Litigation And Spoliation Of Evidence

In a recent case in Alberta, a fire causing extensive property damage occurred at the plaintiff’s home. Fire investigators determined the cause of the fire was either an unextinguished cigar or an overheated cordless drill manufactured by the defendant. The plaintiff’s insurance company hired an investigator who visited the scene and removed the remnants of the drill and other evidence for inspection by an engineer.

The plaintiff later sued the defendant claiming, among other things, that the drill had caused the fire. Black & Decker Canada Inc. defended in part by alleging that by razing the house and removing some drill components, the plaintiff had deliberately destroyed evidence. Black & Decker was successful in having the lawsuit dismissed in advance of trial on the basis of spoliation. Spoliation refers to the destruction or material alteration of evidence, or potentially the failure to preserve property for another’s use as evidence in litigation that is pending or reasonably foreseeable. ¹

The plaintiff appealed on the issue of whether an action can or should be struck, prior to trial, on the basis of spoliation. McDougall v. Black & Decker Inc. ² came before the Alberta Court of Appeal in 2008.

While the discovery rules in each province differ slightly, the general principle that runs through the litigation rules is that litigants are obligated to disclose, in advance of trial, documentary records (which include electronic records) that are relevant and material to the issues raised by the pleadings. For example, the Alberta Rules of Court requires every litigant file and serve an affidavit of records disclosing all relevant and material records within a stipulated time period. Records are defined broadly in the Alberta Rules of Court to include “the physical representation or record of any information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both.” In Alberta, a record is relevant and material only if the record could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. ³

Inevitably, circumstances arise as in Black & Decker where a litigant fails to preserve evidence or documentary records. These omissions can arise due to a pre-existing policy for record retention, intentional acts of a litigant, neglect or the failure of counsel (or those with carriage of a matter before it is assigned to counsel) to advise a client in a timely fashion of the evidentiary obligations that exist as part of the litigation process.

The destruction of evidence can have far-reaching consequences for the litigant who fails to preserve records as required as it is well-established that a party in possession or control of evidence has a duty to take reasonable steps to preserve such evidence for court purposes. ⁴ The legal principle of spoliation is based on the Latin maxim omnia praesumuntur contra spoliatorem, referring to the act of intentionally destroying evidence and that all things are presumed against the wrongdoer.

Courts in Canada have followed a conservative path. The leading case is that of St. Louis⁵ where the Supreme Court held that the intentional destruction of evidence gives rise to a rebuttable presumption of fact that the destroyed evidence would not assist the party that destroyed it. Further, the law is clear that spoliation does not occur merely because evidence has been destroyed, but rather that evidence is deliberately destroyed in circumstances where a reasonable inference can be drawn that the intention was to affect litigation. Nevertheless, some Courts subsequently tried to extend the concept of spoliation to non-intentional acts. For example, in Lamont Health Centre v. Delnor Construction⁶ the Court suggested it may be possible to invoke the remedial presumption of spoliation even where the destruction of evidence is not intentional, but merely reckless or negligent.

In Enden v. Canadian Red Cross Society, ⁷ a claim in tort of “intentional spoliation” was dismissed by the British Columbia Court of Appeal, who found that no such tort existed. Yet several Courts in Ontario have strengthened the argument that an independent tort of spoliation might be recognized in Ontario. For example, the Ontario Court of Appeal in Spasic Estate v. Imperial Tobacco Ltd., held:

“… I do not see why the existence of procedural sanctions or the “spoliation inference,” which may, or may not, ameliorate the effects of spoliation, should in themselves preclude the recognition of an independent tort.” ⁸

McDougall v. Black & Decker is useful for its concise historical summary of the law that has developed in this area.

In reviewing the decision to dismiss the action in advance of trial, the Court of Appeal in McDougall held the chambers judge erred in law since there was no basis on which to conclude the matter of spoliation could not be adequately dealt with at trial. The court stated that determining whether spoliation has occurred, and what relief should follow, is a matter best left to the trial judge who can consider all of the surrounding facts. The Court in McDougall concluded that steps could be ordered in advance to help the respondent prepare for trial.

The apparently contradictory findings of Endean and Spasic Estate left open the possibility of extending the law relating to spoliation. In the result, McDougall does not transform the law in this area although Justice Conrad rejects the suggestion in Lamont that the negligent or careless destruction of evidence also gives rise to the presumption the missing evidence will tell against the spoliator, even without the requisite intent. She emphasized spoliation should not be confused with the unintentional destruction of evidence.

By way of concluding the discussion on the law of spoliation in its decision, the Court of Appeal offers a concise summary of the current Canadian law of spoliation at paragraph 29 of McDougall. The definition of spoliation provided is “the intentional destruction of relevant evidence when litigation is existing or pending.” ⁹ Section 4 of that summary further states that, “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.” ¹⁰ This statement confirms that the law of spoliation continues to evolve in Canada, and might one day give rise to a thus far unrecognized tort relating to the intentional destruction of evidence.

Kenneth W. Fitz is a partner with McLennan Ross LLP in Edmonton. Graham Semeniuk, summer student, assisted in writing the article. McLennan Ross LLP is a member firm of The ARC Group Canada.

1 Osepchukv. TimHortons1645, [2003]A. J. No. 542,2003ABQB364at paras 43-44

2 McDougall v. Black & Decker Inc. (2008), 97 Alta L.R. (4th) 199 (C. A.)

3 AlbertaRulesofCourt, r. 186.1,187.1,187(1)

4 R.v. La (appeal by Vu), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30 at para 17

5 St. Louisv. R. (1896),25S. C.R. 649at652

6 Lamont Health Centre v. Delnor Construction Ltd. (2003), 32 C.L.R. (3d) 75 (Alta. Q.B.)

7 Enden v. Canadian Red Cross Society (1998), 157 D.L.R. (4th) 465 (B. C.C.A.)

8 Spasic Estate v. Imperial Tobacco Ltd., 40 O.R. (3d) 699, [2000] O.J. No. 2690 (leave to appeal to SCC refused, 196 D.L.R. (4th) (vii) at para 22; see also Robb Estate v. St. Joseph’s Health Care Centre, 5 C.P.C. (5th) 252, [2001]
O.J. No. 606

9 McDougall, supra, at para 29, s. 1

10 McDougall,