Introduction

In the past few months I’ve mediated several slip-and-fall cases in department stores and big-box retailers where surveillance footage was overwritten before anyone pressed “litigation hold.” I also had a case involving surveillance cameras on a public bus, where much was made of the fact that the video camera that would have shown the best angle of the plaintiff’s slip and fall was “conveniently” out of service.

Plaintiffs’ counsel move quickly to level spoliation allegations. Defence counsel argue the videos were auto-deleted under routine retention cycles. That’s become the fault line in occupiers’ claims today.

Was video destroyed with the intent to tilt the lawsuit, or did it roll off a neutral system before litigation was reasonably in view?

The Legal Ground in Ontario

Ontario law is blunt about that dividing line: spoliation is about intent, not mere loss.

The best Ontario articulation I have found comes from Nova Growth Corp. v. Kepinski, 2014 ONSC 2763^[1], where the Justice Newbould at para. 296  set out a four-part test: the missing evidence must be (1) relevant, (2) intentionally destroyed, (3) at a time when litigation was ongoing or reasonably contemplated, and (4) in circumstances where it’s reasonable to infer the evidence was destroyed to affect the outcome.

The Court added an important guardrail. You need a particular piece of evidence tied to that inference. Speculation about what “might” have been on a tape won’t do (para. 314):

Speculating about what might have been destroyed is not good enough for an inference to be raised. There must be a particular piece of evidence that has been destroyed that is relevant. Without knowing that it would not be possible to make any meaningful inference.

The intent requirement is why routine overwriting—the core of most retail spoliation fights—often fails as a spoliation claim.

In Leon v. Toronto Transit Commission, 2014 ONSC 1600^[2], a transit CCTV recording was overwritten under ordinary policy. The Superior Court rejected spoliation because, when the video cycled, litigation was not yet reasonably in contemplation and there was no evidence the deletion aimed to influence a lawsuit. The Divisional Court affirmed that result and the spoliation analysis^[3]. For retailers, Leon translates cleanly, namely if a store’s DVR overwrote footage before anyone reasonably foresaw a claim, and there’s no sign of gamesmanship, spoliation won’t stick.

But when the facts show deliberate destruction after litigation looms, Ontario courts are prepared to sanction hard. In Trillium Power Wind Corporation v. Ontario, 2023 ONCA 412^[4], the Court of Appeal found Ontario had intentionally destroyed relevant evidence and held that the circumstances amounted to an abuse of process. The remedy the Court chose was measured but meaningful. It deprived Ontario of its costs at trial and awarded Trillium its costs on appeal—underscoring that courts will craft sanctions that fit the misconduct even where damages are not awarded on the spoliation claim itself.

Is There a Standalone Tort of Spoliation?

Where does that leave the “tort of spoliation” debate? I believe Ontario has left it open.

In Spasic Estate v. Imperial Tobacco Ltd., 2000 CanLII 17170 (ON CA)^[5], the Court of Appeal recognized the concept but did not conclusively endorse a standalone damages tort, confirming at paragraph 24 that in sending the matter back down, the trial judge was “free to consider” whether to recognize a tort of spoliation at first instance (not to be bound by Rintoul et al. v St. Joseph’s Health Canter 42 O.R. (3d) 379^[6] that had previously denied spoliation was a separate tort).

The bottom line in Ontario appears to me to remain that spoliation functions as an evidentiary and procedural doctrine—presumptions, adverse inferences, and process remedies—while the availability of a free-standing tort is unresolved. Trillium itself deliberately addressed the conduct as an abuse of process and imposed costs without deciding the tort question.

Why Retail Video Is the New Battleground

Video surveillance has become a central battleground in modern occupiers’ liability litigation, and certainly in many matters I have mediated. Most retail systems operate on short loops, overwriting within days or weeks. Extracting hours of multi-camera footage is costly and disruptive, and many stores resist doing so unless compelled. Yet once an incident occurs, the duty to preserve relevant evidence arises, and the courts expect video to be treated with the same seriousness as maintenance logs or witness statements.

This creates an uncomfortable collision between cost control and preservation obligations. The Court sometimes resolves cases for defendants on summary judgment, as in Carnovale v. Longo’s, 2017 ONSC 4131^[7], where the video clarified facts. But in Rego v. Walmart, 2017 ONSC 812^[8], the court refused to grant summary judgment because the video did not eliminate genuine factual disputes.

Practical Guidance for Occupiers and Retailers

For occupiers and retailers trying to control costs, the practical playbook is clear. Traditional good housekeeping still wins the day.

First, set and follow a neutral, written retention policy for CCTV.

Second, the moment a fall is reported or a claim is anticipated, suspend auto-deletion (litigation hold) and pull the relevant clips. Don’t rely on a 30/60/90-day cycle to save you.

Third, document the chain. Who pulled the footage. When? What was exported, and where it’s stored?

Fourth, expect that courts will look for particularity. What exactly is missing? Why is it relevant, and what’s the evidence of intent? That is Justice Newbould’s test in  Nova Growth.

Finally, remember that even where a plaintiff proves intentional destruction, Ontario courts have shown they will tailor remedies, including adverse inferences and costs sanctions, to fit the prejudice and the integrity of the process rather than automatically handing out windfalls. Trillium is the modern template for that proportional, process-focused response.

Practical Guidance for Plaintiffs

For plaintiffs, the message is equally unsentimental. If your spoliation theory rests on a hunch that “the video would have helped us,” you’re on thin ice. You’ll need to prove a specific clip existed, that the retailer knew or ought to have known litigation was reasonably on the horizon when it was lost, and that it was intentionally destroyed to affect the case. That’s more than proving negligence, it’s proving purpose. That is why routine overwriting before a claim surfaces (per Leon) typically defeats spoliation, even if it still leaves room to argue negligence under the Occupiers’ Liability Act^[9] based on inspection systems, cleaning logs, and weather protocols.

The Bottom Line 

In short: spoliation isn’t a back-door to liability in Ontario retail slip-and-falls. It’s a narrow, intent-driven doctrine aimed at protecting the Court’s truth-seeking function. Retailers who lock down evidence the instant an incident is reportable are unlikely to run into trouble. Those who don’t (and worse, who purge after lawyers are engaged) can expect courts to treat that as an abuse of process and to adjust the cost consequences accordingly.