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20 January 2020
In Sikes v Encana Corporation (Court File T-1345-13), the Federal Court dismissed an 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 more than six years after the action had been commenced.
The action was commenced by C Steven Sikes, Aquero LLC and Aquial LLC (hereafter, the plaintiffs) in August 2013 through a statement of claim alleging infringement of Canadian Patent 2,595,723 in respect of water treatment processes used in Cenovus's steam-assisted gravity drainage 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 two-and-a-half years as a result of the plaintiffs' attempt to disqualify Cenovus's counsel, which the plaintiffs unsuccessfully pursued through four levels of court all the way up to the Supreme Court. The Supreme Court denied the plaintiffs' application for leave to appeal in November 2017.
After 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 25 April 2019.
Following an initial time extension granted to the plaintiffs to respond to the second notice of status review, on 10 July 2019 the plaintiffs indicated that they
On 15 July 2019 the defendants filed submissions in response to the notice of status review seeking an order summarily dismissing the action for delay.
On 28 November 2019 Prothonotary Milczynski issued an order dismissing the action for delay.
The court noted that the plaintiffs had neither retained new counsel nor taken any substantive steps or proposed a plan to advance the action since 10 July 2019. Further, the action had been commenced six years earlier and related to events that had taken place more than 10 years earlier. Accordingly, the court found that the plaintiffs had failed to exhibit even a minimal degree of diligence or effort to advance the litigation and that the defendants had been prejudiced by the delay.
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