Trillium Power Wind Corporation v. Ontario 2023 Ont CA
Spoliation arises out of the destruction of potentially relevant evidence. It occurs when a party intentionally destroys evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. It is not yet a self-standing cause of action; rather, it is a rule of evidence giving rise to a rebuttable presumption that the destroyed evidence would have been unfavourable to the party who destroyed it. In this case, Ontario government employees deliberately destroyed relevant evidence, but that evidence would not have affected the results in the action. Since spoliation is an abuse of process, the court denied Ontario its costs on the summary judgment motion in which it was successful and granted the appellant’s costs for the appeal.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.