Spoliation in Litigation: Err on the Side of Caution and Preserve All Evidence

by Legal Author on December 10, 2020

Bogoroch & Associates LLP strongly believes that victims of Personal Injury are entitled to access to justice.

What is Spoliation?

Preservation of evidence is integral to a fair and just litigation process. The destruction of evidence is highly prejudicial to parties involved in the civil justice system.

Spoliation occurs “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 the litigation” [1] and can occur in a myriad of circumstances. For example:

Documents can be shredded. Computer files can be erased. Physical items can be disassembled, destroyed, or otherwise disposed of. Modifications can be made to the evidence. Evidence can be altered or destroyed to create other types of evidence, such as an expert report. Evidence can also be sold or transferred to a third party, thereby rendered unavailable for discovery or trial. Finally, evidence can be suppressed in any number of ways. In each of these instances, a litigant, a potential litigant, or the justice system at large can suffer uncertainties, costs, and prejudice due to the actions of the spoliator.[2]

The Legal Test

Recent case law has established apparent factors for determining whether spoliation occurred.  According to Justice Newbould in Nova Growth Corp. v Andrzej Roman Kempinski,[3] a finding of spoliation requires four elements:

  1. The missing evidence must be relevant;
  2. The missing evidence must have been destroyed intentionally;
  3. At the time of destruction, litigation must have been ongoing or contemplated; and
  4. It must be reasonable to infer that the evidence was destroyed to affect the outcome of the litigation.[4]

Relevant Case Law

A review of recent case law illustrates that the judicial analysis of whether spoliation of evidence occurred is highly dependent on the factual background giving rise to the action and the credibility of the parties involved.

In Forsley v Burin Peninsula Marine Service Centre,[5] the trial judge, Justice Heneghan, ruled that the Defendant intentionally disposed of evidence and rendered a finding of spoliation of evidence. On July 10, 2011, Forsey’s fishing vessel was significantly damaged after it fell from its cradle while being held in storage at Burin Peninsula Service Centre. Central to whether Burin was negligent was ascertaining whether the cradling materials were adequate and sound. However, within 48 hours of the incident, Burin had removed the damaged cradling materials before a surveyor’s attendance. In Justice Heneghan’s view, the damaged materials had been released with the intent that it not be available for inspection.

The trial judge found that Defendant ought to have known that Plaintiff would contemplate litigation to recover for the Vessel damage when it disposed of the cribbing.[6]   Notably, this finding was made even though Defendant did not receive a notice letter until

August 24, 2011.[7]

In light of the Court’s reasoning, perhaps Forsey indicates a judicial trend towards adopting a stringent view of when an individual ought to know that litigation would be contemplated.

The opposite finding was reached in Justice Penny’s judgment in Leon v Toronto Transit Commission, [8] a leading slip and fall case. The Plaintiff, Thelma Leon, suffered multiple injuries due to her alleged fall on a TTC bus on August 20, 2010. After 15 hours of additional operation, the TTC bus’s video footage was overwritten under the 2010 TTC policy.[9]  The Plaintiff asked for an order that an adverse inference is drawn against the TTC because it failed to preserve the video. Here, the Court did not find that spoliation of evidence had occurred.

In Justice Penny’s view, “no reasonable trier of fact, acting judicially and properly instructed on the law of spoliation, could conclude that Mr. Bannerman [TTC Supervisor], or the TTC, intentionally destroyed video evidence relevant to ongoing or contemplated litigation.”[10] This finding was a product of several factors, including the fact that Plaintiff’s factual foundation was not established, the TTC policy relied on by Plaintiff may not have been in force at the time of the incident in question, and ambiguity regarding the TTC supervisor’s authority to download the surveillance in question.[11] Further, the Court’s finding that there was no ongoing or contemplated litigation on August 20, 2010, was also grounded in the case’s specific facts. Notably, key eyewitnesses provided evidence that the Plaintiff did not fall.[12]

What It Means for Your Legal Action

The infusion of clear legal principles in spoliation jurisprudence accentuates that if you are contemplating commencing a legal action or being involved in ongoing litigation, you must preserve all relevant evidence.  A failure to do so may negatively affect your ability to recover damages because a presumption will be imposed that the evidence would have been unfavorable to your case. Further, the Rules of Civil Procedure provide courts with potential sanctions in circumstances where a party fails to disclose or produce a document.[13]

In the circumstances involving the unintentional destruction of evidence, while no adverse presumption arises, it is essential to recognize that courts have broad discretionary powers in awarding costs under the Rules of Civil Procedure.  Notably, the unintentional destruction of evidence may be sanctioned under the Court’s consideration of “the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding.”[14] Accordingly, the destruction of evidence, while unintentional, may nevertheless attract sanctions against a party.

Additionally, the Ontario Court of Appeal in Spasic Estate v Imperial Tobacco Ltd.[15]  indicated the potential for the expansion of the common law to recognize spoliation as an independent tort.  Nonetheless, a tort of spoliation is uncertain in Canadian law.  Currently, no Canadian court has awarded a remedy for a tort of spoliation, and the elements of the tort have not been judicially considered.


Plaintiffs should be acutely aware of the law of spoliation as both the intentional and unintentional destruction of evidence may negatively affect your case. If in doubt, err on the side of caution and preserve all relevant evidence.

Bogoroch & Associates LLP has extensive experience representing families whose loved ones were injured because of accidents.

[1] McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 (CanLII), [2009] 1 WWR 257 at para. 18.

[2] British Columbia Law Institute, Report on Spoliation of Evidence, November 2004 at p. 1.

[3] Nova Growth Corp. v Andrzej Roman Kepinski, 2014 ONSC 2763.

[4] Ibid., at para. 296.

[5] Forsey v. Burin Peninsula Marine Service Centre, 2014 FC 974 [Trial Decision].  The Federal Court decision was upheld at the Federal Court of Appeal.  Burin Peninsula Marine Service Centre v. Forsey, 2015 FCA 216 (CanLII) [Appeal Decision].

[6] Forsey v. Burin Peninsula Marine Service Centre, 2014 FC 974 [Trial Decision ] at para. 113.

[7] Ibid., at para. 115.

[8] Leon v Toronto Transit Commission, 2014 ONSC 1600, CarswellOnt 3380 [Superior Court Decision]. The decision was upheld at the Divisional Court. Leon v. Toronto Transit Commission, 2016 ONSC 3394 (CanLII) [Divisional Court Decision].

[9] Leon v Toronto Transit Commission, 2014 ONSC 1600,  CarswellOnt 3380 [Superior Court Decision] at para. 26.

[10] Ibid., at para. 31.

[11] Ibid., at para. 31.

[12] Ibid., at para. 32.

[13] Ontario Rules of Civil Procedure, RRO 1990, see Rule 30.08.

[14] Ibid., see Rule 57.01. Also, see Cheung v. Toyota Canada Inc., 2003 CanLII 9439 (ON SC). Here, Justice Hoy awarded costs against the spoliating party on a substantial indemnity basis.

[15] Spasic Estate v Imperial Tobacco Ltd., 2000 CanLII 17170 (ONCA).  Justice Borins held that a trial judge might consider a plaintiff’s claim based on a tort of spoliation, only if “It is established that the destruction or suppression of evidence by the respondents results in the inability of the Plaintiff to establish the other nominate torts pleaded in the statement of claim. This, as well, is a good reason why trial efficiency commends that the pleading of the tort of spoliation remain intact so that all of the issues may be considered by the same trial judge”.

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