Supreme Court of Canada: No Leniency for Spoliation in Bank of New York Mellon Damages Case

• The Supreme Court of Canada has introduced a new approach for determining spoliation in modern litigation.
• The high court's decision emphasizes the need to consider the scope and impact of destroyed evidence when determining damages.
• The case against Bank of New York Mellon revolves around its destruction of evidence related to the distribution of SS&C data.
• The Supreme Court has ruled that the trial court failed to consider the full scope and impact of BNY's actions when determining damages.

electronic document management is now the primary mechanism for record-keeping, making spoliation more insidious and difficult to detect

The Supreme Court of Canada has introduced a modern framework for assessing whether spoliation has occurred in a case involving the Bank of New York Mellon and SS&C Technologies Canada Corp. The high court's decision, which was unanimous, emphasizes the need to consider the scope and impact of destroyed evidence when determining damages. This approach is significant because it acknowledges the evolving nature of technology and its demands on the civil justice system. As Justice Suzanne Côté and Mary Moreau noted in their ruling, 'electronic document management is now the primary mechanism for record-keeping,' making spoliation more insidious and difficult to detect. The court's decision highlights the importance of preserving electronic evidence in modern litigation.

The case against BNY revolves around its destruction of evidence related to the distribution of SS&C data. In 2011, CIBC Mellon ended its agreement with SS&C, but BNY continued to receive and distribute the data without permission. When SS&C discovered this in 2016, it asked BNY to preserve information about how its data had been distributed, but the bank refused. This refusal led to a lawsuit by SS&C, which ultimately resulted in a damages award of US$5.69 million. However, the Supreme Court has now ruled that the trial court failed to consider the full scope and impact of BNY's actions when determining damages.

The Supreme Court's decision sets a new standard for determining spoliation in modern litigation. As lawyers, it is essential to note that this ruling may impact clients' strategies for preserving electronic evidence in future cases. The court's emphasis on the importance of considering the scope and impact of destroyed evidence highlights the need for careful record-keeping and preservation practices. This decision also underscores the significance of technology in modern litigation, making it crucial for lawyers to stay up-to-date with the latest developments in this area.

Lawyers should note that this ruling sets a modern approach for determining whether spoliation has occurred, and may impact their clients' strategies for preserving electronic evidence in future cases.

Source: Original reporting via Canadian Lawyer