Store security systems often record over themselves on a rolling cycle. A contractor’s crew can tear out a failed floor the morning after you complain. A phone traded in during an upgrade may take years of messages with it. By the time a lawyer reads a statement of claim, some of the most useful evidence in a dispute may already be gone, without anyone having meant any harm.
The first days after something goes wrong matter out of all proportion to the rest of the case. Nothing in this article requires you to be a detective. It mostly comes down to slowing down, saving what you have, and asking other people to do the same before it disappears.
This is general information about evidence in Ontario civil disputes. It is not legal advice, and an urgent problem such as evidence about to be destroyed should go to a lawyer right away.
Why This Comes Before Everything Else
Once a lawsuit is under way, the parties must disclose every relevant document in their possession, control, or power, and swear an affidavit saying they have done so. “Document” is read broadly and includes electronic data. Those obligations can reach back to information you have today, which means anything thrown away now can become a problem later.
Evidence loss cuts in two directions. If you are likely to bring a claim, you need proof. If you are likely to be sued, the missing evidence might have helped you, and its disappearance can make you look as if you had something to hide. Treat both situations alike and keep everything.
What Spoliation Means
Spoliation is the legal term for the intentional destruction of relevant evidence when litigation is under way or reasonably contemplated. The Supreme Court of Canada’s decision in St. Louis v. The Queen (1896) is the traditional source of the rule that a court can presume the destroyed evidence would have hurt the party who destroyed it. That presumption can be rebutted, for instance by showing the evidence was lost without any intent to affect a lawsuit.
Ontario courts also have other responses available, including adverse inferences, cost consequences, and orders concerning the conduct of the case. The Ontario Court of Appeal, in Spasic Estate v. Imperial Tobacco Ltd. (2000), declined to strike out a claim based on spoliation as a standalone wrong, and left the question open for trial. Do not assume you have a separate lawsuit just because someone deleted something, but do treat deletion seriously.
The practical message is simple. Once you can see a dispute coming, stop deleting.
Things That Vanish Quickly
The urgent items are usually the ones controlled by systems or other people, rather than the paper in your drawer.
Video. Doorbell cameras, plaza cameras, gas station systems, and dashcams usually record over old footage on a cycle, and that may be only days or weeks. If you think a nearby business in a Brampton plaza caught the collision or the incident, go in or send a written request at once. Ask politely, give the date and time window, and ask that the footage be saved even if they can’t release it to you yet.
Messages. WhatsApp, Signal, and similar apps can be set to auto-delete. Turn off disappearing messages. Export complete conversations instead of relying on screenshots, and do not reset, trade in, or sell your phone until the data is backed up.
Online content. A competitor’s advertisement, a false review, a contractor’s website claiming a licence, or a listing describing a house can all be changed in an instant. Capture the page with its URL and date, and keep the file.
Physical things. Defective products, failed parts, a damaged roof shingle, a contaminated flooring sample. Keep the item, photograph it where it was found, and store it safely without altering it.
Business systems. Accounting software, shared drives, and email accounts can have retention settings. Some are purged when an employee leaves. If your business is involved, this needs attention right away.
Witness memories. Names and contact details are the easiest thing to lose. Write down who was there, and consider having your lawyer contact them while the event is fresh.
Repairing Damage Without Destroying the Case
This is where preservation and real life collide. You cannot leave a leaking roof open for six months so that the other side can inspect it. In most cases you also have a duty to take reasonable steps to limit your loss. Nothing stops you from making urgent repairs to keep your home safe, but you should do it carefully.
A sensible order of events, wherever safety permits:
- Photograph and video everything in detail, in good light, with wide shots and close-ups. Include something for scale.
- Get a written assessment from a qualified person before work is done. A short engineer’s visit can be far cheaper than losing the argument later.
- Give written notice to the party you hold responsible, and to their insurer if you know who that is. Say what you found, when the repairs must start and why, and give them a reasonable, specific chance to inspect.
- Keep removed materials where practical, labelled with the date and location. Ask your contractor not to dispose of them.
- Keep every invoice, quote, and photo of the repair itself.
An owner who writes, “We must begin repairs on Monday because water is entering the home; you may inspect before then,” is in a much better position than someone who repairs in silence and sends the bill a year later. Your own insurer should also be told about the loss early, and its adjuster may have its own requirements.
Sending a Preservation Letter
If someone else holds the evidence, a preservation letter is often the first tool. It puts the recipient on notice that a dispute exists and asks that relevant materials be kept. A helpful letter:
- Identifies the incident or contract, with dates.
- Lists the specific categories to be retained, such as footage from specified cameras, work orders, dispatch logs, or text messages.
- Asks that automatic deletion be suspended.
- Requests written confirmation by a set date.
The letter does not itself force anyone to do anything. Its value is that if the evidence later disappears, the recipient will find it far harder to claim innocent loss. Tone matters, too. A calm, specific request is more likely to be followed by the manager of a store or a former business partner than a threat, and it reads better if a judge ever sees it.
A caution for those who are not represented: keep it factual. Do not threaten to report someone to police or a regulator as leverage in a civil dispute, since that can create problems of its own. Our guide to small claim matters sets out how disputes at the lower end of the scale move forward.
If You Are the One Expecting to Be Sued
Businesses tend to think of this as somebody else’s obligation. If you receive a demand letter, a complaint, or a lawyer’s notice, or if you know of an accident on your premises, assume the duty to preserve has begun.
A small company can put in place a basic hold in an afternoon:
- Tell staff in writing not to delete or alter anything related to the matter.
- Suspend automatic deletion on email, phones, and security systems where possible.
- Secure the devices and accounts of any departing employees involved.
- Save the relevant paper files in one place.
- Notify your insurer, and follow its instructions.
Avoid creating fresh commentary as well. Staff who swap speculative messages about who was at fault may be creating producible documents. Keep internal discussion to what’s necessary, and route sensitive analysis through counsel, recognizing that privilege has limits and does not cover everything simply because a lawyer was copied.
Getting It Lawfully
Keep the line between saving your evidence and collecting other people’s clearly in mind. Do not log in to an ex-partner’s or former business partner’s account, install tracking software, or copy a co-worker’s files. Beyond possible criminal and privacy consequences, such conduct can lead to the evidence being challenged, and can damage your credibility or result in cost consequences.
Recording a conversation that you are part of is generally not a crime under the Criminal Code. Recording a conversation between other people when you are not a party to it can be. Even a lawful recording may raise issues in court, or in the workplace or under a contract, so get advice before making a habit of it.
If you need police records from an incident, for example from Peel Regional Police, request them through the proper channels. Records held by the City of Brampton may be requested through the City’s freedom of information process. Your lawyer can help frame requests for items that will be useful and can advise about timing.
When a Court Order Is Needed
Letters are not always enough. Ontario courts have several tools, each with its own test. They are usually sought through a lawyer, and some can be expensive.
Preservation of property. Rule 45.01 lets the court make an interim order for the custody or preservation of property relevant to an issue in a proceeding, and it may authorize entry onto property for that purpose. It requires a proceeding to be under way, or sometimes to be started at the same time.
Non-party production. Rule 30.10 allows the court, in an existing action, to order production of a relevant document held by a non-party, if it would be unfair to require you to go to trial without it.
Norwich orders. When you need information from an innocent third party, such as a bank or platform, to identify a wrongdoer or trace funds, a court can make a pre-action disclosure order. GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, is an Ontario Court of Appeal decision that discusses this remedy, and it is treated as an exceptional and carefully controlled one.
Anton Piller orders. In rare cases where there is strong evidence that a party will destroy key material, a court can authorize a search and seizure of evidence, without prior notice, supervised by an independent lawyer. The Supreme Court of Canada has said these are extraordinary orders, including in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, and they carry significant cost and undertakings.
Examining a witness before the action. Rule 36.01 can allow evidence to be taken ahead of trial, including for an intended proceeding, for a witness who may be unavailable, such as someone seriously ill or about to leave the country.
Our page on civil motions and applications describes how motions of this sort work more generally.
Organize Without Altering
Preserving evidence does not mean rearranging it. Keep original files as they are, and work from copies. File names can record the source and date, but do not edit the underlying file. Do not crop the screenshot you plan to rely on, or annotate the only copy of an invoice. A simple spreadsheet with the date, what the item is, where it came from, and who holds it will save a surprising amount of legal time later. Keep private notes to your lawyer separate from your evidence file, and label them clearly.
Preservation also does not pause the limitation clock. While you gather material, the two-year basic limitation period keeps running, and shorter notice periods may apply to some claims, including claims against municipalities. Don’t let a thorough collection effort become a reason to miss a deadline.
If something important may soon be lost, the safest course is to act today and sort out how much it matters later. You can contact the firm if evidence is at risk and a dispute looks likely in Brampton or elsewhere in Peel, and a lawyer can review what needs to be secured and how.