Geophysical Service Inc. v. Arcis Seismic Solutions Corp. et al., 2015 ABQB 88

• Judge: Macleod, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 25, 2014
• Citations: 2015 ABQB 88;(2015), 610 A.R. 225 (QB)

Geophysical Service Inc. v. Arcis Seismic Solutions Corp. (2015), 610 A.R. 225 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.042

Geophysical Service Incorporated (appellant) v. Arcis Seismic Solutions Corp., Her Majesty the Queen as represented by the Attorney General of Canada, National Energy Board, Canada Newfoundland and Labrador Offshore Petroleum Board and Companies A-Z (respondents)

(1301 02933; 2015 ABQB 88)

Indexed As: Geophysical Service Inc. v. Arcis Seismic Solutions Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Macleod, J.

February 4, 2015.

Summary:

Geophysical Service Inc. (GSI) commenced an action alleging wrongful acts, including copyright infringement and the tort of conversion. The defendants included the Canada-Newfoundland and Labrador Offshore Petroleum Board, resident in Newfoundland and Labrador (NL). The essence of GSI's claim against the Board was that it sent copies of GSI's seismic data to the other defendants and failed to protect GSI's property interest. The Board disputed Alberta's jurisdiction, and moved to strike the action against it.

A Master of the Alberta Court of Queen's Bench struck the action against the Board, finding that Alberta lacked jurisdiction simpliciter. He further determined that even if Alberta had jurisdiction, NL was the more appropriate forum to hear the dispute. GSI appealed.

The Alberta Court of Queen's Bench allowed the appeal.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - Geophysical Service Inc. (GSI) commenced an action alleging wrongful acts, including copyright infringement and the tort of conversion - The defendants included the Canada-Newfoundland and Labrador Offshore Petroleum Board, resident in Newfoundland and Labrador (NL) - GSI alleged that the Board sent materials from NL to Alberta corporations, knowing that GSI's proprietary rights would be copied or infringed - The Master struck the action against the Board, finding that Alberta lacked jurisdiction simpliciter - The Alberta Court of Queen's Bench allowed GSI's appeal - Service ex juris rules should be used as guidance - For service outside of Alberta and within Canada (rule 11.25), the "necessary or proper party" connecting factor was a presumptive connecting factor where the subject matter of the action was connected to Alberta and the other principal players in the dispute were Alberta corporations - Other presumptive connecting factors bolstered that conclusion - The alleged economic damages sustained by GSI in Alberta also made the case for Alberta more compelling - See paragraphs 32 to 68.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - Geophysical Service Inc. (GSI) appealed the dismissal of its claim alleging copyright infringement and the tort of conversion against the Canada-Newfoundland and Labrador Offshore Petroleum Board, resident in Newfoundland and Labrador (NL) - The Master found that Alberta lacked jurisdiction simpliciter - The Alberta Court of Queen's Bench allowed the appeal - Alberta had jurisdiction, and the Board had not demonstrated that there was a weak connection between the subject matter, the Board, and Alberta that would warrant rebutting Alberta's jurisdiction - "Although the tort of conversion and the claim of copyright infringement are multijurisdictional and parts of the tort and copyright occurred in NL, a significant part of each act occurred in Alberta. The core of the claim against the Board is that they sent GSI's proprietary rights to other corporations in Alberta that compete with GSI. The act of sending the materials to Alberta is significant, since GSI is based in Alberta and competes against other corporations also based in Alberta." - See paragraphs 69 to 72.

Conflict of Laws - Topic 608

Jurisdiction - General principles - Intellectual property - [See both Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 1001

Service out of jurisdiction - General principles applicable - [See first Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 1201

Service out of jurisdiction - Torts - General - [See first Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 1305

Service out of jurisdiction - Multiple defendants - Necessary and proper parties - [See first Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The Alberta Court of Queen's Bench stated that "[i]f a party raises forum non conveniens, the party challenging jurisdiction has the burden of showing why the court should decline jurisdiction. To do so, they must: (1) identify another forum that has a 'real and substantial' connection to the subject matter of the litigation, using the same analytical framework used to establish a real and substantial connection to the present forum, and (2) show why the alternate forum is more appropriate ... . The factors considered may vary in each case, but they can include: the location of the parties and witnesses, the cost of transferring the case to another jurisdiction, potential impact of a transfer on conducting the litigation or possible parallel proceedings, possibility of conflicting judgements, problems concerning the enforcement of judgements, and the relative strengths of the connections of the two parties" - See paragraphs 73 and 74.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - Geophysical Service Inc. (GSI) appealed the dismissal of its claim alleging copyright infringement and the tort of conversion against the Canada-Newfoundland and Labrador Offshore Petroleum Board, resident in Newfoundland and Labrador (NL) - The Master found that Alberta lacked jurisdiction simpliciter and that even if Alberta had jurisdiction, NL was the more appropriate forum - The Alberta Court of Queen's Bench allowed the appeal - "Firstly, NL has jurisdiction to hear the claim against the Board since the Board is resident in NL. NL does not, however, have a real and substantial connection to the entire lawsuit including Arcis [an Alberta corporation] and the NEB [National Energy Board], which are both resident in Alberta. Secondly, regardless of NL's jurisdiction, the relevant factors lean more heavily in favour of Alberta. The location of the parties and witnesses for the lawsuit as a whole are mainly in Alberta. GSI is in Alberta, as are Arcis and NEB. Although the Board is in NL, GSI has indicated that it intends to complete questioning via written statements and video conferencing, which will eliminate some of the travel costs and hassle to the Board. Completing the action in Alberta will be more efficient compared with NL." - See paragraphs 75 to 77.

Conflict of Laws - Topic 1666

Actions - General - Forum conveniens - Stay of proceedings where action pending in another jurisdiction (lis alibi pendens) - [See Conflict of Laws - Topic 7601 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - Geophysical Service Inc. (GSI) appealed the dismissal of its claim alleging copyright infringement and the tort of conversion against the Canada-Newfoundland and Labrador Offshore Petroleum Board, resident in Newfoundland and Labrador (NL) - The Master found that Alberta lacked jurisdiction simpliciter and that even if Alberta had jurisdiction, NL was the more appropriate forum - The Board argued that the Master did not err, and that the proper forum was NL - It emphasized that GSI was also suing the Board in NL - The Alberta Court of Queen's Bench allowed GSI's appeal and would not stay or strike the action - The action against the Board in NL was between GSI, NL companies and the Board - "The role the Board played by sending seismic materials to NL companies in that case is properly before the NL courts since all the parties are resident in NL, and any alleged torts, conversion and copyright infringement resulting from the Board sending GSI's seismic materials would have occurred in NL in the same manner that they occurred in Alberta in this case. The NL action also involves completely different defendants other than the Board. As a result, NL is not a more appropriate forum to hear this action." - See paragraph 78.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See both Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 9281

Practice - Stay of proceedings - General - [See Conflict of Laws - Topic 7601 ].

Cases Noticed:

Greenbuilt Group of Companies Ltd. v. RMD Engineering Inc., [2013] 11 W.W.R. 156; 563 A.R. 1; 2013 ABQB 297, refd to. [paras. 8, 36].

RBZ Capital Corp. et al. v. Petrol Alchemy, LLC et al. (2014), 590 A.R. 20; 2014 ABQB 102, refd to. [para. 8].

Turner v. Bell Mobility Inc. et al. (2014), 581 A.R. 1; 2014 ABQB 36, refd to. [paras. 8, 38].

Club Resorts Ltd. v. Van Breda - see Van Breda et al. v. Village Resorts Ltd.

Van Breda et al. v. Village Resorts Ltd., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, appld. [paras. 13, 23 et seq.].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 2010 ONCA 84, refd to. [para. 14].

Export Packers Co. v. SPI International Transportation (2012), 294 O.A.C. 319; 2012 ONCA 481, refd to. [para. 14].

Misyura v. Walton, et al., [2012] O.T.C. Uned. 5397; 2012 ONSC 5397, refd to. [para. 14].

Brown et al. v. Spagnuolo et al., [2013] O.T.C. Uned. 5178; 2013 ONSC 5178, refd to. [para. 14].

WIC Premium Television Ltd. v. General Instrument Corp. et al. (2000), 266 A.R. 142; 228 W.A.C. 142; 2000 ABCA 233, refd to. [para. 17].

Central Sun Mining Inc. v. Vector Engineering Inc. et al. (2013), 310 O.A.C. 391; 2013 ONCA 601, refd to. [paras. 18, 47].

Bahcheli v. Yorkton Securities Inc. et al. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 21].

Wolfe v. Pickar - see Wolfe et al. v. Wyeth et al.

Wolfe et al. v. Wyeth et al. (2011), 282 O.A.C. 64; 2011 ONCA 347, refd to. [para. 52].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refd to. [para. 56].

Disney Enterprises Inc. v. Click Enterprises Inc. (2006), 267 D.L.R.(4th) 291; 49 C.P.R.(4th) 87 (Ont. Sup. Ct.), refd to. [para. 57].

Davydiuk v. Internet Archive Canada et al. (2014), 465 F.T.R. 76; 2014 FC 944, refd to. [para. 59].

Western Aerial Applications Ltd. et al. v. Turbomeca USA Inc. et al., [2009] B.C.T.C. Uned. 123; 2009 BCSC 123, refd to. [para. 65].

Ontario v. Rothmans Inc. et al. (2013), 305 O.A.C. 261; 2013 ONCA 353, leave to appeal denied (2013), 469 N.R. 399 (S.C.C.), refd to. [para. 65].

Colavecchia et al. v. Berkeley Hotel Ltd., [2012] O.T.C. Uned. 4747; 2012 ONSC 4747, refd to. [para. 66].

Christmas v. Fort McKay First Nation, 2014 ONSC 373, refd to. [para. 66].

West Van Inc. v. Daisley, [2013] O.T.C. Uned. 1988; 2013 ONSC 1988, refd to. [para. 66].

Difeo v. Blind Ferret Entertainment Inc. (2013), 412 N.B.R.(2d) 54; 2013 NBQB 337 (T.D.), refd to. [para. 66].

Jefferson v. Macklem (2013), 338 Nfld. & P.E.I.R. 273; 1049 A.P.R. 273; 2013 NLTD(G) 106, refd to. [para. 66].

Statutes Noticed:

Rules of Court (Alta.), rule 11.25(1), rule 11.25(3) [para. 32].

Counsel:

R.J. Daniel Gilborn and Mohamed A. Amery (Caron & Partners LLP), for the appellant;

J.W. Rose, Q.C., and Michael Oxman (Rose LLP), for the respondents.

This appeal was heard on June 25, 2014, before Macleod, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment and reasons on February 4, 2015.