Copyright 2008, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Litigation, November 2008
In the recent decision of McDougall v. Black & Decker Canada Inc., the Alberta Court of Appeal clarified the law of spoliation in Canada, articulating a more conservative approach under Canadian law than that found under American law. This decision is important to consider as companies decide when and how to implement "litigation hold" and other policies, and the potential related consequences.
The issue of spoliation arises in circumstances where evidence has been lost or destroyed. In such circumstances, the doctrine of spoliation may be applied to remedy any unfair prejudice existing as a result of the missing evidence.
The McDougall case arose because a family had lost their house in a fire. The local fire department investigated and determined that the fire was caused either by an unextinguished cigar or by the overheating of a drill manufactured and distributed by Black & Decker. As the fire department was commencing its investigation, the McDougalls called their insurer who hired an expert to investigate the cause of the fire. The expert visited the scene and gathered remnants of the drill and other physical evidence, which he took away to have further inspected by an engineer.
After the fire department completed its investigation, the McDougalls demolished the remains of their house and built a new one on the same foundation. The McDougalls later informed Black & Decker of its potential liability for the fire. After a further 18 months, the McDougalls then filed a Statement of Claim suing Black & Decker, alleging that the fire had been caused by the drill. Black & Decker defended and then filed a Notice of Motion seeking to have the McDougalls' pleadings struck on the basis of spoliation. Black & Decker alleged that it was denied the opportunity to inspect the house and the drill.
The chambers judge accepted that spoliation had occurred. The remedy chosen was to strike the Statement of Claim.
Before the Alberta Court of Appeal (the Court), the McDougalls submitted that the chambers judge erred by finding spoliation without intent, by not leaving the matter of alleged spoliation to the trial judge, and by granting inappropriate remedies.
Madam Justice Conrad, writing for the Alberta Court of Appeal, allowed the appeal and restored the McDougalls' claim. In doing so, Conrad, J.A. reviewed the jurisprudence regarding spoliation.
Madam Justice Conrad noted that, in England, the law of spoliation is such that, if evidence related to litigation has been intentionally destroyed, a presumption arises that the evidence would not assist the party responsible for its loss or destruction. In contrast, some American courts have been more aggressive, granting a variety of remedies such as striking the claim or disallowing expert reports either before or during trial and, in some cases, have gone so far as to find that spoliation is an actionable tort in itself.
Law of Spoliation in Canada
Conrad, J.A. noted that Canadian courts have followed a fairly conservative path, much more consistent with the approach followed by the English courts than the American courts. She reviewed the leading decision by the Supreme Court of Canada in 1896 in St. Louis v. Canada, in addition to a number of more recent appellate decisions. St. Louis stands for the proposition that spoliation does not occur merely because evidence has been destroyed. Rather, it occurs only where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect litigation. If this is demonstrated, a presumption arises that the evidence would not assist the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves its case or repels the case against it despite the presumption.
Conrad, J.A. found that Canadian courts have been slow to expand the law of spoliation, but noted indications that the law in Canada may be changing, leaving open the door that remedies may be available beyond the imposition of a rebuttable presumption.
The Court summarized the following principles applicable to the law of spoliation in Canada:
1. Spoliation is the intentional destruction of relevant evidence for the purpose of affecting existing or contemplated litigation.
2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.
3. Other remedies may be available even where evidence has been unintentionally destroyed. These remedies are based on the Court's rules of procedure and its inherent ability to prevent abuse of process, and may include the exclusion of expert reports and the denial of costs.
4. Intentional destruction of evidence is not an intentional tort, nor is there a duty to preserve evidence for purposes of the law of negligence, though these issues remain open.
5. Whether spoliation has occurred, and what remedy should be given, are generally matters for trial.
6. Pre-trial relief may be available in rare cases. This is generally accomplished through the applicable rules of court, or the court's general discretion with respect to costs and the control of abuse of process.
Applying these principles to the case at bar, the Court held that Black & Decker had not proven that the McDougalls had intentionally destroyed evidence to affect the litigation. The Court also concluded that it would be inappropriate to determine, prior to trial, whether other available evidence or other measures might balance any prejudice alleged by Black & Decker arising from the fact that it did not get a chance to examine the fire scene or the drill.
Alternative Relief – Rule 468 of the Alberta Rules of Court
Conrad, J.A. stated that, though there was no evidence upon which the chambers judge could have concluded that there was spoliation, Black & Decker had, in the alternative, sought an order allowing it to examine the expert. The scope of the intended examination related to the facts and circumstances as they existed when the expert attended at the house (before it was demolished), his observations regarding the drill, and his conduct with respect to it. Black & Decker also sought to examine the expert with respect to any expert opinions he may have formed.
While Black & Decker had claimed an entitlement to this remedy on the basis of spoliation and the Court's inherent power to prevent abuse of process, the Court found that the Alberta Rules of Court provide other means of assisting litigants in the process of fair discovery. Madam Justice Conrad stated that, ordinarily, in this situation, Black & Decker would have been able to apply under Rule 468 for an order preserving the disputed property and allowing it to inspect the same. She held that, though the circumstances rendered any such order of no practical effect, Rule 468 nevertheless allows a judge broad power to make whatever order for preservation or inspection that seems just in the circumstances.
Although Rule 468 refers to "property", "land" and taking "samples", Conrad, J.A. held that the Rule gives the Court jurisdiction to make an order for the examination of a person (such as the expert in this instance), who has inspected relevant evidence, where the evidence has subsequently been lost or destroyed before the opposing party has had the chance to inspect it, or to seek its preservation and inspection. Conrad, J.A. ordered the expert to submit to an examination regarding his observations. However, she limited the scope of examination by making clear that the order did not allow any discovery at this stage as to any opinions of the expert.
The decision in McDougall clarifies the law on spoliation in Canada. As stated, spoliation is generally only applicable in those circumstances where relevant evidence has been intentionally destroyed to affect litigation. The intention requirement sets a relatively high bar. Furthermore, the doctrine of spoliation will generally be applicable only at trial where the trial judge is in the best position to determine if any of the parties have been unfairly prejudiced.
The decision in McDougall also addresses the remedies available where evidence has been lost or destroyed. The law of spoliation is broad enough to encompass remedies other than the striking of a claim, including the exclusion of expert reports and the denial of costs.
The Court also expressly stated that remedies for the destruction or loss of evidence may be available even where the missing evidence was not lost or destroyed intentionally, specifically, under the Court's inherent jurisdiction to prevent an abuse of process or under Rule 468 of the Alberta Rules of Court. In this manner, the Court has arguably broadened the scope of Rule 468. Although Black & Decker sought relief only under the law of spoliation and the Court's inherent jurisdiction, the Court nevertheless chose to grant examination of the expert under Rule 468. As a result, Rule 468 is now an additional rule under which parties may attempt to seek an examination of experts and other witnesses who generally could not have been examined in such circumstances under the rules.
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