Case Report – ABCA speaks clearly on spoliation remedies

On October 30th, the Alberta Court of Appeal reinstated an action dismissed because the plaintiff had destroyed evidence. In doing so, it made some very clear and principled statements distinguishing the traditional spoliation presumption from other bases for a spoliation remedy.

First, the Court confirmed that the spoliation presumption first recognized by the Supreme Court of Canada in the 1896 St. Louis case is simply a rebuttable presumption of fact that requires a finding of intentional destruction of evidence:

Moreover, in my view, it is not appropriate to apply the presumption that the evidence would tell against the spoliator when evidence has been lost or destroyed carelessly or negligently, or something else short of the intention required by St. Louis. The presumption is no more than an adverse inference, drawn from circumstances surrounding the destruction or loss of the evidence. When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.

Next, the Court distinguished this specific remedy from the broader range of remedies that might flow from the Court’s rules-based or inherent jurisdiction to control its process. It suggested the maintenance of trial fairness should be the primary guide to the exercise of discretion and warned that the striking of an action is extraordinary: “While the court always has the inherent jurisdiction to strike an action to prevent an abuse of process, it should not do so where a plaintiff has lost or destroyed evidence, unless it is beyond doubt that this was a deliberate act done with the clear intention of gaining an advantage in litigation, and the prejudice is so obviously profound that it prevents the innocent party from mounting a defence.”

And finally, the Court noted that there is no recognized civil duty to preserve evidence in Canadian law: “The issues of whether a party may be guilty of negligence where it destroys documents it had a duty to keep, or whether spoliation exists as an intentional tort, are not engaged in this case and any comment about whether the law should be developed in these areas should be left to a case where these issues arise from the facts.” (While the duty to refrain from intentionally destroying evidence has been addressed in the well-known Spasic Estate and Endean cases, whether there’s a positive duty to preserve evidence subject to the negligence standard of care is more significant and also less discussed.)

On the facts, the Court held that the chambers judge had erred in striking the action because there was insufficient evidence to conclude that the acts of destruction alleged were intentional and because it was not possible to make a determination on prejudice before the development of a trial record. It did, however, grant the defendant leave to examine the expert it accused of misconduct.

McDougall v. Black & Decker Canada Inc., 2008 ABCA 353.

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