Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes.
Occasionally a party destroys, conceals or alters estate evidence. This is known as spoilation.
Spoliation occurs when a party intentionally destroys, mutilates, alters, or conceals evidence relevant to ongoing or contemplated litigation in circumstances where it can be reasonably inferred that the evidence was destroyed to affect the litigation: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at paras. 18, 29; Holland v. Marshall, 2008 BCCA 468 at para. 59; Dyk v. Protec Automotive Repairs, 151 D.L.R. (4th) 374 at para. 3, 1997 CanLII 2114 (B.C.S.C.).
To establish spoliation, the party alleging it must show that:
1. the evidence was destroyed, mutilated, altered, or concealed;
2. the evidence was relevant;
3. legal proceedings were pending or contemplated; and
4. the destruction, mutilation, alteration, or concealment was an intentional act of the party or the party’s agent indicative of fraud or intent to supress the truth.
(Dyck at para. 20; Holland at para. 59.)
Spoliation requires intentional conduct: Chow-Hidasi v. Hidasi, 2013 BCCA 73 at para. 29; McDougall at para. 29. An intentional act in this context means an act “with the knowledge that the evidence would be required for litigation purposes”: Chow-Hidasi at para. 29.
If all four elements of spoliation are established, then the affected party is entitled to a procedural remedy: Endean v. Canadian Red Cross Society, 157 D.L.R. (4th) 465 at para. 9, 1998 CanLII 6489 (B.C.C.A.), leave to appeal to SCC allowed [1998] S.C.C.A. No. 260, but subsequently abandoned. The usual remedy is a rebuttable presumption that the destroyed evidence would have been unfavourable to the party who destroyed it: St. Louis v. The Queen, 25 S.C.R. 649 at 652–653, 1896 CanLII 65; McDougall at para. 29; Matossian Estate v. Clark Estate, 2024 BCSC 247 at para. 43; Dawes v. Jajcaj et al., 1999 BCCA 237 at para. 69. This presumption is “no more than an adverse inference”: McDougall at para. 24.
The alleged spoliator can rebut the presumption by adducing evidence that they did not intend to affect the litigation by destroying the evidence or by other evidence which proves their case or repels the case against them: McDougall at paras. 19, 29.