Most civil cases run on documents. Bank records, text messages, emails, invoices, logs of who accessed what and when. When something important is missing, the explanation is usually ordinary. A file was misplaced. A phone was replaced. A company purged old records on the schedule it has always followed.
Occasionally the explanation is not ordinary at all, and the material that would have answered the question is gone because someone made it disappear. The law has a name for that, and the Supreme Court of Canada has recently set out what a party has to prove before a court will treat missing evidence as something more serious than poor record-keeping.
The Four Things That Have To Be Proven
There are four elements, and each has to be established on the ordinary civil standard of more likely than not.
First, that the evidence was intentionally destroyed, altered, damaged or concealed. Second, that when this happened, litigation was already underway or was reasonably expected. Third, that the evidence was relevant to that litigation. Fourth, that it is reasonable to infer the destruction was intended to affect the outcome.
The fourth element sounds like the hardest one, and it is often the easiest. Where relevant material is destroyed without justification at a moment when a claim is live or plainly coming, a court will usually have little difficulty concluding that the destruction was aimed at the litigation. The burden rests on the party making the allegation, but the circumstances tend to do most of the work.
What Follows A Finding
Once the four elements are made out, the court begins from the presumption that the destroyed material would have been unfavourable to the person who destroyed it. That presumption is the engine of the whole doctrine. A party is not permitted to profit from a hole in the record that they dug themselves.
The presumption can be answered. The party who destroyed the evidence is entitled to show that it would not, in fact, have hurt their case. If they cannot, the court is required to draw a conclusion against them, and not a token one. That conclusion has to be capable of filling the gap the destruction created. A finding that merely restates what the record already showed does not do that work.
Inferences Are Not The Only Response
An adverse conclusion is the usual answer, but it is not the only one available. Depending on how serious the conduct was and how much damage it did, a court can strike out a claim or a defence, make a finding against the credibility of a party’s evidence, order costs on an elevated scale, refuse to let a party rely on an expert report, or treat the conduct as contempt. Courts can also act before the damage is done, by ordering that specific material be preserved while the case proceeds.
Why This Matters Early
The practical lesson lands well before trial. The obligation to hold on to relevant material attaches as soon as litigation is reasonably in view, not when a court order arrives. If you think a dispute is coming, the safest step is to stop anything that would ordinarily erase records, and to get advice on what has to be kept.
If you think the other side is about to lose something you need, say so in writing, and say so early. The letter you send this month is often what makes the argument available to you two years from now.
This article is general information about Ontario Law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.
