WWW.LEXPERT.CA
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2018
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LEXPERT 45
Van Barr, Christopher C. Gowling WLG
(613) 786-8675 christopher.vanbarr@gowlingwlg.com
Named "Canadian IP Litigator of the Year in 2017" by Managing Intellectual
Property, Mr. Van Barr is one of Canada's leading intellectual property trial
and appeal lawyers. He practises exclusively in IP litigation with emphasis on
complex patent litigation and has considerable expertise in patent, PM(NOC),
trademark, copyright and trade secret litigation.
Valasek, Martin J. Norton Rose Fulbright Canada LLP
(514) 847-4818 martin.valasek@nortonrosefulbright.com
Mr. Valasek's international practice embraces both commercial and investor–
state arbitration (including NAF TA Chapter 11), in sectors such as aerospace,
construction, forestry, mining and energy. He also advises on cross-border
litigation matters.
Tupper, David Blake, Cassels & Graydon LLP
(403) 260-9722 david.tupper@blakes.com
Mr. Tupper's practice focuses on high-value complex corporate/commercial
litigation in a number of areas, including construction, securities, insurance,
environmental, and oil & gas. He appears before all levels of court in Alberta
as well as in the Federal Court and the Federal Court of Appeal. In securities
matters, he frequently appears before the Alberta Securities Commission.
Tourangeau, Yves Gilbert Simard Tremblay l.l.p.
(514) 394-2716 ytourangeau@gstlex.com
Mr. Tourangeau studied at Laval University and was admitted to the Bar
in 1983. He is a partner at Gilbert Simard Tremblay in Montréal, practising
general litigation with an emphasis on professional liability, insurance,
construction and transportation law. He has been a mediator & arbitrator
since 1996, and is a mediator for the Insurance Bureau of Canada
and the Autorité des marchés financiers.
Torralbo, Robert J. Blake, Cassels & Graydon LLP
(514) 982-4014 robert.torralbo@blakes.com
Mr. Torralbo's practice focuses on defending class actions, product liability,
securities, banking, real estate and shareholder disputes. He leads some of
the most complex national class actions in Canada and provides strategic
counsel for leading international pharmaceutical companies, financial
institutions, and manufacturers of pharmaceuticals, medical devices,
chemicals and automotive parts.
Thornton, Robert I. Thornton Grout Finnigan LLP
(416) 304-0560 rthornton@tgf.ca
Mr. Thornton, an IIC Director, was named "Lawyer of the Year" in the 2018
edition of Best Lawyers in Canada. Euromoney's The Best of the Best 2018
recognized him as one of the top five insolvency and restructuring lawyers
in Canada, while Chambers Global ranks him as a Band 1 Leading Individual
in Restructuring. He is described as "a leading light" and "one of the most
innovative in the field."
LEXPERT-RANKED LAWYERS
1978. In 1984, NOVA opened a second plant, E2,
at Joffre and in 1994 Dow constructed its own eth-
ylene plant at Fort Saskatchewan.
In 1997, NOVA and Union Carbide Canada
Inc. ("UCC") entered into a joint venture to build
a third ethylene plant, E3, at Joffre. Twelve project
agreements set out the rights and obligations of the
parties regarding the ownership, management, op-
eration and use of E3, including the appointment
of NOVA as operator. In August 1999, a merger
between Dow and UCC was announced. Con-
cerned about the merger's impact on the co-owner-
ship of E3, NOVA's senior management formed a
working group to consider options. e group pro-
duced a "wish list" that included "minimize ethyl-
ene to Dow" and "back Dow out of E3." In early
2001, E3 commenced commercial operations.
In 2006 Dow sued NOVA, alleging that NOVA
had failed to run E3 at full rates and had taken
for itself, by a non-contractual ethane allocation
scheme, part of Dow's share of E3's ethylene pro-
duction. NOVA counterclaimed, arguing that by
the terms of one of the parties' agreements UCC
(and therefore Dow) was prohibited from acquir-
ing ethane in Western Canada for its own plant.
JUSTICE ROMAINE'S DECISION
Following a trial that took place over much of a
year, Justice Romaine awarded Dow US$1.06 bil-
lion in damages.
NOVA's counterclaim was dismissed. In assess-
ing Dow's claims, Justice Romaine found no jus-
tification in the parties' agreements for NOVA's
ethane allocation scheme, by which NOVA had
claimed a shortage of ethane, purported to ration
ethane among E3 and its own two plants, and then
allocated the total ethylene production among the
three plants.
Noting that several witnesses had conceded that
NOVA had always had enough ethane to run E3
at full capacity, she found that NOVA's conduct
amounted to conversion and ruled that NOVA
had failed to "act honestly and in good faith and in
accordance with the provisions" of the agreements.
She found that NOVA "ran E3, not to optimize
production of Product, but to optimize NOVA's
profit and ... the entire Joffre Site."
Although NOVA had argued that various me-
chanical difficulties had limited production, Jus-
tice Romaine disagreed. NOVA also argued that
it had not acted with "gross negligence" or "wilful
misconduct," but the judge found that NOVA's
failure to run E3 to capacity and its conversion of
Dow's E3 ethylene had been deliberate, or at best
had shown an "utter disregard for harmful, fore-
seeable and avoidable consequences."
e decision is believed to be the largest award
for damages in the history of Alberta.
Bennett Jones LLP acted as lead trial counsel
