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Posted on July 4, 2016 | Posted in Civil Litigation, Construction

“Spoliation is ‘the destruction or material alteration of evidence or…the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation’.” It is the law’s response to the age-old excuse that “the dog ate my homework.”



A party to an action is under a duty to preserve documents and information that the party knows, or reasonably ought to know, are relevant to a legal action. Accordingly, “where a party fails in this duty, the doctrine of spoliation imposes ‘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, or by other evidence to prove or repel the case‘.”

The issue of spoliation was front and centre in Delco Automation Inc. v. Carlo’s Electric Ltd., a 2014 decision of the Ontario Superior Court of Justice.


The interpretation of the scope of the contract depended heavily on whether a sub had sent a particular quotation to the general in the tendering process. The general insisted that it never received it and alleged that the sub had created the quotation after the contractual issue arose. The general demanded to see the electronic computer documents of the sub by which the alleged written quotation was drafted. The electronic metadata would have demonstrated conclusively whether the electronic document was created before or after the time the sub claimed it was sent. Unfortunately, that electronic evidence was not available because, the sub claimed, it lost its documents as a result of a computer upgrade.

The sub did not introduce evidence from any other generals to whom the quotation would have been sent in the tendering process. In essence, the sub claimed that the dog ate its homework, but could not even prove that it owned a dog.


The judge did not find the evidence of the sub’s witnesses to be credible. He made an adverse inference against the sub’s witnesses for failure to provide the electronic version of the quotation and did not believe the sub’s explanation relating to the computer upgrade.

Accordingly, the judge decided the disputed issue against the sub and held that the sub wrongfully refused to complete the full scope of work.

Image courtesy of jade.

Jonathan Speigel


Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.


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