An Update on SPOLIATION in Canada

An Update on An Update on SPOLIATION SPOLIATION

in Canadain CanadaSeventh Annual Conference – Evidence Law for the Seventh Annual Conference – Evidence Law for the

Civil Litigator PanelCivil Litigator PanelOctober 8, 2010October 8, 2010

Duncan Boswell (Gowlings)Duncan Boswell (Gowlings)Edmund Huang (Attorney General (Ontario))Edmund Huang (Attorney General (Ontario))

Andrew Bernstein (Torys)Andrew Bernstein (Torys)

What is Spoliation?What is Spoliation? Traditionally, “spoliation” refers to the intentional Traditionally, “spoliation” refers to the intentional

destruction or alteration of relevant documents destruction or alteration of relevant documents when litigation is existing or pending.when litigation is existing or pending.

When spoliation is found, the principal remedy is When spoliation is found, the principal remedy is the imposition of a rebuttable presumption of fact the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not that the lost or destroyed evidence would not assist the party who lost or destroyed it, although assist the party who lost or destroyed it, although other sanctions can be imposedother sanctions can be imposed

Because of the obligations placed on litigants to Because of the obligations placed on litigants to preserve evidence, the preserve evidence, the unintentional or negligentunintentional or negligent destruction of evidence can also give rise to destruction of evidence can also give rise to sanctionssanctions

Duty to Preserve Document and Duty to Preserve Document and Relevant EvidenceRelevant Evidence

Courts have the power to sanction parties for the Courts have the power to sanction parties for the destruction of relevant documents and evidence. destruction of relevant documents and evidence. These powers arise from the courts’ respective These powers arise from the courts’ respective rules of civil procedure, through the court’s ability rules of civil procedure, through the court’s ability to impose cost sanctions, or the court’s inherent to impose cost sanctions, or the court’s inherent jurisdiction to control their own processjurisdiction to control their own process

““Document” under our rules includes electronic Document” under our rules includes electronic documents (Rule 30.01(1))documents (Rule 30.01(1))

Electronic documents can include many forms of Electronic documents can include many forms of media and other storage formatsmedia and other storage formats

Rules of Civil ProcedureRules of Civil Procedure

Overriding principleOverriding principle

ProportionalityProportionality 1.04(1.1) In applying these rules, the In applying these rules, the

court shall make orders and give court shall make orders and give directions that are proportionate to directions that are proportionate to the importance and complexity of the importance and complexity of the issues, and to the amount the issues, and to the amount involved, in the proceeding.involved, in the proceeding.

Rules of Civil ProcedureRules of Civil Procedure Also in Rule 29.2 - Proportionality in DiscoveryAlso in Rule 29.2 - Proportionality in Discovery CONSIDERATIONS - Rule CONSIDERATIONS - Rule 29.2.03 (1)

In making a determination as to whether a party or other person must answer a In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,question or produce a document, the court shall consider whether,

(a) the (a) the TIMETIME required would be required would be (b) the (b) the EXPENSEEXPENSE associated; associated; unreasonableunreasonable

(c) whether it would cause him or her(c) whether it would cause him or her (d) whether it would (d) whether it would UNDULY UNDULY INTERFEREINTERFERE with with

UNDUE PREJUDICEUNDUE PREJUDICE the orderly progress of the action; and the orderly progress of the action; and

(e) whether the information or the document is (e) whether the information or the document is READILY AVAILABLEREADILY AVAILABLE to the to the party requesting it from another source. party requesting it from another source.

Overall Volume of Documents Overall Volume of Documents

the court shall consider whether such an order would result in an the court shall consider whether such an order would result in an EXCESSIVE EXCESSIVE VOLUMEVOLUME of documents required to be produced by the party or other person. of documents required to be produced by the party or other person.

Rules of Civil Procedure - Rules of Civil Procedure - SanctionsSanctions

Courts power to sanction:Courts power to sanction:

Cost sanctions (Rule 57 and 58)Cost sanctions (Rule 57 and 58)

Inherent power to control an abuse of Inherent power to control an abuse of process:process:

Cheung v. Toyota Canada Inc.Cheung v. Toyota Canada Inc. (2003), 29 (2003), 29 C.P.C. (5th) 267 (ON SCJ), para. 23; the C.P.C. (5th) 267 (ON SCJ), para. 23; the court’s power to control an abuse of process court’s power to control an abuse of process is broad enough to address the destruction is broad enough to address the destruction of relevant documents of relevant documents


Other sanctions available under the Other sanctions available under the Ontario Ontario RulesRules include: include:

directing the delivery of a further and better directing the delivery of a further and better affidavit of documents (R. 30.06); affidavit of documents (R. 30.06);

permitting a cross-examination in respect of an permitting a cross-examination in respect of an affidavit of documents (affidavit of documents (R. 30.06)R. 30.06);;

barring the party from using those documents barring the party from using those documents at trial, if favourable to that party’s case (R.at trial, if favourable to that party’s case (R. 30.08(1)(a30.08(1)(a));));


revoking or suspending a party’s right, if any, revoking or suspending a party’s right, if any, to initiate or continue an examination for to initiate or continue an examination for discovery (discovery (R. 30.08(2)(a))R. 30.08(2)(a));;

dismissing the action or striking out a dismissing the action or striking out a statement of defence (Rstatement of defence (R. 30.08(1)(b));. 30.08(1)(b));

exercising the court’s broader power to make exercising the court’s broader power to make any order as is just (any order as is just (R. 30.08, see also R. 2.01 R. 30.08, see also R. 2.01 (non–compliance with the rules);(non–compliance with the rules);

Also, contempt for failing to comply with ordersAlso, contempt for failing to comply with orders


Principles re Electronic DiscoveryPrinciples re Electronic Discovery DISCOVERY PLANDISCOVERY PLAN Requirement for PlanRequirement for Plan 29.1.03 29.1.03 (4) In preparing the discovery In preparing the discovery

plan, the parties shall consult and have plan, the parties shall consult and have regard to the document titled “The regard to the document titled “The Sedona Canada Principles Addressing Sedona Canada Principles Addressing Electronic Discovery” developed by and Electronic Discovery” developed by and available from The Sedona Conference.available from The Sedona Conference.

Sedona Canada Principles on E-Sedona Canada Principles on E-DiscoveryDiscovery

12 Principles arising from Sedona 12 Principles arising from Sedona CanadaCanada

Annotated on-line edition at: Annotated on-line edition at:

http://www.lexum.org/e-discovery-web/law.do?id=1&lang=enhttp://www.lexum.org/e-discovery-web/law.do?id=1&lang=en

see also see also www.thesedonaconference.orgwww.thesedonaconference.org

1. Electronically stored information is 1. Electronically stored information is discoverablediscoverable Broad definition of electronic documentBroad definition of electronic document Rules – every document relating to any Rules – every document relating to any

matter in question in the action be disclosedmatter in question in the action be disclosed

Sedona Canada PrinciplesSedona Canada Principles 3. As soon as litigation is reasonably anticipated, 3. As soon as litigation is reasonably anticipated,

parties must consider their obligation to take parties must consider their obligation to take reasonable and good faith steps to preserve reasonable and good faith steps to preserve potentially relevant electronically stored potentially relevant electronically stored information. information.

Scope of PreservationScope of Preservation

Preparation Reduces RisksPreparation Reduces Risks

Record Retention PolicyRecord Retention Policy

Response Regarding Litigation PreservationResponse Regarding Litigation Preservation

No. 3 ContinuedNo. 3 Continued Notice to Affected Persons in Common Law Notice to Affected Persons in Common Law

JurisdictionJurisdiction

Extreme Preservation Measures Not Necessarily Extreme Preservation Measures Not Necessarily RequiredRequired

Preservation OrdersPreservation Orders

All Data need not be Frozen All Data need not be Frozen

Disaster Recovery Backup MediaDisaster Recovery Backup Media

Potential Preservation of Shared DataPotential Preservation of Shared Data

Legal Hold Notices and Legal Hold Notices and Preservation LettersPreservation Letters

Upon determining that litigation has Upon determining that litigation has triggered a preservation obligation, the triggered a preservation obligation, the party should communicate to affected party should communicate to affected persons the need for and scope of persons the need for and scope of preserving relevant information in both preserving relevant information in both paper and electronic formpaper and electronic form

The notice should also mention the The notice should also mention the volatility of electronically stored volatility of electronically stored information and that particular care must information and that particular care must be taken not to alter, delete or destroy it.be taken not to alter, delete or destroy it.


The notice should seek the preservation of The notice should seek the preservation of all information affected by the all information affected by the preservation obligation; however, it preservation obligation; however, it typically should not require the suspension typically should not require the suspension of all routine records management policies of all routine records management policies and proceduresand procedures

The notice does not need to reach all The notice does not need to reach all employees, only those reasonably likely to employees, only those reasonably likely to maintain documents potentially relevant maintain documents potentially relevant to the litigation or investigation to the litigation or investigation


When preservation obligations apply When preservation obligations apply to documents and data spanning a to documents and data spanning a significant or continuing time period, significant or continuing time period, organizations should determine how organizations should determine how to deal with systems, hardware or to deal with systems, hardware or media containing unique relevant media containing unique relevant material that might be retired as part material that might be retired as part of a technology upgrade.of a technology upgrade.


The basic principle which defines the scope of the The basic principle which defines the scope of the obligation to preserve relevant information can be obligation to preserve relevant information can be found in the common law. found in the common law.

A reasonable inquiry based on good faith to identify A reasonable inquiry based on good faith to identify and preserve active and archival data should be and preserve active and archival data should be sufficient. sufficient.

A party should not be required to search for or A party should not be required to search for or preserve information that is deleted, fragmented or preserve information that is deleted, fragmented or overwritten unless the party is aware of relevant overwritten unless the party is aware of relevant information that can only be obtained from such information that can only be obtained from such sources or there is a specific agreement or court ordersources or there is a specific agreement or court order

Sedona Canada PrinciplesSedona Canada Principles

ONTARIO E-DISCOVERY ONTARIO E-DISCOVERY IMPLEMENTATION COMMITTEEIMPLEMENTATION COMMITTEE

Model Documents:Model Documents: Annotated E-Discovery ChecklistAnnotated E-Discovery Checklist Sample Memoranda to clientsSample Memoranda to clients Model Preservation OrdersModel Preservation Orders Model Preservation LettersModel Preservation Letters Model Preservation AgrementModel Preservation Agrement Model Discovery AgreementModel Discovery Agreementhttp://www.oba.org/en/publicaffairs_en/e-http://www.oba.org/en/publicaffairs_en/e-

discovery/model_precedents.aspxdiscovery/model_precedents.aspx


Principle 4 : Principle 4 : Counsel and parties should Counsel and parties should meet and confer as soon as practicable, meet and confer as soon as practicable, and on an ongoing basis, regarding the and on an ongoing basis, regarding the identification, preservation, collection, identification, preservation, collection, review and production of electronically review and production of electronically stored information.stored information.

Meet early and oftenMeet early and often Who should attend?Who should attend? Preparation for Meet and ConferPreparation for Meet and Confer

Sedona Canada PrinciplesSedona Canada Principles Principle 5 - Principle 5 - The parties should be prepared to The parties should be prepared to

produce relevant electronically stored information produce relevant electronically stored information that is reasonably accessible in terms of cost and that is reasonably accessible in terms of cost and burden.burden. Determination of accessibility does not strictly depend on Determination of accessibility does not strictly depend on

convenience, but rather on the concept of marginal utility. convenience, but rather on the concept of marginal utility. Does it justify the cost of acquisition?Does it justify the cost of acquisition?

Defences:Defences: No relevant data in record, relevant data but available on other No relevant data in record, relevant data but available on other

more accessible location(s), some relevant data but cost to more accessible location(s), some relevant data but cost to obtain is not worth the value the data would provide;obtain is not worth the value the data would provide;

Case law suggests that the burden of showing that another Case law suggests that the burden of showing that another party’s productions are inadequate lies with the party alleging party’s productions are inadequate lies with the party alleging deficiencies (deficiencies (Rhodia UK Ltd. v. Jarvis Imports (2000) Ltd.Rhodia UK Ltd. v. Jarvis Imports (2000) Ltd., 2005 , 2005 FC 1628, 45 CPR (4FC 1628, 45 CPR (4thth) 161)) 161)


Principle 6 A party should not be Principle 6 A party should not be required, absent agreement or a required, absent agreement or a court order based on demonstrated court order based on demonstrated need and relevance, to search for or need and relevance, to search for or collect deleted or residual collect deleted or residual electronically stored information. electronically stored information.

Sedona Canada PrinciplesSedona Canada Principles Principle 7 - Principle 7 - A party may satisfy its obligation to A party may satisfy its obligation to

preserve, collect, review and produce preserve, collect, review and produce electronically stored information in good faith by electronically stored information in good faith by using electronic tools and processes such as data using electronic tools and processes such as data sampling, searching or by using selection criteria sampling, searching or by using selection criteria to collect potentially relevant electronically stored to collect potentially relevant electronically stored information.information.

Use of Targeted Selection to Focus DiscoveryUse of Targeted Selection to Focus Discovery

Techniques to Reduce VolumeTechniques to Reduce Volume

ReviewReview

Keep records of steps taken to justify procedureKeep records of steps taken to justify procedure


Principle 9 - Principle 9 - During the discovery process During the discovery process parties should agree to or, if necessary, seek parties should agree to or, if necessary, seek judicial direction on measures to protect judicial direction on measures to protect privileges, privacy, trade secrets and other privileges, privacy, trade secrets and other confidential information relating to the confidential information relating to the production of electronic documents and data.production of electronic documents and data.

Counsel should obtain agreement, with court Counsel should obtain agreement, with court approval, of how to deal with inadvertent approval, of how to deal with inadvertent disclosure of privileged or confidential documentsdisclosure of privileged or confidential documents

Sedona Canada PrinciplesSedona Canada Principles Principle 11 Sanctions should be Principle 11 Sanctions should be

considered by the court where a party considered by the court where a party will be materially prejudiced by will be materially prejudiced by another party’s failure to meet any another party’s failure to meet any obligation to preserve, collect, review obligation to preserve, collect, review or produce electronically stored or produce electronically stored information. The party in default may information. The party in default may avoid sanctions if it demonstrates the avoid sanctions if it demonstrates the failure was not intentional or failure was not intentional or reckless.reckless.

Wide discretion of the Courts to sanction Wide discretion of the Courts to sanction a party who fails to meet its obligationsa party who fails to meet its obligations


The role of the court is to weigh the The role of the court is to weigh the scope and impact of non-disclosure scope and impact of non-disclosure and to impose appropriate sanctions and to impose appropriate sanctions proportional to the culpability of the proportional to the culpability of the non-producing party, the prejudice to non-producing party, the prejudice to the opposing litigant and the impact the opposing litigant and the impact that the loss of evidence may have that the loss of evidence may have on the court’s ability to fairly dispose on the court’s ability to fairly dispose of the issues in dispute of the issues in dispute


Principle 12 The reasonable costs Principle 12 The reasonable costs of preserving, collecting and of preserving, collecting and reviewing electronically stored reviewing electronically stored information will generally be information will generally be borne by the party producing it. borne by the party producing it. In limited circumstances, it may In limited circumstances, it may be appropriate for the parties to be appropriate for the parties to arrive at a different allocation of arrive at a different allocation of costs on an interim basis, by costs on an interim basis, by either agreement or court order.either agreement or court order.

Court SanctionsCourt Sanctions Zelenski v. JamzZelenski v. Jamz and and Brandon Heating*:Brandon Heating*:

Motions to dismiss a claim. The Court identified factors to take Motions to dismiss a claim. The Court identified factors to take into account when determining appropriate sanctions for the into account when determining appropriate sanctions for the failure to comply with the obligation to disclose documents:failure to comply with the obligation to disclose documents:

1) the quantity and quality of the abusive acts; 1) the quantity and quality of the abusive acts;

2) whether the abusive acts flow from neglect or intent; 2) whether the abusive acts flow from neglect or intent;

3) prejudice generally, and specifically the impact of the abuse 3) prejudice generally, and specifically the impact of the abuse on the opposing party’s ability to prosecute or defend the on the opposing party’s ability to prosecute or defend the action; action;

**Zelenski v. Janz et al; Zelenski v. HoustonZelenski v. Janz et al; Zelenski v. Houston, 2004 MBQB 256, 189 Man R. (2d) , 2004 MBQB 256, 189 Man R. (2d) 151, 151, Brandon Heating and PlumbingBrandon Heating and Plumbing (1972)(1972) Ltd.Ltd. Et al. v. Max Systems Inc. Et al. v. Max Systems Inc. 2006 2006 MBQB at paras. 23-24, 202 Man.R. (2d) 278.MBQB at paras. 23-24, 202 Man.R. (2d) 278.

Court SanctionsCourt Sanctions

Zelenski v. JamzZelenski v. Jamz and and Brandon HeatingBrandon Heating

4) the merits of the abusive party’s claim or 4) the merits of the abusive party’s claim or defence; defence;

5) the availability of sanctions short of 5) the availability of sanctions short of dismissal that will address past prejudice to dismissal that will address past prejudice to the opposing party; and the opposing party; and

6) the likelihood that a sanction short of 6) the likelihood that a sanction short of dismissal will end the abusive behaviour.dismissal will end the abusive behaviour.

Court SanctionsCourt Sanctions

Compliance with a reasonable Compliance with a reasonable records management policy, or records management policy, or justifiable inadvertent destruction or justifiable inadvertent destruction or non-production of relevant non-production of relevant documents should not, in the documents should not, in the ordinary course, constitute ordinary course, constitute sanctionable conduct sanctionable conduct

Recent Case LawRecent Case Law Spoliation and Rebuttable PresumptionSpoliation and Rebuttable Presumption

St. Louis v. CanadaSt. Louis v. Canada (1895) S.C.R. 649: (1895) S.C.R. 649:

Spoliation in law does not occur merely because evidence Spoliation in law does not occur merely because evidence has been destroyed. Rather it occurs where a party has has been destroyed. Rather it occurs where a party has intentionally destroyed evidence relevant to ongoing or intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is destroyed to affect the litigation. Once this is demonstrated, demonstrated, a presumption arises that the evidence a presumption arises that the evidence would have been unfavourable to the party would have been unfavourable to the party destroying it. This presumption is rebuttable by destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator other evidence through which the alleged spoliator proves that his actions, although intentional, were proves that his actions, although intentional, were not aimed at affecting the litigation, or through not aimed at affecting the litigation, or through which the party either proves his case or repels the which the party either proves his case or repels the case against himcase against him

Spoliation and Rebuttable Spoliation and Rebuttable PresumptionPresumption

McDougall v. Black & Decker Canada IncMcDougall v. Black & Decker Canada Inc. . (2008) (Alta. C.A.) : (2008) (Alta. C.A.) : Black & Decker moved for a dismissal of the action based Black & Decker moved for a dismissal of the action based on spoliationon spoliation

Allowed the appeal and restored the claimAllowed the appeal and restored the claim

the Court made a distinction between the intention and the Court made a distinction between the intention and unintentional destruction of evidence. unintentional destruction of evidence.

it was not appropriate to presume that missing evidence would it was not appropriate to presume that missing evidence would tell against the person who destroyed it where the destruction tell against the person who destroyed it where the destruction was not intentional. Tort of spoliation had not been made out.was not intentional. Tort of spoliation had not been made out.

The Court also noted that spoliation should generally be left The Court also noted that spoliation should generally be left for trial and that full pre-trial determinations of this issue for trial and that full pre-trial determinations of this issue should not be encouraged should not be encouraged

Rebuttable PresumptionRebuttable Presumption The court summarized the law of spoliation as follows:The court summarized the law of spoliation as follows:

1. Spoliation currently refers to the intentional destruction of 1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending.relevant evidence when litigation is existing or pending.

2. The principal remedy for spoliation is the imposition of a 2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove the evidence, to affect the litigation, or by other evidence to prove or repel the case.or repel the case.

3. Outside this general framework other remedies may be 3. Outside this general framework other remedies may be available -even where evidence has been unintentionally available -even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the destroyed. Remedial authority for these remedies is found in the court's rules of procedure and its inherent ability to prevent abuse court's rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs.of expert reports and the denial of costs.

Rebuttable PresumptionRebuttable Presumption 4. The courts have not yet found that the intentional 4. The courts have not yet found that the intentional

destruction of evidence gives rise to an intentional tort, nor destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for the purposes that there is a duty to preserve evidence for the purposes of the law of negligence, although these issues, in most of the law of negligence, although these issues, in most jurisdictions, remain open.jurisdictions, remain open.

5. Generally, the issues of whether spoliation has occurred, 5. Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the left for trial where the trial judge can consider all of the facts and fashion the most appropriate remedy.facts and fashion the most appropriate remedy.

6. Pre-trial relief may be available in the exceptional case 6. Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court's general through the applicable rules of court, or the court's general discretion with respect to costs and the control of abuse of discretion with respect to costs and the control of abuse of process.process.

Striking of Action or DefenceStriking of Action or Defence The Court of Appeal in The Court of Appeal in McDougallMcDougall addressed under what addressed under what

circumstances the dismissal of an action would be an circumstances the dismissal of an action would be an appropriate remedy for spoliation. appropriate remedy for spoliation. a high thresholda high threshold

the court should not exercise its inherent jurisdiction to strike the court should not exercise its inherent jurisdiction to strike an action unless: an action unless:

(a) it is beyond doubt that the destruction of loss of evidence was a (a) it is beyond doubt that the destruction of loss of evidence was a deliberate act done with the clear intention of gaining an deliberate act done with the clear intention of gaining an advantage in litigation; and advantage in litigation; and

(b) the prejudice is so obviously profound that it prevents the (b) the prejudice is so obviously profound that it prevents the innocent party from mounting a defence innocent party from mounting a defence

As stated above, the court noted that the determination of As stated above, the court noted that the determination of spoliation and appropriate sanctions are matters generally spoliation and appropriate sanctions are matters generally best left to the trial judge. This is a popular approach.best left to the trial judge. This is a popular approach.

Striking of Action or DefenceStriking of Action or Defence Jay v. DHL Express (Canada), Ltd. (2008) PEI Trial Div- Jay v. DHL Express (Canada), Ltd. (2008) PEI Trial Div- statement of statement of

defence was struck after the defendant failed to comply with a production defence was struck after the defendant failed to comply with a production order.order.

The Court of Appeal, however, reinstated DHL’s Statement of Defence The Court of Appeal, however, reinstated DHL’s Statement of Defence because it found that the motions judge had not taken into account or because it found that the motions judge had not taken into account or given sufficient weight to the following considerations:given sufficient weight to the following considerations:

DHL’s intention, especially in the absence of any finding of bad faith, or DHL’s intention, especially in the absence of any finding of bad faith, or contumacious or contemptuous conduct;contumacious or contemptuous conduct;

The documents sought being relevant to only one segment of the proceeding, The documents sought being relevant to only one segment of the proceeding, namely the assessment of damages, and regarding only one of two claims for namely the assessment of damages, and regarding only one of two claims for breach of contract;breach of contract;

The relative prejudice to the plaintiff and to the defendants.The relative prejudice to the plaintiff and to the defendants.

The Court held that the preferred course was to leave the matter for the The Court held that the preferred course was to leave the matter for the trial judge to consider in the context of the overall proceeding, with the trial judge to consider in the context of the overall proceeding, with the benefit of all of the evidence. In this way the trial judge could consider benefit of all of the evidence. In this way the trial judge could consider alternative remedies.alternative remedies.

Striking of Action or DefenceStriking of Action or Defence

Muskoka Fuels v. Hassan Steel Muskoka Fuels v. Hassan Steel Fabricators LtdFabricators Ltd. . (2009) (ON SCJ)(2009) (ON SCJ) Court refused to strike pleadingsCourt refused to strike pleadings Issue left for the trial judgeIssue left for the trial judge

Carleton v. Beaverton Hotel Carleton v. Beaverton Hotel (2009) (ON (2009) (ON SCJ)SCJ) Same resultSame result

Striking of PleadingsStriking of Pleadings

Brandon Heating & Plumbing (1972) Brandon Heating & Plumbing (1972) Ltd. v. Max Systems Inc.Ltd. v. Max Systems Inc. (2006) (Man. (2006) (Man. Q.B.)Q.B.) Pleading struckPleading struck serious prejudice suffered as a result of serious prejudice suffered as a result of

the destruction of evidence the destruction of evidence

Other SanctionsOther Sanctions Werner v. Warner Auto-Marine Inc.Werner v. Warner Auto-Marine Inc. (1996) (1996)

Court of Appeal for Ontario ordered that certain parties Court of Appeal for Ontario ordered that certain parties were prohibited from using or relying on an expert report were prohibited from using or relying on an expert report that was obtained as a result of a “blatant contempt of that was obtained as a result of a “blatant contempt of the preservation order”. the preservation order”.

The court had found that there had been clear prejudice The court had found that there had been clear prejudice to the responding parties in the action because of the to the responding parties in the action because of the wilful destruction of tanks which were highly material to wilful destruction of tanks which were highly material to any investigation of the cause of a fire. any investigation of the cause of a fire.

The prohibition order against those same parties who The prohibition order against those same parties who breached the preservation order was extended beyond breached the preservation order was extended beyond the expert report to also include a prohibition from using the expert report to also include a prohibition from using any evidence obtained directly or indirectly as a result of any evidence obtained directly or indirectly as a result of the breach[1]. the breach[1].

Spoliation as an Independent Tort?Spoliation as an Independent Tort?

Law remains unsettled in CanadaLaw remains unsettled in Canada Spasic Estate v. Imperial Tobacco Spasic Estate v. Imperial Tobacco

LtdLtd. . (2000) (ON CA)(2000) (ON CA) refused to foreclose the possibility that refused to foreclose the possibility that

one of the possible remedies for the one of the possible remedies for the intentional destruction of evidence intentional destruction of evidence might be the imposition of an obligation might be the imposition of an obligation in tort in tort

Independent Tort?Independent Tort? ““If it is established that the conduct of the If it is established that the conduct of the

respondents resulted in harm to the plaintiff by respondents resulted in harm to the plaintiff by making it impossible for her to prove her claim, then it making it impossible for her to prove her claim, then it will be for the trial judge, in the context of a complete will be for the trial judge, in the context of a complete record, to determine whether the plaintiff should have record, to determine whether the plaintiff should have a remedy. This is how the progress of the common a remedy. This is how the progress of the common law is marked in cases of first impression, where the law is marked in cases of first impression, where the court has created a new cause of action where none court has created a new cause of action where none had been recognized before. I need refer only to had been recognized before. I need refer only to Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), as but Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), as but one example. ... I can see no reason why the trial one example. ... I can see no reason why the trial judge should be precluded from considering all judge should be precluded from considering all possible remedies, including a separate tort, on the possible remedies, including a separate tort, on the basis of the record that will be developed “basis of the record that will be developed “

Independent Tort?Independent Tort?

Zahab v. Salvation ArmyZahab v. Salvation Army (2008) (2008) Master MacLeodMaster MacLeod Allowed amendment of pleadings to Allowed amendment of pleadings to

include a claim for spoliation;include a claim for spoliation; ““For the purpose of this motion it is For the purpose of this motion it is

therefore important to understand that therefore important to understand that while spoliation could be an independent while spoliation could be an independent cause of action in circumstances that are cause of action in circumstances that are yet to be defined, it is not necessarily a yet to be defined, it is not necessarily a separate cause of action”separate cause of action”

Independent Tort? Independent Tort? British ColumbiaBritish Columbia

British Columbia cases do not consider British Columbia cases do not consider spoliation as an independent tortspoliation as an independent tort

Endean v. Canadian Red Cross SocietyEndean v. Canadian Red Cross Society (1998) BCA(1998) BCA Relied on Relied on St. Louis v. HMQSt. Louis v. HMQ the spoliation or destruction of documents the spoliation or destruction of documents

is an evidentiary rule which raises a is an evidentiary rule which raises a presumption – not an independent tort presumption – not an independent tort

British ColumbiaBritish Columbia The Court of Appeal held that “…an action for The Court of Appeal held that “…an action for

damages – being punitive or otherwise – is not an damages – being punitive or otherwise – is not an appropriate response to the destruction of appropriate response to the destruction of document”. The Court stated:document”. The Court stated:

To put it another way, a rebuttable presumption cannot To put it another way, a rebuttable presumption cannot give rise to a separate and completed tort. The fact of the give rise to a separate and completed tort. The fact of the destruction of evidence is only part of the evidence in the destruction of evidence is only part of the evidence in the case and standing alone may very well be incomplete. To case and standing alone may very well be incomplete. To formulate this as a separate tort may very well be formulate this as a separate tort may very well be premature in many cases…premature in many cases…

[f]or the flexible remedy of the presumption, the effect of [f]or the flexible remedy of the presumption, the effect of which may be suited to the circumstances of the case in which may be suited to the circumstances of the case in question, there would be substituted an inflexible rule of question, there would be substituted an inflexible rule of law which could have consequences disproportionate to law which could have consequences disproportionate to the particular act of spoliation.the particular act of spoliation.

British ColumbiaBritish Columbia

Patzer v. Hastings Entertainment IncPatzer v. Hastings Entertainment Inc. . (March 2010) (BCSC)(March 2010) (BCSC) spoliation is not recognized in Canada as an spoliation is not recognized in Canada as an

independent tort.independent tort. Relied on Relied on EndeanEndean The court held that there is no common law The court held that there is no common law

duty to preserve property which may possibly duty to preserve property which may possibly be required for evidentiary purposes. The court be required for evidentiary purposes. The court did, however, recognize that such an obligation did, however, recognize that such an obligation can be imposed by court order pursuant to the can be imposed by court order pursuant to the Rules of CourtRules of Court

British ColumbiaBritish Columbia June 28, 2010 decision of June 28, 2010 decision of Sangha v. Reliance Sangha v. Reliance

Investment Group Ltd.Investment Group Ltd. B.C. Court of Appeal also relied on B.C. Court of Appeal also relied on EndeanEndean in in

holding that spoliation is not an independent tort. holding that spoliation is not an independent tort.

The plaintiff sought to amend his claim to include The plaintiff sought to amend his claim to include the tort of spoliation. The court agreed with the the tort of spoliation. The court agreed with the finding of the chambers judge that he was bound finding of the chambers judge that he was bound by the Court's decision in by the Court's decision in Endean Endean which holds which holds that spoliation is not an independent tort. As a that spoliation is not an independent tort. As a result, the application for leave to appeal was result, the application for leave to appeal was dismissed dismissed

ConsiderationsConsiderations

American jurisprudenceAmerican jurisprudence

Purpose of DamagesPurpose of Damages

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