[99] The trial judge refused to reduce the damages award on the basis that SS&C would have had to pay vendors for the data and would have paid sales commissions. On the former point, the trial judge relied on 1854329 Ontario Inc. v Cairo, 2022 ONCA 744, for the proposition that where a claimant may have an obligation to pass on part of a damages award to a third party, a court should not reduce a damages award for the contingent obligation. Regarding the commissions point, the trial judge found that BNY should not be entitled to a windfall in the form of a reduction in the amount that it would have otherwise been obligated to pay by deducting the notional commissions.
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