A very old doctrine for a very modern problem
The doctrine of spoliation in Canada originated with the Supreme Court of Canada’s 1896 decision in St. Louis v. The Queen. Spoliation refers to the intentional destruction, alteration, mutilation or concealment of evidence with a view to subverting the truth-finding process during litigation.[1] In St. Louis, a contractor had destroyed his accounting records relating to construction contracts with the Crown. The Supreme Court of Canada established that the destruction of evidence carries a rebuttable presumption that the evidence would have been unfavourable to the party who destroyed it.[2] The Supreme Court of Canada clarified that the maxim “omnia praesumuntur contra spoliatorem” (“all things are presumed against the spoliator”) is the organizing principle underpinning the doctrine of spoliation. This maxim gives rise to a presumption of fact, not law, to be determined by the trial judge based on the circumstances.[3] The presumption may be rebutted by clear and positive evidence, as was the case when the appellant’s accounts were corroborated by multiple witnesses despite the destruction of the original documents.[4]
For over a century after St. Louis, the law of spoliation remained largely static. Provincial courts refined the doctrine incrementally, but the Supreme Court of Canada did not squarely return to it.[5] Meanwhile, electronic document management has become the primary mechanism for record-keeping, and evidence destruction evolved from shredding paper to deleting files electronically. The jurisprudence has not only been sparse, but “outdated and out of tune with the modern realities of the digital age.”[6]
Recently, the doctrine of spoliation has been revisited. On July 31, 2026, the Supreme Court of Canada (SCC) released its decision in SS&C Technologies Canada Corp. v. Bank of New York Mellon Corporation, 2026 SCC 29, marking the Court’s first pronouncement on spoliation in over a century.[7]
The message from the SCC is clear: preserve your records, or understand the potential implications of failing to do so.
The Supreme Court’s analysis: A four-part test and mandatory presumption
SS&C Technologies Canada Corporation (SS&C Technologies), a data provider, licensed proprietary market pricing data to the Bank of New York Mellon Corporation (BNY) under an agreement that expressly prohibited BNY from sharing or redistributing the data to other parties, including its own subsidiaries and affiliates.[8] In 2016, SS&C Technologies discovered that BNY had been redistributing its proprietary data to as many as 65 affiliated entities over the course of 17 years. SS&C Technologies demanded that BNY preserve information about how the data had been redistributed.[9] BNY refused, offering no justification. SS&C Technologies terminated the agreement and commenced litigation for breach of contract.
The SCC articulated a four-part test for establishing spoliation. A party alleging spoliation must prove, 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 the litigation; and
(4) it is reasonable to infer that the evidence was destroyed to affect the litigation.[10]
All four elements are required and the alleged spoliator may challenge any one or more of them.[11]
Once spoliation is established, a mandatory rebuttable presumption arises that the destroyed evidence would have been unfavourable to the spoliator’s case.[12] When spoliation has been established, there is no discretion: Courts must draw an inference that is adverse to the spoliator and capable of filling the gap left in the evidence.[13] The precise contours of the adverse inference remain discretionary and context-specific.[14] 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.”[15]
Applying the doctrine
On the facts, the application of the test was straightforward. The data usage evidence was clearly relevant, clearly destroyed or not produced, and the destruction followed the preservation notice sent by SS&C Technologies counsel. BNY refused to preserve the data based on its own view of the claim. In this context, and in the absence of argument to the contrary from BNY, the only inference is that the evidence was destroyed or not produced in order to affect the litigation.[16]
At the trial level, while not making an express finding of spoliation, the trial judge drew two adverse inferences against BNY. First, that at least one unauthorized entity within the BNY group used SS&C Technologies’ data; and second, that the unauthorized use was more than trivial.[17] The Court of Appeal accepted the trial judge’s adverse inferences and made an express finding of spoliation against BNY, noting that its conduct “smacked of contempt for the justice system.”[18] While the Court of Appeal did not disturb the trial judge’s damages methodology, it confirmed that adverse inferences are available remedies where spoliation is proved.
The SCC agreed with SS&C Technologies that the trial judge erred in drawing inferences that did not properly remedy BNY’s spoliation. The adverse inferences drawn by the trial judge merely restated what the existing evidence already showed and failed to fill the evidentiary gap created by BNY’s destruction of evidence. The SCC held that these inferences were inadequate because they did not make concrete findings about how many of the 65 entities actually accessed the data or how frequently they did so. In other words, the trial judge identified only that unauthorized use existed, but failed to determine its scope, leaving the evidentiary gap created by BNY’s spoliation unfilled.
The spoliation finding also had effects on the damages awarded. The SCC held that the trial judge’s approach to calculating damages was similarly flawed, as it bore no relation to the scale of BNY’s breaches. As a result, the SCC set aside the damages award, and remitted the matter for a new assessment of damages based on properly drawn adverse inferences that account for the context, scope and impact of the destroyed evidence.[19] In this way, the SCC affirmed that trial judges must do more than simply acknowledge that spoliation occurred. The adverse inferences drawn must be meaningful and specific enough to actually fill the evidentiary gap left by the destroyed evidence.
The SCC also expanded the recognized menu of available remedies, confirming that the adverse inference is “usually not the end of the story.”[20] Courts may strike a claim or defence, make adverse credibility findings, order substantial indemnity costs or punitive damages, exclude expert reports, issue injunctions or make findings of contempt.[21]
The SCC characterized spoliation as a creature of abuse of process that is fundamentally incompatible with respect for the courts and the rule of law.[22] The fashioning of remedies is therefore inherently discretionary, guided by considerations including the spoliator’s culpability, the prejudice to the non-spoliating party and the impact on the court’s ability to fairly dispose of the issues.
Takeaways for litigants and those facing potential litigation
Spoliation is a live issue in British Columbia. Recent cases have seen courts grapple with allegations of intentional destruction or concealment of evidence, with adverse consequences for the parties found to have engaged in it.[23]
At the most basic level, the mandatory presumption means the court will assume that whatever evidence was destroyed would have hurt the spoliator’s case.[24] A party that destroys evidence creates an evidentiary vacuum, and the court will fill that vacuum with assumptions adverse to the spoliator. The spoliator then bears the burden of rebutting that presumption, and if it cannot, adverse inferences must be drawn.[25] The rebuttal threshold is demanding: the spoliator must prove through other evidence that its actions, although intentional, were not aimed at affecting the litigation, or it must otherwise prove its case or repel the case against it.[26] BNY failed to rebut the presumption because it offered no justification for refusing to preserve the data despite an explicit preservation notice. It could not account for over half of the data that SS&C Technologies had delivered, leaving no evidentiary basis from which to argue that the destroyed evidence would not have been harmful to its case.[27]
The duty to preserve relevant evidence is triggered when litigation is commenced or reasonably anticipated.[28] Prospective litigants would be well-advised to maintain a document retention policy that addresses both paper and electronic records. When litigation becomes reasonably foreseeable, a litigation hold that suspends routine deletion policies should be considered. Preservation notices from opposing parties should be taken seriously, regardless of one’s view of the underlying claim.[29]
As the SCC observed, “where once spoliation took the form of physical destruction of documents, in the digital age, spoliation is far more inconspicuous, occurring instantaneously at the click of a button.”[30] Canada’s highest court has now made equally clear that the consequences of that click can be severe.
For more information on this topic, please reach out to Kay Scorer and Liam Edmondstone.
[1] SS&C at para 1.
[2] St Louis v The Queen (1896), 25 SCR 649 [“St Louis”] at 652–53.
[3] St Louis at 666, 670.
[4] St Louis at 689–90.
[5] SS&C at para 2.
[6] G Christian, “A ‘Century’ Overdue: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents” (2022) 59:4 Alta L Rev 901 at 902.
[7] SS&C Technologies Canada Corp v Bank of New York Mellon Corporation, 2026 SCC 29 [“SS&C”] at para 2.
[8] SS&C at paras 3, 17–18.
[9] SS&C at para 8.
[10] SS&C at para 80.
[11] SS&C at para 81.
[12] SS&C at para 79.
[13] SS&C at para 9.
[14] SS&C at para 84.
[15] SS&C at para 95.
[16] SS&C at para 126.
[17] SS&C Technologies Canada Corp v Bank of New York Mellon Corporation, 2023 ONSC 4083 at paras 107–108.
[18] SS&C Technologies Canada Corp v Bank of New York Mellon Corporation 2024 ONCA 675, at para 165.
[19] SS&C at paras 161–62.
[20] SS&C at para 88.
[21] SS&C at para 92.
[22] SS&C at paras 1, 94.
[23] See e.g. Pattison v. Royal Vancouver Yacht Club, 2026 BCSC 747, and Axion Ventures Inc. v. Bonner, 2026 BCSC 318.
[24] SS&C at para 79.
[25] SS&C at para 81.
[26] McDougall v Black & Decker Canada Inc, 2008 ABCA 353 at para 18, citing St Louis.
[27] SS&C at paras 126, 128.
[28] SS&C at para 80.
[29] SS&C at para 128.
[30] SS&C at para 2.
