Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SS&C TECHNOLOGIES CANADA CORP., Applicant
AND:
THE BANK OF NEW YORK MELLON CORPORATION and CIBC MELLON GLOBAL SECURITIES SERVICES COMPANY, Respondents
BEFORE: Koehnen J.
COUNSEL: J. Thomas Curry, Eli Mogil, Erin Chesney, and Brian Kolenda, for the moving party Respondents Chris G. Paliare, Ren Bucholz, Glynnis Hawe, and Catherine Fan, for the Respondents on the motion, Applicants in the proceeding
HEARD: August 4, 5, 8, 2022
ENDORSEMENT
1This endorsement addresses a series of evidentiary objections that arise out of the trial of an issue on damages that I heard between May 18-20, 24-27 and June 21-24, 2022.
2For the reasons set out below I sustain objections 1, 2, 4, 12, 13, 18, 19, 20, 21, 22, 23, 24, 27, 29,30, 34 (partially), 56, 57,58, 70, 91, and 92.
3I overrule objections 14, 14, 16, 17, 34 (partially), 55, 93, and 94.
4To put the rulings and the reasons for them into their proper context requires some understanding of the matter’s procedural history.
A. Procedural Background
5The proceeding was commenced as an application in 2017 and came to me as an application which I heard over three days in late 2020. At no time did the respondents ever object to the proceeding continuing as an application.
6I released reasons on the application in April 2021, indexed as SS&C Technologies v. Bank of New York Mellon et al.1 I determined liability in the applicant’s favour but concluded that I could not determine damages because:
The damages issue raises contradictions in the evidence that I cannot resolve on paper. The damages issues are addressed in a series of affidavits, reports, responding affidavits, responding reports, followed by reply, sur-replies and cross examinations. References to that evidence are then found in lengthy, detailed footnotes in experts’ reports. Presenting data intensive evidence in this way does not provide an adequate way in which to absorb and truly understand it.2
Presenting evidence of that complexity in oral form, is usually easier to absorb because people tend to express themselves more simply and directly orally than they do in writing.
7On other occasions I described the difficulty as arising not from the inadequacy of the record but because it was so voluminous and complex that it could not be presented in a calm, methodical fashion in the limited court time that had been allocated for the application hearing.3
8I also ordered that the trial of an issue on damages should proceed on the record as it existed when the application was argued before me, unless both sides agreed otherwise.
9The respondents wanted to enlarge the record. The applicants did not.
10In June 2021, the respondents brought a motion before me to, among other things introduce additional evidence at the damages trial. The respondents did not disclose what that evidence was, either in general or specific terms nor did they explain why that evidence could not have been introduced into the record at an earlier stage. Given the sophistication of the respondents and the sophistication of the two law firms acting for them, I infer that this was a conscious choice and not inadvertence.
11If the principle of a closed record was not sufficiently clear from the direction in the liability reasons and the reasons arising from the motion in June 2021, it was reiterated in my endorsement of May 13, 2022. That endorsement arose out of a case conference that SS & C requested after disputes arose between the parties about the scope of the evidence anticipated in the trial of an issue on damages. In my endorsement I adopted the five principles that the applicants had suggested to guide the evidence and to which the respondents did not object. Those principles were as follows:
i. Nothing that is not already in the record can be introduced at trial.
ii. During examination in chief, witnesses will be restricted to testimony they previously gave