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Evidence - Spoliation (2). SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. [SOR]
In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. (SCC, 2026) the Supreme Court of Canada allowed an appeal, here where 'spoliation' and damages were central issues.
Here the court considers the appellate SOR for evidentiary 'spoliation':A. Standard of Review
[120] St. Louis indicates that when a presumption is drawn from a finding of spoliation, it is a matter of fact left to the determination of the trial judge. Drawing an adverse inference from the destruction of evidence is therefore reviewable for palpable and overriding error (see generally Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 52).
[121] Making a finding of spoliation, based on the four-part test described above, involves applying a legal standard to a set of facts (see generally Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35). Therefore, a finding of spoliation, which represents a question of mixed fact and law, is reviewable for palpable and overriding error unless the analysis is tainted by an identifiable legal error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36; Southam Inc., at para. 35; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55).
[122] The content and scope of the remedy associated with a finding of spoliation is discretionary and therefore attracts a high degree of deference. Absent an extricable legal error, a palpable or overriding factual error, or a failure to exercise discretion judicially, appellate courts will not intervene (see Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, [2022] 3 S.C.R. 515, at para. 41, citing Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36; P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15; see also Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801, at para. 95).
[123] The assessment of damages attracts considerable deference. When a damage award is appealed, it must be reviewed on a deferential standard that reflects its discretionary nature. As our Court stated in Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, appellate intervention is warranted only where the judge (1) made an error of principle in law; (2) misapprehended the evidence; (3) erred in reaching a conclusion for which there was no evidence; (4) failed to consider relevant factors, or considered irrelevant factors; or (5) made a palpably incorrect or wholly erroneous assessment of damages (para. 80; see also Housen; K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at para. 62; M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, at para. 54). . SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. [test]
In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. (SCC, 2026) the Supreme Court of Canada allowed an appeal, here where 'spoliation' and damages were central issues.
Here the court considers the modern test for finding 'spoliation' and the key inference that, when spoliation is found, "the court presumes that the destroyed evidence was unfavourable to the spoliator’s case":(2) The Test for Proving Spoliation
[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 (see Nova Growth Corp. v. Andrzej Roman Kepinski, 2014 ONSC 2763, at para. 296; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 5271, 35 C.C.E.L. (4th) 242, at para. 136, aff’d 2018 ONCA 283, 46 C.C.E.L. (4th) 35; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 440 A.R. 253, at para. 18; G. D. Cudmore, Civil Evidence Handbook (loose-leaf), at § C:1, § 1; K. A. McKague and E. Lin, “Why Would I Ever Plead Spoliation?” (2023), 54 Advocates’ Q. 93, at p. 94). 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 (Christian, at p. 907; see also St. Louis, at p. 670).
[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 (see Cudmore, at § C:1, § 2.1, citing CMT v. Government of PEI, 2020 PECA 12). 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 (as was the case in St. Louis). 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.
[82] The consequences of the mandatory presumption associated with a finding of spoliation will depend on the facts of the case and the extent of the prejudice to the non-spoliating party. Even where a party successfully proves spoliation, it does not necessarily follow that the party will succeed on its broader claim.
[83] Whether negligent destruction of evidence may qualify as spoliation, and whether spoliation should be recognized as an independent tort in Canada, are open questions in Canadian law. Without the benefit of full submissions, we leave these issues for another day.
(3) The Content of the Remedies Associated With a Finding of Spoliation Are Discretionary
[84] The nature and scope of the remedies associated with a finding of spoliation is the second issue at the heart of this appeal. This section will explain that, once the court makes a finding of spoliation, a rebuttable presumption arises that the destroyed evidence would be unfavourable to the case of the party that destroyed it. The mandatory presumption does not dictate how or to what extent the destroyed evidence would have been unfavourable to the spoliator’s case. This is a discretionary and context-specific determination, usually in the form of an adverse inference, that is “best left to the trial judge who can consider all of the surrounding facts” (McDougall, at para. 4).
....
[125] The Court of Appeal found that BNY engaged in spoliation. Even so, for clarity, we briefly summarize and apply the test for spoliation in the circumstances. Establishing spoliation requires proof of 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. . SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. [history and purpose]
In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. (SCC, 2026) the Supreme Court of Canada allowed an appeal, here where 'spoliation' and damages were central issues.
Here the court considers the history of the doctrine of spoliation, locates it as a form of abuse of process and concludes with it's underlying policy:A. Historical Roots of the Doctrine of Spoliation
(1) Background
[69] The doctrine of spoliation dates back to the ancient Roman law of Justinian, when the Latin maxim omnia praesumuntur contra spoliatorem (“all things are presumed against the spoliator”) came to the fore (J. Cassels and C. Jones, The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada (2005), at p. 262; St. Louis, at p. 667). Spoliation originated in the context of loan transactions, as certain business records were considered prima facie proof of a loan (Cassels and Jones, at p. 262). The Romans applied the maxim with severity, as failing to produce such business records would not only cause claims to fail, but it would also amount to fraud upon the defendant (p. 262; see also St. Louis, at p. 667).
[70] The rigidity with which Roman law applied the maxim was not readily adopted by other legal systems (St. Louis, at p. 667). In the Canadian context, Girouard J. in St. Louis noted that spoliation, and illustrations of the maxim, were few and far between, which is still the case today (pp. 682-83; Cassels and Jones, at p. 262).
[71] From its origins, spoliation led to an evidentiary presumption: “When it was proved that a litigant had suppressed or destroyed evidence, the opposing litigant could rely on a presumption, generated by the fact of that destruction or suppression, that the spoiled evidence was harmful to the spoliating litigant’s case” (British Columbia Law Institute, BCLI Report No. 34, Report on Spoliation of Evidence (2004), at p. 3, citing Ward v. Apprice (1705), 6 Mod. 264, 87 E.R. 1011, at p. 1011; Armory v. Delamirie (1722), 1 Strange 505, 93 E.R. 664, at p. 664; and James v. Biou (1826), 2 Sim. & St. 600, 57 E.R. 475, at p. 477). The circumstances surrounding the destruction of documents had considerable influence on how the evidentiary presumption operated (BCLI Report, at p. 4).
(2) St. Louis v. The Queen (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649
[72] St. Louis was an appeal originating in Quebec and, as Girouard J. observed, Quebec law settled the point under dispute (p. 670). Because the Quebec law of evidence was understood to have mixed civil law and common law lineage, the Court considered the appropriate English sources including the treatment of the maxim omnia praesumuntur contra spoliatorem in the common law (p. 676). Justice Girouard’s review of sources beyond Quebec law included an extensive review of English and American law, a practice not uncommon in the Court’s jurisprudence at the time, and this led Girouard J. to conclude that “[t]aking this view of the law and the facts of this case, I have come to the conclusion that under both the Quebec Code and the English law the appellant cannot be regarded as a spoliator, and that even if he could he has fully rebutted the presumption” (pp. 689-90). This no doubt explains some of the currency of this Quebec case in the common law authorities, including recent ones, bearing on spoliation in common law jurisdictions.
[73] In St. Louis, the appellant contracted with the Department of Railways and Canals for the Dominion of Canada for stone and labour for the construction of railways and bridges (pp. 649-50). The appellant filed a petition of right against the Crown to recover the alleged balance owing on the contracts. The Crown argued spoliation, contending that the appellant fraudulently prepared payroll records that no longer existed, despite these records being the primary basis for his claim (pp. 650-51). The appellant admitted that he burned and destroyed all of his accounting records and time-books relating to these contracts such that none of the original records were available as evidence for trial. The Exchequer Court applied the presumption that the evidence wilfully destroyed by the appellant was harmful to his case. Accordingly, he was not entitled to any relief (p. 651).
[74] The Supreme Court allowed the appeal, concluding that the Exchequer Court had carried the omnia praesumuntur contra spoliatorem maxim too far (p. 652, per Taschereau J., concurring). Justice Taschereau noted that “[t]he destruction of evidence carries a presumption that the evidence destroyed would have been unfavourable to the party who destroyed it, but that presumption may be rebutted” (pp. 652-53).
[75] Justice Girouard, writing for the majority, agreed (p. 666). He found that because the operative statute did not create a duty to retain records and the appellant had destroyed his own evidence long before contemplating the court action, he “cannot be regarded as a spoliator, and that even if he could he has fully rebutted the presumption” by adducing “express and positive evidence to the contrary” (pp. 689-90; see also pp. 670 and 683-84).
B. The Modern Approach to Spoliation
(1) Policy Underpinning the Doctrine of Spoliation
[76] Engaging in spoliation runs contrary to two central tenets of the justice system: “. . . the establishment and maintenance of a fair trial process and the quest for the truth” (BCLI Report, at p. 1). It has been described as “a form of cheating” that “threatens to undermine the integrity of [the] civil trial process” (C. R. Nesson, “Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action” (1991), 13 Cardozo L. Rev. 793, at p. 793).
[77] The sanctity of the civil justice system depends on the honesty of parties and witnesses (see Doust v. Schatz, 2002 SKCA 129, 32 R.F.L. (5th) 317, at para. 27). Parties are duty-bound, through statute and common law, to preserve, disclose, and produce documents relevant to litigation. Discovery in the civil process “is central to the conduct of a fair trial and the destruction of relevant documents undermines the prospect of a fair trial” by striking at the heart of the legal process (para. 27; see also Dreco Energy Services Ltd. v. Wenzel, 2006 ABQB 356, 399 A.R. 166, at para. 47). The central pillar of our legal system is built upon the examination of evidence in the pursuit of truth, and it is only effective if all parties respect the process and disclose all relevant evidence (Dreco, at para. 47).
[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 (G. Underwood and J. Penner, Electronic Evidence in Canada (loose-leaf), at § 8:1; BMW Canada Inc. v. Autoport Limited, 2021 ONCA 42, 456 D.L.R. (4th) 443, at para. 48). From the court’s perspective, there is concern for the viability and credibility of the fact-finding process (R. J. Sommers and A. G. Seibert, “Intentional Destruction of Evidence: Why Procedural Remedies Are Insufficient” (1999), 78 Can. Bar Rev. 38, at p. 42). 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. . SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. [summary on spoliation]
In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. (SCC, 2026) the Supreme Court of Canada allowed an appeal, here where 'spoliation' and damages were central issues.
Here the court summarizes it's treatment of the case on the issue of 'spoliation':[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.
[2] This Court has not addressed the doctrine of spoliation since its seminal decision in St. Louis v. The Queen (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649. Since St. Louis was decided over a century ago, technology has become ubiquitous and demands on the civil justice system have evolved. Electronic document management is now the primary mechanism for record-keeping. 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 (see G. Christian, “A ‘Century’ Overdue: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents” (2022), 59 Alta. L. Rev. 901, at p. 902). This appeal invites the Court to clarify the doctrine of spoliation, from its principles to its practical function in modern civil litigation.
[3] The appellant, SS&C Technologies Canada Corporation (“SS&C”), is a Canadian data provider that acquires and processes specialized data used to generate pricing information for financial services companies to value securities. The respondent, the Bank of New York Mellon Corporation (“BNY”), is the world’s largest custodial bank, holding over US$35 trillion in assets under custody.
[4] The parties took diametrically opposed positions at every stage of the litigation. This appeal is no exception. At trial, while not making an express finding of spoliation, the trial judge drew adverse inferences against BNY based on its failure to produce and preserve relevant documents in the face of contemplated litigation. On appeal, the Court of Appeal for Ontario did not interfere with the adverse inferences drawn by the trial judge and made an express finding of spoliation against BNY. As these reasons explain, once a party proves spoliation, a mandatory presumption arises that the destroyed evidence would be unfavourable to the spoliator’s case. How this presumption is applied is discretionary and fact-specific. In this case, we would not disturb the Court of Appeal’s finding that BNY committed spoliation. However, the trial judge made errors of law and committed palpable and overriding errors in his assessment of damages that this Court cannot uphold. . Armstrong v. Moore
In Armstrong v. Moore (Ont CA, 2020) the Court of Appeal held that spoliation of evidence did not justify awarding punitive damages (yet). This is my mind makes it a candidate for tort status soon:[37] However, we defer to another day whether a court is entitled to rely on spoliation of evidence as providing a basis for awarding punitive damages. Ontario jurisprudence has yet to resolve definitively whether spoliation is a cause action: See Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 CanLII 17170 (ON CA), 49 O.R. (3d) 699 (C.A.), at paras. 12, 22; leave to appeal refused, [2000] S.C.C.A. No. 547. In our view, that issue need not and should not be resolved in this appeal. . Kiden Used Furniture v. Pearson
In Kiden Used Furniture v. Pearson (Ont CA, 2015) the Court of Appeal stated with respect to spoilation of evidence that: The usual remedy for spoliation is a presumption that the destroyed evidence would have been unfavourable to the party who destroyed it. But this adverse evidence inference is not capable of being positive proof of the landlord’s negligence. The appellant had the obligation of establishing that negligence and causation could be proven at trial and failed to do so on the motion.
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