Documentation:Torts/Spoliation

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Spoliation
Spoliation is an evidentiary rule arising when a party intentionally destroys evidence relevant to existing or pending litigation.[1] The principal remedy for a finding of spoliation is the imposition of a rebuttable presumption against the spoliator that such evidence would have worked against them.[2] Once the presumption is established, it remains open to the defendant to rebut the presumption by demonstrating that their actions were not aimed to affect litigation.[3] Canadian courts have yet to recognize spoliation as an independent, actionable tort, but have not closed the door on future courts doing so under the appropriate circumstances.[3][4][5]

Spoliation as an evidentiary rule

Origins of spoliation in the common law

The evidentiary rule of spoliation has its origins in the Roman legal maxim omni praesumuntur contra spoilatorem, which means "all things are presumed against the wrongdoer".[6] Contemporarily, a finding of spoliation gives rise to a rebuttable presumption of fact that, where evidence has been intentionally destroyed, it would not have helped the party who destroyed it.[7]

Canadian developments on spoliation

Paper on fire in a red bucket placed on dark grey asphalt.
Spoliation is an evidentiary rule arising when the intentional destruction of evidence relevant to existing or pending litigation occurs.[1]

The Supreme Court of Canada in St. Louis v. The Queen stated that spoliation refers to instances where a party intentionally destroys evidence relevant to ongoing or contemplated litigation in order to affect such proceedings.[8] The Court explained that intentional destruction occurring before litigation in the regular course of business will not amount to spoliation.[9]

The Alberta Court of Appeal, in McDougall v. Black & Decker Canada Inc., clarified that spoliation only arises as an evidentiary rule where a reasonable inference can be drawn by the court that the evidence was destroyed to affect the litigation.[10]

Canadian courts have also clarified that spoliation is not available when the destruction of evidence is done merely negligently or carelessly, and will only be recognized when done intentionally to affect litigation.[11]

Remedies for spoliation

The principal remedy for a finding of spoliation is the imposition of a rebuttable presumption of fact against the spoliator that the evidence would have worked against them.[12] Where spoliation has been established, it remains open to the defendant to rebut this presumption.[12][13] In other circumstances, courts may award costs against the spoliator or other pre-trial remedies, instead.[14][15]

Differences in remedies for spoliation in the US

US courts have adopted a comparatively more aggressive spoliation rule, striking out claims or disallowing expert reports to ensure a level playing field when evidence has been destroyed.[16] Some states have even acknowledged spoliation as an independent actionable tort.[16]

Spoliation as an independent, actionable tort

In Endean v. Canadian Red Cross Society, the British Columbia Court of Appeal dismissed the plaintiff's claim for spoliation, stating that the tort of spoliation did not exist.[17] However, two years later, the Ontario Court of Appeal, in Spastic Estate v. Imperial Tobacco Ltd., refused to foreclose the possibility of a Canadian court recognizing spoliation as an independent tort in the future.[5]

The Alberta Court of Appeal, in McDougall v. Black & Decker Canada Inc., summarized the Canadian jurisprudence on spoliation and stated that Canadian courts have not yet recognized the intentional destruction of evidence as a tort.[3] However, the Court confirmed that some Canadian courts have left open the possibility of extending the law relating to spoliation.[18]

Academic commentators have argued for the recognition of spoliation as an independent tort.[19][20] The primary rationale for acknowledging spoliation as an independent tort is that the existing sanctions for spoliation are often insufficient to deter defendants from committing spoliation.[19][20] Commentators have argued that recognizing spoliation as an actionable wrong would provide a more robust deterrent to spoliators and more effective redress to plaintiffs.[19][20] There is some common law support for such a development, as some US states have acknowledged spoliation as an independent, actionable tort.[16][21]

Discussion questions

  • Is spoliation primarily an issue of civil procedure or of substantive tort law?
  • Should spoliation be recognised as an independent cause of action?


  1. ↑ 1.0 1.1 Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21 at para 35 citing McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 29.
  2. ↑ Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21 at para 37 citing McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 29.
  3. ↑ 3.0 3.1 3.2 Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21 at para 39 citing McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 29.
  4. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras 26–27.
  5. ↑ 5.0 5.1 McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 21, citing Spasic Estate v. Imperial Tobacco Ltd., 2000 CanLII 17170 (ONCA) at para 22.
  6. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 15, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  7. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras 15–16, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  8. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras 16–18, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  9. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras 17–18, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  10. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 18, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  11. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras 24–26, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  12. ↑ 12.0 12.1 McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 29.
  13. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 18, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  14. ↑ Endean v. Canadian Red Cross Society, 1998 CanLII 6489 (BCCA) at para 32, citing St. Louis v. The Queen, 1896 CanLII (SCC).
  15. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 22.
  16. ↑ 16.0 16.1 16.2 McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 15.
  17. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 19, citing Endean v. Canadian Red Cross Society, 1998 CanLII 6489 (BCCA).
  18. ↑ McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para 27.
  19. ↑ 19.0 19.1 19.2 Rivlin, Jay (1998). "Recognizing an Independent Tort Action Will Spoil a Spoliator's Splendor". Hofstra L Rev. 26 (4): 1013–1017.
  20. ↑ 20.0 20.1 20.2 Rowse, Andrea (1985). "Spoliation: Civil Liability for Destruction of Evidence". U Richmond L Rev. 191 (1): 198–199.
  21. ↑ Stipancich, John (1985). "The Negligent Spoilation of Evidence: An Independent Tort Action May Be the Only Acceptable Alternative" (PDF). Ohio St LJ. 53: 1136.
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