In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., 2026 SCC 29 ( “SS&C Technologies”), the Supreme Court of Canada sets out the principles applicable to spoliation in civil litigation and to the adverse inference drawn against the party responsible. In doing so, the Court revisits, for the first time since 1896, the principle dating back to ancient Roman law that “all things are presumed against a spoliator” (omnia praesumuntur contra spoliatorem)[1].

The Court describes spoliation as an intentional act aimed at obstructing the search for truth in relation to ongoing or anticipated litigation. A rebuttable presumption then arises: in the absence of evidence to the contrary, the court must presume that the missing evidence would have been unfavourable to the party that destroyed it, thereby filling the evidentiary gap. The scope of this adverse inference is left to the discretion of the court, which will determine it in light of the factual circumstances of the case, with the objective of restoring fairness to the trial.

Although this decision was rendered under Ontario law, we consider the principles it establishes relevant to Quebec law. Quebec courts have long recognized that the requirements of good faith may entail an obligation to preserve evidence relevant to litigation, as well as the possibility of drawing an adverse inference from the destruction of such evidence.

Since the coming into force of the new Code of Civil Procedure in 2016, the obligation to preserve evidence has been codified, although the legislature has not specified the sanctions applicable in the event of a breach. Adverse inference remains a recognized remedy in Quebec, and its parameters may continue to develop in light of the recent guidance provided in SS&C Technologies, while respecting the principles of civil law.

We will first present the factual background and the principles established in SS&C Technologies, then examine the relevance of those principles under Quebec law and offer some practical observations.

Factual Background

The appellant, SS&C Technologies Canada Corp. (“SS&C”), is a provider of specialized securities market pricing data.

The Bank of New York Mellon Corporation (“BNY”) is a custodian bank offering global securities custody services, including to Canadian clients through a Canadian joint venture.

Under a licensing agreement, BNY could order specialized data from SS&C to value its clients’ accounts. BNY paid for the data for each security, based on the total volume of data obtained, but could use the information for an unlimited number of clients. However, under the licensing agreement, BNY was prohibited from disclosing or selling the data to third parties, including affiliated companies[2].

The dispute arose when SS&C discovered that BNY was redistributing the proprietary data supplied by SS&C to affiliated entities, for compensation and without authorization, in breach of the licensing agreement. Following this discovery, SS&C requested that BNY preserve evidence relating to the redistribution of the data, particularly concerning its extent and the revenue generated. BNY refused and continued to apply its usual data retention policy, which provided for deletion after 30 days. Relevant evidence was therefore destroyed[3].

The Court found that BNY’s internal data retention policy did not justify the destruction of evidence relevant to the litigation. BNY’s refusal to preserve the evidence despite an express request to do so, based on its disagreement with SS&C’s allegations, was characterized as particularly shocking conduct that undermined the fairness of the trial and its truth-seeking function.

Clarification of the Applicable Principles

As a matter of legal principle, the SS&C Technologies decision establishes (i) a test for determining whether spoliation has occurred and (ii) the criteria courts must apply when determining the appropriate remedy following a finding of spoliation.

To establish that spoliation has occurred, the following must be proven[4] :

(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.

This test implicitly demonstrates the obligation to preserve evidence relating to ongoing or anticipated litigation. Accordingly, the unjustified destruction of evidence in this context should readily support a finding that the purpose of the destruction was to influence the litigation.

If these four elements are established, the court presumes that the evidence would have been unfavourable to the party that destroyed it.

The party responsible for the spoliation may attempt to rebut this presumption by demonstrating that the missing evidence would not have been detrimental to its case[5]. Otherwise, the adverse presumption becomes mandatory[6].

The content of the adverse inference to be drawn is left to the discretion of the trial judge, who is in a position to assess how and to what extent the destroyed evidence would have been unfavourable to the case of the party responsible for its spoliation[7]. The trial judge thus has the flexibility to determine appropriate remedies to compensate for the missing evidence and address the specific prejudice arising from the facts[8].

In exercising this discretion, the trial judge must (i) examine the circumstances, extent and impact of the destroyed evidence[9] and (ii) draw an adverse inference capable of filling the gap left by the spoliation of evidence, thereby correcting the resulting imbalance[10]. The party responsible for destroying the evidence must not benefit from the evidentiary gap it created, but must instead bear its consequences.

Despite the seriousness of conduct constituting “a blatant attack on the civil justice system,” the remedy need not necessarily be based on the most severe adverse inference possible. Rather, it must be proportionate, taking into account the circumstances and extent of the prejudice caused by the spoliation[11].

Application of the Principles in SS&C Technologies

The Court confirmed that BNY had engaged in spoliation, finding that all four required criteria had been established[12].

The destroyed evidence would have made it possible to determine the number of entities that used the data following its redistribution by BNY, as well as the quantity of data used[13]. Even without that evidence, it was established that BNY had the ability to repeatedly disclose SS&C’s data to as many as 65 unauthorized entities over a period of more than 17 years[14]. BNY had also argued, incorrectly, that the licensing agreement authorized it to disclose the data to all its affiliated companies, without pleading that it had not done so[15].

In these circumstances, the Court found that the trial judge was required to draw inferences leading to concrete factual findings adverse to BNY. To fill the gap left by the spoliation, the Court proposed a presumption that all 65 BNY-affiliated entities capable of accessing the data had benefited from it, with each entity using all the data to which it had access[16].

Instead, the trial judge had limited the inferences to findings that certain unauthorized entities had accessed the data and used it to a more than minimal extent[17]. The Court found that this vague range of possible unauthorized uses rested on weak and incomplete inferences, insufficient to fill the gap left by the spoliation[18]. The trial judge therefore failed to restore the balance between the parties by requiring BNY to bear the uncertainty and evidentiary deficiencies resulting from its spoliation[19].

Furthermore, the trial judge had adopted a proportional approach consisting of extrapolating the use made of approximately half of the data, which was known, to estimate the use made of the other half, for which BNY could not account[20]. However, the evidence did not support the assumption underlying this approach, namely that only the unaccounted-for data had been redistributed, and that such redistribution had occurred only once to a single affiliated entity[21]. Rather, BNY had the ability to redistribute all the data, whether accounted for or not, to all affiliated entities[22]. The mandatory adverse inference should therefore have reflected this possibility.

The matter was accordingly remitted to the trial court for a new determination of damages.

Relevance of These Principles in Quebec

The Court’s previous decision on this issue, St-Louis v. The Queen (1896), 25 S.C.R. 649 (the “St-Louis” decision), originated in Quebec and applied Quebec law. Given its mixed origins in civil law and common law, the treatment of the maxim omnia praesumuntur contra spoliatorem under common law was examined alongside the Civil Code of Lower Canada. The application of English law principles explains the relevance of this Quebec decision in common law jurisdictions.

At the time, there was no obligation to preserve evidence[23]. In that context, the St-Louis decision qualified the application of the maxim omnia praesumuntur contra spoliatorem, recognizing that the presumption that destroyed evidence would have been unfavourable to the party responsible could be rebutted[24]. In that case, the plaintiff had destroyed payroll records that would normally have supported its claim concerning labour performed in connection with construction work. The Court nevertheless did not dismiss the claim, which was based on reconstructed evidence, because the plaintiff had destroyed its own evidence before contemplating legal proceedings[25].

Since then, although Quebec courts have recognized the possibility of drawing an adverse inference from spoliation by relying on St-Louis, precedents applying this principle in the province remain rare.

In 2006, in Union canadienne (L’), compagnie d’assurance v. Crane Canada Company, 2006 QCCS 1412[26], a case involving destructive testing that altered an item of evidence, the Superior Court emphasized that no independent cause of action arose from spoliation. The judge specified that the expert who performed the testing had no obligation to preserve the subject of his expert analysis from a pre-litigation stage. Consequently, the third-party warranty claim brought by the manufacturer, which had been sued in connection with the failure of its product, against the expert who had performed the destructive testing was dismissed as inadmissible. The judge indicated that the manufacturer could, at most, invoke an adverse inference in support of its defence, in accordance with St-Louis, with its assessment being left to the trial judge.

In 2011, in Jacques v. Ultramar Ltée, 2011 QCCS 6020, the Superior Court, hearing an application for the preservation of evidence, observed that the Code of Civil Procedure then in force contained no provision establishing a formal obligation for a party to preserve evidence relating to litigation that had already commenced. However, the judge recognized an implicit obligation to preserve evidence based on the general duty of good faith, while specifying that the only sanction for spoliation in civil matters was an adverse inference, in accordance with St-Louis. The judge therefore dismissed the application for preservation of evidence.

Since 2016, the new Code of Civil Procedure (“C.C.P.”) has imposed an obligation to preserve evidence relevant to litigation under articles 20 and 251:

20. The parties are duty-bound to co-operate and, in particular, to keep one another informed at all times of the facts and particulars conducive to a fair debate and make sure that relevant evidence is preserved. (…)

251. A party in possession of real evidence is required, on request, to present it to the other parties or, subject to the conditions agreed with them, to submit it to an expert; the party is also required to preserve, until the end of the trial, the real evidence or, if applicable, a suitable representation that shows its current state.

A third person holding a document relating to a dispute or in possession of real evidence is required, if so ordered by the court, to disclose it, present it to the parties, submit it to an expert or preserve it.

[Emphasis added]

In 2016, in Mag Energy Solutions inc. v. Falconer Cloutier, 2016 QCCS 2830, the Superior Court, hearing an application for an injunction seeking to order the preservation of electronic documents and permit access to them, reviewed the rules governing the preservation of evidence. The judge emphasized that, according to the comments of the Minister of Justice, article 20 C.C.P. restates a previously implicit rule, namely the rule based on the duty of good faith recognized in Jacques v. Ultramar Ltée, cited above. A party’s obligation to preserve evidence under articles 20 and 251 C.C.P. applies in all cases, without the need for a court order. Although article 20 C.C.P. does not provide for any specific sanction in the event of a breach of this obligation, the judge reiterated that spoliation will normally give rise to an adverse inference against the responsible party[27].

In 2020, in Hewlett-Packard France v. Matrox Graphics Inc., 2020 QCCS 78, the plaintiff submitted excerpts from its internal database in support of its claim. The database recorded defects in the defendant’s graphics cards. Following a system migration, the data became inaccessible, before article 20 C.C.P. came into force. In the absence of any evidence of bad faith involving the destruction of evidence with the intention of influencing the litigation, the judge did not consider that a breach of the obligation to preserve evidence was sufficient to justify drawing an adverse inference against the plaintiff. An important factual distinction in that case was that the defendant had obtained a copy of the data before its destruction and was therefore not prevented from preparing for trial. The issue in the case concerned the best evidence rule, rather than prejudice resulting from the destruction of evidence.

This brief historical overview demonstrates that our current procedural rules, like those of the common law, impose an obligation to preserve evidence and that an adverse inference against a party that destroys evidence forms part of Quebec law. From this perspective, we consider the guidance provided in SS&C Technologies applicable to cases involving the intentional destruction of evidence by a party involved in ongoing or anticipated litigation.

Furthermore, SS&C Technologies establishes that spoliation constitutes abusive conduct[28]. This raises the question of whether a legal proceeding or another procedural act could be considered abusive under articles 51 et seq. C.C.P. as a result of the spoliation of relevant evidence, thereby triggering the courts’ powers to sanction procedural abuse.

Finally, we note that SS&C Technologies does not resolve the question of whether the negligent destruction of evidence may lead to an adverse inference[29]. This question could receive distinct treatment under Quebec law in the future. On the one hand, it has been recognized that an implicit obligation to preserve evidence may be based on the general duty of good faith, whose requirements are grounded in the standard of conduct of a reasonable person, without requiring bad faith. On the other hand, article 20 C.C.P. provides that a party’s obligation to preserve evidence relevant to litigation is based on a duty to cooperate, which may be understood as a positive duty extending beyond the mere prohibition against intentionally destroying evidence in bad faith.

The parameters of the adverse inference, as a remedy for cases involving spoliation may therefore continue to develop in Quebec, not only in light of the recent guidance provided in SS&C Technologies, but also through the application of principles specific to civil law.

Practical Considerations

An adverse inference against a party that destroys evidence constitutes a remedy capable of addressing the prejudice caused by spoliation in relation to the merits of a judicial dispute. Although certain remedies may seek to prevent the destruction of evidence or ensure its preservation, such as a prohibitory injunction or an Anton Piller order[30], only an adverse inference can fill the gap resulting from the spoliation during active litigation. Despite the challenges that may arise from incomplete evidence, this remedy helps correct the resulting imbalance by partially offsetting the prejudice caused and requiring the party at fault to bear the burden of the resulting uncertainty. The clarification provided in SS&C Technologies opens the door to more frequent reliance on this principle before Quebec courts.

In this case, the Court emphasized the importance of the preservation notice sent by SS&C[31]. By clearly notifying BNY of the contemplated litigation, there could be no doubt about the obligation to preserve the evidence, and it was readily concluded that BNY had destroyed the evidence with the objective of influencing the outcome of the litigation. Accordingly, depending on the circumstances, it may be appropriate to include a request to preserve evidence, or at least a reminder of this obligation, in a formal demand letter or other notice. Such an approach may facilitate proof that litigation was reasonably foreseeable, as well as the establishment of a breach of the obligation to preserve evidence if the evidence is subsequently destroyed.

Furthermore, lawyers should advise the parties they represent of their obligation to preserve evidence relevant to ongoing or anticipated litigation, as well as the potential consequences of failing to comply with that obligation. In particular, where a company has an internal records retention policy providing for the periodic destruction of information or documents, it may be prudent to recommend suspending its application to the extent that it could result in the destruction of relevant evidence. To this end, a document preservation notice (litigation hold) may be sent to the individuals concerned within the company to ensure that the necessary measures are taken, at both the individual and organizational levels, to preserve relevant evidence.

[1] St-Louis c. The Queen (1896), 25 S.C.R. 649; SS&C Technologies, para. 2.

[2] SS&C Technologies, para. 18.

[3] SS&C Technologies, para. 35.

[4] SS&C Technologies, para. 80. A finding of spoliation is a question of mixed fact and law, subject to the standard of review of palpable and overriding error, unless there is an error of law attracting the correctness standard (para. 121).

[5] SS&C Technologies, para. 81.

[6] SS&C Technologies, paras. 81–82, 124.

[7] SS&C Technologies, para. 84. The adverse inference drawn by the trial judge is a question of fact, subject to the standard of review of palpable and overriding error (para. 120).

[8] SS&C Technologies, para. 87.

[9] SS&C Technologies, para. 89.

[10] SS&C Technologies, paras. 90, 124, 133.

[11] SS&C Technologies, para. 95.

[12] SS&C Technologies, paras. 125–126.

[13] SS&C Technologies, para. 131.

[14] SS&C Technologies, para. 144.

[15] SS&C Technologies, para. 129.

[16] SS&C Technologies, para. 133.

[17] SS&C Technologies, para. 131.

[18] SS&C Technologies, paras. 131–133.

[19] SS&C Technologies, para. 124.

[20] SS&C Technologies, paras. 48–49.

[21] SS&C Technologies, paras. 12, 135, 141.

[22] SS&C Technologies, para. 159.

[23] SS&C Technologies, para. 75.

[24] SS&C Technologies, paras. 74 and 96.

[25] SS&C Technologies, para. 75.

[26] The decision on inadmissibility was overturned on appeal (2006 QCCA 1200), without the Court of Appeal ruling on the issue of spoliation. The case was never heard on its merits.

[27] See SS&C Technologies, para. 110, citing this decision.

[28] SS&C Technologies, para. 78.

[29] SS&C Technologies, para. 83.

[30] Mag Energy Solutions inc. c. Falconer Cloutier, 2016 QCCS 2830, paras. 39–43 and 60–65.

[31] SS&C Technologies, para. 61.