Date: 2008-07-29 Docket: 05-33/05. Herman J. | Link

Estate dispute between sons of the deceased. One son is alleging that the other influenced the father to alter his will in his favour. "Frank submits that William Jr. knowingly and intentionally destroyed evidence that would have been detrimental to William Jr.'s case and helpful to Frank's. He argues that this is a basis for a substantive claim for damages as well as a reason for the court to impose sanctions. Frank claims that William Jr.'s destruction of evidence constitutes an independent actionable wrong for which damages should be awarded." (paras 154-5) "William Jr. also arranged for the contents of William Sr.'s computer to be wiped out. This occurred in February 2005. He explained that the computer was not working properly. He took it to be fixed and was advised that the computer hard drive needed to be cleaned out and reprogrammed." (para 161) Frank substantiates his claim for spoliation with an email William Jr did NOT produce. The court concluded "In my opinion, this e-mail is no more unfavourable to William Jr. than other e-mails that he did produce that show his involvement in William Sr.'s dispute with Frank. In light of this and in view of the significant volume of documents that William Sr. did produce, I am unable to conclude that William Jr. intentionally destroyed relevant evidence. In the result, Frank's claim for damages arising from William Jr.'s destruction of documents is dismissed. Similarly, I cannot, in the circumstances, conclude that any other sanction for the destruction of documents is warranted." (paras 167-8) The court does not comment on whether the letters from Frank's lawyer to William Jr in January 2005 should have triggered an obligation to preserve the hard disk that Frank had wiped in February 2005. Dan Michaluk's summary is here.