UCalgary Law professor’s research cited by Supreme Court of Canada

University of Calgary Faculty of Law Associate Professor Dr. Gideon Christian’s research has been cited by the Supreme Court of Canada in a landmark decision modernizing Canada’s law of spoliation.

In its July 31 decision, SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., the Supreme Court revisited the doctrine of spoliation for the first time in approximately 130 years. As a result, the Court established a uniform four-part test for determining when spoliation has occurred and clarified the consequences when a party intentionally destroys or conceals relevant evidence.

Christian’s 2022 paper in the Alberta Law Review, “A ‘Century’ Overdue: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents,” argued that Canadian law needed to be updated to reflect the realities of digital evidence.

“Most documents today are digital, stored across multiple systems and devices, and sometimes deleted automatically by the press of a button or through routine data-retention processes,” Christian said. “These characteristics create challenges that were not evident in 1896.”

The Supreme Court drew on Christian’s research in its discussion of the need to modernize spoliation law for the digital age, the preservation duty underlying its new test, and the use of flexible and proportionate remedies.

Christian’s research was also cited by the Ontario Court of Appeal as the case proceeded through the appellate process.

“For any legal scholar, seeing your work cited by the courts is a great honour. But to have that work cited by the country’s highest court is one of the most significant forms of scholarly recognition. It is both humbling and, for me, a career-defining moment,” he said.

The decision brings greater certainty to an area of law that Christian says had previously been fragmented, with lower courts applying different formulations of the test and varying approaches to remedies.

The Supreme Court’s decision also leaves some questions open, including whether negligent destruction of evidence can constitute spoliation and whether Canadian law should recognize spoliation as an independent tort.

For Christian, the decision reinforces a fundamental principle of evidence preservation.

“The enduring principle emerging from this decision is simple but profound: a party must never be permitted to obtain an advantage from an evidentiary void that it intentionally created,” he said.

He hopes the decision will encourage organizations, lawyers, and litigants to treat information preservation as a central obligation of modern litigation.

“In an age of vast and increasingly complex digital records, the integrity of the justice system depends on responsible information governance beginning long before the parties enter a courtroom.”