Specialized Desanders Inc. v. Enercorp Sand Solutions Inc.

Specialized Desanders Inc. v. Enercorp Sand Solutions Inc.

The Prothonotary did not err: the proposed amendments failed to plead sufficient material facts to make out a prior public disclosure defence under s 28.2(1)(a) and therefore had no reasonable prospect of success and were properly liable to be struck under Rule 221(1)(a) (and 221(1)(c)); further amendment was not...

Source-derived case information.

Citation
2018 FC 689
Parties
Plaintiff/defendant by Counterclaim: Specialized Desanders Inc.; Defendant/plaintiff by Counterclaim: Enercorp Sand Solutions Inc.; Defendant/plaintiff by Counterclaim: Progress Energy Canada Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
5 July 2018
Procedural Posture
Patent Infringement (invalidity Defence Under Patent Act) / Appeal From Prothonotary Orders Under Rule 51 of the Federal Courts Rules Denying Leave to Amend Pleadings and Third‑party Discovery
Outcome
Appeals dismissed; Prothonotary's Orders denying leave to amend and denying discovery upheld; Plaintiff awarded costs
Legal Topics
Prior Public Disclosure (s 28.2(1)(a)), Leave to Amend Pleadings, Striking Pleadings (rule 221), Non‑party Discovery (rule 238), Standard of Review
Source Language
english
Patent Law Intellectual Property Civil Procedure Discovery Prior Public Disclosure (s 28.2(1)(a)) Leave to Amend Pleadings Striking Pleadings (rule 221) Non‑party Discovery (rule 238) +1 more

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Parties

Specialized Desanders Inc.

Plaintiff/defendant by Counterclaim

Enercorp Sand Solutions Inc.

Defendant/plaintiff by Counterclaim

Progress Energy Canada Ltd.

Defendant/plaintiff by Counterclaim

Procedural Posture

Patent Infringement (invalidity Defence Under Patent Act) / Appeal From Prothonotary Orders Under Rule 51 of the Federal Courts Rules Denying Leave to Amend Pleadings and Third‑party Discovery

Legal Issues

  1. 1 Whether proposed amendment pleaded sufficient material facts to allege prior public disclosure under s 28.2(1)(a) of the Patent Act
  2. 2 Whether the proposed amendment was frivolous or vexatious
  3. 3 Whether the Prothonotary erred by refusing leave to further amend to cure deficiencies

Ratio Decidendi

The Prothonotary did not err: the proposed amendments failed to plead sufficient material facts to make out a prior public disclosure defence under s 28.2(1)(a) and therefore had no reasonable prospect of success and were properly liable to be struck under Rule 221(1)(a) (and 221(1)(c)); further amendment was not permitted because defendants could not articulate material facts they would add; without a properly pleaded issue, discovery of Bill Rollins was not justified.

Court Disposition

Appeals dismissed; Prothonotary's Orders denying leave to amend and denying discovery upheld; Plaintiff awarded costs

Orders

  • The Defendants' appeals are dismissed.
  • The Plaintiff is awarded costs of $4000.00 in these appeals, payable by the Defendants.