Case Report – Court reminds us the spoliation inference is based on more than a missing record

On December 18th, Mr. Justice Flynn of the Ontario Superior Court of Justice dismissed an argument for a spoliation-based adverse inference.

The respondents argued against an application for occupation rent that was brought by a tenant in common’s estate trustees. They claimed, in part, that the applicants suppressed a letter referred to in the testator’s will that was in their favour.  The applicants couldn’t find the letter, which they claimed they had never seen. In dismissing the spoliation argument, Flynn J. said:

The onus to prove that such a missing letter actually existed and that it is being suppressed by the Applicants – a serious allegation – is clearly and heavily on the Respondents and the Respondents’ evidence has not risen above mere speculation or conjecture.

Gladding Estate v. Cote, 2009 CanLII 72079 (ON S.C.).


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