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
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
1 McDougall v Black & Decker Canada Inc,
2008 ABCA 353
2 Blais v Toronto Area Transit Operating
Authority, 2011 ONSC 1880
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).