Canada: Disclosure & Electronic Discovery & Privilege

The Supreme Court of Canada has clarified the legal test for spoliation, establishing a four-part framework that litigants must understand when preserving evidence. This doctrine, rooted in ancient Roman law, creates a mandatory presumption against parties who intentionally destroy or suppress relevant evidence, with courts now empowered to impose severe but proportionate remedies based on the magnitude of the misconduct.

The Supreme Court of Canada has addressed the doctrine of spoliation for the first time in over a century, establishing a clear framework for cases involving intentional destruction of evidence.

After more than a century, the Supreme Court of Canada has revisited the evidentiary doctrine of spoliation and the available remedies in SS&C Technologies Canada Corporation v. Bank of New York Mellon Corporation, 2026 SCC 29 (SS&C). The Court described spoliation as “the intentional destruction, alteration, mutilation or concealment of evidence with a view to subverting the truth-finding process during litigation”.

In Stack v The King, 2024 TCC 137, the Tax Court of Canada blocked the Canada Revenue Agency's attempt to obtain various documents, including an email record, that were protected by solicitor-client privilege.

Senior in-house lawyers rarely get the space to think. The demands of the role are relentless - the urgent matter, the inbox, the open door - and genuine strategic thinking is hard to protect when the operational pull never stops. The conversations that actually need to happen get deferred, again and again, in favour of whatever is most pressing today.

Parties to litigation can expect that particulars of the advice they have received from counsel will remain privileged in most instances. However, there are times when a party, through its actions or its pleadings...

This article is part of our 2025 Privacy Breach Insights series, designed to help companies navigate the evolving privacy breach landscape.

Solicitor-client privilege in Canada is a fundamental right and a substantive rule of law. Courts have repeatedly affirmed that solicitor-client privilege...

Researchers and academics are routinely required to defend statements they have made in the course of their work — at conferences of their peers...