What if spoliation? Spoliation in general terms is the intentional destruction of relevant evidence. If a court finds that a party intentionally (and sometimes unintentionally) destroyed relevant evidence, the opposing party be entitled to certain remedies.

Spoliation is a rule of evidence. Courts are sometimes mandated to deal with the issue of spoliation of evidence at trial. The types of evidence that are sometimes destroyed include physical evidence, electronic evidence, video evidence or other types of evidence that may be relevant to an issue in the case. The Supreme Court of Canada has dealt with the common-law principle of spoliation of evidence and has said that the destruction of evidence carries with it a rebuttable presumption that the evidence destroyed would have been unfavorable to the party who destroyed it. This presumption can be rebutted by evidence that spoliator did not intend by destroying the evidence to affect the rights of any party in the litigation.

The law in respect of spoliation was summarize by the Alberta Court of Appeal as follows:

Spoliation refers to the intentional destruction of relevant evidence when litigation is existing or pending.

The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.

The presumption can be rebutted by evidence showing the spoliator did not intend by destroying the evidence to affect the litigation.

Other possible remedies include things like the exclusion of expert reports and denial of costs.

In general, the issue of spoliation and whether or not it has occurred is left to the trial judge who can consider all of the evidence before making a ruling on the issue.

Generally, the criteria that must be met for the court to draw an adverse inference from the destruction of evidence is as follows: that there be an intentional destruction of relevant evidence, that the destruction occurred when litigation was existing or pending, and it is reasonable to draw the inference that the evidence was destroyed to influence the outcome of the litigation.

If you have been injured as a result of the negligence of another person and there has been destruction of relevant evidence that may have assisted you in proving your case, the role of evidence of spoliation can assist you. Contact one of our lawyers for free consultation in relation to your injury. Our lawyers work on a no fee until you win basis.