- You do not need an actual lawsuit filed against you to trigger a preservation obligation.
- The obligation is not to keep every document a business or person has ever created.
A dispute is brewing — a customer is threatening to sue, an employee has hired a lawyer, or a business relationship is falling apart in a way that smells like litigation. At the same time, your normal operations do not stop: emails still get archived, old files still get purged, and backup systems still cycle through their routine schedules.
That raises a real question: does document retention once litigation is anticipated in Ontario mean you have to freeze everything? The short answer is no — but the scope of what you must keep is broader, and more important, than many people assume.
What "Reasonably Anticipating Litigation" Actually Means
You do not need an actual lawsuit filed against you to trigger a preservation obligation. Once a dispute reaches the point where a reasonable person in your position would expect litigation is likely — a formal demand letter, a threat to sue, a serious complaint with a lawyer involved — courts generally expect you to start protecting relevant records from that point forward.
This is a judgment call, not a bright-line test tied to a specific date or document. When in doubt, treat the obligation as having already started rather than waiting for certainty.
Before vs. After: What Changes
| Before Litigation Is Anticipated | Once Litigation Is Reasonably Anticipated | |
|---|---|---|
| Routine deletion schedules | Generally fine to continue as normal | Should be paused for anything relevant to the dispute |
| Auto-archiving/backup cycling | Not a concern | May need to be suspended for relevant accounts or files |
| Employee device/email wipes | Standard IT practice | Should exclude anyone connected to the dispute |
| Day-to-day, unrelated records | No special treatment needed | Still no special treatment needed |
| Communications about the dispute itself | Kept as a matter of course | Must be actively preserved |
What the Preservation Duty Actually Covers
The obligation is not to keep every document a business or person has ever created. It applies to records that are relevant to the dispute — or reasonably likely to become relevant — including:
- Emails, texts, and messages discussing the events at issue
- Contracts, invoices, and other records tied to the relationship or transaction in question
- Internal notes, reports, or communications about the dispute itself
- Photos, videos, or recordings connected to the underlying events
Unrelated material — routine business records with no connection to the dispute — is not swept into the obligation just because a different matter is heading toward litigation.
What Routine Deletion Is Still Fine
- Ordinary housekeeping deletion of files with no connection to the dispute
- Standard retention-schedule purges for departments or matters entirely unrelated to the issue
- Deleting genuine duplicate copies, as long as at least one copy of relevant material survives
- Normal software updates or device replacements, provided relevant data is migrated or backed up first
Practical Steps: Putting a Hold in Place
- Identify who is likely to have relevant documents — specific employees, departments, or systems.
- Send a clear, written notice (a "litigation hold") telling them what to preserve and why.
- Suspend auto-delete and auto-archive settings for the relevant accounts, folders, or devices.
- Keep a record of what steps were taken and when, in case the process itself is questioned later.
- Revisit the hold periodically as the dispute develops — it may need to expand, or can eventually be lifted.
Frequently asked questions
What happens if relevant documents are deleted anyway?
A court can take that seriously — sometimes drawing a negative inference against the party responsible, or imposing other consequences. Outcomes depend heavily on the specific facts, including whether the deletion looks accidental or deliberate.
Does this apply to individuals, or only businesses?
Both. An individual expecting a dispute — over a contract, a workplace issue, or a personal injury — has the same basic obligation to preserve relevant records as a business does, just usually on a smaller scale.
How long does the preservation duty last?
Generally for as long as the documents remain relevant to a live or reasonably anticipated dispute, which can mean well beyond the point a claim is actually filed. A lawyer can help you figure out when it becomes reasonable to resume normal retention practices.
Do I need special software to preserve documents properly?
Not necessarily. For most individuals and smaller businesses, clear instructions, suspended auto-deletion, and organized backups are enough. Larger organizations with complex systems sometimes need IT involvement to implement a hold properly.
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