2024 ABKB 98

• Court Findings: The Court of King's Bench of Alberta addressed procedural issues for the "Second Remand" hearing.
• Key Issue: The illegality of the Ethane Pooling Covenant in the operating agreement was referred back to the trial court to determine the appropriate remedy.
• Damages Award: Dow was awarded damages for breaches by NOVA in optimizing production at E3, including issues related to low conversion rates and optimization failures.
• NOVA's Position: Requested termination of the Ethane Pool as of the date of Dow’s merger with Union Carbide and repayment of damages already awarded.

2024 ABKB 442

• Court Findings: This endorsement clarified ongoing procedural disputes. The Court dismissed NOVA's application for production and questioning of Dow's experts.
• Procedural Rulings: Rejected NOVA's demands for extensive discovery from Dow, particularly non-E3 business records.
• Final Outcome: The focus was on ensuring fairness and efficiency in resolving the Second Remand, particularly regarding severance of the Ethane Pooling Covenant and potential prejudice to Dow.

Final Outcome

• Combined Outcome: Dow retains the awarded damages from the first decision. The court proceedings focused on balancing the remedy for the covenant's illegality with ensuring no undue prejudice or unfairness, particularly related to the management and dissolution of the Ethane Pool.

These decisions highlight the complexity of contractual disputes and the legal process of determining fair remedies while managing procedural fairness and compliance with competition laws.