Is “spoliation” or the intentional destruction of relevant evidence an independent cause of action from which damages could flow? Some cases say that spoliation is not a tort but simply an evidentiary principle that allows the court to draw an adverse inference. In Spicer_v._CAA_Insurance_Co._Ontario_ I.L.R. I-5474 (Ont. S.C.J.), the court held that whether the tort of spoliation exists is a question for either a trial judge or a judge hearing a motion for summary judgment. This followed the Ontario Court of Appeal inSpasic_Estate_v._Imperial_Tobacco_Ltd. (2000), 135 OAC 126 where the Court also found it was up to the trial judge to determine whether the plaintiff should have a remedy for spoliation.
The court in Spicer did find that the pleading at issue lacked the necessary particulars for alleging spoliation, namely: when the act(s) of spoliation occurred; what evidence was destroyed; if the evidence destroyed was the plaintiff’s property, an allegation to that effect; and what loss(es) the plaintiff suffered as a result of the destruction of the evidence.
Bottom line: if you are going to plead spoliation…the devil is in the details, i.e., don’t forget to particularize the spoliation claim.