



COURT OF APPEAL FOR ONTARIO

CITATION: SS & C Technologies Canada Corp. v. The Bank of
    New York Mellon Corporation, 2021 ONCA 601

DATE: 20210903

DOCKET: (M52585) C69439

Thorburn J.A. (Motions
    Judge)

BETWEEN

SS & C Technologies Canada
    Corp.

Applicant (Respondent/Responding Party)

and

The Bank
    of New York Mellon Corporation and CIBC Mellon

Global Securities
    Services Company

Respondents (Appellants/Moving Parties)

J. Thomas Curry, Brian Kolenda and Christopher Yung, for
    the appellants/moving parties

Chris Paliare, Ren Bucholz, Glynnis Hawe and Catherine
    Fan, for the respondent/responding party

Heard: July 20, 2021 by video conference

ENDORSEMENT

RELIEF SOUGHT

[1]

The appellants/moving parties, The Bank of New York Mellon Corporation
    (BNY Mellon) and CIBC Mellon Global Securities Services Company (CIBC
    Mellon) (together the appellants) request that:

1.

The appeal of the application judges decision on liability of April 14,
    2021 (the Liability decision) be heard on an expedited basis; and

2.

They be relieved of the requirement to file a signed copy of the order
    appealed from because the application judge declined to issue a formal order.

[2]

The respondent/responding party, SS&C Technologies Canada Corp.
    (SS&C, the respondent), opposes the motion and submits that:

1.

The orderly
    resolution of the appeal and the application judges trial on damages (Damages
    trial) requires that the appeal not be scheduled until the Damages trial is
    adjudicated; and

2.

The appeal cannot be perfected because a final order has not been issued
    or entered, and the appellants have not appealed the application judges
    decision in that regard.

[3]

An application was brought by the respondent to address both liability
    and damages.

[4]

The application judge rendered the Liability decision and held that both
    appellants were liable to the respondent for breach of contract. However, he
    decided that he was unable to determine the quantum of damages without oral
    evidence. He therefore directed that there be a six-day trial to determine the
    quantum of damages. He directed that the appeal period for the Liability
    decision be suspended to allow any appeal of liability and damages to proceed
    together.

[5]

The Damages trial will proceed in Spring of 2022 unless there is an
    earlier opening on the commercial list.

[6]

The issues to be addressed on this motion are whether (a) it is in the
    interests of justice to allow the appellants to expedite the Liability decision
    and allow the appeal of the Liability decision to be heard before the Damages
    trial, and (b) whether the appellants should be relieved of the requirement to
    file a signed copy of the order appealed from.

BACKGROUND

[7]

The appellant BNY Mellon was formed in 2007 following the merger of
    Mellon Financial Corporation and the Bank of New York. BNY Mellon provides
    financial services to its customers worldwide, including custody and asset
    servicing. The appellant CIBC Mellon is a Canadian joint venture formed in 1996
    between Mellon Financial Corporation and CIBC.

[8]

The respondent, SS&C, is a global financial services and technology
    company. SS&C is a successor to Securities Valuation Company Inc. (SVC).
    SS&Cs business includes collecting and distributing pricing data, which
    SS&C licenses to financial institutions, including BNY Mellon and CIBC
    Mellon.

[9]

In 1999, SVC entered into an agreement with Mellon Trust (the Mellon
    Trust Agreement) to provide securities pricing data. It entered into a second
    agreement with CIBC Mellon (the CIBC Mellon Agreement). Both agreements
    limited the use of data to the Client.

[10]

The
    Mellon Trust Agreement identified Mellon Trust as the Client and the CIBC
    Mellon Agreement identified CIBC Mellon as the Client. BNY Mellon submitted
    that Mellon Trust was not a legal entity and was the brand name under which BNY
    Mellon and its predecessor operated its business through its subsidiaries and
    affiliates.

[11]

In
    its Notice of Application, SS&C claimed that:

1.

BNY Mellon
    breached the Mellon Trust Agreement by providing SS&C data to those other
    than the Client;

2.

CIBC Mellon was in knowing receipt of SS&C data obtained under the
    Mellon Trust Agreement and was unjustly enriched as a result; and

3.

BNY Mellon owes damages for breach of contract, among other claims.

[12]

BNY
    Mellon took the position that it was entitled to share the data it purchased
    from SS&C with all BNY Mellon subsidiaries and affiliates who operated a
    custodial business, while SS&C claimed the only party entitled to use the
    data was the signatory to the contract.

[13]

In
    the Liability decision dated April 14, 2021, the application judge held that
    the respondents did breach their agreements. However, the appellants submit
    that no breach of contract claim was brought against CIBC Mellon. Instead,
    SS&C claimed restitution from CIBC Mellon for knowingly receiving proprietary
    data belonging to SS&C and being unjustly enriched as a result.

[14]

The
    application judge did not determine the issue of damages. He noted that
    SS&C presented two models to calculate damages. The first resulted in
    damages of $889,752,087; the second, in damages of $317,076,007.

[15]

As
    a result, he ordered that the determination of damages proceed as a trial of an
    issue before him with
viva voce
evidence. He also ordered that any
    appeal periods arising from the Liability decision be suspended until the release
    of the decision on damages to allow any appeals on liability and damages to
    proceed together.

[16]

On
    May 14, 2021, the appellants served a Notice of Appeal in respect of the
    Liability decision (the Liability appeal). The appellants claim that:

1.

The application
    judge applied the wrong burden and legal test in assessing the limitation
    period defence; and

2.

The application judge erred by finding that CIBC Mellon breached its
    agreement with SS&C because breach of contract was not pleaded against CIBC
    Mellon.

[17]

The
    appellants purported to perfect their appeal on June 18, 2021, except that they
    did not file a signed and entered order, as the formal order had yet to be
    issued.

[18]

On
    June 30, 2021, the application judge dismissed the appellants request to
    adjourn the Damages trial pending appeal of the Liability decision, instead
    ordering a six-day Damages trial.

[19]

In
    his endorsement of June 30, 2021 refusing to adjourn the Damages trial, the
    application judge concluded:

Damages appeared to be a complex, fact intensive issue. They
    turn in part on how many BNY entities used the data of SS & C and for what
    period of time they did so. This is coupled with the issue of damages for
    spoliation pursuant to which SS & C alleges that BNY destroyed documents
    that would have allowed the court to determine how many entities used the data
    and when they began using it.

[20]

He
    also noted that damages were the subject of a number of affidavits, reports and
    transcripts of cross-examinations and other documents.

[21]

He
    held that there were a number of issues to be decided at the Damages trial
    including:

1.

How many BNY
    Mellon entities used SS&Cs Market Data and for what period;

2.

Whether BNY Mellon spoliated relevant records that would prove the full
    extent of the unauthorized access; and

3.

What damages arise from BNY Mellons breaches of the Data Services
    Agreement.

[22]

He
    noted that the parties had not elected to bifurcate the proceeding and stated
    that [o]ur system of adjudication is set up so that parties expect findings of
    liability and damages at approximately the same time with a single appeal being
    taken from both findings.

[23]

He
    concluded, the proposal in the case before me is simply to proceed as courts
    do in the vast majority of cases in this province; namely to make findings of
    liability and damages from which the unsuccessful party is free to appeal once
    findings on both issues have been made. At present, the first available date
    is in Spring of 2022. The application judge declined to sign and issue a formal
    order arising from the Liability decision.

ANALYSIS AND CONCLUSION

A.

Whether the Appeal Should be Allowed to Proceed Before Adjudication of
    the Damages Trial

[24]

The
    appellants seek to expedite the Liability appeal as they claim it is in the
    interests of justice that the Liability appeal be heard and decided before the
    Damages trial. The respondent submits that the Liability appeal should not be
    scheduled until the Damages trial has taken place.

[25]

First,
    the appellants submit that the outcome of the Liability appeal may render the
    Damages trial unnecessary or materially affect its outcome. At a minimum, this
    courts guidance will be of assistance to the court below and to the parties.

[26]

Both
    BNY Mellon and CIBC Mellon defended the application on the basis that the
    limitation period, pursuant to s. 5 of the
Limitations Act, 2002,
S.O.
    2002, c. 24, Sched. B.,

had expired years before SS&C brought its
    claim.

[27]

The
    application judge concluded that SS&Cs claims were not time-barred because
    no directing mind of SS&C knew of the acts or the injury within the
    two-year limitation period. The appellants submit that he did not consider
    whether SS&C was presumed to possess knowledge of its data usage on the
    date such usage took place or whether a reasonable person in SS&Cs
    position ought to have known of its claims.

[28]

The
    appellants claim that the limitation period issues are questions of law
    reviewable on the standard of correctness. Thus, no deference is owed and this
    court can substitute its own findings for those of the application judge,
    eliminating the need for the Damages trial:
Housen v. Nikolaisen
, 2002
    SCC 33, [2002] 2 S.C.R. 235, at para. 8;
Teal Cedar Products Ltd. v.
    British Columbia
, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 44.

[29]

Moreover,
    the appellants point out that both BNY Mellon and CIBC Mellon were found liable
    for breaching their agreements, although the only cause of action pleaded
    against CIBC Mellon was restitution for knowing receipt of SS&Cs pricing
    data under the Mellon Trust Agreement. The appellants therefore claim that the
    application judges finding of liability for breach of contract against CIBC
    Mellon cannot be sustained since no such claim was brought, there was no
    argument on the point, and CIBC Mellon was denied the opportunity to present
    evidence on this issue.

[30]

The
    appellants assert that if the Liability decision is set aside in whole, the
    Damages trial will be unnecessary. If the Liability decision is set aside in
    part, the Damages trial may have to be entirely redone (including after
    potential further proceedings concerning liability). For these reasons, they
    claim it would be most efficient for the Liability appeal to be heard before
    the Damages trial so as not to expend resources on the Damages trial before the
    outcome of the Liability appeal.

[31]

Section
    138 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
),
    makes clear that [a]s far as possible, multiplicity of legal proceedings shall
    be avoided; see also
Vaeth v. North American Palladium Ltd.
, 2016
    ONSC 5015, at para. 37. This court held in
Elcano Acceptance Ltd. v.
    Richmond, Richmond, Stambler & Mills
(1986), 55 O.R. (2d) 56 (C.A.),
    at p. 5, that the power to split a proceeding must be regarded as a narrowly
    circumscribed power.

[32]

Courts
    generally seek to avoid a multiplicity of proceedings and the potential of inconsistent
    results. One appeal dealing with all issues is ordinarily the most effective
    and fair use of both public and private resources:
Korea Data Systems (USA)
    Inc. v. Aamazing Technologies Inc.
, 2012 ONCA 756, 29 C.P.C. (7th) 51, at
    paras. 23-25.

[33]

This
    is particularly true when there is a real possibility that one or both parties
    may bring further appeals of the application judges decision:
Toronto
    (City) v. 1291547 Ontario Inc.
(2001), 148 O.A.C. 212 (C.A.), at para. 13.

[34]

In
Toronto (City)
, the respondent moved to adjourn the trial for damages
    until its appeal on the trial judges finding of liability had been heard.

This
    court held, at para. 13, that the balance of convenience supported the
    completion of the adjudication of all the issues in the Superior Court of
    Justice, as then both the liability and damages issues could be dealt with in
    one appeal.

[35]

In
Korea Data Systems,
this court heard an appeal of a liability
    decision, while a hearing on damages and other outstanding issues was scheduled
    concurrently by the court of first instance. This court held that the
    interests of justice favoured staying the appeal to allow the damages hearing
    to be completed first, as this approach avoids a multiplicity of proceedings
    and the potential of inconsistent results:
Korea Data Systems,
at
    para. 23. Notwithstanding that the issues on appeal were serious, the issues
    were separate and discrete from those remaining to be determined at first
    instance, and little prejudice would result in allowing the appeal to proceed,
    this court held that the overall interests of justice favoured the disposition
    of all issues before hearing the appeal:
Korea

Data Systems,
at
    paras. 23-25.

[36]

In
Canadian Planning and Design Consultants Inc. v. Libya,
2015 ONCA 661,
    390 D.L.R. (4th) 267, this court held, at para. 53, that [i]t is not an
    efficient or appropriate use of judicial resources to have two different courts
    determining the merits of the same issues in what is essentially the same
    litigation, especially where multiple appeals to this court may result. The
    concerns of judicial economy and avoiding the risk of inconsistent rulings were
    held to favour adjourning the appeal pending resolution of a motion in the
    Superior Court of Justice:
Libya,
at para. 53.

[37]

Where
    the only harm the appellants might be exposed to is the expense they would
    incur if the trial went ahead before the appeal and this court on appeal
    determines that there was no proved breach, the harm suffered by the appellants
    can be taken into account in costs or damages:
Toronto (City),
at
    para. 11.

[38]

As
    noted in the cases cited above, the ordinary practice is to pursue a single
    appeal from decisions on liability and damages. The moving party must establish
    that it is in the interests of justice to do otherwise. Fragmenting appeals,
    particularly in large and complex cases such as this, may well delay the
    overall administration of justice at both the trial and appeal court level by
    having appeals of different aspects of the case heard at different times.

[39]

I
    recognize that the appellants have raised serious issues in their appeal of the
    Liability decision and, if successful, the appeal may dispose of some or all of
    the claims. However, if the Liability appeal is scheduled now, there will be a
    multiplicity of proceedings being heard and resolved concurrently.

[40]

It
    is not realistic to expect that the Liability appeal will be heard and decided
    prior to the Damages trial. SS&Cs responding materials on this appeal have
    yet to be filed, and this court will be required to find a hearing date that
    can accommodate the appellants request for a full day hearing. Given the
    volume and complexity of the record, the panel is likely to reserve its
    judgment and will require time to render its decision.

[41]

Scheduling
    the Liability appeal before the Damages trial would require the parties to
    divide their efforts between preparing for the full day Liability appeal while
    concurrently preparing for the six-day Damages trial. This is particularly so
    as the appellants have not appealed the application judges decision to refuse
    to adjourn the Damages trial, nor have they sought to expedite the Damages
    trial.

[42]

As
    noted by the application judge, there is some hope that the Damages trial may
    be able to be scheduled earlier.

[43]

Moreover,
    there is a real possibility that one or both parties may bring further appeals
    of the application judges decisions.

[44]

While
    there may well be costs thrown away if one or both of the appellants grounds
    of appeal are successful, there is no urgency to the determination of these
    issues. Any additional time and effort incurred by the appellants, if they are
    ultimately successful in whole or in part on appeal, can be addressed in an
    award of costs.

[45]

For
    these reasons, I find that it is not in the interests of justice to expedite
    the Liability appeal to be heard before the Damages trial. As the application
    judge pointed out, either party may appeal the Liability or Damages decisions
    once formal orders on both issues have been made.

B.

Perfecting the Appeal

[46]

Given
    my decision that it is not in the interests of justice to hear the Liability
    appeal before the adjudication of the Damages trial, it is not necessary for me
    to address whether the appeal could proceed without a formal order in respect
    of the Liability decision.

CONCLUSION

[47]

For
    these reasons, the motion to allow the appeal of the application judges
    Liability decision to be heard on an expedited basis before the Damages trial,
    is dismissed.

[48]

In
    accordance with the agreement between the parties, costs to the respondent in
    the amount of $7,500, all inclusive.

J.A. Thorburn J.A.


