Supreme Court orders new damages assessment in SS&C data dispute over destroyed evidence

The Supreme Court of Canada has ordered a new assessment of damages in a data-licensing dispute after finding that the consequences of destroyed evidence were not properly reflected in an award of US$5.7 million.

In SS&C Technologies Canada Corp. v. Bank of New York Mellon Corp., 2026 SCC 29, a unanimous court allowed SS&C’s appeal on July 31, 2026. The ruling leaves Bank of New York Mellon’s contractual liability in place, but returns the calculation of compensation to Ontario’s Superior Court of Justice.

The decision also clarifies how courts should respond to spoliation: the deliberate destruction, alteration or concealment of evidence to interfere with litigation. Establishing spoliation creates a presumption that the missing evidence would have hurt the responsible party’s case. That party can rebut the presumption, but cannot simply leave its opponent to bear the uncertainty it created.

A licensing dispute complicated by missing records

SS&C supplies specialized market data used by financial institutions to value securities. Its predecessor entered into separate agreements in 1999 with the bank’s predecessor and CIBC Mellon, a Canadian joint venture.

The bank’s agreement charged for securities-pricing data and restricted redistribution. The dispute arose because the bank shared the information with other entities in its corporate group. CIBC Mellon terminated its own agreement in 2011 but continued receiving SS&C’s data from the bank without paying SS&C under that agreement.

After discovering the arrangement in 2016, SS&C demanded an accounting of the sharing and asked the bank to preserve relevant records. It later terminated the bank’s agreement and sued in 2017.

The bank initially maintained that its licence covered an entire line of business across its corporate family. The courts rejected that interpretation. The Ontario Court of Appeal ultimately held that the agreement did not authorize the affiliated entities to receive the data.

The amount of compensation was harder to establish. The bank did not preserve records that could have shown which entities received the data and how much they used. Its position that it had not breached the agreement did not justify disregarding the preservation request, the Supreme Court said.

At trial, SS&C sought approximately US$150.4 million in principal damages, rising to approximately US$889.8 million with contractual late-payment charges. The bank argued that there was no compensable loss, or at most nominal damages, and said SS&C’s proposed pricing was commercially unrealistic. Neither position became the court’s award.

Why the damages calculation failed

The trial judge instead used a proportional calculation based on the data the bank could and could not account for. He treated the 44.6 per cent it could account for as worth the entire amount paid under the contract, then calculated a price for the remaining 55.4 per cent. The resulting award was US$5,696,850.

The Court of Appeal found that the bank had committed spoliation but left that calculation intact. The Supreme Court concluded that both the response to the missing evidence and the calculation itself were inadequate.

The trial judge inferred that unauthorized entities beyond CIBC Mellon used the data and that their use was more than trivial. Those conclusions did not resolve the important missing facts: how many entities used the information and how often. They largely repeated what the available evidence and the bank’s own position already established.

The damages model also failed to reflect the scale of the breaches. It produced the same award even after the Court of Appeal increased the number of potentially unauthorized recipients from 44 to 65. It did not meaningfully account for repeated sharing.

Nor was there an evidentiary basis for assuming the affiliates would collectively obtain the data on essentially the same terms as the bank. The separate agreements with the bank and CIBC Mellon were relevant commercial evidence that could not simply be displaced by a hypothetical group-pricing arrangement.

A further problem was the distinction between accounted-for and unaccounted-for data. Records showing some information about usage did not establish that the data had been used lawfully. The calculation wrongly treated missing usage information as the dividing line for compensation.

A mandatory presumption, with a tailored response

Justices Suzanne Côté and Mary Moreau, writing for the court, identified four elements of spoliation. The party alleging it must prove, on a balance of probabilities, intentional destruction, alteration, mutilation or concealment of evidence; ongoing or reasonably contemplated litigation at the time; relevance to that litigation; and circumstances supporting an inference that the conduct was intended to affect it.

If those elements are established, the responsible party must rebut the presumption that the evidence would have been unfavourable. If it cannot, the court must draw adverse inferences that meaningfully address the gap. Their precise scope remains sensitive to the missing evidence and the resulting prejudice.

The court rejected SS&C’s broader argument that spoliation should automatically entitle the other side to its maximum damages position. It agreed with the bank that remedies must remain proportionate and responsive to the circumstances. Proving spoliation does not automatically prove the entire underlying claim.

The judgment also leaves two questions open: whether negligent destruction can qualify as spoliation, and whether spoliation should be recognized as an independent tort.

Compensation still to be determined

The Supreme Court set aside the damages award and the corresponding portions of the appeal order. It directed the Superior Court to determine damages on the existing record, while allowing the trial judge to admit further evidence, including expert evidence about pricing.

The new assessment must make concrete findings about unauthorized usage and the value of the data, using appropriate adverse inferences to address the bank’s spoliation. The Supreme Court did not impose a replacement dollar amount or adopt SS&C’s full claim. It awarded SS&C costs in both the Supreme Court and the Court of Appeal, without fixing an amount in the reasons.

For civil litigants, the ruling makes the distinction clear: evidence destruction must have a meaningful consequence in the fact-finding process, but compensation must still be connected to the proven loss and a properly supported assessment.