The Supreme Court of Canada issued a decision on July 31 2026 that sharpens the rules around evidence destruction in civil litigation, stemming from the appeal of SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp (2024 ONCA 675; 2026 SCC 29).

Supreme Court clarifies spoliation doctrine

The justices described the practice as the intentional destruction, alteration, mutilation, or concealment of evidence with the purpose of undermining the truth‑finding process. They emphasized that such conduct reflects a clear disrespect for the trial system and the broader justice framework.

While earlier judgments touched on the concept, the present ruling consolidates the test that a party must bear the presumption that the missing material would have been unfavorable to its case.

The duty to preserve relevant material arises as soon as litigation is reasonably anticipated.

The ruling reshapes litigation strategy.

Consequently, counsel must now treat spoliation risk as a core part of case assessment, reflecting the SCC’s focus on preserving the fact‑finding process.

Elements and burden of proof

To succeed on a claim of evidence tampering, the alleging party must establish four points on a balance of probabilities:

• The material was intentionally destroyed, altered, mutilated, or concealed.
• Lawsuit was underway or reasonably contemplated at the time.
• The material was relevant to the dispute.
• It is reasonable to infer the act was meant to affect the outcome.

The onus rests with the party raising the allegation. If the missing evidence is shown to have been unjustifiably eliminated during a period when preservation was required, the inference of intent to influence the case is usually straightforward.

Even when those elements are proved, the decision stressed that a finding of evidence destruction does not automatically translate into victory on the underlying claim.

This reflects the Court’s longstanding principle that spoliation sanctions address procedural misconduct without guaranteeing substantive success on the merits.

Remedies and court discretion

The primary remedy is a rebuttable presumption that the destroyed material would not have assisted the offending side. Judges must then draw an adverse inference that can fill the evidentiary gap.

Beyond that, the Court listed several factors it may weigh when shaping additional orders: the culpability of the party, the purpose behind the act, the prejudice suffered by the other side, and the impact on the court’s ability to resolve the issues fairly.

These factors mirror the SCC’s non‑exhaustive list, guiding courts to tailor sanctions to the misconduct’s context.

Possible further measures include cost penalties, sanctions, or orders to produce substitute evidence where feasible.

In practice, tribunals use the adverse inference to restore balance, but they retain flexibility to tailor remedies to the specifics of each case.

Historical context and comparative analysis

Prior to this judgment, provincial courts applied spoliation principles inconsistently. The 2023 decision in Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources) began to narrow that gap, but the new ruling pushes the trend toward a nationwide uniform standard.

Legal scholars note that the SCC’s approach reduces the variability that previously existed across provinces and signals a move toward greater predictability for litigants.

By insisting on a single presumption of adverse effect, the justices aim to deter parties from exploiting technical loopholes to avoid disclosure obligations.

Practical implications for litigators

Law firms are now advised to implement robust evidence‑preservation protocols early in the litigation timeline. This includes issuing formal preservation notices, establishing clear data‑retention policies, and conducting regular audits of electronic repositories.

Technology teams should configure backup systems to prevent accidental loss, while senior partners must train junior associates on the duty to preserve once a claim is reasonably anticipated.

Failure to adopt such measures could trigger the presumption that destroyed evidence would have been adverse, exposing the client to costly sanctions.

Potential sanctions and cost consequences

Sanctions may range from modest monetary penalties to severe cost awards that shift the entire litigation expense onto the offending party. In extreme cases, courts can order contempt proceedings or even dismiss claims where spoliation is deemed egregious.

These punitive tools are intended to reinforce the integrity of the evidentiary process and to ensure that parties treat the court’s fact‑finding function with the seriousness it deserves.

Future outlook

Lower courts are expected to apply the new framework in cases scheduled for hearing throughout 2027. The Supreme Court has indicated that appellate review of spoliation rulings will focus on whether the presumption was correctly invoked and whether any additional orders were proportionate.