In a case called Casbohm v Winacott Spring Western Star Trucks (Casbohm), the Saskatchewan Court of Appeal recently broadened the circumstances in which the destruction, alteration, or concealment of evidence relevant to litigation will be considered "spoliation" and held against the party responsible. Previously, evidence was considered spoliated only if the litigation in which the evidence would have been used was ongoing or pending, i.e. likely to occur. In Casbohm, the Saskatchewan Court of Appeal held that evidence might be considered spoliated even if litigation is a mere possibility. Individuals and companies that may be involved in litigation should be aware of this change to ensure that they do not unwittingly engage in spoliation of evidence.
WHAT IS SPOLIATION?
The term "spoliation" refers to the destruction, alteration, or concealment of evidence relevant to a claim for the purpose of affecting litigation. If relevant evidence is destroyed, altered, or concealed, it will be considered spoliated unless the alleged spoliator can prove that they did not intend to affect the litigation by destroying, altering, or concealing the evidence, i.e. that there is an innocent explanation for it.
Spoliation can prevent a fair trial because the integrity of the administration of justice in both civil and criminal matters depends on the disclosure and production of evidence. To address this serious consequence, and to deter parties from engaging in spoliation, the consequence of spoliation is severe: if spoliation is established, the court will typically draw an adverse inference against the spoliator, meaning that it will assume that the spoliated evidence would have hurt the spoliator's case.
SUMMARY OF CASBOHM
In Casbohm, the Plaintiff, Wesley Casbohm, fell from a ladder and sustained injuries. The ladder belonged to Winacott Spring Western Star Trucks (Winacott). Mr. Casbohm sued Winacott and Winacott's landlord nearly two years after his fall. Mr. Casbohm alleged that the ladder was damaged and caused his fall.
After Mr. Casbohm's fall, and before Mr. Casbohm filed his claim, Winacott took photos of the ladder and discarded it. Neither Mr. Casbohm nor any of the experts retained by the parties with respect to Mr. Casbohm's claim had an opportunity to inspect the ladder.
Winacott and its landlord applied for summary judgment dismissing Mr. Casbohm's claim on the basis that he had not shown that they were responsible for his fall. The Chambers Judge agreed, dismissing the claim. The Saskatchewan Court of Appeal upheld the Chambers Judge's decision.
The result in this case turned primarily on the alleged spoliation of the ladder. Mr. Casbohm argued that the Chambers Judge should draw the adverse inference that Winacott discarded the ladder because an inspection would have shown that it was damaged prior to, rather than by, Mr. Casbohm's fall. However, the Chambers Judge found there was an innocent explanation for discarding it: the ladder was damaged beyond repair and was no longer safe to use. Additionally, before Winacott discarded the ladder, Mr. Casbohm had not asked to see it, nor did he advise Winacott of any intention to make a claim. The Saskatchewan Court of Appeal found no errors in the Chambers Judge's rulings on this issue.
CHANGE TO THE LAW
Prior to Casbohm, evidence would only be considered spoliated if the alleged spoliation occurred when litigation was existing or pending; a mere possibility of future litigation would not suffice. In Casbohm, the Saskatchewan Court of Appeal changed this requirement. Litigation need not be existing or pending when the spoliation occurred; instead, a court must consider whether "the circumstances justify the reasonable inference that the evidence was destroyed to affect the outcome of litigation." The fact that litigation is existing or pending may justify such an inference. Importantly, the Saskatchewan Court of Appeal also noted that the intentional destruction of evidence "in anticipation or with a concern that litigation may be brought" will also justify such an inference.
In circumstances where litigation has been commenced, it is relatively easy to apply the doctrine of spoliation; one can readily infer that if relevant evidence is destroyed after a claim is filed, the evidence was destroyed to affect the litigation. However, when litigation has not been commenced, several factors can impact whether an adverse inference should be drawn against a spoliator. The Saskatchewan Court of Appeal identified a number of these factors in Casbohm, including:
- If the eventual plaintiff has indicated an intention to sue;
- Whether the nature of the incident, the degree of injury suffered, or the field of activity involved make it obvious that litigation is likely (in other words, whether litigation is foreseeable);
- The time span between the incident giving rise to the claim and the destruction of evidence. If the evidence is destroyed immediately after the incident, it is more suspicious than when it occurs many years later; and
- Where, by reason of experience with litigation or otherwise, the spoliator acts on its own initiative to suppress evidence.
The importance of preserving relevant evidence is highlighted by the Casbohm decision. While the Saskatchewan Court of Appeal decision outlines the importance of preserving physical evidence that may be relevant to ongoing or future litigation, in this case, a ladder, the same principles apply to both paper and electronic documents.
Practically speaking, if it is obvious or foreseeable that a claim will be made as a result of an incident that caused injury, property damage, or financial loss, all evidence pertaining to that incident should be preserved, at least until the end of the pertinent limitation period if a claim has not been brought. This includes physical evidence, electronic documents, and paper records. If evidence is destroyed, altered, or concealed, an inference may be drawn that this evidence would have harmed the case of the party who spoliated it. Accordingly, following such incidents, parties should seek legal advice with respect to the preservation of evidence.
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.