Nova Chemicals Corporation v. Dow Chemicals Company, 2020 FCA 141
Justice Stratas; Justice Near; Justice Woods - 2020-09-15
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Before the Court is an appeal and a cross-appeal from the judgment of the Federal Court in file T-2051-10 (per Fothergill J.): 2017 FC 350, supplementary reasons 2017 FC 637, reasons on costs 2017 FC 759. ... Broadly speaking, the appeal and the cross-appeal in this Court concern the principles that should govern the calculation of a plaintiff’s recovery under an accounting of profits. This issue arises from an earlier judgment of the Federal Court, later affirmed on appeal: 2014 FC 844, aff’d 2016 FCA 216. ... The jurisprudence has developed two rules for courts to help them implement these principles: (1) only actual profits, meaning actual revenues minus actual costs, are disgorged; (2) only profits that have resulted from the patent infringement are disgorged. ... Thus, for the foregoing reasons, in the accounting of profits context, the use of the term “non-infringing baseline” is preferable to “non-infringing alternative”. Using the term “non-infringing baseline” steers courts and litigants away from impermissible “but for” reasoning. ... In my view, absent some exceptional or compelling circumstance or persuasive expert evidence to the contrary in a particular case, the full cost method is the appropriate approach to deducting costs in an accounting of profits. ... Dissent: For the reasons below, I have concluded that an apportionment of profits is appropriate in this case. I also conclude that the Federal Court made a reviewable error by not considering the issue of “causation”, which is at the heart of the legal test of apportionment.
Decision relates to:
- A-150-17 - NOVA CHEMICALS CORP. v. THE DOW CHEMICAL COMPANY ET. AL which is an appeal from 2017 FC 350 in T-2051-10
- A-227-17 - NOVA CHEMICALS CORP. V. THE DOW CHEMICAL COMPANY ET AL which is an appeal from 2017 FC 637 in T-2051-10
- T-2051-10 - THE DOW CHEMICAL COMPANY ET AL v. NOVA CHEMICALS CORPORATION