and of itself was intentional, it did not constitute an intention to destroy relevant evidence. Second, with respect to the allegation of prejudice, the court made reference to the fact that Black & Decker waited 18 months from when it was first notified of its potential liability to make any efforts to inspect the evidence. Given the nature of the evidence (i.e., the scene of the fire being the home of the plaintiffs), it could be argued that Black & Decker should have been more diligent in its efforts to inspect the evidence.

The court held that there was no evidence either way as to whether the destruction was intentional nor was there evidence that Black & Decker would be unable to mount a full defence in the absence of the destroyed evidence. There was also no evidence to indicate that it was otherwise inappropriate to deal with the issue of spoliation at trial. The appeal was therefore allowed and the action restored