top of page


Photo of documents being destroyed in a fire

Evidence is the cornerstone of proving any type of legal claim. The courts generally wish to rely on objective facts and tangible evidence rather than solely subjective accounts. But what happens when, for reasons out of your control, the evidence that you must rely on to prove your case no longer exists?

What is spoliation? The term spoliation refers to the intentional destruction of evidence where a reasonable inference can be drawn that the destruction was done to affect the outcome of litigation (St. Louis). In simpler terms, spoliation occurs when a party purposely gets rid of evidence and it is highly likely that they did so to affect the outcome of a legal case. This could take many forms like disposing of a car which had been involved in a motor vehicle collision before all parties get a chance to properly inspect it, altering an uneven sidewalk after a trip and fall without allowing for proper measurements to be taken or deleting important documents from a computer. How could spoliation of evidence affect my case? While losing key evidence may make proving your claim seem like a hopeless cause, the courts have emphasized that spoliation is an unacceptable practice and implemented remedies to protect your ability to continue your claim. In St. Louis, the courts held that in cases of spoliation, the court can impose a rebuttable presumption that the evidence which was destroyed would have been unfavourable to the destroying party. This means that the court will assume that the evidence would have helped you prove your case, unless the other party can prove that it did not or that they did not spoil the evidence to purposely affect your case. Interestingly enough, the courts have also left the door open to spoliation being its own separate tort. In Spasic, the court held that spoliation must not necessarily be remedied with only a rebuttable presumption. While the ultimate determination of whether the claim would succeed is dependent on the decision of the trial judge, it would be possible for a party to plead spoliation as a cause of action. The court did qualify that this would only be considered as an additional or alternative claim if it is established that the destruction of evidence results in you not being able to prove your primary claim. This means that you could be entitled to damages even if you cannot prove your initial case but are able to prove your spoliation claim. This is still a novel point of law in Canada, thus the thresholds for a spoliation cause of action have yet to be determined. Your case with Littlejohn Barristers Law firm in Barrie At Littlejohn Barristers, we always take steps to inform other parties of their responsibility to preserve evidence to ensure that there are no excuses for its destruction. If you are in the unfortunate position of having to prove your case without the key evidence you need, there may be a case for a spoliation argument or if you have any type of motor vehicle claims and slip and fall claims: contact us today via our online form or at (705) 725-7355 to schedule an initial consultation to determine what options are available to you.


bottom of page