Canadian Lawyer

May 2023

The most widely read magazine for Canadian lawyers

Issue link:

Contents of this Issue


Page 41 of 67

40 FEATURE GC PROFILE RELISHING BEING A ONE-PERSON SHOW Dow's Lorne O'Reilly is the only in-house lawyer involved in the construction of the world's largest ethylene cracker WHEN YOU think of Dow Chemical, you think big, which makes it somewhat surprising that Lorne O'Reilly is the only lawyer in Dow Chemical Canada's legal department. But he relishes the opportunities his job presents. "Being the only counsel for Dow in Canada allows me multiple perspectives, ranging from regulatory dealing with Canada and Alberta, to the environment, fisheries, and daily oper- ations involving things like contracts and human resources," O'Reilly says. "Dow also has excellent legal departments around the world, and if something unique arises, I have access to internal counsel in the US and elsewhere." O'Reilly has been with Dow for eight years. He's been very busy throughout. "Contrary to what a lot of people believe or believed in the past, going in-house involves long days and is definitely not a lifestyle choice," he says. "The great thing is every- body understands the demands on me and manages their expectations accordingly. We triage as best we can so that we can at least give people a heads-up when necessary." Among the interesting matters in which O'Reilly has been involved is the litigation leading up to the Supreme Court of Canada's 2022 decision in Nova Chemicals Corp. v. Dow Chemical Co., which set out the principles governing recovery under the accounting of profits remedy in patent cases; it affirmed the largest reported Canadian patent infringement award ever by ordering Nova to pay Dow some $645 million for infringement of the company's patent on novel polyethylene blends. The Federal Court found that Nova had violated Dow's patent. As a remedy, Dow asked the court to calculate its award based on the profits Nova made by violating the patent. This is called an "accounting of profits." Nova appealed to the Federal Court of Appeal, and then the SCC, both of which rejected its appeal. Writing for a majority of the judges, Justice Malcolm Rowe said the lower courts calculated Nova's accounting of profits correctly. The majority of the court also rejected new arguments Nova had raised before the Supreme Court. "Smart & Biggar did an amazing job on that file," says O'Reilly, who also works regularly with Bennett Jones LLP, Blake Cassels & Graydon LLP, Burnet Duckworth & Palmer LLP, and Dentons Canada LLP, among others. Yet O'Reilly may soon be facing his biggest challenge yet. With Dow needing increased capacity every six to eight years, the company has decided to build the world's largest ethylene cracker (a facility that performs the first step in transforming ethane, a component of natural gas, into plastics) and first net-zero carbon emissions ethylene and derivatives complex at its Fort Saskatchewan site just outside of Edmonton. The organic, brown- field investment would more than triple the site's ethylene and polyethylene capacity while retrofitting the site to net-zero scope 1 and 2 carbon dioxide emissions. "Dow hasn't disclosed its final investment "Contrary to what a lot of people believe or believed in the past, going in-house involves long days and is definitely not a lifestyle choice"

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Lawyer - May 2023