Geophysical Service Incorporated v Jebco Seismic UK Limited, 2016 ABQB 402

Court of Queen’s Bench of Alberta Citation: Geophysical Service Incorporated v Jebco Seismic UK Limited, 2016 ABQB 402 Date: 20160714 Docket: 1301 07877 Registry: Calgary Between: Geophysical Service Incorporated Plaintiff - and - Jebco Seismic UK Limited; Jebco Seismic (Canada) Company; Jebco Seismic, LP; Jebco/SEI Partnership LLC; and Companies A-Z Defendants _______________________________________________________ Memorandum of Decision of J.

Farrington, Master in Chambers _______________________________________________________ The Applications [1] These are applications by Jebco Seismic UK Limited (“Jebco-UK”), Jebco Seismic LP (“Jebco-Delaware”) and Jebco/SEIPartnership LLC (“Jebco-Texas”) to set aside service of the statement of claim, or alternatively to dismiss or stay the action on theground that the court has no jurisdiction over them in relation to the subject matter of the action.

While the applications make referenceto also seeking a stay on forum non conveniens grounds, that issue was not extensively argued, and there is no similar action pending inanother forum. In the end, the applications are jurisdiction simpliciter applications. [2] The law that has evolved in the Supreme Court of Canada in private international law cases recognizes that the world hasbecome a smaller place as well as the realities of international commerce. Recognition of foreign judgments is determined by a “realsubstantial real and substantial connection” test (see Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 SCR1077) although Morguard arose in an interprovincial rather than an international setting. Subsequent developments extended theprinciples in Morguard to international settings.

[3] The jurisdiction of a court to hear a case involving international parties is the opposite side of the enforcement of judgmentsissue. Courts should only hear cases which they have a reasonable basis for hearing, and for that there should be a real and substantialconnection to the court whose jurisdiction is sought to be invoked. [4] The plaintiff Geophysical Service Incorporated (“GSI”) is the owner of large volumes of seismic data over which it claimscopyright, licensing and other rights. It has brought many actions in Alberta against various defendants seeking to enforce the rightswhich it claims.

It has also brought some actions in other forums. One of its main battlegrounds has been in Alberta. [5] GSI seeks relief in this action against the three entities seeking to set aside service, as well as against Jebco Seismic (Canada)Company (“Jebco-Canada”) and unnamed “Companies A-Z”. Jebco-Canada was incorporated in Nova Scotia on July 29, 2002 andextraprovincially registered in Alberta on August 8, 2002.

GSI acknowledges that it has no detailed particulars as to what copies of GSIdata any of the individual defendants have, but they know that certain data was requested by Jebco-UK from the Canada-Newfoundlandand Labrador Offshore Petroleum Board (the “Board”) that deals with regulation of offshore seismic operations and which holds thedata that was accessed in this case pursuant to its relevant legislation. [6] A service ex-juris order was granted ex-parte in the ordinary way by Master J.T. Prowse, QC on September 20, 2013. Theseapplications challenge that service.

The Real and Substantial Connection Test [7] While the application of a real and substantial connection test in a private international law setting recognizes the realities ofmodern international commerce, that test has become more difficult to apply over the years. The application of the test has often comedown to the exercise of judicial discretion, and that has made its application unpredictable. [8] In Club Resorts Ltd. v. Van Breda, 2012 SCC 17 , [2012] 1 SCR 572, the Supreme Court of Canada attempted toprovide more certainty. Van Breda is actually two cases.

Both of them dealt with injuries that happened during international travel inCuba. The issue was whether Ontario was an appropriate forum in each case. At paragraphs 55-57 Lebel, J. discussed the Ontario Courtof Appeal decision from which appeal was taken, highlighting some of the inherent uncertainty and the attempts of Sharpe, J.A. to findsolutions: According to this view, the appropriate factors generally operate as reliable markers of jurisdiction at common law. The adoption ofthese markers would mitigate the complexity and unpredictability of the Muscutt test.

Sharpe J.A. noted that the jurisprudence onservice ex juris provides support for the use of these factors as indicators of a real and substantial connection. For example, in Hunt, LaForest J. had observed that, even if some of the traditional rules of jurisdiction might have to be recast in light of Morguard, theestablished factors could nevertheless be viewed as “a good place to start” (p. 325; see also Spar Aerospace, at paras. 55-56, on theprovisions of the Civil Code of Québec applicable to the assumption by Quebec courts of jurisdiction over situations involving delictualand quasi-delictual liability).

But Sharpe J.A. declined to give presumptive effect to the factors set out in rules 17.02(h) (damagesustained in Ontario) and 17.02(o) (necessary or proper party). Neither of these factors is included in the CJPTA. Nor have they gainedbroad acceptance as reliable indicators of jurisdiction. Indeed, the Court of Appeal found in Muscutt and its companion cases that thefactor of “damage sustained in Ontario” was often not reliable and significant enough to justify an assumption of jurisdiction by anOntario court.

Sharpe J.A. reaffirmed the need to draw a clear distinction between assuming jurisdiction and deciding whether to decline to exercise iton the basis of the forum non conveniens doctrine. He cautioned against confusing these two different steps in the resolution of aconflicts issue and emphasized that the factors that would justify a stay in the forum non conveniens analysis should not be worked intothe jurisdiction simpliciter analysis (paras. 81-82 and 101). The conflation of the two analyses may have been the result of an undulybroad

interpretation of the fairness factors of the Muscutt analysis (para. 81). Building on this first principle that recognized the list of presumptive connecting factors, Sharpe J.A. re-crafted the Muscutt test. Heretained part of the Muscutt analysis, merged some of its factors and reviewed the roles of other principles governing the assumption ofjurisdiction.

The defendants’ connection with the court seized of the action continued to be a valid and important consideration.However, the connection between the plaintiffs’ claim and the forum was maintained as a core element of the real and substantialconnection test (paras. 87-88). A test based solely on the defendant’s contacts with the jurisdiction would be “unduly restrictive” (para.86). [9] Lebel, J. begins to provide solutions at paragraphs 67-70: The real and substantial connection test is now well established.

However, it is clear that dissatisfaction with it and uncertainty about itsmeaning and conditions of application have been growing, and that there is now a perceived need for greater direction on how it applies.I adverted above to the need to draw a distinction between the constitutional test and the rules of private international law — two aspectsof the law of conflicts that have sometimes been conflated in previous cases.

At this point, it is necessary to clarify the rules of theconflict of laws in a way that is consistent with the constitutional constraints on the provinces’ courts but does not turn every privateinternational law issue into a constitutional one. The legislatures of several provinces, as well as the Ontario Court of Appeal in Muscutt and Van Breda-Charron, have responded tothese concerns and attempted to provide guidance for the application of the real and substantial connection test. We can build upon theselegislative developments and judgments.

Indeed, Sharpe J.A. referred in Van Breda-Charron to what he described, perhaps with someoptimism, as an emerging consensus in Canadian law on how to resolve these issues. On the basis of this perhaps fragile consensus andthese developments and judgments, this Court must craft more precisely the rules and principles governing the assumption of jurisdictionby the courts of a province over tort cases in which claimants sue in Ontario, but at least some of the events that gave rise to the claimsoccurred outside Canada or outside the province.

I will also consider how jurisdiction should be exercised or declined under the doctrineof forum non conveniens. This said, I remain mindful that the Court is not of course tasked with drafting a complete code of privateinternational law. Principles will be developed as problems arise before the courts. Moreover, all my comments about the developmentof the common law principles of the law of conflicts are subject to provisions of specific statutes and rules of procedure.

When a court considers issues related to jurisdiction, its analysis must deal first with those concerning the assumption of jurisdiction itself. That analysis must be grounded in a proper understanding of the real and substantial connection test, which has evolved into an important constitutional test or principle that imposes limits on the reach of a province’s laws and courts. As I mentioned above, this constitutional test reflects the limited territorial scope of provincial authority under the Constitution Act , 1867.

At the same time, the Constitution acknowledges that international or interprovincial situations may have effects within a province. Provinces may address such effects in order to resolve issues related to conflicts with their own internal legal systems without overstepping the limits of their constitutional authority (see Castillo ).

The real and substantial connection test does not mean that problems of assumption of jurisdiction or other matters, such as the choice of the proper law applicable to a situation or the recognition of extraprovincial judgments, must be dealt with on a case-by-case basis by discretionary decisions of courts, which would determine, on the facts of each case, whether a sufficient connection with the forum has been established. Judicial discretion has an honourable history, and the proper operation of our legal system often depends on its being exercised wisely.

Nevertheless, to rely completely on it to flesh out the real and substantial connection test in such a way that the test itself becomes a conflicts rule would be incompatible with certain key objectives of a private international law system. [ 10 ] Lebel, J. concluded that there were two parts to the analysis. The first was that it was essential that the Court intending to take jurisdiction find a presumptive connecting factor.

He listed four presumptive connecting factors for tort cases at paragraph 90: To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute: (

a) the defendant is domiciled or resident in the province; (

b) the defendant carries on business in the province; (

c) the tort was committed in the province; and (

d) a contract connected with the dispute was made in the province. [ 11 ] Having said that, he expressly left open the possibility of further presumptive connecting factors. At paragraph 91 he held: As I mentioned above, the list of presumptive connecting factors is not closed. Over time, courts may identify new factors which also presumptively entitle a court to assume jurisdiction. In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include: (

a) Similarity of the connecting factor with the recognized presumptive connecting factors; (

b) Treatment of the connecting factor in the case law; (

c) Treatment of the connecting factor in statute law; and (

d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity. [ 12 ] Finally, and importantly, at paragraphs 92 and 93 he held: When a court considers whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points. These values underlie all presumptive connecting factors, whether listed or new.

All presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum. Where such a relationship exists, one would generally expect Canadian courts to recognize and enforce a foreign judgment on the basis of the presumptive connecting factor in question, and foreign courts could be expected to do the same with respect to Canadian judgments.

The assumption of jurisdiction would thus appear to be consistent with the principles of comity, order and fairness. If, however, no recognized presumptive connecting factor — whether listed or new — applies, the effect of the common law real and substantial connection test is that the court should not assume jurisdiction. In particular, a court should not assume jurisdiction on the basis of the combined effect of a number of non-presumptive connecting factors.

That would open the door to assumptions of jurisdiction based largely on the case-by-case exercise of discretion and would undermine the objectives of order, certainty and predictability that lie at the heart of a fair and principled private international law system. [ 13 ] While Van Breda arose specifically in the context of a tort case, the real and substantial connection test is clearly part of Canadian private international law from a broader perspective as a result of Morguard and other cases since Morguard . Morguard arose in a contractual setting.

The present case has copyright, conversion, interference with contractual relations allegations and other aspects. Between Morguard and Van Breda , the spectrum of the types of actions that require consideration of the “real and substantial connection” test is broad. [ 14 ] The affidavit in support of the service ex juris application provided at paragraphs 9 to 15: 9. Along with Jebco Canada, the Foreign Defendants are alleged in the Statement of Claim to have infringed the copyright of, converted and were unjustly enriched by obtaining and using the Plaintiff's Seismic Materials (the "Wrongful Acts"). 10.

I believe that service of the Statement of Claim herein and all other documents required to be served on the Foreign Defendants in

these proceedings, including an order for service ex juris, will or is likely to come to the attention of the Foreign Defendants if served onthe registered offices of the Foreign Defendants: a. Jebco UK: 26 The Rocks Road, East Malling, West Malling, Kent, ME19 6AT, UK; b. Jebco Delaware: 1209 Orange Street, Corporation Trust Center, Wilmington, Delaware, 19801 USA; and c. Jebco Texas: 2450 Fondren Road, Suite 112, Houston, TX, 77063 USA 11. I believe that Alberta is the appropriate and most convenient jurisdiction for this matter to be heard for the following reasons. 12.

The Plaintiff is an Alberta corporation with operations in Alberta and Jebco Canada and the Foreign Defendants are agents,principals or partners of Jebco Canada with operations in Alberta. 13. GSI markets its services to Canadian energy companies, and the vast majority of major Canadian oil and gas companies have theirhead offices in Alberta. In the economic and business sense, the losses occurred in Alberta. GSI suffered and continues to suffer losses oflicencing fees, profits, damage to its ability to market the Seismic Materials to those Alberta corporations as a result of the WrongfulActs. 14.

Alberta is the most convenient jurisdiction for witnesses, as Alberta is the province in which the litigants directly or indirectly hadoperations during all times material to this action. 15. I make this Affidavit in support of an application allowing service by recorded mail of a copy of the Statement of Claim herein and acopy of the Order for Service Ex Juris upon the said Defendants at the registered offices stated above, and that service in this mannershall be deemed good and sufficient. [15] The issue is whether GSI has met its onus to show that a service ex juris Order was appropriate.

The Case to be Argued [16] The moving defendants argued strenuously that the plaintiff GSI did not meet the preliminary threshold of the “arguable casetest”. While the parties agree that the cases hold that some evidence to show an arguable case is necessary, Laycraft, JA (as he then was)held in Nova v. Grove 1982 ABCA 279 at paragraph 10: In many cases a Plaintiff will have difficulty in meeting the requirements of Rule 31.

The need for service ex juris arises, of necessity,before pleading is complete and before there has been production of documents or oral examinations The Plaintiff at that stage will oftenfind it a problem to prove many facts which would be easily proven at a later stage of the action. For example, a Plaintiff who is notcertain which of two defendants injured him or whether his claim is in contract or in tort is entitled to plead alternative causes of action(Rule 111) or may plead against defendants in the alternative (Rule 36).

He is nevertheless required to support an application for serviceex juris by an affidavit in which the deponent swears his belief that the plaintiff “has a reasonable cause of action”. On the test stated byLord Simonds in Vitpovice Horni a Hunti Tezirstro v. Korner [1951] A.C. 869 and adopted by the Supreme Court of Canada inComposers, Authors and Publishers Assoc. of Canada Ltd. v. International Good Music Inc. (SCC), [1963] S.C.R.136 at 142 he must show “a good arguable case” to be entitled to the order.

This test does not, in my opinion, require a Plaintiff to provehis case as he would at trial and does not take from him the right granted by the rules to plead in the alternative. [17] The former Rule 30 required the deponent in support of an application for service ex juris to depose that he or she believes thatthe plaintiff has a reasonable cause of action.

That express requirement is no longer in the current Rule and the wording is now an“affidavit satisfactory to the Court”. [18] In addition, I would observe that if the arguable case test delves too deeply into the merits of the dispute at the set asideapplication, it becomes difficult to draw a line as to whether or not a contesting party attorned to the jurisdiction of the applicable court inchallenging jurisdiction. [19] Our learned Chief Justice Wittmann found in Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP, 2011ABQB 630 that the good arguable case hurdle remains.

He held at paragraphs 34 and 40: Under the Old ARC, what did “good arguable case” mean? In my view, it meant a case that was not fanciful or speculative but wasgrounded upon some evidence upon which an objective trier would say “well, on the basis of the facts presented, the case is arguable andcertainly is not to be dismissed out of hand.” ... Logic and common sense dictate some standard of proof in addition to mere allegations in a statement of claim in order to support serviceof an originating document outside of the jurisdiction.

Were it otherwise, this Court could take jurisdiction over any person or entityoutside the jurisdiction solely on the basis of unproven allegations in an originating document. That has never been the law and wouldgive rise to a potential for much mischief should it become so. Thus, to resolve the issue in this case, namely whether the ex-juris ordersought to be set aside, I continue the requirement of a good arguable case, which requires some evidence.

I will first consider whether theevidence accumulated in the five Scott affidavits rises to the threshold of a good arguable case and may thereafter consider whether Ishould be excluding the third to fifth Scott affidavits as urged upon me by the applicant.

[ 20 ] I am satisfied from the materials that there are issues to be argued on the substance of the dispute, and that the threshold test has been met. Is there a real and substantial connection in this case? [ 21 ] The GSI brief argues that the basis for the Court of Queen’s Bench of Alberta to assume jurisdiction is that the damages were suffered in Alberta. In that regard it relies upon United States Satellite Broadcasting Company, Inc. v.

WIC Premium Television Ltd. , 2000 ABCA 233 While that argument has some support in WIC , Van Breda would seem to expressly reject the location of damages suffered as a presumptive ground, at least in a tort context. While the location of the damages suffered might be a relevant consideration on other aspects of the analysis, it does not seem to apply as a requisite presumptive connecting factor in itself. If there is a presumptive connecting factor it must be found elsewhere. [ 22 ] Of note is the fact that

section 41.24 of the Copyright Act , RSC 1985, c C-42 grants original jurisdiction in relation to copyright claims to provincial superior courts and the Federal Court of Canada: Concurrent jurisdiction of Federal Court 41.24 The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act. [ 23 ] We know that the reference to provincial courts can only mean provincial superior courts such as this one because of the availability of injunctions as remedies under the Copyright Act .

The remedies sought by GSI include damages and injunctive relief which are available remedies from a court of competent jurisdiction under the Copyright Act . [ 24 ] It is difficult to contemplate how a forum outside of Canada would ever be an appropriate forum for the consideration and application of Canadian copyright law.

While much of the territorial location of the data surveyed was in the Falklands area, the repository for the data was the Board, and the alleged violations and wrongs are said to have originated with material obtained from the Board by Jebco-UK. [ 25 ] On its face, this Court would appear to have clear statutory jurisdiction simpliciter to hear and deal with at least the copyright portions of the claim.

Forum non conveniens aspects are a different matter and they involve different considerations. [ 26 ] In Geophysical Service Incorporated v Arcis Seismic Solutions Corp. , 2015 ABQB 88 Macleod J held at paragraphs 42 to 44: In my view, for service outside of Alberta and within Canada, the “necessary or proper party” connecting factor is a presumptive connecting factor where the subject matter of the action is connected to Alberta and the other principal players in the dispute are Alberta corporations.

To find otherwise would leave the Court in Alberta without the means to effectively adjudicate the subject matter of the law suit which has a substantial connection to this province. In coming to this conclusion I am also cognizant of the words of LeBel, J. in Van Breda at para 92 as follows: All presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum.

For the reasons I have set out above I am firmly of the view that the Board could reasonably expect in these circumstances that it would be called on to answer legal proceedings in Alberta. [ 27 ] Arcis was a post- Van Breda case and it specifically retains the “necessary and proper party” ground as a presumptive connecting factor. Arcis included breach of copyright and conversion allegations as are present here. [ 28 ] Rule 11.25 provides in part: Real and substantial connection ...

(2) A commencement document may be served outside Canada only if (

a) a real and substantial connection exists between Alberta and the facts on which a claim in an action is based and the commencement document is accompanied with a document or affidavit that sets out the grounds for service of the document outside Canada, (

b) the Court, on application supported by an affidavit satisfactory to the Court, permits service outside Canada, and (

c) the person served with the commencement document is also served with a copy of the order permitting service outside Canada.

(3) Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: … (

b) the claim relates to a contract or alleged contract made, performed or breached in Alberta; (

c) the claim is governed by the law of Alberta;

(

d) the claim relates to a tort committed in Alberta; … (

g) the defendant is resident in Alberta; … (

i) the defendant, although outside Alberta, is a necessary or proper party to the action brought against another person who was served in Alberta; … [ 29 ] The affidavit in support of the service ex-juris application identified the foreign entities in this case as necessary and proper parties to an action against a party properly served in Alberta (Jebco-Canada). The facts at this stage appear to be that Jebco-UK was originally involved in obtaining material from the Board. [ 30 ] I find that the moving foreign entities are necessary and proper parties to the action.

GSI alleges and argues agency and partnership issues as between the Jebco entities namely Jebco-UK, Jebco-Delaware, Jebco-Texas and Jebco-Canada. While the Jebco entities argue that they are separate in law, and for many purposes that may be correct, I note that they all have common counsel of record in this action. While that fact is not conclusive of anything, at the very least it is indicative that there is no perceived need for indemnity or separate representation or adversarial process as between the entities.

It is indicative of a common purpose if nothing else. [ 31 ] There is nothing artificial about the selected forum in this case and its connection to Alberta. There are approximately twenty five actions pertaining to GSI and its various claims including copyright claims. They are being carefully managed by our learned Chief Justice.

In fact, a procedure recently concluded at the trial level whereby critical issues pertaining to copyright and the effect of the regulatory regime for seismic data were considered by the learned Madam Justice Eidsvik (see Geophysical Service Incorporated v Encana Corporation , 2016 ABQB 230 and Geophysical Service Incorporated v 612469 Alberta Limited (CalWest Printing & Reproductions) , 2016 ABQB 356 ).

Representatives from a substantial number of the GSI actions participated in the common issues process resulting in rulings by Justice Eidsvik on both the copyright and regulatory regime issues. [ 32 ] It is not unreasonable that entities that allegedly obtained data from the Board have their cases determined in a jurisdiction that has a developed and well argued framework for determining those claims, and a connection to Alberta through GSI, the applicable oil and gas industry, and many of the defendants in the other actions.

While the other Jebco entities made it clear that they intended to contest jurisdiction, Jebco-Canada participated in the common issues proceedings. [ 33 ] In Van Breda the Supreme Court of Canada expressly acknowledged the ability of the provinces to develop rules of private international law as long as they were respectful of the constraints imposed constitutionally and territorially. The Court held at paragraph 71: The development of an appropriate framework for the assumption of jurisdiction requires a clear understanding of the general objectives of private international law.

But the existence of these objectives does not mean that the framework for achieving them must be uniform across Canada.

Because the provinces have been assigned constitutional jurisdiction over such matters, they are free to develop different solutions and approaches, provided that they abide by the territorial limits of the authority of their legislatures and their courts. [ 34 ] I am also mindful of the caution in Van Breda at paragraph 82 : Jurisdiction must — irrespective of the question of forum of necessity, which I will not discuss here — be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum.

The Court of Appeal was moving in this direction in the cases at bar. This means that the courts must rely on a basic list of factors that is drawn at first from past experience in the conflict of laws system and is then updated as the needs of the system evolve.

Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purposes of the law of conflicts. [ 35 ] While the management factors of the other GSI actions and the common issues process are significant factors, they likely relate more to the second branch of the test, namely the forum non conveniens aspect. Van Breda requires that jurisidiction simpliciter be based on more objective presumptive connecting factors.

In my view, jurisdiction simpliciter is found in this case based upon this Court’s statutory jurisdiction in copyright matters, and the “necessary and proper party” connection between Jebco-Canada which was properly served in Alberta, and its related entities, whether the defendants deny the scope of that business connection or not. Those are matters to sort out in the litigation. In fact, the application of the “necessary and proper party” element as a presumptive connecting factor would appear to be binding upon me as a result of Justice Macleod’s decision in Arcis .

Even though there was arguably a stronger factual connection to Alberta in Arcis , the holding was that the necessary and proper party aspect was a presumptive connecting factor. In Van Breda Lebel, J. (at paragraph 91 ) explicitly referred to the treatment of potential connecting factors in other cases as a consideration in the analysis.

I find that the necessary and proper party aspect is supported on the facts, and as such I follow Arcis , which is binding upon me in any event. [ 36 ] When queried as to what would be an appropriate forum if Alberta was not suitable, the Jebco entities first suggested the possibility of an international forum, but that would not appear to be appropriate given the original jurisdictional constraints of the Copyright Act , and then they more seriously suggested the alternative of a Newfoundland forum.

None of the parties are located in Newfoundland, and as such there would appear to be no strong advantage to a Newfoundland action. At least with respect to copyright matters, and even with respect to the regulatory matters, the Alberta court applies the same law as would a Newfoundland court because they would both involve federal law.

In fact, one could even argue that the law of Alberta includes federal laws of national application thereby engaging Rule 11.25(3)(c), and that jurisdiction is engaged in that fashion, but I make no finding on that point because it was not argued and because it is not necessary to do so.

[ 37 ] Having found jurisdiction simpliciter over at least part of the case, Van Breda instructs at paragraph 99 that this Court can then assume jurisdiction over all aspects: I should add that it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based.

The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

Technical Arguments Relating to Rule 11.25(2)(a) [ 38 ] The moving defendants also argue that the commencement document was not “accompanied” with a document or affidavit that sets out the grounds for service of the document outside Canada as required by Rule 11.25(2)(a). Rule 11.25(2)(

c) expressly uses the word “service” in conjunction with the commencement document and the Order for service ex-juris . It is unclear as to what “accompanied” means in the context of Rule 11.25(2)(a). It is very clear that Rule 11.25(2)(

c) requires service of the Order for service ex-juris . That was done. The affidavit in support was not served. “Accompanied” within the meaning of Rule 11.25(2)(

a) could arguably mean “filed” or it could mean “served”. Certainly there is no express inclusion of the affidavit as an item to be served in Rule 11.25(2) (c). If there is an issue, I find that it would be a curable irregularity at most, rather than fatal to the service. No party was misled by the service, and the moving defendants have had the affidavit in support for a significant period of time and there is an affidavit on the Court file confirming the grounds for service outside of Canada.

Conclusion [ 39 ] In my view, service ex juris was appropriate in this case and I decline to set aside service or the ex parte order granted by Master J. T. Prowse, QC. [ 40 ] The parties may speak to costs if they desire within 60 days of the filing of these reasons. Heard on the 27 th day of May, 2016. Dated at the City of Calgary, Alberta this 14 th day of July, 2016. J. Farrington M.C.C.Q.B.A. Appearances: Timothy C.

Platnich and Wilson McCutchan Caron & Partners LLP for the Plaintiff Geophysical Service Incorporated Chase Holthe and Allison Kuntz Norton Rose Fulbright for the Defendants Jebco Seismic UK Limited; Jebco Seismic (Canada) Company; Jebco Seismic, LP and Jebco/SEI Partnership LLC