Spoliation: Destruction Of Evidence Has Litigation Consequences

• Published date: 18 August 2022
• Law Firm: Miller Thomson LLP
• Author: Gavin H. Finlayson, Matthew G. Smith, William Littlejohn and Harrison Tepsich

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...