Executive Summary: Key Legal and Evidentiary Issues

• NOVA Chemicals Corporation sought a stay of enforcement of a $3.56 billion damages and costs award pending appeal in the Court of Appeal of Alberta.

• Dow Chemical Canada ULC and Dow Europe GmbH were awarded damages for breach of contract and related torts arising from the parties' joint operation of an ethylene plant, following almost twenty years of complex litigation.

• The Court applied the three-part RJR-MacDonald test: serious question on appeal, irreparable harm, and balance of convenience.

• Respondents conceded the low threshold for a serious question on appeal, but NOVA failed to demonstrate irreparable harm from payment of a monetary judgment.

• NOVA's argument that "exceptional circumstances" — including alleged egregious trial errors and the unprecedented magnitude of the award — warranted an alternative path to a stay was rejected.

• Justice Antonio denied the stay application, finding NOVA did not satisfy all three facets of the RJR test and did not persuade the Court that a stay was necessary in the interest of justice.

The underlying dispute between Dow and NOVA

This case stems from a protracted commercial dispute between Dow Chemical Canada ULC, Dow Europe GmbH (collectively "Dow"), and NOVA Chemicals Corporation ("NOVA") arising out of the parties' joint operation of an ethylene plant. After almost twenty years of complex litigation, Dow was awarded damages against NOVA for breach of contract and related torts. An appeal of the first damages award was allowed in part, with certain issues remanded back to the trial judge.

The trial decisions and NOVA's appeal

The remanded issues, together with another outstanding phase of the initial trial, were tried and decided in a series of judgments in 2025 — specifically, 2025 ABKB 217 and 2025 ABKB 343. Shortly thereafter, Dow was awarded costs, including solicitor and own client costs for certain phases of the litigation, in 2025 ABKB 467. NOVA appealed all of these trial decisions, along with numerous procedural judgments that preceded them. The appeals are scheduled to be heard together on November 12, 2026.

NOVA's application for a stay of enforcement

Before the Court of Appeal of Alberta, NOVA applied for a stay of enforcement of the trial judge's decisions, which collectively awarded Dow $3.56 billion in damages and costs. NOVA sought to halt enforcement pending the determination of the outstanding appeals, arguing that the stay was warranted under the established RJR-MacDonald test or, alternatively, on the basis of "exceptional circumstances."

The legal test applied by the Court

Justice Jolaine Antonio applied the well-known three-part test from RJR-MacDonald Inc v Canada (Attorney General), which requires the Court to consider: (i) whether there is a serious question to be determined on appeal; (ii) whether the applicant will suffer irreparable harm if the stay is not granted; and (iii) whether the balance of convenience favours granting a stay. The Court noted that these three criteria guide the "fundamental question" of whether, on a context-specific analysis, the granting of an injunction is just and equitable in all of the circumstances of the case, as set out by the Supreme Court of Canada in Google Inc v Equustek Solutions Inc.

Serious question on appeal

On the first prong, NOVA submitted there were serious issues to be determined on appeal. The threshold for this element is low, requiring only that the appeal be neither frivolous nor vexatious. Given the number of notices of appeal and the number of grounds they contained, the respondents conceded this facet of the test.

Irreparable harm not established

On the second prong, Justice Antonio found that NOVA had not satisfied the Court that it would suffer irreparable harm if a stay were not granted. The Court reiterated the general principle that successful litigants are generally entitled to enjoy the fruits of the judgment they have obtained even if the matter is being appealed, and that courts are reluctant to grant stays of monetary judgments since they are almost always reparable with another monetary order or judgment. Key portions of NOVA's evidence regarding the degree and kinds of harm it may suffer rested on an unsatisfactory foundation, and some of its arguments did not flow directly from the enforcement of the judgment but from choices NOVA may make after enforcement. NOVA suggested Dow may not be able to repay the judgment if NOVA were successful on appeal, but the Court found no reasonable prospect that Dow would be unwilling or unable to repay. The Court also noted that concerns over lost use of the funds if payment were made and later ordered returned were at least partially answered by the court's discretion to award pre-judgment interest at a higher rate under the Judgment Interest Act.

Balance of convenience did not favour NOVA

Regarding the third prong, the Court weighed the consequences for both parties. If a stay were not granted, NOVA would have to pay a sizeable judgment. If a stay were granted, Dow would be without the financial judgment it was awarded approximately ten months ago and would go without it for at least another nine months awaiting the scheduled appeals. NOVA offered an alternative to immediate payment, but the Court was not persuaded on the information available that the proposal was an appropriate alternative to enforcement of the judgment. The Court also declined to give weight to NOVA's argument regarding a type of public interest, noting this was a private dispute in a commercial context. Some of NOVA's arguments relating to the commercial context could cut either way. The Court concluded that NOVA had not tipped the balance of convenience in its favour.

NOVA's "exceptional circumstances" argument rejected

NOVA additionally argued that exceptional circumstances warranted a stay even if the other facets of the test had not been established. First, NOVA alleged the trial judge made errors so egregious that they constituted exceptional circumstances, relying on Westminer Canada Ltd v Amirault. Justice Antonio observed that this case pre-dated RJR, appeared to apply a different approach to the merits of the appeal within the stay test, and defined "exceptional circumstances" as an alternate path to relief if the primary three criteria had not been met — an alternate path that does not appear in RJR. The Court stated it had not been persuaded that the alleged errors alone warranted staying enforcement. Second, NOVA argued the extraordinary and unprecedented amount at issue gave rise to an exceptional circumstance. While acknowledging the amount is undeniably high, the Court noted it must be placed in the context of the scale of the parties' businesses and the length of the period of operations giving rise to the judgment. The Court emphasized it was bound by the Supreme Court's comment in RJR that "'[i]rreparable' refers to the nature of the harm suffered rather than its magnitude," and was not satisfied it would be consistent with RJR to categorize the magnitude of the judgment as an exceptional circumstance that supplants the established approach to staying enforcement of money judgments.

Ruling and outcome

In the result, Justice Antonio denied NOVA's application for a stay of enforcement. The Court concluded that NOVA had not succeeded in establishing all three facets of the RJR test and had not persuaded the Court that a stay was necessary in the interest of justice. Accordingly, Dow Chemical Canada ULC and Dow Europe GmbH remain entitled to enforce the trial decisions awarding them $3.56 billion in damages and costs. No exact breakdown of the individual components of this total award was specified in this decision.