This might be the first award in which the Ontario Superior Court of justice has considered a tort claim for spoliation since the Ontario Court of Appeal held, in Spasic Estate, that a claim based on the tort of spoliation should not be struck out for failing to disclose a reasonable cause of action.
The case is about a claim to the proceeds of an estate. The plaintiff established that the defendant arranged to have the testator’s computer wiped after the plaintiff threatened litigation and after he had received correspondence from the plaintiff’s counsel. The plaintiff also established that there was at least one e-mail destroyed (which was later produced from a third-party) which supported his claim that the defendant asserted undue influence over the testator.
In very brief treatment the Court seems to accept that a claim for tort damages for spoliation can be made out on mere proof of bad faith destruction of evidence. However, in rejecting the claim it implied that prejudice is also a requirement. It said:
In my opinion, this e-mail is no more unfavourable to William Jr. than other e-mails that he did produce that show his involvement with William Sr.’s dispute with Frank. In light of this and in view of the significant documents that William Sr. did produce, I am unable to conclude that William Jr. intentionally destroyed relevant evidence.
The Court did not consider whether the defendant had a positive duty to take reasonable steps to preserve the testator’s computer or the nature and extent of such a duty.