By: Michael Nesbitt
Case Commented On: Dow Chemical Canada ULC v Nova Chemicals Corporation, 2015 ABQB 401 (CanLII)
This decision of the Court of Queen’s Bench concerns the admissibility of evidence given by a “lay witness” at trial and whether that evidence falls within an exception to the general rule that such a witness cannot give opinion evidence.
A central issue at trial was whether Nova failed to run at maximum capacity the ethylene production facility (E3) that it jointly owned with Dow. Nova’s defence was that there was a shortage of ethane – “the feedstock for E3” (at para 3) – which in turn meant that it could not run the E3 facility at full capacity.
Nova stated that it would call employees at E3 to offer testimony both about how E3 was operated and about the mechanical and operational constraints that may have limited the ability for E3 to run a full capacity. In other words, Nova wanted the employees to testify about the constraints they faced and why these would have prevented them from failing to run at maximum capacity. The dispute relevant to this comment arises out of the questioning of the first witness, a Mr. Ron Just, who was the optimizing engineer at E3 for much of the period at issue in the trial, and whether his testimony constituted fact evidence or inadmissible opinion evidence.