Canada’s Intellectual Property Firm

Federal Court dismisses patent infringement Action for delay

Authored byMatthew Norton, Steven Garland, Daniel Davies and Laura Easton

In Sikes et al. v Encana Corporation et al. (Court File No. T-1345-13), the Federal Court recently issued an Order dismissing the Action for delay following a status review under section 382.1 of the Federal Courts Rules, where the proceeding remained at the documentary discovery stage with outstanding motions pending over six years after the Action was commenced.

Smart & Biggar successfully represented the Defendants (Cenovus, previously Encana) with a team led by Steven Garland, Daniel Davies and Laura Easton.


The Action was commenced by the Plaintiffs (C. Steven Sikes, Aquero LLC and Aquial LLC) in August 2013 by way of Statement of Claim alleging infringement of Canadian Patent No. 2,595,723 in respect of water treatment processes used in Cenovus’ SAGD oil production facilities. In March 2014, the Action was ordered to continue as a specially managed proceeding as a result of a first Notice of Status Review.

Beginning in May 2015, the Action was further delayed by 2.5 years as a result of the Plaintiffs’ attempt to disqualify Smart & Biggar as Cenovus’ counsel, which the Plaintiffs unsuccessfully pursued through four levels of Court all the way up to the Supreme Court of Canada. The Supreme Court denied the Plaintiffs’ application for leave to appeal in November 2017.

Following November 2017, the Plaintiffs took limited steps to move the proceeding forward, indicating in December 2018 that they would be changing counsel. The Court subsequently issued a second Notice of Status Review on April 25, 2019.

Following an initial extension of time granted to the Plaintiffs to respond to the second Notice of Status Review, on July 10, 2019 the Plaintiffs indicated that they had prospective counsel, were in the process of securing litigation financing and were seeking a further extension of time. On July 15, 2019, the Defendants filed submissions in response to the Notice of Status Review seeking an order summarily dismissing the Action for delay.

Order for Dismissal

On November 28, 2019, Prothonotary Milczynski issued an Order dismissing the Action for delay.

The Court noted that the Plaintiffs had not retained new counsel, taken any substantive steps or proposed a plan to advance the Action since July 10, 2019. Furthermore, the Action was commenced 6 years ago and was related to events that took place more than 10 years ago. Accordingly, the Court found that the Plaintiffs failed to exhibit even a minimal degree of diligence or effort to advance the litigation and that the Defendants were prejudiced by the delay.

For further information regarding this case or patent litigation in the Canadian Federal or Provincial Courts, please contact a member of our firm’s Litigation Group.

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