Case information
Conduct a refined search of the Supreme Court of Canada database to obtain details on the status of a matter before the Court.
39439
Nova Chemicals Corporation v. Dow Chemical Company, et al.
(Federal) (Civil) (By Leave)
(Certain information not available to the public)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
v.
Other parties
Counsel
Party: Nova Chemicals Corporation
Counsel
Andrew Bernstein
Nicole Mantini
Jonathan Silver
Suite 3000, 79 Wellington Street West
P.O. Box 270, Toronto Dominion Centre
Toronto, Ontario
M5K 1N2
Telephone: (416) 865-7319
FAX: (416) 865-7380
Email: sblock@torys.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Dow Chemical Company
Counsel
Jeremy E. Want
Colin B. Ingram
Daniel S. Davies
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Dow Global Technologies Inc.
Counsel
Jeremy E. Want
Colin B. Ingram
Daniel S. Davies
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Dow Chemical Canada ULC
Counsel
Jeremy E. Want
Colin B. Ingram
Daniel S. Davies
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc.
Counsel
Alexis Nihon Plaza, Tower 2
3500 De Maisonneuve Blvd. West
Montreal, Quebec
H3Z 3C1
Telephone: (514) 935-4460
FAX: (514) 935-2999
Email: aboctor@imk.ca
Agent
50, O'Connor Street
Suite 1313
Ottawa, Ontario
K1P 6B9
Telephone: (613) 702-5566
FAX: (613) 702-5566
Email: DBosse@juristespower.ca
Party: Vidéotron ltée
Counsel
612, rue Saint-Jacques
17e étage
Montréal, Quebec
H3C 4M8
Telephone: (514) 380-6729
FAX: (514) 985-8834
Email: eric.meunier@quebecor.com
Agent
50, O'Connor Street
Suite 1313
Ottawa, Ontario
K1P 6B9
Telephone: (613) 702-5566
FAX: (613) 702-5566
Email: DBosse@juristespower.ca
Party: Canadian Generic Pharmaceutical Association
Counsel
Andrew Brodkin
Jordan Scopa
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontario
M5H 2S7
Telephone: (416) 979-2211
FAX: (416) 979-1234
Email: hradomski@goodmans.ca
Agent
50 O'Connor
Suite 300
Ottawa, Ontario
K1P 6L2
Telephone: (613) 231-8212
FAX: (613) 238-2098
Email: christopher.rootham@nelliganlaw.ca
Summary
Keywords
Intellectual property – Patents – Medicines – Damages - Respondent seeking remedy of accounting of profits following determination applicant had infringed respondent’s patent - What is the proper conceptual approach to determining how to calculate a disgorgement of profits in the patent context? - Are “springboard profits” on products sold after patent expiry available at law?<br>
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(SEALING ORDER)
The respondents, Dow Chemical Company et al. (“Dow”), held a patent for fabricated products made from ethylene polymer blends. Dow sued the appellant, Nova Chemicals Corporation (“Nova”), a manufacturer of a similar product, for patent infringement.
In 2014, the Federal Court, in the liability phase of the trial, held that Dow’s patent was valid and was infringed by Nova’s product. The patent was issued in 2006 and expired on April 19, 2014. Dow was held to be entitled to damages under the Patent Act, R.S.C. 1985, c. P-4, and had to elect either an accounting of Nova’s profits or damages sustained by reason of Nova’s infringement under s. 55(1) of the Act. The quantum of that award was to be assessed by reference. Dow elected an accounting of profits. The reference judge was required to determine the manner in which damages payable to Dow pursuant to ss. 55(1) and 55(2) of the Act should be calculated. The principles articulated by the reference judge allowed for the calculation of the accounting of profits to be disgorged by Nova and made payable to Dow. That decision was upheld by the Federal Court of Appeal.
Lower court rulings
Federal Court
T-2051-10, 2017 FC 350
See file
Federal Court
T-2051-10, 2017 FC 637
See file
Federal Court
T-2051-10, 2017 FC 759
See file
Federal Court of Appeal
2020 FCA 141, A-150-17, A-227-17
See file
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Related links
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2022-12-14 | Appeal closed | |
| 2022-11-18 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2022-11-18 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2022-11-18 |
Judgment on the appeal rendered, CJ Mo Ka Côt Br Row Mar Kas Ja, The appeal from the judgment of the Federal Court of Appeal, Numbers A-150-17 and A-227-17, 2020 FCA 141, dated September 15, 2020, heard on April 20, 2022, is dismissed with costs throughout. Côté J. dissents. Dismissed, with costs |
|
| 2022-05-04 | General proceeding, (Letter Form), Case Sensitivity Questionnaire, (Printed version due on 2022-05-11) | Nova Chemicals Corporation |
| 2022-05-04 | Transcript received, 114 Pages | |
| 2022-04-21 | General proceeding, Questionnaire de sensibilité | Dow Chemical Company |
| 2022-04-20 | Judgment reserved OR rendered with reasons to follow | |
| 2022-04-20 |
Hearing of the appeal, 2022-04-20, CJ Mo Ka Côt Br Row Mar Kas Ja Judgment reserved |
|
| 2022-04-19 | Certificate (on limitations to public access), 23B - Condensed book | Dow Chemical Company |
| 2022-04-14 | Respondent's condensed book, (Book Form), CONFIDENTIAL & REDACTED versions rec'd 2022-04-13, (Electronic version filed on 2022-04-14) | Dow Chemical Company |
| 2022-04-14 | Certificate (on limitations to public access), 23B - Condensed book | Nova Chemicals Corporation |
| 2022-04-14 | Appellant's condensed book, (Book Form), REDACTED & CONFIDENTIAL versions rec'd 2022-04-14, (Printed version filed on 2022-04-14) | Nova Chemicals Corporation |
| 2022-04-08 | Correspondence received from, (Letter Form), Nova Chemicals Corporation does not object to the suggested amendment with respect to the order in which the parties will make their submissions, (Printed version due on 2022-04-19) | Nova Chemicals Corporation |
| 2022-04-08 | Correspondence received from, (Letter Form), request an amendment to the speaking order, (Printed version due on 2022-04-19) | Dow Chemical Company |
| 2022-04-07 | Correspondence (sent by the Court) to, Correspondence re: upcoming hearing | |
| 2022-03-31 | Correspondence (sent by the Court) to, Letters of direction regarding the upcoming hearing sent to parties | |
| 2022-03-23 |
Notice of appearance, (Letter Form), Harry Radomski, Andrew Brodkin and Jordan Scopa will appear. Andrew Brodkin will present oral argument. rec'd amended notice of appearance (rec'd 2022-04-06), (Printed version due on 2022-03-30) |
Canadian Generic Pharmaceutical Association |
| 2022-03-23 |
Notice of appearance, (Letter Form), Audrey Boctor, Danielle Marcovitz will appear. Audrey Boctor will present oral argument. , (Printed version due on 2022-03-30) |
Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2022-03-22 |
Notice of appearance, (Letter Form), Steve Garland, Jeremy Want, Daniel Davies, Matthew Burt will appear. Steve Garland will present oral argument. , (Printed version due on 2022-03-29) |
Dow Chemical Company |
| 2022-03-21 | Notice of appearance, (Letter Form), Counsel appearing will be Andrew Bernstein, Sheila Block, Nicole Mantini & Jonathan Silver. Andrew Bernstein will be presenting oral argument. , (Printed version due on 2022-03-28) | Nova Chemicals Corporation |
| 2022-02-04 | Notice of hearing sent to parties | |
| 2022-02-04 |
Appeal hearing scheduled, 2022-04-20 Judgment reserved |
|
| 2021-12-30 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted), Tentatively scheduled for the week of April 18th 2022. | |
| 2021-12-09 |
Certificate (on limitations to public access), (Letter Form), CONFIDENTIAL 23B - Supplemental Record, (Printed version filed on 2021-12-09) |
Nova Chemicals Corporation |
| 2021-12-09 |
Supplemental document, (Book Form), Supplemental Record SEALED (redacted version filed), Completed on: 2021-12-16, (Printed version filed on 2021-12-09) |
Nova Chemicals Corporation |
| 2021-12-09 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2021-12-09) | Nova Chemicals Corporation |
| 2021-12-09 | Reply factum on appeal, (Book Form), Reply factum in response to all interventions, Completed on: 2021-12-16, (Printed version filed on 2021-12-09) | Nova Chemicals Corporation |
| 2021-12-09 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2021-12-09) | Dow Chemical Company |
| 2021-12-09 | Reply factum on appeal, (Book Form), Reply factum in response to all interventions, Completed on: 2021-12-14, (Printed version filed on 2021-12-09) | Dow Chemical Company |
| 2021-12-02 | Intervener's book of authorities, (Book Form), Completed on: 2021-12-13, (Printed version filed on 2021-12-06) | Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2021-12-02 | Intervener's factum, (Book Form), Completed on: 2021-12-13, (Printed version filed on 2021-12-06) | Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2021-12-01 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2021-12-14) | Canadian Generic Pharmaceutical Association |
| 2021-12-01 | Intervener's book of authorities, (Book Form), Completed on: 2021-12-13, (Printed version filed on 2021-12-14) | Canadian Generic Pharmaceutical Association |
| 2021-12-01 | Intervener's factum, (Book Form), Completed on: 2021-12-13, (Printed version filed on 2021-12-14) | Canadian Generic Pharmaceutical Association |
| 2021-11-25 |
Order by, Justice Rowe (sent by email to all parties), UPON REQUEST by the respondents for an order granting permission to serve and file a reply factum in response to all interventions; IT IS HEREBY ORDERED THAT: The respondents are granted permission to serve and file a single reply factum not to exceed ten (10) pages in length on or before December 9, 2021. Allowed |
|
| 2021-11-24 |
Order by, the Chief Justice (sent by email to all parties), IT IS HEREBY ORDERED THAT: 1. The hearing is adjourned and the appeal is traversed to the Spring 2022 session. 2. All filing deadlines remain unchanged, unless otherwise directed by the Court Traversed |
|
| 2021-11-17 |
Notice of change of counsel, (Letter Form), The "Coalition" interveners are no longer represented by McCarthy Tétrault LLP. Going forward, counsel for TELUS Communications Inc., Rogers Communications Canada Inc. and Bell Canada is: -Audrey Boctor Counsel for Vidéotron ltée remains: -Eric Meunier, (Printed version due on 2021-11-24) |
Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2021-11-12 | Correspondence received from, Matthew Burt, Re: follow up for reply factum | Dow Chemical Company |
| 2021-11-08 | Notice of hearing sent to parties, (sent electronically on 2021-11-09) | |
| 2021-10-29 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2021-10-25 | Correspondence received from, Matthew Burt, by email, Re: reply factum | Dow Chemical Company |
| 2021-10-21 | Order on motion to extend time, by Justice Rowe (See order on interventions) | |
| 2021-10-21 |
Decision on motion to extend time, Row Granted |
|
| 2021-10-21 | Submission of motion to extend time, Row | |
| 2021-10-21 | Order on motion for leave to intervene, by Justice Rowe (sent to parties electronically) | |
| 2021-10-21 |
Decision on the motion for leave to intervene, Row, UPON APPLICATION by the Canadian Generic Pharmaceutical Association for an order extending the time to serve and file the motion for leave to intervene; AND UPON APPLICATION by Bell Canada, Rogers Communications Canada Inc., Telus Communications Inc. and Vidéotron (jointly); and Canadian Generic Pharmaceutical Association for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for an extension of time is granted. The motions for leave to intervene are granted and the said two (2) interveners or groups of interveners shall be entitled to serve and file a factum not to exceed ten (10) pages in length on or before December 2, 2021. The said two (2) interveners or groups of interveners are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal. The interveners or groups of interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. The appellant is granted permission to serve and file a reply factum not to exceed ten (10) pages in length on or before December 9, 2021. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners or groups of interveners shall pay to the appellant and the respondents any additional disbursements resulting from their interventions. Granted |
|
| 2021-10-21 | Submission of motion for leave to intervene, (2 motions), Row | |
| 2021-10-12 | Certificate of counsel (attesting to record), (Letter Form), 24B, (Printed version filed on 2021-10-13) | Dow Chemical Company |
| 2021-10-12 |
Certificate (on limitations to public access), (Letter Form), (Included in the certificate (on limitations to public access)), 23B required: amended 23B, (Printed version filed on 2021-10-13) |
Dow Chemical Company |
| 2021-10-12 |
Certificate (on limitations to public access), (Letter Form), 23A require: amended 23A, (Printed version filed on 2021-10-13) |
Dow Chemical Company |
| 2021-10-12 | Respondent's book of authorities, (Book Form), Completed on: 2021-11-01, (Printed version filed on 2021-10-13) | Dow Chemical Company |
| 2021-10-12 |
Respondent's record, (Book Form), CONFIDENTIAL require: clarification re: 23A-23B (rec'd 2021-11-01), Completed on: 2021-11-16, (Printed version filed on 2021-10-13) |
Dow Chemical Company |
| 2021-10-12 | Respondent's factum, (Book Form), require: clarification regarding 23A (rec'd 2021-11-01), Completed on: 2021-11-16, (Printed version filed on 2021-10-13) | Dow Chemical Company |
| 2021-10-12 | Correspondence received from, Ms. Marie-France Major, Re: availability for hearing of the appeal | Nova Chemicals Corporation |
| 2021-10-08 | Reply to the motion for leave to intervene, Completed on: 2021-10-12 | Canadian Generic Pharmaceutical Association |
| 2021-10-01 | Certificate (on limitations to public access), (Letter Form), 23B - Response to the Motions for leave to intervene, (Printed version filed on 2021-10-05) | Dow Chemical Company |
| 2021-10-01 | Certificate (on limitations to public access), (Letter Form), 23A - Response to the Motions for leave to interevene, (Printed version filed on 2021-10-05) | Dow Chemical Company |
| 2021-10-01 | Response to the motion for leave to intervene, (Book Form), Completed on: 2021-10-06, (Printed version filed on 2021-10-05) | Dow Chemical Company |
| 2021-09-28 | Reply to the motion for leave to intervene, (Letter Form), Completed on: 2021-10-06 | Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2021-09-23 | Response to the motion for leave to intervene, (Letter Form), Completed on: 2021-09-24, (Printed version filed on 2021-09-23) | Nova Chemicals Corporation |
| 2021-09-23 | Response to the motion for leave to intervene, Completed on: 2021-09-24, (Printed version filed on 2021-09-27) | Dow Chemical Company |
| 2021-09-20 | Notice of name, (Letter Form), (Printed version filed on 2021-11-03) | Canadian Generic Pharmaceutical Association |
| 2021-09-20 | Motion to extend time, (Book Form), to serve and file the motion for leave to intervene, Completed on: 2021-09-22, (Printed version filed on 2021-11-03) | Canadian Generic Pharmaceutical Association |
| 2021-09-20 |
Motion for leave to intervene, (Book Form), MISSING: Filing Fee, Incomplete, (Printed version filed on 2021-11-03) |
Canadian Generic Pharmaceutical Association |
| 2021-09-13 | Other book of authorities, (Book Form), (in support of the motion on intervention), Completed on: 2021-09-15, (Printed version filed on 2021-09-14) | Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2021-09-13 |
Motion for leave to intervene, (Book Form), Missing: Filing Fee, Incomplete, (Printed version filed on 2021-09-14) |
Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. |
| 2021-08-16 | Certificate (on limitations to public access), (Letter Form), 23B - Factum, Record and Authorities, (Electronic version filed on 2021-08-16) | Nova Chemicals Corporation |
| 2021-08-16 | Certificate of counsel (attesting to record), (Letter Form), 24A, (Printed version filed on 2021-08-16) | Nova Chemicals Corporation |
| 2021-08-16 | Appellant's book of authorities, (Book Form), Completed on: 2021-08-19, (Printed version filed on 2021-08-16) | Nova Chemicals Corporation |
| 2021-08-16 |
Appellant's record, (Book Form), (3 volumes), VOL I & III - CONFIDENTIAL Confidential paper copies of Volume I & Volume III rec'd 2021-08-16 Redacted electronic copies rec'd 2021-08-16, Completed on: 2021-08-23, (Printed version filed on 2021-08-16) |
Nova Chemicals Corporation |
| 2021-08-16 | Appellant's factum, (Book Form), Completed on: 2021-08-23, (Printed version filed on 2021-08-16) | Nova Chemicals Corporation |
| 2021-06-21 | Notice of appeal, (Letter Form), Completed on: 2021-08-11, (Printed version filed on 2021-06-21) | Nova Chemicals Corporation |
| 2021-05-20 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2021-05-20 | Judgment on leave sent to the parties | |
| 2021-05-20 |
Judgment of the Court on the application for leave to appeal, The request to join two Federal Court of Appeal files in a single application for leave to appeal is granted. The application for leave to appeal from the judgments of the Federal Court of Appeal, Numbers A-150-17 and A-227-17, 2020 FCA 141, dated September 15, 2020, is granted with costs in the cause. Granted, with costs in the cause |
|
| 2021-05-20 |
Decision on the miscellaneous motion, See decision on application Granted |
|
| 2021-02-15 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2021-02-15 | Submission of miscellaneous motion, for consideration by the Court | |
| 2021-01-29 | Certificate (on limitations to public access), 23B - Reply | Nova Chemicals Corporation |
| 2021-01-29 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2021-02-15, (Printed version filed on 2021-01-29) | Nova Chemicals Corporation |
| 2021-01-19 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2021-02-15 | Dow Chemical Company |
| 2021-01-19 | Certificate (on limitations to public access), 23B - Response | Dow Chemical Company |
| 2021-01-19 | Certificate (on limitations to public access), 23A - Response - Clarification required - Amended form (rec' 2021-02-16) | Dow Chemical Company |
| 2021-01-19 | Notice of name | Dow Chemical Company |
| 2020-12-10 | Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2020/12/10 | |
| 2020-11-13 | Notice of miscellaneous motion, (Included in the application for leave to appeal), Motion to Join, Completed on: 2020-11-13 | Nova Chemicals Corporation |
| 2020-11-13 | Notice of name, (Letter Form) | Nova Chemicals Corporation |
| 2020-11-13 | Certificate (on limitations to public access), (Letter Form), 23B; Amended certificate rec'd 2020/12/10 | Nova Chemicals Corporation |
| 2020-11-13 | Certificate (on limitations to public access), (Letter Form), 23A; Amended certificate rec'd 2020/12/10 | Nova Chemicals Corporation |
| 2020-11-13 | Application for leave to appeal, (Book Form), (2 volumes), Volume 1-CONFIDENTIAL; redacted copy filed 2020/11/13, Completed on: 2020-11-13 | Nova Chemicals Corporation |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Nova Chemicals Corporation | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Dow Chemical Company | Respondent | Active |
| Dow Global Technologies Inc. | Respondent | Active |
| Dow Chemical Canada ULC | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc. | Intervener | Active |
| Vidéotron ltée | Intervener | Active |
| Canadian Generic Pharmaceutical Association | Intervener | Active |
Counsel
Party: Nova Chemicals Corporation
Counsel
Andrew Bernstein
Nicole Mantini
Jonathan Silver
Suite 3000, 79 Wellington Street West
P.O. Box 270, Toronto Dominion Centre
Toronto, Ontario
M5K 1N2
Telephone: (416) 865-7319
FAX: (416) 865-7380
Email: sblock@torys.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Dow Chemical Company
Counsel
Jeremy E. Want
Colin B. Ingram
Daniel S. Davies
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Dow Global Technologies Inc.
Counsel
Jeremy E. Want
Colin B. Ingram
Daniel S. Davies
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Dow Chemical Canada ULC
Counsel
Jeremy E. Want
Colin B. Ingram
Daniel S. Davies
900 - 55 Metcalfe Street
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Telephone: (613) 232-2486
FAX: (613) 232-8440
Email: sgarland@smart-biggar.ca
Party: Bell Canada, Rogers Communications Canada Inc., TELUS Communications Inc.
Counsel
Alexis Nihon Plaza, Tower 2
3500 De Maisonneuve Blvd. West
Montreal, Quebec
H3Z 3C1
Telephone: (514) 935-4460
FAX: (514) 935-2999
Email: aboctor@imk.ca
Agent
50, O'Connor Street
Suite 1313
Ottawa, Ontario
K1P 6B9
Telephone: (613) 702-5566
FAX: (613) 702-5566
Email: DBosse@juristespower.ca
Party: Vidéotron ltée
Counsel
612, rue Saint-Jacques
17e étage
Montréal, Quebec
H3C 4M8
Telephone: (514) 380-6729
FAX: (514) 985-8834
Email: eric.meunier@quebecor.com
Agent
50, O'Connor Street
Suite 1313
Ottawa, Ontario
K1P 6B9
Telephone: (613) 702-5566
FAX: (613) 702-5566
Email: DBosse@juristespower.ca
Party: Canadian Generic Pharmaceutical Association
Counsel
Andrew Brodkin
Jordan Scopa
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontario
M5H 2S7
Telephone: (416) 979-2211
FAX: (416) 979-1234
Email: hradomski@goodmans.ca
Agent
50 O'Connor
Suite 300
Ottawa, Ontario
K1P 6L2
Telephone: (613) 231-8212
FAX: (613) 238-2098
Email: christopher.rootham@nelliganlaw.ca
Summary
Keywords
Intellectual property – Patents – Medicines – Damages - Respondent seeking remedy of accounting of profits following determination applicant had infringed respondent’s patent - What is the proper conceptual approach to determining how to calculate a disgorgement of profits in the patent context? - Are “springboard profits” on products sold after patent expiry available at law?<br>
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(SEALING ORDER)
The respondents, Dow Chemical Company et al. (“Dow”), held a patent for fabricated products made from ethylene polymer blends. Dow sued the appellant, Nova Chemicals Corporation (“Nova”), a manufacturer of a similar product, for patent infringement.
In 2014, the Federal Court, in the liability phase of the trial, held that Dow’s patent was valid and was infringed by Nova’s product. The patent was issued in 2006 and expired on April 19, 2014. Dow was held to be entitled to damages under the Patent Act, R.S.C. 1985, c. P-4, and had to elect either an accounting of Nova’s profits or damages sustained by reason of Nova’s infringement under s. 55(1) of the Act. The quantum of that award was to be assessed by reference. Dow elected an accounting of profits. The reference judge was required to determine the manner in which damages payable to Dow pursuant to ss. 55(1) and 55(2) of the Act should be calculated. The principles articulated by the reference judge allowed for the calculation of the accounting of profits to be disgorged by Nova and made payable to Dow. That decision was upheld by the Federal Court of Appeal.
Lower court rulings
Federal Court
T-2051-10, 2017 FC 350
See file
Federal Court
T-2051-10, 2017 FC 637
See file
Federal Court
T-2051-10, 2017 FC 759
See file
Federal Court of Appeal
2020 FCA 141, A-150-17, A-227-17
See file
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
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Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.