Date: 2008-10-30, Conrad J.A. | Link

An analysis of the law of spoliation in Canada starts at para 15. Of particular interest is the discussion of unintentional but negligent destruction of evidence. "Spoliation should not be confused, however, with the unintentional destruction of evidence. This may also give rise to a remedy, but the remedy will be founded on other principles. For example, where the opposing party is put to the task of having to prove its case through the use of other evidence, in circumstances where it could reasonably have anticipated that the evidence would exist, an award of costs might be appropriate. In addition, the courts have a broad discretion to fashion remedies to avoid abuse of process, and the court's rules of procedure are designed to assist the parties in ensuring trial fairness. Obviously, where the goal is to award remedies to even the playing field, the reason for destruction is less important. Generally such remedies are covered, and should be covered, through application of existing practice rules (or the development of further rules) and the exercise of the court's discretion to avoid an abuse of process or award costs. Intention may not be necessary in those circumstances. But the unintentional destruction of evidence is not spoliation, and it is not appropriate to presume that missing evidence would tell against the person destroying it where the destruction is unintentional and the trier of fact cannot draw the adverse inference that the evidence was destroyed because it would tell against the spoliator." (para 25) Canadian law of spoliation is summarized in para 29.