- Ontario law generally expects parties to take reasonable steps to preserve documents and other evidence once litigation becomes reasonably anticipated — not only once a Statement of…
- A litigation hold is not limited to paper files.
- Identify the likely scope of the dispute.
Most people assume the rules about keeping or destroying documents only kick in once a lawsuit is actually filed. In Ontario, that assumption can be costly. A litigation hold — a deliberate stop on deleting, altering, or discarding potentially relevant documents and records — can be legally expected well before anyone files a claim, from the moment a dispute becomes reasonably foreseeable.
This matters for businesses and individuals alike. Routine habits — auto-deleting old emails, recycling old file versions, wiping a former employee’s laptop — can turn into a serious problem if they happen after a dispute was reasonably on the horizon, even if no claim had been started yet.
This guide explains when the duty to preserve evidence generally begins, what a litigation hold covers, and the practical steps to put one in place.
When Does the Duty to Preserve Kick In?
Ontario law generally expects parties to take reasonable steps to preserve documents and other evidence once litigation becomes reasonably anticipated — not only once a Statement of Claim has actually been issued. That threshold is deliberately broader than "after I was served with a lawsuit." It can be triggered by things like:
- Receiving a formal demand letter
- A serious workplace incident that could lead to an employment claim
- A significant customer or contract dispute that has escalated
- Being told, or having good reason to believe, that someone is considering legal action against you
- Deciding yourself that you may need to sue someone
The exact point at which a dispute becomes "reasonably anticipated" is a judgment call based on the facts, and reasonable people can disagree about it, which is exactly why it deserves careful thought rather than being ignored until a claim actually lands.
What a Litigation Hold Actually Covers
A litigation hold is not limited to paper files. It generally covers anything that could reasonably be relevant to the dispute, including:
| Category | Examples |
|---|---|
| Written communications | Emails, text messages, chat logs, letters |
| Business records | Invoices, contracts, meeting notes, internal memos |
| Electronic data | Files on shared drives, backups, metadata |
| Physical evidence | Damaged goods, equipment, site conditions |
| Third-party records | Documents held by an accountant, contractor, or other outside party on your behalf |
The common thread is relevance to the dispute, not the format the evidence happens to be in.
Putting a Litigation Hold in Place
- Identify the likely scope of the dispute. What is the disagreement actually about, and who might be involved?
- Identify who holds relevant records. This can include employees, departments, IT systems, and outside service providers.
- Communicate the hold clearly. Tell the relevant people, in writing, to stop routine deletion or destruction of anything that could be relevant, and explain generally why.
- Suspend automatic processes that could destroy evidence. This includes auto-delete email rules, scheduled backups being overwritten, and standard document-retention cycles for the affected records.
- Keep a record that the hold was put in place, when, and what it covered. This can matter later if anyone questions whether reasonable steps were taken.
What Happens If You Don’t Put a Hold in Place
Failing to preserve evidence once a dispute is reasonably anticipated can lead to serious consequences later if relevant material was destroyed or altered in the meantime — ranging from a court drawing conclusions against you to cost penalties in serious cases. The short version: courts take this seriously, and "we didn’t think we needed to keep that yet" is rarely a satisfying answer once litigation has actually started.
A Litigation Hold Is a Business Habit, Not Just a Legal Formality
For businesses in particular, the safest approach is to have a general process ready before a dispute ever arises — a clear sense of who needs to be told, how records get preserved, and who is responsible for making sure routine deletion is paused. Waiting until a dispute is already underway to figure this out for the first time is when mistakes happen.
Frequently asked questions
Do I need to keep everything forever once I think a dispute might happen?
No. A litigation hold generally only needs to cover records reasonably relevant to the specific dispute you’re anticipating, not your entire business’s records indefinitely. Once the hold is no longer needed, normal retention practices can generally resume.
What if I already deleted something before I realized a dispute was coming?
This is a common and understandable situation, and it is treated differently from deliberately destroying evidence after a duty to preserve arose. Get advice quickly so you understand your position and can explain the timeline accurately if it becomes relevant later.
Does a litigation hold apply to personal disputes, or just businesses?
The general principle applies to individuals too, not only businesses. Anyone who reasonably anticipates a dispute should avoid deleting or destroying documents and communications that could be relevant to it.
Who decides when a dispute is "reasonably anticipated"?
There’s no single bright-line test, and it is ultimately a judgment call based on the specific facts, later reviewed by a court if it becomes an issue. When in doubt, it is safer to treat a dispute as reasonably anticipated earlier rather than later.
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