Seeking Sanctions for “Spoliation” May be Easier South of the Border

How does Canada compare with the US in how it deals with spoliation?

While Canada’s rules of practice do not explicitly address spoliation sanctions, the US Committee on Rules of Practice and Procedure recently approved revisions to Rule 37, which provides options for sanctions where ESI that should have been preserved is lost and cannot be restored or replaced through additional discovery – whether or not the loss was intentional.  The revised Rule 37(e) states that where the court finds prejudice resulted to another party, it may “order measures no greater than necessary to cure the prejudice”.  Where the party acted with intent to deprive another party of the use of the information in the litigation, the court may either presume (or instruct the jury to presume) that the lost information was unfavourable to the party that lost it or dismiss the action or enter default judgment.

While the Sedona Canada Principles address preservation and sanctions for the failure to preserve, the Canadian provincial civil rules of practice do not.  Instead, parties must ask the court to apply the doctrine of spoliation when potential evidence has been lost or destroyed.

​In Nova Growth Corp. v. Kepinski,  [2014] ONSC 2763, the Ontario court recently described the following four elements that must be established to find spoliation: (1) the missing evidence must be relevant; (2) the missing evidence must have been destroyed intentionally; (3) at the time of destruction, litigation must have been ongoing or contemplated; and, (4) it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.  The court in Nova Growth also found that there must be evidence that a particular piece of evidence was destroyed.  A much tougher test than in the US.