Dow Chemical Canada ULC v NOVA Chemicals Corporation, 2021 ABQB 595

Court of Queen’s Bench of Alberta Citation: Dow Chemical Canada ULC v NOVA Chemicals Corporation, 2021 ABQB 595 Date: 20210729 Docket: 0601 07921 Registry: Calgary Between: Dow Chemical Canada ULC and Dow Europe GmbH Plaintiffs - and - NOVA Chemicals Corporation Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice B.E. Romaine _______________________________________________________ [ 1 ] In this application, NOVA sought an extension of time to submit the expert reports of an economist and a damages expert from July 30, 2021 to September 7, 2021.

I have allowed the extension to September 3, 2021. These are my reasons. [ 2 ] It is important to note that this is not a pre-trial application to extend a deadline to file an expert report. Reasons for judgment were released in June, 2018, and liability was established. The parties had agreed pre-trial to limit evidence with respect to damages to a cut-off date of December 31, 2012 for the purpose of their experts' calculations of damages.

In accordance with that agreement, I directed in my reasons that, if the parties were unable to agree on the top-up of damages to the date of judgment in accordance with the principles I accepted for the calculation of damages, they could make further submissions to the Court on that and other ancillary issues. The

parties were unable to agree. [ 3 ] As noted by Dow, attempts to

schedule the top-up damages hearing began in September, 2019. Time for the hearing was offered in the spring of 2020, but NOVA counsel was unavailable. Dates in September and October 2020 were offered, but again NOVA counsel was unavailable. Dates were scheduled in January 2021, but the September 2020 release of the Court of Appeal decision postponed the matter. The Court of Appeal allowed NOVA's appeal in part, permitting NOVA to take a new position on the quantification of damages on appeal and to abandon its argument on the proper

interpretation of an exclusion clause put forward at trial. The calculation of direct damages resulting from the shortage of ethylene delivered to Dow was referred back to this Court. [ 4 ] Dates for what will now be a combined damages recalculation and top-up damages hearing were offered by the Court in July and August of 2021, but NOVA suggested September and October and Dow agreed. NOVA subsequently submitted that it was not available in these months and sought a hearing in 2022.

By order dated April 7, 2021, I set a date for a combined hearing commencing on November 8, 2021 and extending to the Christmas break. [ 5 ] In April 2021, the parties and the Court discussed the timing of delivery of expert reports. Although Dow proposed that the parties exchange expert reports simultaneously, NOVA objected, submitting that it was not aware of what it referred to as a "novel approach" that Dow may have in mind, and that NOVA had no advance notice of Dow's theory of damages.

However, Dow's expert evidence for the damages recalculation hearing is responsive to NOVA's new arguments on appeal and the Court of Appeals' direction to remand the issue to this Court to recalculate Dow's damages in accordance with the principles it accepted. [ 6 ] As noted by Dow, when NOVA suggested on April 7 that it might need more than 30 days following Dow's delivery of its expert reports to address a "substantially new and different theory", I noted that "[w]e are dealing with a new theory of damages...proposed by NOVA...and...accepted by the Court of Appeal". [ 7 ] Dow's deadline for delivery of expert reports was July 1, 2021.

NOVA asked for its expert reports to be provided to Dow and the Court on September 7, 2021. I instead directed a deadline of July 31, 2021, as I was concerned that a later date might put the start date of the combined damages hearing in jeopardy. NOVA now asserts through counsel that it was surprised by the fact that the Dow reports include a report by an economist regarding the economic principles for determining the value of the ethylene shortfall.

Counsel for NOVA states that NOVA had not realized that it should have an economist available to evaluate and respond to Dow's expert reports, and that it did not take steps to retain such an expert until after it received Dow's reports.

NOVA submits that it would be fair to allow it to submit its damages quantification report at the same time it submits the report of the economist it has recently retained to respond to the report of Dow's economic expert report. [ 8 ] The parties do not dispute that, under Rule 8.4 of the Rules of Court, a decision whether to exercise the discretion to extend a period of time specified in an order, in this case the April scheduling order, is determined in part by considering (

i) the length of the delay; (ii) the explanation for the delay; and (iii) the relative prejudice to the parties. [ 9 ] The length of delay is not excessive, although given the November 8, 2021 start date of the hearing, I will only extend the time to September 3, 2021, rather than September 7, 2021. This will allow an earlier exchange of lists of lay witnesses: Dow a week after NOVA produces its reports and NOVA a week after that, as suggested by Dow. [ 10 ] I accept the explanation for the delay. [ 11 ] The primary issue in this application is the relative prejudice to the parties.

Dow is concerned that NOVA's delay in providing its expert reports may lead to a delay in the commencement of the hearing date. However, NOVA confirms that it intends to proceed on November 8, 2021. In making this decision, I have relied on NOVA's counsels' representation that they see no basis on which the extension, if granted, would cause a delay of the trial. [ 12 ] The trial of this matter proceeded on its scheduled date, despite the fact that there continued to be examination of witnesses and exchange of documents after the commencement of the trial.

If Dow requires some accommodation in that respect arising from the extension, it may make submissions on that issue. Heard on the 22 nd day of July, 2021. Dated at the City of Calgary, Alberta this 29 th day of July, 2021. B.E. Romaine J.C.Q.B.A. Appearances:

Blair C. Yorke-Slader, Q.C. Ciara MacKey, and Denise Brunsdon for the Plaintiffs Steven Leitl, Q.C., Bryan Walker, Colin Feasby, Tommy Gelbman, and John McCammon for the Defendant