Spoliation: A Rule of Evidence or An Intentional Tort? The Need for Court Direction
Spoliation refers to the destruction, mutilation, alteration or concealment of evidence. Spoliation has also been described as a form of cheating, which threatens to undermine the integrity of the civil justice process.
But what if a party accidentally destroys or misplaces evidence? Does this constitute spoliation? No. Spoliation will only be found where the following four factors are present:
- Evidence has been destroyed;
- The evidence destroyed was relevant to an issue in the lawsuit;
- Legal proceedings were pending; and
- The destruction of the evidence was an intentional act indicative of fraud or an intention to suppress the truth.
If a Court finds that spoliation has been established, the evidence is presumed to have been unfavourable to the “spoiler”. If the “spoiler” cannot rebut the presumption, remedies such as a denial of costs or the exclusion of expert reports (i.e. reports that relied upon the spoiled evidence) are available to the opposing party.
While the law is well settled that spoliation exists as a rule of evidence, the law is all but clear when it comes to spoliation as an independent tort. The Ontario Court of Appeal, on motion, opened the doors in Spasic Estate v. Imperioal Tobacco Ltd.,  O.J. No. 2690. In Spasic, Justice Borins held that it was open for the trial judge to determine whether the plaintiff should have a remedy on the basis of a tort of spoliation where, “[i]t is established that the destruction or suppression of evidence by the respondents results in the inability of the plaintiff to establish other nominate torts pleaded in the Statement of Claim.”
However, no Court in Canada has defined the elements of the tort of spoliation nor has there been any judicial ruling in Canada awarding a remedy for the tort of spoliation.
In November 2004 the British Columbia Law Institute prepared the Report on Spoliation of Evidence. The report stated that a number of American cases have extensively considered the options available for the tort, the most desirable formulation being as follows:
- The existence of pending or probable litigation involving a plaintiff;
- Knowledge on the part of the defendant of the pending or probable litigation;
- Intentional spoliation by the defendant designed to defeat or disrupt the plaintiff’s case;
- A causal relationship between the act of spoliation and the plaintiff’s inability to prove its case; and
The idea of an independent tort of spoliation was subsequently discussed in Ontario in Tarling v. Tarling (2008), 43 E.T.R. (3d) 177 (Ont. S.C.J.). Unfortunately, aside from the Court’s conclusion that spoliation is the intentional destruction of evidence, the trial judge did not address the elements of the tort.
Recently, our office was defending the driver of a motor vehicle who was alleged to have caused an accident. At the defendant’s examination for discovery in February 2010, the defendant testified that he was no longer in possession of the vehicle he was driving at the time of the accident because the vehicle had been “written off” as a result of the accident. More than two and a half years later (and, coincidentally, on the eve of trial) the plaintiff brought a motion seeking leave to amend their Statement of Claim to plead spoliation as an independent tort. We opposed the motion on the grounds that the two year limitation period to plead a new cause of action had expired.
So, when does the limitation period to plead spoliation start to run?
The plaintiff argued that the limitation period started to run when he discovered the material facts upon which the cause of action is based. Because the elements of the tort of spoliation are presently undetermined at law, the plaintiff could not have “discovered” the material facts – at any point! Of course, we submitted that the concept of a never ending limitation period was counterintuitive. However, we also argued that the limitation period started to run when the plaintiff discovered that the evidence had been destroyed. Unfortunately, the motion judge allowed the amendment (given the lax threshold for amendment to pleadings), but deferred the limitation issue to the trial judge. Even more unfortunate is the fact that the matter settled before trial.
Therefore, the elements of spoliation as an independent tort remain to be determined. In the meantime, it will be interesting to see how the Courts will resolve the numerous practical implications that are bound to arise in the interim.
Daniel Dooley, B.A.A., LL.B., LL.M., C.S.* Samantha Cain, B.A., LL.B.
Sabrina A. Lucenti, B.A. (Hons.), J.D. Erin H. Durant, B.A., J.D.
Melanie C. Hoad, B.A., LL.B.Hon. Robert N. Weekes, B.A., LL.B., Counsel
*Certified by the Law Society of Upper Canada as a Specialist in Civil Litigation
120 Collier Street Barrie, Ontario L4M 1H4 ∙ Tel: (705)-792-7963 ∙ Fax: (705)-792-7964 ∙ Consultation Office in North Bay
 British Columbia Law Institute, Report on Spoliation of Evidence, November 2004, at p. 1, available at http://www.llbc.leg.bc.ca/public/PubDocs/bcdocs/372882/Spoliation_of_Evidence.pdf