WWW.LEXPERT.CA
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2017
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LEXPERT 37
Tavender, QC, E. David D. Dentons Canada LLP
(403) 268-7010 david.tavender@dentons.com
Mr. Tavender has extensive experience in civil commercial litigation and ADR.
He has conducted numerous major trials and appeals, and his appearances
include cases before the Alberta Courts, the Federal Court of Canada and the
Supreme Court of Canada. He is active in the alternative dispute resolution
field and has served as a neutral and as counsel on commercial arbitrations
and mediations.
Stainsby, Jonathan Aitken Klee LLP
(647) 317-6868 jstainsby@aitkenklee.com
Mr. Stainsby, a partner in the firm's Toronto office, focuses on IP litigation.
He acts in complex patent, trademark and copyright matters in a variety of
industries, before all levels of the courts. He also has broad experience in
defamation and commercial litigation. He has been recognized by Lexpert,
Chambers Global, Benchmark Litigation, Best Lawyers, Who's Who Legal
and IAM Patent 1000.
Snowden, Marcus B. Snowden LLP, Coverage
Counsel (416) 363-3343 marcus@snowdenllp.com
Mr. Snowden focuses on commercial insurance and related risk management
advice, policy drafting and advocacy. His client services include coverage
opinions, national and cross-border monitoring counsel and litigation counsel
in actions on CGL, E&O, D&O, Excess, Specialty and Property policies. He co-
authors a leading insurance text/loose-leaf service, Annotated Commercial
General Liability Policy.
Smith, Glenn Lenczner Slaght Royce Smith Griffin LLP
(416) 865-2927 gsmith@litigate.com
Mr. Smith has a diverse commercial litigation practice focusing on complex
insurance issues, including product liability, environmental claims and D&O
claims. He appears regularly in arbitrations and before a variety of courts
and tribunals. He acts both for and against public and private companies,
financial institutions and governments.
Slaght, QC, Ronald G. Lenczner Slaght Royce
Smith Griffin LLP (416) 865-2929 rslaght@litigate.com
Extraordinary negotiating abilities, superb advocacy and sophisticated
business acumen ensure Mr. Slaght's continued leadership among Canadian
litigators. In addition to a formidable reputation in commercial and securities
litigation, he has built an eclectic practice based on his vast experience
in administrative law, real property and class actions.
Scott, QC, OC, David W. Borden Ladner Gervais LLP
(613) 787-3525 dscott@blg.com
ACTL's first Canadian President. University of Ottawa and LSUC Honorary
degrees. Advocates' Society and Law Society Medals recipient. Order
of Canada officer. Lexpert Lifetime Achievement Award: Pro Bono/Lexpert
Zenith Award: Celebrating Leadership.
LEXPERT-RANKED LAWYERS
value" of the ethylene as measured by Nova's aver-
age selling price of ethylene to third parties. Dow
claimed that because Nova itself produced the
ethylene used to make SURPASS, it was entitled
to deduct only its actual costs incurred to manu-
facture the ethylene. Justice Fothergill agreed
with Dow's position, noting that Nova's position
would result in deduction of a "theoretical cost
that [Nova] did not incur."
e second issue was whether Nova's non-
incremental fixed costs and capital depreciation
expenses could be applied against infringing rev-
enue. Nova contended that its incremental costs
would be negligible, and a "full cost approach"
(permitting deduction of certain non-incremen-
tal fixed and capital costs) was appropriate to
avoid an inequitable outcome.
Justice Fothergill concluded that Nova should
be entitled to deduct a proportion of certain of
its claimed fixed costs and capital depreciation
expenses related to the production and sale of the
infringing products.
Currency conversion
e issue of the timing of currency conversion
was also before the court. While Nova's profits
from the sale of infringing SURPASS products
were mostly earned in US dollars, the Currency
Act requires that a judgment be expressed in Can-
adian dollars. Justice Fothergill found that the
evidence supported that Nova's profits were pri-
marily retained in US dollars such that the date
of conversion into Canadian dollars should be the
date of the judgment.
Inclusion of additional product grades in the cal-
culation of profits
Also at issue were four grades of Nova's SUR-
PASS product that Dow claimed were identical
or nearly identical to those that were specifically
identified in Dow's original statement of claim,
but were sold by Nova under slightly different
names at various times. Nova conceded that these
grades infringed the '705 Patent, but argued de-
fences of res judicata, abuse of process and the ap-
plication of a limitation period because they had
not been specifically identified in the statement of
claim during the liability phase of the proceeding.
Justice Fothergill sided with Dow, finding that
the additional grades were within the scope of the
liability judgment.
FINAL AWARD
Based on Justice Fothergill's initial judgment, the
parties exchanged calculations of damages and
profits payable by Nova to Dow and provided
the court with a list of three further issues relating
to the appropriate accounting methodologies to
apply to arrive at the final judgment.
Dow was ultimately successful on two of
the three issues. e final award totals over $645
