Spoliation: What Litigants Need to Know About Preserving Evidence

Litigants have an ongoing obligation to preserve and produce any documents, videos, or other evidence that is or may be relevant to issues to be determined in a legal proceeding. Where a party intentionally suppresses or destroys evidence, there can be significant consequences. This is known as the doctrine of “spoliation”. In its recent decision, SS&C Technologies Canada Corp v. Bank of New York Mellon Corp.¹ the Supreme Court of Canada clarified test for spoliation and provided an important warning to litigants about the severe consequences for intentionally interfering with the truth-seeking function of the court.

What is Spoliation?

The doctrine of spoliation is an ancient legal rule dating back to early codification of Roman law.² The doctrine is based on the Latin maxim “omnia praesumuntur contra spoliatorem” which means “all things are presumed against the spoliator”.

Today, the doctrine of spoliation is best understood as an evidentiary presumption. Where a litigant intentionally suppresses or destroys evidence, the court presumes the evidence would have been harmful to the spoliating litigant’s case.³

Spoliation is not limited to shredding documents or burning letters. In the modern context, relevant evidence can be found in emails, text messages, electronic files, metadata, etc., and spoliation can occur electronically and even instantaneously. For example, where files are automatically deleted after a certain period of time, often as part of an organization’s retention policies (for example, emails and CCTV footage).

What is the Legal Test for Spoliation?

In SS&C, the Supreme Court of Canada established a four-part test for spoliation. The party alleging spoliation must prove each of the following on a balance of probabilities:⁴

1. the evidence was intentionally destroyed, altered, mutilated, or concealed;
2. at the time of destruction, litigation was ongoing or reasonably contemplated;
3. the evidence was relevant to said litigation; and
4. it is reasonable to infer that the evidence was destroyed to affect the litigation.

Once these four elements are established, the court will presume that the affected evidence was unfavourable to the spoliator’s case. The burden then shifts to the spoliator to rebut this presumption.

What are the Consequences of Spoliation?

Mandatory Presumption

Once the four-part test for spoliation is established, the court is required presume the affected evidence was unfavourable to the spoliator. This is a mandatory presumption; however, the spoliator can attempt to rebut the presumption by proving the destroyed evidence was not actually harmful.⁵

Discretionary Remedies

Once the mandatory inference is made, the court has discretion with respect to the scope of remedy imposed. While consequences can and should be severe, and courts have discretion to impose a remedy proportionate with the circumstances of each case, including the magnitude of the spoliation. In SS&C, the court held:

[95] It is beyond doubt that spoliation is a flagrant attack on the civil justice system that flies in the face of its truth-seeking function and the fairness its processes aim to achieve. The penalty for this conduct should be severe, but it should not be blind. In the modern world, spoliation can occur in any number of ways and to varying degrees. To enforce a one-size-fits-all mandatory remedy that imposes the “maximum penalty” may create disproportionate consequences. Trial judges are well placed to determine the extent of the prejudice to a party harmed by spoliation, analyze the magnitude of the spoliating conduct, and fashion a proportionate remedy…

The result is clear. While courts are not required to impose a “maximum penalty” in every case, consequences for spoliation are severe. Spoliation is a form of abuse of process that “flies in the face of respect for the courts and the rule of law” and will not be readily excused.⁶

Takeaways

Litigants have an obligation to preserve relevant evidence once litigation is “reasonably contemplated” and a failure to do so can be detrimental. For this reason, if you are contemplating a lawsuit, you may consider sending a “preservation notice” to put the opposing parties on notice that they need to preserve relevant evidence. Similarly, if you have reason to believe you may be named in a lawsuit, you should take steps to preserve evidence. This may require you to consider your document retention policies, as well as any systems in place which automatically delete records, or overwrite files. If you are unsure what your obligations are, it is best to check with your lawyer as soon as possible.

If you require additional information or further assistance, please contact Lindsay Morgan.

^{1 2026 SCC 29 [SS&C]
2 SS&C, at para. 69.
3 SS&C, at para. 71.
4 SS&C, at para. 80.
5 SS&C, at para. 81.
6 SS&C, at para. 78.}