Weilers LLP

What Is Spoliation?

What Is Spoliation?

February 6, 2024

By Brian Babcock

Spoliation is the legal term for the intentional destruction or concealment of relevant documents, in a lawsuit, or when you expect a lawsuit. It is well-established in Ontario and elsewhere in Canada that this is at least a rule of evidence which gives rise to a rebuttable presumption that the concealed or destroyed evidence would have hurt your case. So, it is a very bad idea.


It remains unclear whether or not you can bring a separate standalone claim for damages for spoliation. This appears to be the law in the United States. Though it has been argued about for over 20 years in Canada, no final decision has been reached, and it seems increasingly unlikely that spoliation will be extended past a rule of evidence.


The Ontario Court of Appeal reviewed the principles of spoliation in a 2023 decision, Trillium Power Wind Corporation v. Ontario. That decision dealt with emails and other records destroyed due to an improper destruction policy.

Spoliation as a rule of evidence is necessary because spoliation undermines a fair trial and would be an abuse of process. In addition to the presumption, it may affect the determination of costs following a trial.

In the Trillium case, as in prior cases, the issue as to whether spoliation itself can lead to damages was allowed to proceed to trial. None of the prior decisions has gone to trial (an estimated 95% of Ontario lawsuits do not reach trial). Trillium  will not change this, as the Court determined that the company would be unable to prove damages arising from the spoliation. Instead, Ontario was deprived of the costs it would normally recover and required to pay costs to the Plaintiff.


  • Every party to a lawsuit has a duty to disclose all relevant documents.
  • As a result, hiding or destroying documents is a bad idea.
  • Penalties for spoliation will arise if you intentionally destroy evidence in the face of a lawsuit.
  • This applies even if you have not yet been sued.
  • Contemplating that you MIGHT be sued is enough to be penalized.
  • Though damages have not yet been awarded for spoliation itself, the penalties can be devastating.
  • Having a suitable retention and destruction policy is important.
  • Following that policy consistently is more crucial.



Preservation and production of relevant documents is a tricky subject. The real takeaway from this article, we hope, is to encourage you to obtain legal advice early when faced by a potential lawsuit. Lawyers, such as the litigation team at Weilers LLP, have training and experience in the rules of evidence. We can advise you even before you face a claim about preservation of document policies. We can provide effective representation throughout the discovery process. We are capable advocates on motions or trials on evidentiary issues. If you think we might be the lawyers you need, please get in touch.