Can text messages and emails be used as evidence in an Ontario civil case?

Yes, electronic communications such as emails, text messages, social media posts, and chat logs are regularly admitted as evidence in Ontario civil cases. They are treated as documents under the Rules of Civil Procedure and must be disclosed in your Affidavit of Documents if they are relevant to the issues in the lawsuit.

Authenticating electronic evidence — proving that the message is what it purports to be and was sent by the person claimed — is an important practical step. In many cases authentication is not disputed. Where it is contested, the party seeking to admit the evidence may need to call a witness who can identify the communications or provide technical evidence about the source. The Ontario Evidence Act and the Canada Evidence Act also contain provisions dealing with the admissibility of electronic documents.

Courts in Ontario expect parties to preserve potentially relevant electronic communications once litigation is anticipated. Deleting emails or text messages after becoming aware of a potential claim can amount to spoilation of evidence — a serious problem that can result in adverse inferences being drawn against the party who destroyed the evidence. If you think a dispute may lead to litigation, take steps to preserve your electronic records, back up devices, and speak with a lawyer about a preservation strategy before anything is lost.