Case information

Civil procedure — Abuse of process — Causes of action — Court granting respondent’s motion to strike action claiming misfeasance in public office and spoliation — Court of Appeal allowing applicant’s appeal in part — Court of Appeal concluding spoliation occurred and constituted abuse of process — Court of Appeal remedying spoliation by setting aside costs awarded to respondent and awarding costs of appeal to applicant — Whether the intentional spoliation of evidence should be recognized as an independent cause of action that may support a damages award — What should the legal requisites and appropriate sanction be for the careless, negligent, or reckless destruction of evidence? — How and when should the evidentiary rule and procedural sanctions for spoliation operate?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant, Trillium Power Wind Corporation (“Trillium”) proceeded a substantial way toward obtaining authorization to operate a wind farm in a lakebed in Ontario when, on February 11, 2011, without prior notice to it, the respondent, Ontario, announced a halt to its consideration of any offshore wind farm projects and thereby effectively terminated Trillium’s approval application. Ontario’s announcement was made the same day that Trillium’s project financing was set to close. Trillium’s financing consequently did not proceed. Trillium commenced an action against Ontario. Trillium was permitted to proceed with its allegation of misfeasance in public office based on Ontario allegedly timing its announcement to forestall the closing of Trillium’s project financing. Trillium later learned that Ontario had destroyed thousands of documents and other evidence allegedly related to the cancellation. It amended its pleadings to include a claim of spoliation. The parties brought competing summary judgment motions. The motion judge dismissed Trillium’s causes of action, with costs to Ontario. The Court of Appeal saw no error in the dismissal of Trillium’s claim for misfeasance in public office but found an error in the dismissal of the spoliation claim. It therefore set aside the dismissal of the spoliation claim. It found that the circumstances of Ontario’s spoliation amounted to an abuse of process and that the appropriate remedy was to deprive Ontario of its costs in the Superior Court of Justice and to grant Trillium its costs of the appeal.