What Happens If a Party to Litigation Fails to Protect and Preserve Relevant Evidence?

If a Party to Litigation Destroys Evidence or Fails to Preserve Evidence, the Party May Be Subjected to Adverse Inferences, Costs Penalties, or Punitive Damages.


Understanding the Principles and Penalties For the Destruction of Evidence Whether Intentional or Accidental

Spoliation of Evidence Involving Accidental or Intentional Destruction To establish a case in court, evidence must be presented to support the allegations. This evidence could be testimony from reliable witnesses, or tangible items such as photographs, documents, or objects. Depending on the point of view of the parties involved, the evidence may be considered beneficial or detrimental.

The Law
Intentional Destruction

It should be unnecessary to suggest that the destruction or disposal of unfavourable evidence is wrongful and in certain circumstances may constitute as a criminal act.  The intentional destruction of evidence in civil litigation cases can, and often is, punished by a punitive damages penalty or a costs sanction.  The cases of Trillium Power Wind Corporation v. Ontario, 2023 ONCA 412, as well as Armstrong v. Moore, 2018 ONSC 7056, provide principles applicable to intentional destruction of evidence relevant to civil litigation whereas such cases state:


[20]  Spoliation arises out of the destruction of potentially relevant evidence. It "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”: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 440 A.R. 253, at para. 18.

[21]  The motion judge correctly stated that “while spoliation as a self-standing cause of action is still open to question, Ontario courts have recognized spoliation as an evidentiary rule where there has been destruction of evidence by a party who reasonably anticipated litigation in which that evidence would play a part” and that this rule of evidence gives rise to a rebuttable presumption that the evidence destroyed would have been unfavourable to the party who destroyed it. He also rightly determined that he would not dismiss the spoliation claim at that stage on the basis that the cause of action is somewhat novel. While this court has not yet definitively resolved whether spoliation is a cause of action, it has permitted it to proceed to trial as a novel cause of action: Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 CanLII 17170 (ON CA), 49 O.R. (3d) 699 (C.A.), at paras. 12 and 22, leave to appeal refused, [2000] S.C.C.A. No. 547. It is unnecessary for the purposes of this appeal to resolve the issue.

[22]  While a novel standalone cause of action, spoliation is not a novel issue. It arises out of a party’s breach of the well-established obligation to preserve and produce relevant documents in civil proceedings. The court’s intervention is required because spoliation undermines a fair trial process and interferes with the quest for the truth in judicial proceedings: Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21, at para. 36. As such, it amounts to an abuse of process.

[23]  In St. Louis v. Canada (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649, at pp. 652-653, the Supreme Court established that the destruction of evidence carries a rebuttable presumption that “the evidence destroyed would have been unfavourable to the party who destroyed it”. The Court of Appeal of Alberta described the Supreme Court’s conclusion from St. Louis as follows, in McDougall, at para. 19:

Spoliation in law does not occur merely because evidence has been destroyed. Rather, it 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. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.

[24]  The court’s jurisdiction to grant remedies in response to spoliation springs from rules of civil procedure, its inherent power to control an abuse of its process, and its inherent discretion with respect to costs: McDougall, at para. 22. Remedies granted have mostly included but are not limited to the application of the adverse presumption referenced above in St. Louis, and costs: McDougall, at para. 29. Whether damages, including punitive damages, may be awarded if spoliation is treated as a standalone cause of action is an issue for another day and need not be resolved in this appeal: Armstrong v. Moore, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 37.


[61]  Spoliation of evidence may or may not be tortious in its own right.[27]  In my view, it is an independent actionable wrong sufficient to justify punitive damages.[28]  Punitive damages were pleaded.  These actions by Howard to obliterate markers of adverse possession and conceal evidence along with activities designed to spite the Armstrongs and further exacerbate the conflict are worthy of sanction.  I am awarding punitive damages against Howard Moore in the amount of $5,000.00.

In the case of Manning v. 3980 Investments Ltd., 2003 CanLII 2906, an adverse inference may be taken by the court if relevant evidence is spoiled; however, this is only likely if the party that was uninvolved in spoiling the evidence took reasonable steps to preserve the evidence:


[123]  Plaintiff’s counsel pointed out that the adjuster for the defendant’s insurer lost photographs which were taken of the sidewalk in question.  He asks that I make an adverse inference against the defence arising from the loss of the photos based on the theory of spoliation.  I decline to do so.  Photographs could just as easily have been taken by the plaintiff.  She made notes within two weeks of the incident.  She must therefore have contemplated taking some sort of action.  It appears as though she had contact with counsel early on.  I see no reason why her interest could not have been protected by having photographs taken herself.  There is nothing in the conduct of the defendant that suggests that the loss of the photographs was intentional.  Given the effluxion of time, it is not surprising that the photographs became misplaced.  I decline to exercise my discretion in favour of the argument advanced to draw the adverse inference requested.

According to Manning, if there is insufficient effort by the non-spoliating party put towards protecting and preserving evidence, penalties or sanctions or even an adverse inference against the spoliating litigant will be unlikely. This free-pass seems odd, whereas without any form of punishment, there is little to deter a party from destroying evidence that could be unfavorable. The lack of a deterrent could then encourage a party to neglect the protection of evidence.

Accidental Destruction

Despite the importance of evidence to a legal case, as seen in Leon v. Toronto Transit Commission, 2014 ONSC 1600, it appears that penalties or sanctions may be avoided if evidence was accidentally lost or destroyed, even if neglectfully:


[9]  Spoliation in law, however, does not occur merely because evidence has been destroyed.  Rather, it 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.  Once this is demonstrated, a presumption arises that the evidence would have been unfavorable to the party destroying it.  This presumption may be rebutted by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which a party either proves his case or repels the case against them.

[10]  When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who destroyed it.  The unintentional destruction of evidence is not spoliation.  It is not appropriate to presume the missing evidence would tell against the person destroying it where the destruction is unintentional, see McDougall v. Black & Decker2008 ABCA 353 (CanLII).

Summary Comment

The penalties that may be imposed when a party to litigation destroys evidence include an adverse inference that the evidence would have worked against the party that destroyed the evidence, punitive costs penalties, or an assessment of punitive damages.

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