Case: The Dow Chemical Company v Nova
Chemical Corporation, 2016 FC 91
Nature of case: Costs decision
Successful party: Dow Chemical Company, Dow
Global Technologies Inc. and Dow Chemical Canada ULC
Date of decision: January 22, 2016
Justice O'Keefe of the Federal Court awarded the plaintiffs
of a successful patent infringement proceeding, Dow Chemical
Company, Dow Global Technologies Inc. and Dow Chemical Canada ULC
(Dow), a lump sum payment of $2.9 million for
legal fees and $3.6 million for reasonable and necessary
The trial was complex, extended over 32 days and involved expert
testimony. In addition, both parties carried out large amounts of
The complexity of the trial called for an increased lump sum
Nova argued that Dow's costs should be prescribed by the
tariff rates under the Federal Court Rules, which would
have restricted the costs award to $1,099,725, or only 11% of
Dow's legal costs. Justice O'Keefe stated that this
would be "totally inadequate" and "[t]o only recoup
11% of your costs in such a complex case is not
Justice O'Keefe found that a lump sum award of 30% of
Dow's legal fees was more appropriate. He considered the
following factors, among others, in awarding the increased costs
the trial involved many complex aspects of chemistry;
the defendants raised at least 22 allegations of
the length of the trial was extended from 20 to 32 days;
over 33 days of examinations for discovery were conducted;
extensive testing of materials was carried out.
Justice O'Keefe also awarded $3.6 million for reasonable and
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