09 Feb Why spoliation can often be a nasty allegation
Published in , October 2013
By: Daniel Dooley
I am with increasing frequency seeing the allegation of “spoliation” in pleadings, whether in original form or by way of amendment.
An accusation of spoliation recently arose at my office. My client was the defendant in an action where he was the driver of a motor vehicle alleged to have caused an accident. At the defendant’s examination for discovery in February 2010, the defendant testified that he was no longer in possession of the vehicle he was driving at the time of the accident because the vehicle had been “written off” as a result of the accident. More than two and a half years later (and, coincidentally, on the eve of trial) the plaintiff brought a motion seeking leave to amend their Statement of Claim to plead spoliation as an independent tort. We opposed the motion on the grounds that the two year limitation period to plead a new cause of action had expired.
This sudden accusation of spoliation raised two issues: firstly, can spoliation be raised as an independent tort or is it only a rule of evidence? This inquiry lead my office down the rabbit hole into the history of spoliation.
Secondly, do counsel who make such implications- often with little or no foundation in fact- realize the implications of such an allegation?
Those that make a spoliation allegation impugn someone else’s integrity. I think that should never lightly be done. In fact, I suggest that to do so is reprehensible and deserving of punishment in costs and judicial and professional sanction.
Spoliation refers to the intentional destruction of relevant evidence when litigation is existing or pending. It has been described as a form of cheating, which threatens to undermine the integrity of the civil justice process.
Accidental destruction or inadvertent loss of evidence is not spoliation. Spoliation will only be found where the following occur:
1. evidence has been destroyed;
2. the evidence destroyed was relevant to an issue in the lawsuit;
3. legal proceedings were pending, and
4. the destruction of the evidence was an intentional act indicative of fraud or an intention to suppress the truth.
If a Court finds that spoliation has been established, the evidence is presumed to have been unfavourable to the “spoiler”. If the “spoiler” cannot rebut the presumption, remedies such as a denial of costs or the exclusion of expert reports (i.e. reports that relied upon the spoiled evidence) are available to the opposing party.
Spoliation as an Intentional Tort
While the law is well settled that spoliation exists as a rule of evidence, the law is all but clear when it comes to spoliation as an independent tort. The Ontario Court of Appeal, on motion, opened the doors in Spasic Estate v. Imperioal Tobacco Ltd.,  O.J. No. 2690. In Spasic, Justice Borins held that it was open for the trial judge to determine whether the plaintiff should have a remedy on the basis of a tort of spoliation where, “[i]t is established that the destruction or suppression of evidence by the respondents results in the inability of the plaintiff to establish other nominate torts pleaded in the Statement of Claim.”
However, no Court in Canada has defined the elements of the tort of spoliation nor has there been any judicial ruling in Canada awarding a remedy for the tort of spoliation.
In November 2004 the British Columbia Law Institute prepared the Report on Spoliation of Evidence. The report stated that a number of American cases have extensively considered the options available for the tort, the most desirable formulation being as follows:
1. The existence of pending or probable litigation involving a plaintiff;
2. Knowledge on the part of the defendant of the pending or probable litigation;
3. Intentional spoliation by the defendant designed to defeat or disrupt the plaintiff’s case;
4. A causal relationship between the act of spoliation and the plaintiff’s inability to prove its case; and
The idea of an independent tort of spoliation was subsequently discussed in Ontario in Tarling v. Tarling (2008), 43 E.T.R. (3d) 177 (Ont. S.C.J.). Unfortunately, aside from the Court’s conclusion that spoliation is the intentional destruction of evidence, the trial judge did not address the elements of the tort.
Though the tort of spoliation continues to evade full definition and application, Canadian courts still acknowledge that it could be an independent tort in the future. In McDougall v Black & Decker Canada Inc. (2008), ABCA 353, 97 Alta LR (4th) 199, the Alberta Court of Appeal summarized the law of spoliation in Canada and included the following statement on the independent tort of spoliation at paragraph 29:
“The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open.”
In the case I described above, I was opposing the motion to amend on the grounds that the two year limitation period to plead a new cause of action had expired. My office had the difficult task of determining when the limitation period to plead spoliation started to run given that the existence of a tort of spoliation has yet to be resolved.
The plaintiff argued that the limitation period started to run when he discovered the material facts upon which the cause of action is based. Because the elements of the tort of spoliation are presently undetermined at law, the plaintiff could not have “discovered” the material facts – at any point! Of course, we submitted that the concept of a never ending limitation period was counterintuitive. However, we also argued that the limitation period started to run when the plaintiff discovered that the evidence had been destroyed. Unfortunately, the motion judge allowed the amendment (given the lax threshold for amendment to pleadings), but deferred the limitation issue to the trial judge. Even more unfortunate is the fact that the matter settled before trial.
Therefore, the elements of spoliation as an independent tort remain to be determined.
Spoliation as an Attack on Personal Integrity
Though it was an unnecessary drain on our client’s resources to deal with a “late-in-the-day” allegation of spoliation, what was more upsetting to me was counsel’s unwarranted attack against the individuals in my client’s employ whose handling of the matter was impugned.
An allegation of spoliation amounts, in my opinion, to alleging fraud by a person whose livelihood may depend on the manner in which they perform their duties. Counsel who allege spoliation challenge the honesty of that person – they allege, for example, that an insurance company employee intentionally destroyed evidence to suppress the truth. Such conduct would warrant termination of employment as the least of possible consequences and will understandably be cause for underserved consternation, upset and possible diminished reputation.
Spoliation is not a “boilerplate” or “it’s nothing personal” allegation. I suggest that spoliation is an allegation that must never be made without solid evidentiary foundation. Indeed, I suggest that to make an allegation of dishonesty for strategic purposes or without evidentiary basis is unethical as well as unbecoming of the true advocate.
There must be a sanction for unwarranted allegations. The possible new tort of malicious prosecution of a civil proceeding recently analyzed by the Privy Council (but that’s my next article) is one possible sanction, but legal proceedings are lengthy and expensive. I believe that costs must be awarded personally against any lawyer who alleges without adequate basis that another person intentionally destroyed evidence with the intention to commit fraud or suppress the truth.