Deletion Of Browser History To Prevent Embarrassment Not Spoliation

In Catalyst Capital Group Inc v Moyse, 2016 ONSC 5271  the Ontario Superior Court considered whether the defendant, Brandon Moyse, who deleted his Internet browsing history from his personal computer in the face of a preservation order, had intentionally destroyed relevant evidence, giving rise to spoliation.  Spoliation is an evidentiary rule that gives rise to a rebuttable presumption that destroyed evidence would be unfavourable to the party that destroyed it.

Background

The underlying action arose after Moyse, who had been employed by Catalyst, left the company to take a position with  a competing investment management firm. Catalyst brought an action for breach of confidence for the alleged misuse of confidential information regarding  a target company in which Catalyst had unsuccessfully attempted to acquire an interest. Subsequently, the target company was successfully acquire by Catalyst's competitor, and Catalyst claimed Moyse had delivered  Catalyst's