During litigation a party is to conduct a diligent search of their records and produce all relevant documents relating to the matter in issue whether they are or have been in the party's possession, control or power.

While the issue of destruction of evidence is not a common occurrence, any such activity can have severe consequences.

The law of "spoliation" can play an important role in evidence gathering. In Canada, spoliation refers to the intentional destruction of relevant evidence when litigation exists or is pending.1

The principal consequence of spoliation is the imposition of a presumption that the lost or destroyed evidence would not assist the spoliator. This presumption may be rebutted by evidence showing that by destroying the evidence the party did not intend to affect litigation, or by other evidence to prove or repel the case.

Generally, the issues of whether spoliation has occurred and what remedy should be given in that case are matters best left for trial where the trial judge can determine the most appropriate response. Pre trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence but the usual view is that that issue is best assessed at trial on a full evidentiary record.

There may be various remedies to deal with the situation where there is no evidence that the spoliation was a deliberate act done with the intention of gaining an advantage in the litigation, for example, the destruction of documents in a slip and fall case when it would have been reasonable to be viewed by the subsequent defendant as a minor incident, and there has been no clear prejudice to the party seeking the documents. One or a combination of the following methods has been considered: (1) further examination for discovery; (2) a specific motion; (3) at trial.2 As noted above, generally the issue will be considered at trial but the courts have ordered a combination of further examinations for discovery related to details behind the destruction of documents, that the party seeking such documents may lead evidence of the spoliation, the circumstances under which it took place and any resultant prejudice. The spoliator could adduce evidence that the purging of the documents was not done to affect the litigation. It will then be up to the trial judge to determine the impact of the spoliation.

Retention of documents may seem like a file storage and space issue but other factors can affect whether or not material should be maintained.