Date: 2008-11-18 Docket: CA034582 ; CA035819. The Honourable Madam Justice Rowles. | Link

"Justice Brooke stated his understanding of the law of spoliation based on four case authorities to which he was referred by counsel for the respondents. The following is a summary of what was stated: 1. A rebuttable evidentiary presumption arises where evidence of spoliation exists; the doctrine of spoliation is an evidentiary rule raising a presumption and not an independent tort giving rise to a cause of action (St. Louis v. Canada (1896), 25 S.C.R. 649). 2. In an appropriate case, destruction of documents carries a procedural but not substantive remedy, an action for damages cannot be sustained solely on the ground that documents have been destroyed (Endean v. Canadian Red Cross Society 1998 CanLII 6489 (BC C.A.), (1998), 48 B.C.L.R. (3d) 90 (C.A.)). 3. Spoliation requires four elements in evidence: a) the evidence has been destroyed; b) the evidence destroyed was relevant to an issue in the lawsuit; c) legal proceedings were pending; and d) the destruction of documents was an intentional act indicative of fraud, or an intention to suppress the truth (Dyk v. Protec Automotive Repairs 1997 CanLII 2114 (BC S.C.), (1997), 41 B.C.L.R. (3d) 197 (S.C.)). 4. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes; such an obligation can only be imposed by court order granted pursuant to the Rules of Court (Dawes v. Jajcaj, 1999 BCCA 237 (CanLII), 1999 BCCA 237, 66 B.C.L.R. (3d) 31, aff'g 1995 CanLII 2726 (BC S.C.), (1995), 15 B.C.L.R. (3d) 240, leave to appeal ref'd [1999] S.C.C.A.. No. 347). (para 55)