Spoliation: What Do You Do When the Opposing Party Destroys Evidence?
What can you do if you are in a lawsuit and the opposing side destroys or conceals important evidence? How does the court deal with these parties, and what kinds of solutions could they provide? These questions were answered by the Supreme Court of Canada in SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., 2026 SCC 29.
What is Spoliation?
Spoliation occurs when someone destroys or conceals evidence. For example, in a construction dispute over faulty lighting fixtures, refusing to allow the original contractor to fix the lighting fixtures and hiring a contractor to replace those fixtures before the other side can inspect them may qualify as spoliation. Similarly, if a group of emails relevant to a contract dispute, are deleted when it is known that there may be litigation may result in a finding of spoliation.
There are four criteria that are to be met in order for spoliation to exist:
1) The evidence was intentionally destroyed;
2) There was an ongoing lawsuit or someone was thinking of bringing a lawsuit when the evidence was destroyed;
3) The evidence was relevant to the lawsuit; and
4) The evidence was destroyed to affect the outcome of the lawsuit.[i]
Once these elements are met, the court is required to assume that the destroyed evidence would have hurt the spoliator’s case.[ii] The exact strength of the impact of the destroyed evidence is up to the court to decide.[iii] If the court decides that the destroyed evidence would have been critical to the case, it can give harsher penalties to the party who destroys it.
Assessing Damages in Cases of Spoliation: SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp
In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., 2026 SCC 29, the Supreme Court of Canada discussed the consequences if the opposing side destroys evidence. In that case, a technology company, SS&C Technologies Canada Corp. (SS&C), agreed to sell data to the Bank of New York (BNY). Nearly 20 years later, SS&C discovered that BNY was giving its affiliates access to SS&C’s data, despite not being permitted to do so under their agreement.
SS&C asked BNY to preserve the key documents to the case, however, BNY refused because they had already deleted many of those key documents.[iv]
The Supreme Court held that BNY had destroyed the evidence for the purpose of misleading the courts and had thus engaged in spoilation. As a result, the technology company was entitled to compensation for the evidence it wasn’t able to rely on. In cases involving the destruction or concealment of evidence, judges can provide various types of remedies. Some examples include dismissing the spoliator’s lawsuit, or ordering substantial legal costs against them.[v]
In sum, if during a lawsuit one party decides to destroy or conceal evidence, a judge can sanction that party according to the evidence’s significance to the overall lawsuit. So, if you destroy a key piece of evidence, the court may give you harsh punishments, including not permitting you to proceed with your claim.
Main Takeaways
- If you are in the middle of a lawsuit, or even thinking about starting one, make sure you safely and securely store all evidence, which includes documents related to the matter.
- If you fail to preserve, or actually destroy, key evidence, the court may presume those records would have hurt your case and may award sanctions against you.
How Our Team Can Assist You
Walker Law can assist you with a variety of legal matters, including disputes involving Appeals, Civil Litigation Law, Commercial Litigation Law, and Contract Disputes. Reach out to Walker Law to if you are contemplating litigation so we may advise you on best practices regarding preservation of evidence and other issues.
[i] SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., 2026 SCC 29 at para 80.
[ii] Ibid at para 79.
[iii] Ibid at para 84.
[iv] Ibid at para 35.
[v] Ibid at para 92.