When it comes to litigation, evidence is key. Which is why there is an obligation on parties to preserve relevant evidence in situations of ongoing or contemplated litigation.
In an earlier item we referred to the decision in Trillium Power Wind Corp v. Ontario, 2023 ONCA 412 which defined spoliation as “the intentional destruction, alteration, mutilation, or concealment of evidence with a view to subverting the truth-finding process during litigation”.
The Supreme Court has now issued a decision on this issue – SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., 2026 SCC 29. The first paragraph reads:
[1] Spoliation refers to the intentional destruction, alteration, mutilation, or concealment of evidence with a view to subverting the truth-finding process during litigation. It is a creature of abuse of process that comes in various degrees and forms (see Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2023 ONCA 412, 167 O.R. (3d) 321, at para. 22). The common thread unifying all findings of spoliation is a manifest disrespect for the trial process, the truth-seeking function of the court, and the justice system generally. Parties who commit spoliation should not be rewarded for the evidentiary vacuums they create. Rather, as the authors of their own misfortune, spoliators must carry the presumption that the impugned evidence would be unfavourable to their case.
Later the Court noted the different perspectives of its concerns:
[78] The principles underlying spoliation operate from two perspectives. As between the parties to litigation, the doctrine is concerned with ensuring an even playing field and trial fairness… From the court’s perspective, there is concern for the viability and credibility of the fact-finding process… As a form of abuse of process, spoliation amounts to egregious conduct that flies in the face of respect for the courts and the rule of law generally.
Aside from the importance of lawyers explaining to their clients the importance of preserving all records and evidence in litigation they are involved in or contemplate (and this might be the first thing you tell your clients when they approach you to take on any matter) we are also seeing an increase in self-represented litigants who may be less aware of issues such as this.
Not only is it important for lawyers to advise their clients about preservation of evidence, it is also important to know the test when it appears evidence has been inappropriately destroyed or concealed. From the decision in SS&C:
[79] In sum, spoliation refers to the intentional destruction, alteration, mutilation, or concealment of evidence with a view to subverting the truth-finding process during litigation. Once the court makes a finding of spoliation, it presumes that the destroyed evidence would have been unfavourable to the spoliator’s case. The mandatory nature of this presumption recognizes the gravity of spoliating conduct.
[80] To successfully prove spoliation, the alleging party must prove the following elements on a balance of probabilities: (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… While the burden of proof rests on the party alleging spoliation, if relevant evidence is unjustifiably destroyed, altered, mutilated, or concealed in the context of reasonably contemplated or ongoing litigation, there should be little difficulty in concluding that this was done to affect the litigation. This test highlights the notion, implicit in the doctrine of spoliation, that at the time the spoliator destroyed the evidence, they were under an existing duty to preserve it…
[81] The alleged spoliator may challenge any one or more of the above elements, as all four elements of the test are required to make out a finding of spoliation… If the alleging party successfully establishes the four elements listed above, the court presumes that the destroyed evidence was unfavourable to the spoliator’s case. The burden then shifts to the spoliator to rebut this presumption. The spoliator can do so by showing that the destroyed evidence was not harmful to its case… If the spoliator cannot rebut the presumption that the destroyed evidence was harmful to its case, then the presumption becomes mandatory and adverse inferences must be drawn. At this stage, the spoliator may bring evidence to potentially narrow the scope of any adverse inferences drawn against it pursuant to the presumption.