Canada: Records Management @ Gowlings - August 11, 2010


  • Retention, Disposal, and Destruction
  • News and Articles

Records Retention, Disposal, and Destruction


The Special Master ruled on a motion by Defendant that Plaintiff's spoliation of hard drives affected evidence relevant to a material issue, and was wilful in the sense that Plaintiff was aware of its responsibilities to preserve but failed to take necessary steps to do so. However, the Special Master denied dismissal of Plaintiff's action as well as costs incurred by Defendant to conduct forensic imaging of Plaintiff's hard drives. Instead, the Special Master remedied a jury instruction that the jury would be entitled to infer that the hard drives would have contained evidence unfavourable to Plaintiff.

Upon a motion to modify by Defendant, Judge Mix of the U.S. District Court (Colorado) noted the goals of deterrence, risk displacement and restoration as described in Pension Committee1 as guiding considerations respecting remedies in spoliation cases. Judge Mix also considered the weight of five aggravating factors2 to evaluate the circumstances on which the claim for dismissal was based to determine the appropriateness of Defendant's proposed sanction:

  1. Prejudice to Defendant: the prejudice resulting from destruction could be reduced by instruction of the jury and production of 'responsive' information to replace what had been destroyed; time and expenses could be remedied by costs awards;
  2. Interference with Judicial Process: spoliation had complicated discovery disputes, led to the appointment of a Special Master and consequent review of his findings, and led to incomplete information being provided to the jury. Instruction could only partially remedy this complication;
  3. Culpability of Plaintiff: Plaintiff had complied with all other discovery requests and partially replaced information destroyed. The destruction, though wilful in the sense that protective measures were not fully implemented, resulted from the ordinary course of business. There was no premeditated campaign to destroy key evidence;
  4. Advance Notice of Sanction of Dismissal: the fact that the penalty of dismissal as a result of noncompliance is specifically contemplated by the Federal Rules of Civil Procedure and jurisprudence on spoliation was sufficient in support of granting a dismissal to Plaintiff;
  5. Efficacy of Lesser Sanctions: jury instruction and compensation would diminish any prejudice to Defendant, was all that was necessary to prevent further repetition of the mistake by Plaintiff, and would place the consequences of spoliation on the offending party not the prejudiced party.

Finding Plaintiff's conduct 'negligent rather than intentional', Judge Mix denied Defendant's request for dismissal and rewarded only partial costs because it was found that Defendant had expended too many resources on the litigation of the motion.

Plaintiff claimed injuries preventing her from continuing to run her personal training business. Defendants moved to compel Plaintiff to produce her personal computer for inspection of business invoices stored thereon. Plaintiff initially refused to accede to Defendants' requests for electronic copies of the invoices for the purpose of confirming Plaintiff's assertions that her tax returns did not accurately reflect her true income. Defendants filed a motion for production.

Following conclusion of mediation, counsel for Plaintiff advised Defendants' counsel, and swore in an affidavit, that Plaintiff's computer had become completely corrupted and information requested was no longer retrievable. Plaintiff agreed to consent to an amendment to Defendants' statement of defence to plead spoliation. Defendants refused and proceeded with the motion for production.

The motion was dismissed. Plaintiff's counsel swore that the computer was not available, and the truth of these facts should only be determined at trial. The amendments which were offered on consent would have entitled Defendants to make submissions on whether or not spoliation was intentional. Once counsel for Defendants received Plaintiff counsel's correspondences as to the corruption and unavailability of the computer, the choice to proceed with the motion, knowing that an order to produce could not be effective on the information provided by counsel, was inappropriate. The Rules of Civil Procedure encourage parties to proceed in a fair and inexpensive fashion, and such over-zealous action was in violation of those principles.

Plaintiff brought an action alleging negligence on the part of doctors misrepresenting her son's medical condition and failing to refer him to a specialist for psychological assessment. A number of medical records from the time were missing and, on appeal, at issue was whether the destruction of records could constitute an independent tort which could ground Plaintiff's claim.

The Court of Appeal defined the term spoliation as referring to the destruction, mutilation, alteration or concealment of evidence. The remedies available to litigants who suffer due to spoliation include procedural remedies, evidentiary presumptions, contempt proceedings and costs orders. Spoliation has not been recognized as a free-standing tort in Canada. There has been much judicial consideration of spoliation as a tort in the United States but the lower level courts which have typically recognized spoliation as an independent tort have typically been overruled by higher level state courts. The arguments for the tort typically reference the fact that the destruction of evidence undermines the trial process. The arguments against the tort center on the fact that in recognizing the tort, the court would be attempting to place a value on evidence that no longer exists and whose exact content is unknown.

The Court concluded that this matter was not squarely before them and thus declined to rule for or against the existence of the tort in British Columbia. The Court further held that there is no such thing as negligent spoliation and that spoliation requires intentional destruction indicative of fraud or an intent to suppress the truth. The spoliator must have acted deliberately and with fraudulent intent, but once the spoliator's action resulted in another party being deprived of the ability to prove or disprove some part the case, the burden of proof with respect to intent was to be born by the alleged spoliator as the creator of the predicament.

The Court eventually dismissed the appeal finding that Plaintiff's claim necessitated that Defendants had intentionally destroyed evidence but this was not the case as it was hospital policy to destroy records after a certain number of years.

Plaintiff's action related to a claim for lost business profits which had allegedly been incurred after the Plaintiff was struck on the head by a rock which had fallen from the Defendant's building. Defendant brought a motion seeking to have the Plaintiff's action dismissed on the grounds that Plaintiff had failed to comply with their ordinary disclosure obligations under Ontario's Rules of Civil Procedure. In particular, Plaintiff had failed to produce various business and banking records which would shed light on the actual losses sustained by the businesses following Plaintiff's injury.

It was submitted by Plaintiff that much of the evidence, which could ordinarily be provided by Plaintiff's own recollection, was unavailable due to the injuries sustained. Where documents were not being produced for inspection, Rule 30.08(2) permitted the revocation or suspension of a party's right to initiate or continue an examination for discovery, the dismissal of a Plaintiff's action, or any other order as is just.

Defendant argued that it would be prejudiced if required to go to trial for loss of profit without complete documentation to test the profits claimed. Plaintiff argued however, that dismissal could only be advanced where significant prejudice to the other side had been established.

The Ontario Superior Court of Justice held that it was not possible to determine that Plaintiff was deliberately refusing to comply with the Rules and court orders respecting preservation and production of the requested records. Dismissal of the action was not available on the basis of spoliation – spoliation was an intentional tort, and the existence of such intention could be determined only with an admission or by a trial of the issue. Plaintiff's record-keeping practices would have to be explained by Plaintiff during the main trial of the action.


Gowlings Records Management group offers objective coding services, permitting information from the face of a document to be entered into a indexed, searchable database. Contact us today for more information.


Gowlings Records Management Services Group

Gowlings' Records Management Services Group is comprised of lawyers and technical specialists skilled in dealing with paper and digital records, either in the context of pre-claim risk mitigation or as records counsel in complex litigation. Specifically, we offer the following services:

  • Pre-claim risk assessment of records management policies and procedures.
  • Records management consulting services, including review and analysis of existing policies and procedures, developing recommendations for revisions to policies and procedures, assisting with implementation of revised polices and procedures, and continuing education and audits of implemented records management program to ensure compliance.
  • Developing and implementing litigation hold policy and procedure.
  • Post-claim records management services, including scanning and coding of paper records, processing and review of electronically stored information, consulting on records management issues throughout litigation process and assisting lawyers with presenting records at hearings.

Visit our webpage at:


1. Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 685 F.Supp.2d 456 (S.D.N.Y.2010).

2. See Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.