ABCA modifies spoliation remedy, preserves sanction

9 May

On March 7th, the Alberta Court of Queen’s Bench found a departed employee in contempt for counseling a contact to destroy evidence for the purpose of interfering with the administration of justice. The Court ordered the employee:

  • to produce any and all computers and electronic media in his possession, power or control, for a forensic review to be conducted by a computer expert retained by the plaintiffs;
  • to pay for the review and post $30,000 in security for costs; and
  • to pay the costs of the contempt motion on a full indemnity basis.

Yesterday the Court of Appeal for Alberta varied the order because it was not well-proportioned. It explained:

As a remedy for the contempt, the chambers judge ordered that the individual appellant pay the cost of the application on a full indemnity basis. While acknowledging that “in the present case no information has been lost”, he nevertheless ordered a full computer forensic investigation. The chambers judge speculated that “it is unclear what else may have been deleted”. The contempt application was based entirely on the efforts to delete the HSE Manual. No allegation was made of the destruction of any other document, nor is there any evidence of any other destruction. Embarking on an expensive fishing expedition at this stage of the litigation is unwarranted. Should the discovery process produce evidence of other problems, further applications for relief can be brought.

Despite allowing the appeal in part, the Court ordered the appellant to pay the full costs of the appeal “to ensure an effective sanction.”

Fuller Western Rubber Linings Ltd. v Spence Corrosion Services Ltd., 2012 ABCA 137 (CanLII).

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