Case information

Civil procedure — Evidence — Spoliation — What is the appropriate remedy for spoliation — What should the appropriate remedy have been in this case?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

SS&C Technologies Canada Corporation entered into a contract with Mellon Trust Financial pursuant to which it provided market pricing data for various types of securities. Mellon Trust Financial merged with Bank of New York to form Bank of New York Mellon Corporation. Bank of New York Mellon Corporation succeeded to the rights and duties under the contract. Mellon Trust Financial and Bank of New York Mellon Corporation breached the contract by redistributing market pricing data to affiliates. Upon learning of the breach of contract, SS&C Technologies Canada Corporation’s counsel demanded an accounting and that Bank of New York Mellon Corporation preserve all related communications, documents, and files. Records including records created after the preservation demand were destroyed. SS&C Technologies Canada Corporation commenced an action against Bank of New York Mellon Corporation seeking damages for breach of contract. Based on spoliation, SS&C Technologies Canada Corporation in part asked the trial judge to draw an adverse inference that its data had been shared with 65 affiliates and it has lost the opportunity to enter into 65 additional agreements on substantially the same terms as the contract.

The trial judge found Bank of New York Mellon Corporation liable for breach of contract. The trial judge did not accept SS&C Technologies Canada Corporation’s proposed adverse inference but did draw an adverse inference that all data usage was by Bank of New York Mellon Corporation’s affiliates. He awarded damages of CAD $922,887 and USD $5,696,850. The Court of Appeal dismissed an appeal from the finding of liability and allowed a cross-appeal on liability. It allowed an appeal from the damages award in part and set aside the award of CDN $922,887.