On Friday morning, the Supreme Court of Canada will hand down its decision in a US$150-million dispute over the use of securities market data.
The court is planning to release its decision on an appeal brought by SS&C Technologies Canada Corp. in its case against Bank of New York Mellon Corp., seeking damages of US$150 million, plus interest and costs.
The case involves a dispute over the use of securities valuation data that SS&C began selling to BNY in 1999 — a deal that SS&C alleged was breached when BNY provided access to that data to various affiliates, including CIBC Mellon Global Securities Co. SS&C discovered the improper data sharing in 2016.
In 2021, the Ontario Superior Court of Justice ruled that BNY had breached the agreement, and determined that SS&C was entitled to damages of US$5.7 million for the data that was improperly shared with various affiliates, and $922,887 for the data that was shared with CIBC Mellon specifically.
On appeal, in 2024, the Court of Appeal for Ontario upheld the lower court’s ruling on liability, but set aside the award of $922,887 that was tied to the data shared with CIBC Mellon.
SS&C then took the case to the Supreme Court, arguing that the damages award should be much greater.
Among other things, it argued that the appropriate remedy in the case is to award maximum possible damages against BNY by assuming that the bank redistributed the data to all of the 65 entities that were found to have access to the data — although the records that could have proved how widely the data was shared were destroyed by the bank, despite requests by SS&C’s lawyers to preserve that evidence.
Given that the bank destroyed those records, SS&C argued that the burden should be on the bank to establish that it didn’t share the data to all 65 entities — a presumption that, it said, results in a damages award of US$150,420,564.
“BNY not having produced any evidence to demonstrate otherwise, the damages award SS&C seeks from this court is the only possible award on this record,” it said in its filings to the Supreme Court.
“Moreover, only this damages award would ensure that BNY does not enjoy a windfall from reselling SS&C’s market data to the unauthorized entities,” it said.
In its factum, BNY argued that the appeal should be dismissed, and that the court should reject both the proposed shift in onus and the damages award being sought by SS&C.
“Requiring judges to apply this presumption in every case will produce unreasonable outcomes which are not supported by the facts,” the bank said in its filings. “The punitive reflex should not outweigh the search for truth, compromise trial fairness or entitle claimants to a windfall.”