This was an Application addressing procedural issues in the ongoing "Second Remand" hearing between Dow Chemical Canada ULC (“Dow”) and NOVA Chemicals Corporation (“NOVA”). NOVA sought various forms of relief, including the production of specific records from Dow, the appointment of a Dow corporate representative for questioning, pre-trial questioning of Dow's experts, and an adjustment of the hearing schedule to accommodate these requests. The Court ultimately dismissed NOVA's Application.

In view of Rules 5.1 and 5.2, the Court analyzed whether the documents sought by NOVA were essential to resolving the issues at the "Second Remand" hearing and if the result would significantly help determine one or more of the issues in the Pleadings. The Court recognized its discretion under Rule 5.3 to modify or waive disclosure obligations when strict compliance would be disproportionately burdensome. However, the Court found that NOVA had not demonstrated sufficient justification for such relief, particularly given the broad nature of the request, the alleged prejudice, and the potential confidentiality concerns.

Applying Rule 5.11, Justice Romaine concluded that NOVA had not met the threshold required to compel production, as the requested documents were not sufficiently relevant to the specific issues being litigated. Additionally, NOVA sought to question a Dow corporate representative under Rule 5.17(b)(ii), but the Court denied this request, finding that the relevance and materiality thresholds had not been met. The Court emphasized that the litigation had already involved extensive pre-trial discovery and additional questioning would not significantly aid in resolving the issues.

Lastly, the Court considered NOVA’s request for pre-hearing questioning of Dow’s experts under Rule 5.37. Justice Romaine declined to order such questioning, noting that it was not likely to narrow the issues or promote resolution, and the circumstances did not warrant the exceptional measure.

In summary, Romaine J. found that the documents and questioning requested by NOVA did not meet the standards of relevance and materiality required for the “Second Remand” hearing, and NOVA’s Application was accordingly dismissed.