In a decision issued September 16, 2020, the Alberta Court of Appeal upheld Dow Chemical Canada's $1-billion judgment against NOVA Chemicals that had been awarded by the Alberta Court of Queen's Bench at trial in June 2018.
The appeal court agreed with the trial judge, who ruled that NOVA had committed wilful misconduct in its operation of the parties' jointly owned ethylene plant at Joffre, Alberta since 2001, and had wrongfully taken for itself hundreds of millions of pounds of Dow's ethylene. The appeal court confirmed NOVA's duty to run the plant at its full productive capability.
A recalculation of a portion of Dow's damages was directed for the 2001 to 2012 period. Dow's additional damages for the period 2013 to 2018 also remain to be calculated.
Commenting on the result, Dow global head of litigation Michael Glackin complimented the appellate legal team led by Bennett Jones LLP, which had also represented Dow at trial. "We had the facts on our side", he enthused, "but we also had the best counsel we could possibly have had".
Members of the team included Blair Yorke-Slader, Q.C., Bruce Mellett and Ciara Mackey of Bennett Jones, and Randall Hofley and Kevin MacDonald of Blakes LLP for competition law matters.