This case involved nearly a decade of extensive litigation between the Parties, with 18 written decisions, including complex Trial and remand proceedings. At issue was whether submissions on Costs could be addressed before a final Decision on the outstanding remanded issues.

Justice Romaine noted that, consistent with Rule 10(1)(c), there was no indication that Costs determinations should or could not be made prior to final Judgment on the remand issues. The Plaintiffs, Dow Chemical Canada ULC (“Dow”), proposed that the Court hear arguments on Costs issues and rule on those matters alongside its final reasons. The Defendants, Nova Chemicals Corporation (“Nova”), argued that Costs should be addressed only after the final Judgment, asserting that although Rule 10.30 permits costs to be considered at any time, this provision applies exclusively after the completion of Trial and issuance of a Trial Decision.

Romaine J. rejected Nova’s argument, noting that its interpretation conflicted with decisions of the Court of Appeal. It is common practice to make costs submissions before all issues have been fully resolved. Further, Romaine J. emphasized that in complex and protracted litigation, it is essential for the trial judge, who is intimately familiar with the case, to determine costs. In response to Nova’s suggestion that the Parties attempt to resolve Costs independently, Romaine J. stated that nothing prevented this from occurring, either before or after Costs submissions, although the history of the litigation suggested that such efforts may be unsuccessful.

While acknowledging that the pending retirement of a trial judge does not alter the application of the law on Costs, the Court found that the Trial Judge’s retirement in July 2025 was a significant factor in determining the appropriate process for addressing Costs. As the Trial Judge, Romaine J. noted familiarity with the case and stressed the importance of determining Costs to ensure proper procedure and judicial economy.

Accordingly, the Parties were directed to address Costs between April 14 and May 2, 2025.