Dow Chemical Canada ULC et al. v. Nova Chemicals Corp., 2015 ABQB 401

• Judge: Romaine, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 24, 2015
• Citations: 2015 ABQB 401;[2015] A.R. TBEd. JL.036

Dow Chemical Can. v. Nova Chemicals, [2015] A.R. TBEd. JL.036

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. JL.036

Dow Chemical Canada ULC and Dow Europe GmbH (plaintiffs/defendants by counterclaim) v. Nova Chemicals Corporation (defendant/plaintiff by counterclaim)

(0601 07921; 2015 ABQB 401)

Indexed As: Dow Chemical Canada ULC et al. v. Nova Chemicals Corp.

Alberta Court of Queen's Bench

Judicial District of Calgary

Romaine, J.

June 24, 2015.

Summary:

The defendant, Nova Chemicals Corp. ("Nova"), applied for further and better particulars of a reply and defence to counterclaim. It also sought the production of a document for inspection.

The Alberta Court of Queen's Bench, in a decision reported at (2007), 423 A.R. 106, determined the issues accordingly. The plaintiffs, Dow Chemical Canada Inc. and Dow Europe GmbH ("Dow"), sought leave to amend their amended statement of claim. Nova consented to the proposed amendments that updated Dow's damages claim and other uncontested issues. Nova opposed any amendments respecting three new claims.

The Alberta Court of Queen's Bench allowed the application. Nova applied for an order compelling Dow to provide answers, or further and better answers, to a number of undertakings and interrogatories.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 581 A.R. 382, determined the issues accordingly. Nova appealed.

The Alberta Court of Appeal, in a decision reported at (2014), 577 A.R. 335; 613 W.A.C. 335, allowed the appeal in part. Dow brought two applications. The first requested relief respecting "Nova's multiple failures to make record discovery". It sought that Nova be "directed immediately to produce ... documents as more specifically discussed above". Dow's second application sought relief for "Defendant's non-compliance with Court Orders and other significant deficiencies". By way of a Supplementary Brief, Dow asked the court for a remedy under rule 3.68(4) of the Alberta Rules of Court, asking that parts of Nova's defence be struck out.

The Alberta Court of Queen's Bench, in a decision reported at (2015), 605 A.R. 85, dismissed the applications. At trial, Dow objected to the admission of what it submitted was opinion evidence that could not properly be given by a lay witness, as such evidence did not fall within the exception to the general rule precluding a lay witness from giving opinion evidence.

The Alberta Court of Queen's Bench determined the issue accordingly.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - The plaintiffs ("Dow") and the defendant ("Nova") co-owned an ethylene processing plant (E3) - Nova operated it - Dow alleged that Nova had unlawfully taken, for its own use and advantage, a portion of their ethylene and other products produced at E3 (conversion), and that Nova failed to optimize production at E3 - Nova had called, and intended to call, witnesses who were employees at E3 during the years in issue to offer testimony about how E3 was operated, including testimony respecting mechanical and operational constraints that might have limited Nova's ability to run E3 at its productive capability - When the first of these witnesses testified, Dow objected to the admission of what it submitted was opinion evidence that could not properly be given by the lay witness, as it did not fall within the exception to the general rule precluding a lay witness from giving opinion evidence - The Alberta Court of Queen's Bench determined whether the challenged evidence was opinion evidence, and if so, whether it fell within the exception to the general rule - The court also gave general guidance respecting how the rule and its exception should be applied to other operational witnesses.

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - [See Evidence - Topic 7000.3 ].

Cases Noticed:

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 11, footnote 5].

Alberta (Minister of Justice and Attorney General) v. Echert et al. (2013), 563 A.R. 74 (Q.B.), refd to. [para. 14, footnote 10].

Giczi v. Kandola, [2014] B.C.T.C. Uned. 508 (S.C.), refd to. [para. 18, footnote 15].

R. v. Lee (C.J.) (2010), 474 A.R. 203; 479 W.A.C. 203; 2010 ABCA 1, refd to. [para. 19].

Counsel:

B.C. Yorke-Slader, Q.C., B.R. Crump, R.J. Hofley and A.D. Grosse, for the plaintiffs/defendants by counterclaim, Dow Chemical Canada ULC and Dow Europe GmbH;

W.J. Kenny, Q.C., C.C.J. Feasby, M.E. Comeau and T. Prince, for the defendant/plaintiff by counterclaim, Nova Chemicals Corporation.

These evidentiary matters were heard on June 24, 2015, by Romaine, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on June 24, 2015.