Focus On

CIVIL PROCEDURE - Estoppel by record (res judicata) - Issue estoppel

Monday, June 21, 2021 @ 2:28 PM  


Lexis Advance® Quicklaw®
Appeal by NOVA Chemicals from post-trial ruling of the trial judge. NOVA and the respondents (“Dow”) were involved in ongoing litigation related to the parties’ joint venture to produce ethylene at a plant. In 2018, the trial judge found NOVA had engaged in a deliberate and continuing course of conduct to favour its own interests to the legal detriment of Dow with respect to imposing ethane allocation and failing to operate the plan with the objective of optimizing production. She further found NOVA was in breach of its contractual obligations, its actions constituting gross negligence and wilful misconduct. Dow was awarded damages in excess of $1 billion up to the end of 2012, the date at which the parties had agreed to cut off their evidence of operations. The trial judge reserved the issue of top-up damages from 2013 to the date of judgment. In the ruling under appeal, the trial judge found she was functus on the issue of NOVA’s liability during the top-up period. The Court of Appeal had allowed NOVA’s appeal of the trial judgment in part with respect to the computation of damages. The calculation of direct damages was referred back to the trial judge.

HELD: Appeal dismissed. NOVA’s appeal was an impermissible collateral attack on both the trial judgment and the appeal decision as both levels of court were now functus officio on the issue of NOVA’s liability for top-up damages. Although the appeal decision removed some conclusions of the trial judge, it affirmed the trial judge’s findings as to what the agreement was between the parties. The appellate court affirmed the essential basis of NOVA’s liability to Dow. The trial judgment was patently clear that the trial judge had not reserved jurisdiction to re-decide liability for future damages based on a fresh reading of what the contract obliged NOVA to do from 2013 to 2018. There had been no procedural unfairness.

Dow Chemical Canada ULC v. NOVA Chemicals Corp., [2021] A.J. No. 616, Alberta Court of Appeal, J. Watson, T.W. Wakeling and F.L. Schutz JJ.A., May 3, 2021. Digest No. TLD-June212021001