Authenticity questions, Ontario’s proposed civil rules and a Supreme Court spoliation ruling are reshaping discovery
E-discovery is changing on two fronts at once. The questions litigators now must answer differ from those of even a few years ago, and the point in a case at which they must answer them is shifting. Both shifts are driven by technology and by changes in the law. Canadian Lawyer, Law Times and Lexpert have run a series of articles examining those shifts.
Authenticity has become a discovery question
Artificial intelligence has made the creation of fake evidence easier, and Emily Hazlett, a partner at Blake, Cassels & Graydon LLP, told Canadian Lawyer the risk is “developing much faster than the case law”. Kelly Friedman, a litigator at Heuristica Discovery Counsel who specializes in e-discovery, said that evidence law “doesn’t quite fit the current level of technological expertise out there that we can really fake anything.” She points to the Canada Evidence Act’s presumption that electronic evidence is authentic if the system storing it was operating properly, a standard she argues many deepfakes can easily clear.
The questions that follow are about provenance. Hazlett said litigators should be asking of important audio, video or photographic evidence: “[W]here does this file come from? Has the original been preserved? What metadata exists?” The Canadian Judicial Council’s October 2026 guidelines on evaluating digital media evidence flag the other side of the problem, the risk that authentic evidence will be successfully challenged as fabricated.
Ontario’s proposed AI evidence rules, as Justice Peter Lauwers of the Ontario Court of Appeal described them in a summary provided to Law Times, address the same problem from the court’s perspective. A challenger who shows, on a balance of probabilities, that evidence could reasonably have been AI-generated triggers a requirement that the proponent respond with evidence of authenticity, and undisclosed AI-generated evidence would be presumptively inadmissible. Where AI use is acknowledged, a court may require the proponent to identify the system and the prompts used. Lauwers, who chairs Ontario’s Civil Rules Committee, says prompt disclosure would be left to a judge’s discretion, with a catch. “We’re not going to make you disclose your prompts, but if you don’t, we may not admit the evidence because the evidence may be so distorted by the prompt that it’s unreliable or invalid,” he says. The rules have been submitted to Ontario’s attorney general, and revised text is expected in November.
The timing of e-discovery work is moving up
The questions are not the only thing changing. When questions get asked is changing, too. The Civil Rules Review Working Group’s final report, released in December 2025, proposes moving from a relevance-based model of documentary disclosure to a reliance-based one, in which parties produce the documents they rely on and those they know the other side would need. Kathryn Manning, a litigation partner at DMG Advocates in Toronto, does not expect that to lighten the load. “I don’t think it reduces [the e-discovery burden] necessarily, because you’re still going to collect documents from your client, and you need to figure out what you’re going to rely on,” Manning says. If the proposal is adopted in full, she says, “I think it actually will move the e-discovery burden earlier in the case.”
Generative AI is moving the insight earlier, too. Manning says e-discovery tools were once mainly about culling documents to a manageable set for lawyers to review, but the emphasis is shifting to “getting early insights out of documents,” including “the ability to do an early assessment of your case.” The tools still need to be trained and monitored by humans, she says.
Preservation law is a different story. The Supreme Court of Canada’s July 31, 2026 decision in SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp. is less a change in when duties arise than a clear statement of it. It was the court’s first ruling on spoliation – the intentional destruction, alteration or concealment of evidence – in about 130 years, and it found that the bank’s destruction of evidence warranted a new damages assessment. Its four-part test asks, among other things, whether litigation was underway or expected when the evidence was destroyed. Michael Watson, a partner at Gowling WLG who was not involved in the case, said the decision matters because it sets the law out “for all of Canada, and in a way that is easily understood.”
Ren Bucholz, a partner at Paliare Roland Rosenberg Rothstein LLP in Toronto who was part of the team that represented SS&C, told Lexpert the issue is more relevant today “because of the ease with which documents are generated and potentially destroyed.” His takeaway for parties expecting to sue is to send a litigation hold letter as soon as possible. For defendants, it means taking the request seriously and doing “everything in your power to preserve the documents, even if you disagree with the basis for the request to preserve them.”
What I take from these conversations is that technology is raising questions, such as whether a file is real and how AI was used, that discovery rules were not written to answer. At the same time, the tools, the rules and the case law are putting older questions, such as what we have and what we kept, in plainer terms and, in Ontario’s case, asking them sooner.
