Litigation and Spoliation of Evidence In a recent case in Alberta by dfsdf224s


									                                     Litigation and Spoliation of Evidence

In a recent case in Alberta, a fire causing extensive property damage occurred at the plaintiff’s
home. Fire investigators determined that the cause of the fire was either an un-extinguished
cigar or an overheated cordless drill manufactured by the defendant. The plaintiff’s insurance
company hired an investigator who visited the scene and removed the remnants of the drill and
other evidence for inspection by an engineer.

The plaintiff later sued the defendant claiming, among other things, that the drill had caused the
fire. Black & Decker Canada Inc. defended in part by alleging that by razing the house and
removing some drill components, the plaintiff had deliberately destroyed evidence. Black &
Decker was successful in having the lawsuit dismissed in advance of trial on the basis of
spoliation. Spoliation refers to the destruction or material alteration of evidence, or potentially
the failure to preserve property for another’s use as evidence in litigation that is pending or
reasonably foreseeable.1

The plaintiff appealed on the issue of whether an action can or should be struck, prior to trial, on
the basis of spoliation. McDougall v. Black & Decker Inc.2 came before the Alberta Court of
Appeal in 2008.

While the discovery rules in each province differ slightly, the general principle that runs through
the litigation rules is that litigants are obligated to disclose, in advance of trial, documentary
records (which include electronic records) that are relevant and material to the issues raised by
the pleadings. For example, the Alberta Rules of Court requires that every litigant file and serve
an affidavit of records disclosing all relevant and material records within a stipulated time
period. Records are defined broadly in the Alberta Rules of Court to include “the physical
representation or record of any information, data or other thing that is or is capable of being
represented or reproduced visually or by sound, or both”. In Alberta, a record is relevant and
material only if the record could reasonably be expected to significantly help determine one or
more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be
expected to significantly help determine one or more of the issues raised in the pleadings.3

Inevitably, circumstances arise as in Black & Decker where a litigant fails to preserve evidence
or documentary records. These omissions can arise due to a pre-existing policy for record
retention, intentional acts of a litigant, neglect or the failure of counsel (or those with carriage of
a matter before it is assigned to counsel) to advise a client in a timely fashion of the evidentiary
obligations that exist as part of the litigation process.

1   Osepchuk v. Tim Hortons 1645, [2003] A.J. No. 542, 2003 ABQB 364 at paras 43-44
2   McDougall v. Black & Decker Inc. (2008), 97 Alta L.R. (4th) 199 (C.A.)
3   Alberta Rules of Court, r. 186.1, 187.1, 187(1)

The destruction of evidence can have far reaching consequences for the litigant who fails to
preserve records as required as it is well established that a party in possession or control of
evidence has a duty to take reasonable steps to preserve such evidence for court purposes. 4 The
legal principle of spoliation is based on the Latin maxim omnia praesumuntur contra
spoliatorem, referring to the act of intentionally destroying evidence and that all things are
presumed against the wrongdoer.

In England, spoliation takes the form of a presumption that if evidence relevant to litigation has
been intentionally destroyed, a strong presumption arises that the evidence would not assist the
party responsible for its loss or destruction (the spoliator). In America, courts grant a variety of
remedies where evidence has been lost or destroyed in order to level the playing field.
Moreover, Courts in some American jurisdictions have even gone so far as to find that
spoliation, in and of itself, is an actionable tort.

Courts in Canada have followed a conservative path. The leading case is that of St. Louis5 where
the Supreme Court held that the intentional destruction of evidence gives rise to a rebuttable
presumption of fact that the destroyed evidence would not assist the party that destroyed it.
Further, the law is clear that spoliation does not occur merely because evidence has been
destroyed, but rather that evidence is deliberately destroyed in circumstances where a reasonable
inference can be drawn that the intention was to affect litigation. Nevertheless, some Courts
subsequently tried to extend the concept of spoliation to non-intentional acts. For example, in
Lamont Health Centre v. Delnor Construction6 the Court suggested that it may be possible to
invoke the remedial presumption of spoliation even where the destruction of evidence is not
intentional, but merely reckless or negligent.

In Enden v. Canadian Red Cross Society,7 a claim in tort of "intentional spoliation" was
dismissed by the British Columbia Court of Appeal, who found that no such tort existed. Yet
several Courts in Ontario have strengthened the argument that an independent tort of spoliation
might be recognized in Ontario. For example, the Ontario Court of Appeal in Spasic Estate v.
Imperial Tobacco Ltd., held:

           “… I do not see why the existence of procedural sanctions or the “spoliation inference”, which
           may, or may not, ameliorate the effects of spoliation, should in themselves preclude the
           recognition of an independent tort.”8

McDougall v. Black & Decker is useful for its concise historical summary of the law that has
developed in this area.

4   R. v. La (appeal by Vu), [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30 at para 17
5   St. Louis v. R. (1896), 25 S.C.R. 649 at 652
6   Lamont Health Centre v. Delnor Construction Ltd. (2003), 32 C.L.R. (3d) 75 (Alta. Q.B.)
7   Enden v. Canadian Red Cross Society (1998), 157 D.L.R. (4th) 465 (B.C.C.A.)
8Spasic Estate v. Imperial Tobacco Ltd., 40 O.R. (3d) 699, [2000] O.J. No. 2690 (leave to appeal to SCC refused,
196 D.L.R. (4th) (vii) at para 22; see also Robb Estate v. St. Joseph’s Health Care Centre, 5 C.P.C. (5th) 252, [2001]
O.J. No. 606

In reviewing the decision to dismiss the action in advance of trial, the Court of Appeal in
McDougall held that the chambers Judge erred in law since there was no basis on which
to conclude that the matter of spoliation could not be adequately dealt with at trial. The
court stated that determining whether spoliation has occurred, and what relief should
follow, is a matter best left to the trial judge who can consider all of the surrounding
facts. The Court in McDougall concluded that steps could be ordered in advance to help
the Respondent prepare for trial.

The apparently contradictory findings of Endean and Spasic Estate left open the possibility of
extending the law relating to spoliation. In the result, McDougall does not transform the law in
this area although Conrad, J.A. rejects the suggestion in Lamont that the negligent or careless
destruction of evidence also gives rise to the presumption that the missing evidence will tell
against the spoliator, even without the requisite intent. She emphasized that spoliation should
not be confused with the unintentional destruction of evidence.

By way of concluding the discussion on the law of spoliation in its decision, the Court of Appeal
offers a concise summary of the current Canadian law of spoliation at paragraph 29 of
McDougall. The definition of spoliation provided is "the intentional destruction of relevant
evidence when litigation is existing or pending."9 Section 4 of that summary further states that,
"The courts have not yet found that the intentional destruction of evidence gives rise to an
intentional tort, nor that there is a duty to preserve evidence for purposes of the law of
negligence, although these issues, in most jurisdictions, remain open."10 This statement confirms
that the law of spoliation continues to evolve in Canada, and might one day give rise to a thus far
unrecognized tort relating to the intentional destruction of evidence.

Prepared by Kenneth W. Fitz, Partner McLennan Ross LLP (Edmonton) with the assistance of
Graham Semeniuk (Summer Student)

9   McDougall, supra, at para 29, s.1
10   McDougall, supra, at para 29, s.4

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