COURT OF APPEAL OF ALBERTA

Form AP-1
[Rules 14.8 and 14.12]

COURT OF APPEAL FILE NUMBER: 1^01' mp

TRIAL COURT FILE NUMBER: 0601-07921 FILED

JUL ?ni8
REGISTRY OFFICE: CALGARY
o

PLAINTIFFS/DEFENDANTS BY DOW CHEMICAL CANADA U

and DOW EUROPE GmbH Of
COUNTERCLAIM ^2Ppea\

STATUS ON APPEAL: Respondents

DEFENDANT/PLAINTIFF BY NOVA CHEMICALS CORPORATION

COUNTERCLAIM

STATUS ON APPEAL: Appellant

DOCUMENT: CIVIL NOTICE OF APPEAL

APPELLANT'S ADDRESS FOR TORYS LLP

SERVICE AND CONTACT 4600 Eighth Avenue Place East
INFORMATION: 525 - 8th Avenue S.W.,
Calgary, AB
T2P 1G1
Phone: 416.776.3700 Fax: 403.776.3800
Attention: Sheila R. Block

WARNING

To the Respondent: If you do not respond to this appeal as provided for in the Alberta
Rules of Court, the appeal will be decided in your absence and without your input.
1. Particulars of Judgment, Order or Decision Appealed From:

Date pronounced: June 20, 2018

Date entered: Not yet entered

Date served: Not yet served

Official neutral citation of reasons for decision, if any: 2018 ABQB 482.

(Attach a copy of order or judgment: Rule 14.12(3). If a copy is not attached, indicate
under item 14 and file a copy as soon as possible: Rule 14.18(2).)

2. Indicate where the matter originated:

Court of Queen's Bench

Judicial Centre: Calgary, Alberta

Justice: The Honourable Madam Justice Barbara Romaine

On appeal from a Queen's Bench Master or Provincial Court Judge? No

Official neutral citation of reasons for decision, if any, of the Master or Provincial Court
Judge: None
Specify Body: None

3. Details of Permission to Appeal, if required (Rules 14.5 and 14.12(3)(a)).

Permission not required:

Date: N/A

Justice: N/A

(Attach a copy of order, but not reasons for decision.)

4. Portion being appealed (Rule 14.12(2)(c)):

Whole
5. Provide a brief description of the issues;

The Trial Judge fundamentally misapprehended the Project Agreements between

NOVA Chemicals Corporation ("NOVA"), and Union Carbide Corporation ("UCC").
She ignored the commercial purpose of these agreements, as well as the factual
matrix and context at the time they were entered into. As a result, she erroneously
awarded over one billion US dollars in damages to UCC's successors in interest,
Dow Europe and Dow Canada (together, "Dow"). Further particulars of the Trial
Judge's errors are set out below.

Dow Canada/Dow Europe Claim:

Liability

1. The Trial Judge erred and reached unreasonable conclusions in allowing

Dow's claim.

2. The Trial Judge erred in law and interpreted the Project Agreements
unreasonably in failing to have regard to the factual matrix and commercial
purpose between the original contracting parties, NOVA and UCC, particularly
by:
(a) requiring NOVA to give priority to E3 over any other facility at the Joffre
Site (including NOVA's wholly owned E1 and E2 Plants and any future
plant): and
(b) concluding that NOVA was required to supply ethane feedstock to E3 in
quantities that would have resulted in Dow Europe receiving a proportion
of ethylene much greater than its share of the feedstock (i.e., its
Feedstock Fraction).
3. The Trial Judge erred and reached an unreasonable conclusion in interpreting
the meaning of the objective that the Plant will "optimize Product production"
and "achieve first decile performance" under s. 4.3(b) of the Operating and
Services Agreement("OSA").
4. The Trial Judge erred and reached an unreasonable conclusion in failing to
apply the limitation of liability clauses, particularly by:
(a) misinterpreting the term "Excluded Damages" in the Project Agreements;
(b) finding NOVA liable "in its capacity as Co-owner" for breaches she found
to be committed by NOVA in its capacity as the Operator of E3; and
(c) finding that NOVA was grossly negligent or engaged in wilful misconduct.
5. The Trial Judge erred and reached an unreasonable conclusion in finding that
NOVA engaged in the tort of conversion or was unjustly enriched by
distributing to Dow Europe only a share of ethylene that was proportionate to
its share of the ethane Pool (i.e., proportionate to its Feedstock Fraction).
6. The Trial Judge erred and reached an unreasonable conclusion in finding that
NOVA was obligated to pay Dow on account of infrastructure capital fees.
7. The Trial Judge made errors of law and palpable and overriding errors of fact
in reaching conclusions about the productive capacity of E3, including:
(a) accepting the evidence of experts with no first-hand knowledge of E3's
operation and productive capacity over the evidence of employees who
actually operated the Plant;
(b) misconstruing or failing to properly consider relevant evidence and
admissions relating to the uncommon mechanical restraints encountered
by NOVA in the operation of E3;
(c) misconstruing or failing to properly consider relevant evidence and
admissions relating to the capacity at which E3 was capable of operating;
and
(d) failing to recognize the existence of the ethane shortage in Alberta.

Damages:
8. The Trial Judge erred and reached unreasonable conclusions by awarding
damages for alleged under-deliveries of ethylene from E3 to Dow Canada,
which (in contrast with Dow Europe) had no entitlement to ethylene from E3.
9. The Trial Judge erred in admitting and relying on Dow's Asset Utilization
Database ("AUDB"), and the expert evidence that relied on the AUDB,
notwithstanding that it was inadmissible and unreliable hearsay to which
NOVA objected.
10. The Trial Judge erred and reached unreasonable conclusions in determining
damages, including:
(a) awarding damages to Dow Europe that were not foreseeable at the
time the Project Agreements were entered into;
(b) failing to properly consider mitigation; and/or
(c) failing to properly apply the Limitations Act.
11. The Trial Judge erred by granting Dow leave to amend its claim with respect
to its Life-to-Date Billing and Ethane Fixed Cost Claims that are, and will
continue to be, limitation-barred at the time of the amendment.
12. The Trial Judge erred in law by awarding interest on the damages at a rate
much higher than the statutory rate, which had the effect of increasing the
total award to Dow by more than USD$300,000,000.
13. The Trial Judge erred in law in awarding Dow a punitive currency exchange
rate with respect to the Allocation Claim by improperly selecting as a single
"breach date" the date within the relevant 15 year period upon which the
Canadian/U.S. exchange was close to an historic low, and erred by failing to
apply a monthly currency exchange rate to all damages.
14. Such further and other grounds as counsel may advise.
 NOVA'S Counterclaim

15. The Trial Judge erred and reached unreasonable conclusions in

dismissing NOVA's Counterclaim.
16. The Trial Judge erred and reached an unreasonable conclusion in failing
to apply the restrictions in Article 5 of the OSA to Dow's activities,
including:
(a) improperly restricting or limiting the "capacity" in which Dow
became a party to the OSA;
(b) failing to recognize that the OSA expressly provided that NOVA
was the only party permitted to acquire ethane in the Pool Area,
and limited Dow Canada's ability to do so;
(c) assessing Dow's reasonable expectations at the time that it
assumed UCC's rights and obligations, rather than UCC's
reasonable expectations at the time that the Project Agreements
were formed.

17. The Trial Judge erred in law in finding that portions of Article 5 of the OSA
are void:

(a) for restraint of trade; and/or

(b) under the Competition Act, contrary to the Advance Ruling
Certificate issued by the Competition Bureau after reviewing the
Project Agreements.
18. The Trial Judge erred and reached an unreasonable conclusion in
applying notional severance to the OSA to create a different bargain than
the one to which the contracting parties agreed.
19. If the Trial Judge was right to conclude that portions of Article 5 were
illegal or void (which is denied), she erred and reached an unreasonable
conclusion in refusing to declare Article 5 illegal and void ab initio.
20. The Trial Judge erred and reached an unreasonable conclusion in finding
that NOVA'S July 25, 2006 notice pursuant to Section 5.15(a) of the OSA
was invalid.

21. Such further and other grounds as counsel may advise.

6. Provide a brief description of the relief claimed:

The Appellant seeks:

(a) An Order setting aside the Judgment and dismissing the Plaintiffs' claim in
whole or in part;

(b) An Order finding Dow Canada liable on NOVA's counterclaim;

(c) In the alternative to (a) and (b), an order requiring that a different judge of the
Court of Queen's Bench determine or re-determine any issues that this Court
requires: and

(d) An Order awarding NOVA its costs of this appeal and the trial below.
7. Is this appeal required to be dealt with as a fast track appeal?(Rule 14.14)

This appeal is not one which is deemed a fast track appeal under Rule 14.14(2).

8. Does this appeal involve the custody, access, parenting or support of a child?
(Rule 14.14(2)(b))
No

9. Will an application be made to expedite this appeal?

The Appellant will seek advice and direction from a case management officer under
Rule 14.36 with respect to all matters relating to the within appeal, including but not
limited to: (a) extending the times for taking all steps in the within appeal, including
the filing of the appeal record, as well as the filing of factums; and (b) permitting
deviation in the form, and particularly, the length, of the appeal record and factums
to be filed in the within appeal.

10. Is Judicial Dispute Resolution with a view to settlement or crystallization of

Issues appropriate?(Rule 14.60)
No

11. Could this matter be decided without oral argument?(Rule 14.32(2))

No

12. Are there any restricted access orders or statutory provisions that affect the
privacy of this file? (Rules 6.29, 14.12(2)(e),14.83)
Yes

If yes, provide details: A Restricted Court Access Order was filed on April 10, 2015
(attached).

13. List respondent(s) or counsel for the respondent(s), with contact Information:

Bennett Jones LLP

4500 Bankers Hall East

855- 2nd Street SW
Calgary, Alberta T2P 4K7
BlairC. Yorke-Slader, Q.C.
Telephone:(403)298-3291
 Facsimile:(403) 265-7219
Email: vorkesladerb@bennettlones.com

Counsel for the Respondents, Dow Chemical Canada ULC and Dow Europe GmbH

If specified constitutional issues are raised, service on the Attorney General is

required under s. 24 of the Judicature Act: Ruie 14.18(1)(c)(viii).

14.Attachments(check as applicable)

Order or judgment under appeal if available (not reasons for decision) (Rule
14.12(3))
Earlier order of Master, etc.(Rule 14.18(1 )(c))
Order granting permission to appeal (Rule 14.12(3)(a))
X Copy of any restricted access order(Rule 14.12(2)(e)
if any document is not avaiiabie, it should be appended to the factum, or included
elsewhere in the appeal record.