Geophysical Service Incorporated v Murphy Oil Company Ltd, 2017 ABQB 464

Court of Queen’s Bench of Alberta Citation: Geophysical Service Incorporated v Murphy Oil Company Ltd, 2017 ABQB 464 Date: 20170726 Docket: 1301 15085 Registry: Calgary Between: Geophysical Service Incorporated Plaintiff - and - Murphy Oil Company Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Introduction [ 1 ] The Defendant, Murphy Oil Company Ltd. (“Murphy”), seeks

summary dismissal of all of the claims brought against it by the Plaintiff, Geophysical Service Incorporated (“GSI”), in a Statement of Claim filed on December 20, 2013. [ 2 ] The GSI claims that need to be addressed in this application can be divided into some broad categories: the “Accessed Data Claim” in which GSI alleges that Murphy improperly accessed data from the Canada-Newfoundland and Labrador Offshore Petroleum Board (the “CNLOPB”) and owes GSI $11,322,408.32 in licence fees as a result; the “Exploration Groups Claim” in which GSI seeks indemnification from Murphy for its alleged improper sharing of GSI data with various Exploration Group partners; and, the “Additional Material Claim” in which GSI alleges that Murphy failed to licence GSI seismic data held by other companies when it became involved

in exploration groups with those companies. There is also an “Audit Claim”, in which GSI alleges that Murphy breached an audit clause and a number of “Miscellaneous Claims”, in which GSI alleges breaches of copyright, conversion, negligent misrepresentation, interference with contractual relations, breaches of confidence, and unjust enrichment. [ 3 ] Murphy’s application is part of a broader series of

summary judgment/dismissal applications brought by and against GSI in a number of actions (the “Sister Applications”). The decisions in the Sister Applications were filed concurrently with this one and include Geophysical Service Incorporated v Plains Midstream Canada ULC , 2017 ABQB 462 , Geophysical Service Incorporated v Devon ARL Corporation , 2017 ABQB 463 , Geophysical Service Incorporated v Suncor Energy Inc , 2017 ABQB 465 , and Geophysical Service Incorporated v Encana Corporation , 2017 ABQB 466 .

Factual background [ 4 ] GSI is a company involved in the acquisition, collection, production, reproduction, processing, reprocessing and storage of seismic data. GSI licenses its seismic data to oil and gas companies for substantial licence fees. [ 5 ] In October 1996, GSI and Murphy entered into a General Licence Agreement (the “1996 Agreement”).

In October 1999, GSI and Murphy entered into a Contingent License Agreement under which Murphy received delivery of more GSI seismic data (the “1999 Agreement”). [ 6 ] On November 27, 2000, GSI and Murphy entered into a Master Seismic Data Licensing Agreement (the “2000 MDLA”). This is the only agreement referenced in GSI’s pleadings; the 1996 and 1999 Agreements are not mentioned. There are three Supplemental Agreements to the 2000 MDLA that license three sets of Seismic Data from GSI. This Seismic Data is located in the Laurentian and Scotian Shelves. Issues [ 7 ] The issues in this

summary judgment application are as follows: 1. Is Murphy entitled to

summary dismissal of GSI’s Accessed Data Claim? 2. Is Murphy entitled to

summary dismissal of GSI’s Exploration Groups Claim? 3. Is Murphy entitled to

summary dismissal of GSI’s Additional Material Claim? 4. Is Murphy entitled to

summary dismissal of GSI’s Audit Claim? 5. Is Murphy entitled to

summary dismissal of all of GSI’s remaining claims? Legal principles 1. Law of

summary judgment [ 8 ] The principles applicable to

summary judgment applications are set out more fully in the Sister Application of GSI v Plains Midstream Canada ULC . The main principle is to determine whether a disposition that is fair and just to both parties can be made on the existing record. If the judge can make the necessary findings of fact and apply the law to those facts, then

summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result than trial. [ 9 ] If materials facts are in serious dispute, however, the record will not support a fair and just disposition by

summary judgment. Thus, if there is evidence on the record that could defeat the applicant at trial, then

summary judgment will not be granted. If, however, there are no material facts in serious dispute, then the court may go on to determine whether the claim is otherwise suitable for

summary determination. [ 10 ] As will be seen in the discussion below, the parties mostly materially differ in the

interpretation of the licensing agreements, a legal, not a factual, determination. 2. Principles of contractual

interpretation [ 11 ] The key principles of contractual

interpretation are set out more fully in the Sister Application of GSI v Plains Midstream Canada ULC . The main principle is that contractual clauses to be considered within the context of the contract as a whole and its entire matrix, including the circumstances surrounding its creation. The court must search for an

interpretation that, from the whole of the contract, promotes or advances the true intent of the parties and commercial or business efficacy. Discussion 1. Is Murphy entitled to

summary dismissal of GSI’s Accessed Data Claim?

[ 12 ] Murphy accessed and copied various lines of seismic data from the CNLOPB between October 1995 and April 1998. All the lines in question were subject to public disclosure at the time.

As a result of the Regulatory Regime, as that phrase is described in my decision in Geophysical Service Incorporated v Encana Corporation 2016 ABQB 230 , affirmed 2017 ABCA 125 (the “Common Issues Decision”), copying and accessing these lines without paying a licence fee to GSI was permissible. [ 13 ] GSI claims that a clause in the 2000 MDLA that required Murphy to refrain from obtaining any seismic data from any governmental agency applies so as to require Murphy to pay a 150% licensing fee. [ 14 ] Clause 2(f)(iii) of

Schedule “A” of the 2000 MDLA provides as follows: The Licensee shall not obtain , directly or indirectly from any source seismic data from any governmental agency that is, owned by GSI. The Access to Information Act prohibits release of this data by the Government. Further other intellectual property laws of Canada prohibit the copying, dissemination, storage on any retrieval system, or reproduction in any manner of this confidential information.

Should the Licensee obtain any such seismic data it shall immediately notify and enter into a Supplemental Agreement with respect to such seismic data at a licensing fee equal to 150% of the current licensing fees charged by GSI for such Seismic Data. [Emphasis added.] [ 15 ] GSI argues that this clause applies to the seismic data accessed by Murphy prior to entering into the 2000 MDLA on the grounds that the words “should the Licensee obtain any such seismic data” should be interpreted to mean “should the Licensee possess any such seismic data”.

GSI submits that once possession is shown, the obligation to notify and pay a licensing fee arise. [ 16 ] I disagree with GSI’s

interpretation of the applicability of the 2000 MDLA. I have reviewed the agreement as a whole, along with the 1996 and 1999 Agreements. These earlier agreements do not have any restrictive wording about obtaining data from government boards. [ 17 ] Mr. Einarsson, GSI’s Chief Operating Officer and corporate representative in this action, gave evidence here and during the Common Issues Trial that GSI was concerned that oil companies were accessing GSI’s seismic data at no cost from government boards. As a result, GSI tightened its licence agreements.

This explains why the government clause appears in the 2000 MDLA, but is absent in the 1996 and 1999 Agreements. [ 18 ] Nonetheless, I find that the government clause is forward looking. In my view, the parties did not intend to have this clause apply to any data that had already been obtained from government boards.

As discussed by Justice Mason in Trizec Equities Ltd. v Ellis- Don Management Services Ltd. , 1998 ABQB 1133 at para 591 : ...very specific wording is required to impose contractual responsibility for retrospectivity relating to past events that have raised issues of tort and contractual liability and are currently the subject of threatened litigation. Implying such a term goes well beyond the scope of business efficacy or any suggestion that it conforms to what the parties truly intended and would have accepted as a matter of course.

This very action is a testament to the contrary. ... [ 19 ] If GSI wanted the government clause to apply to data that Murphy had already obtained, it could have used the word “possess” in the agreement, rather than the word “obtain”. Indeed, in the Sister Application, GSI v Encana , a similar clause in an agreement entered into in 2001 contained the more specific language: “...in the event that, as of the date hereof, the Licensee or any of its ... representatives are in possession of any Seismic Data... that is owned by GSI, the Licensee shall....”.

The clause in that case clearly sets out how “accessed data” in Encana’s possession at the time of signing the agreement would be treated. I raise this point to distinguish my decision in that case, based on the different wording in this similar, but ultimately critically different, clause of the 2000 MDLA. [ 20 ] GSI also argued, despite it not being pled, that Murphy had an ongoing obligation of good faith to disclose to GSI while negotiating the 2000 MDLA that it had accessed data from the CNLOPB.

GSI submits that such failure to disclose amounts to a negligent misrepresentation and relies on Bhasin v Hrynew , 2014 SCC 71 as authority for this proposition. [ 21 ] In my view, Bhasin does not apply here since we are dealing with a period of negotiation, not performance of a contract.

But even if it did, I do not agree that Murphy acted in bad faith in failing to disclose something that it was entitled to do at the time, i.e. access data from government boards, even if the terms of the new agreement it was negotiating restricted such activity in the future. [ 22 ] In the alternative, Murphy also raised limitation defences with respect to this claim. In particular, it argued that GSI knew that Murphy had accessed at least some lines in 2003, so that the claim has lapsed since it has been more than two years since the discovery of the breach.

Further, since GSI alleges that the breach occurred literally on the signing of the 2000 MDLA upon Murphy’s failure to notify GSI that it possessed “Accessed Data”, the claim has expired pursuant to the 10 year limitation period. [ 23 ] Considering my

interpretation of the 2000 MDLA, however, the limitation question is moot, so I will not address it further in these reasons. [ 24 ] In sum, GSI’s action against Murphy for failing to disclose and pay for the seismic data it obtained from the CNLOPB between 1995 and 1998, the “Accessed Data Claim”, is dismissed. The 2000 MDLA has no application to this material. 2. Is Murphy entitled to

summary dismissal of GSI’s Exploration Groups Claim? [ 25 ] The Statement of Claim pleads that Murphy breached the 2000 MDLA when it became involved in certain Exploration Groups in geographic areas covered by the agreement. An “Exploration Group” is defined as: “… any individuals, companies or other entities that have an understanding or agreement, formal or otherwise, with the Licensee to explore, lease, participate in (including by option, royalty or other means) or develop areas of mutual interest, or operating units, or

otherwise to join together to acquire or utilize petroleum, natural gas or hydrocarbon properties or interests in petroleum, natural gas or hydrocarbon rights in areas covered by or within five kilometers of any of the Seismic Data .” [ 26 ] GSI argues that the Exploration Groups Claim is not based on use, rather it only need show that (

i) Murphy was a licensee of Seismic Data; (ii) that a venture was formed or existed during the currency of the licence; and, (iii) that the areas of mutual interest of the venture were covered by or within 5 kilometres of any of the licensed data. GSI submits that the starting point of the analysis is whether a license existed between Murphy and GSI. [ 27 ] The problem for GSI is that the offshore licences pled in the Statement of Claim are not within five kilometres of the Seismic Data licenced under the 2000 MDLA.

Accordingly, there has been no breach of this provision since the critical requirement of a license between GSI and Murphy for data in the relevant geographic area does not exist. [ 28 ] At the hearing of this application GSI conceded that the offshore licences pled are not within 5 km of the Seismic Data licenced under the 2000 MDLA. GSI argued, however, that these offshore licenses are within 5 km of seismic data licenced under the 1996 and 1999 Agreements.

GSI submits that the 2000 MDLA replaced all prior data licences, as such, all data licenced under those agreements became licenced under the 2000 MDLA. [ 29 ] It bases its argument on clause 17.7, the Entire Agreement clause, found under the “MISCELLANEOUS” heading in the 2000 MDLA: 17.7 This Agreement sets forth the entire agreement between the parties hereto and supersedes all prior agreements, prior data licenses , understandings, and communications between the parties hereto whether oral or written. [ 30 ] GSI argues that “supersedes” means “replaces” in the context of all data licenses prior to the 2000 MDLA.

It argues the 2000 MDLA replaced all prior data licenses such that all data licensed under those agreements became licensed under the 2000 MDLA for the following reasons: (

i) it follows from the plain and ordinary definition of “supersede”; (ii) an alternative

interpretation that would void prior data licenses would mean that the prior licensed data would be rendered unlicensed requiring its return to GSI, which was not intended and never occurred; (iii) other GSI agreements provide for the continuation of previous licenses with express language, thus its absence here suggests replacement; and (iv) if the parties intended to continue operating under the old agreements, they could have added new licensed data through supplemental agreements to the existing 1996 and 1999 Agreements. [ 31 ] GSI also relies on Tangerine Financial Products Limited Partnership v Tangerine FP Investments Ltd. , 2012 BCCA 521 .

In that case, the trial judge found that an entire agreement clause was helpful in determining whether part of the property of the vendor (the Business Know-How) was included in the agreement at issue. He found that the entire agreement clause, which provided that the agreement superseded any prior assignment or agreement with respect to the Business Know-How, demonstrated the parties’ intention to replace entirely the prior agreement on that point. GSI argues that the language here reveals the parties’ intention that “all prior data licences” should be governed by the 2000 MDLA. GSI also submits that it was Mr.

Einarsson’s understanding that the 2000 MDLA superseded the earlier agreements. [ 32 ] I do not accept GSI’s arguments on these points. As discussed above, the general rule is that a contract must contain express provisions to make it apply to matters that pre-date its execution. There are several indications in the 2000 MDLA that lead me to conclude that it is forward looking only. [ 33 ] First, the “Agreement” is defined as “this Agreement and the Schedules attached hereto and any amendments hereto and all Supplemental Agreements”.

The “Effective Date” of the Agreement is November 27, 2000. “Seismic Data” is defined as “seismic ... data ... that has been invoiced for or identified in all Supplemental Agreements entered into between the parties hereto during the term of this Agreement.” The term is described in clause 15.1 as being “for ten (10) years from the Effective Date, and shall automatically renew...” All of these terms are forward looking. [ 34 ] In my view, the entire agreement clause at 17.7 is essentially a restatement of the parol evidence rule.

It does not, in the context of the agreement as a whole and the entirety of the surrounding circumstances, make all the data licensed under the 1996 and 1999 Agreements subject to the more stringent terms of the 2000 MDLA. [ 35 ] The Tangerine case is distinguishable on its facts. In that case, the two agreements in question dealt with the same subject matter although in the second, the Business Know-How, was more particularized.

This is different than in the case at bar where the seismic data licensed under the 2000 MDLA is completely different from what was licensed under the 1996 and 1999 Agreements. [ 36 ] A case that is more on point is Riley Manufacturing Company Inc v Anchor Glass Container Corp , 157 F 3d 775 (10 th Cir 1998). In that case, the parties had been operating their business relationship via a manufacturing agreement. An issue arose about some intellectual property and a settlement agreement was reached with respect to this issue.

The settlement agreement contained the following clause: This Agreement constitutes the entire agreement of the parties hereto and cancels, terminates, and supersedes any and all prior representations and agreements relating to the subject matter thereof. [ 37 ] The Court rejected the argument that the settlement agreement’s “subject matter” was the entire business relationship and that the agreement superseded the original manufacturing agreement.

The court pointed out that if that had been the parties’ intention, the agreement would have said so explicitly. [ 38 ] Similarly, I conclude here that if GSI and Murphy intended that all of the data licences granted under the 1996 and 1999 Agreements would be subject to the terms of the 2000 MDLA, they would have said so more explicitly and properly referenced this intention earlier in the agreement, rather than burying it towards the end in the “Miscellaneous” provisions. The rest of the 2000 MDLA, including the

definitions of “Agreement”, “Effective Date”, “Seismic Data” and its term make it clear that it does not incorporate the earlier agreements.

[ 39 ] I find that the huge volume of data licensed under the 1996 and 1999 Agreements continues to be governed by those agreements, which, by the way, GSI confirmed were never terminated. [ 40 ] With respect to GSI’s other arguments on this point, in my view, “supersede” cannot in this context be interpreted to void the prior licences; those licenses are still in force. Further, there was no need to specifically indicate that these earlier licenses would remain in force to enter into the 2000 MDLA.

Finally, although the parties could simply have added new licences under the earlier agreements by way of supplemental agreement, it is clear that GSI was motivated to licence data going forward under stricter provisions (such as those in the 2000 MDLA), so there was a reasonable business purpose to enter into the new agreement. [ 41 ] Last, Mr. Einarsson’s parole evidence is unnecessary to resolve this claim. In IFP Technologies (Canada) Inc. v Encana Midstream and Marketing , 2017 ABCA 157 at paras 81 to 87 , the Alberta Court of Appeal clarified the use of parole evidence.

Where a contract is ambiguous, extrinsic evidence such as parole evidence may be admitted to resolve the ambiguity. Mere difficulty in interpreting a contract, however, is not the same as ambiguity; rather, ambiguity exists when the words are “reasonably susceptible of more than one meaning”. [ 42 ] In my view, clause 17.7 is not ambiguous and this clause can be interpreted, as directed by the Court of Appeal in IFP Technologies , within the context of the contract as a whole, framed by its factual matrix.

This analysis has led me to conclude that “supersede” cannot have the meaning attributed to it by GSI. [ 43 ] Murphy also argues that the Exploration Groups Claim is barred by the limitation period because Murphy gained its interest in the Exploration Groups years before the Statement of Claim was filed (in some cases more than ten years before and in other cases more than two years before). Considering my substantive conclusions on the Exploration Groups Claim, the limitations question is again moot and I need not address it. 3. Is Murphy entitled to

summary dismissal of GSI’s Additional Material Claim? [ 44 ] GSI pleads that Murphy breached the 2000 MDLA by obtaining seismic data from third parties without entering into license agreements with GSI for that data. GSI defines this data as the “Additional Material” in paragraph 12(

c) of the Statement of Claim. [ 45 ] GSI makes more specific claims in this regard in paragraphs 32 to 34. It alleges that Murphy, as a signatory to its own agreements with GSI, should have known that the agreements between other exploration companies and GSI (the “Partner Agreements”) would have required Murphy to enter into a licensing agreement of its own with GSI for any GSI data related to that Exploration Group licensed by the other companies.

The pleadings go on to allege that there was contractual interference with these other oil companies as a result. [ 46 ] The evidence led by Murphy shows that it was not party to any of these Partner Agreements (such as, for example, agreements between GSI and Suncor, Statoil and Husky). The evidence on the record shows that Murphy had no knowledge of the terms and conditions of those agreements, and in any event, it did not come to possess any “Additional Material”. [ 47 ] Murphy had no privity of contract in the Partner Agreements.

Where there is no privity of contract, there can be no contractual obligation, breach or remedy. For a similar analysis of this issue, see Master Robertson’s decision in Geophysical Service Inc. v Nwest Energy Corp. , 2014 ABQB 205 at paras 79-83 . Furthermore, GSI conceded in argument that there was not much to substantiate its interference with contractual relations claim. I agree. [ 48 ] Although not specifically plead, GSI also argued that the government clause at 2(f)(iii) of

Schedule A applies to seismic data that it alleges Murphy received from PanCanadian in July 1998. As a reminder, that clause says that “should the Licensee obtain any such seismic data it shall immediately notify and enter into a Supplemental Agreement with respect to such seismic data.” [ 49 ] Since I have already concluded that the 2000 MDLA does not have retrospective effect, this argument fails. Murphy’s actions in 1998, regardless of what they may have been, cannot be a breach of the 2000 MDLA. Furthermore, if any such action amounted to a breach of the 2000 MDLA, it would have occurred more than 10 years before GSI’s filed its Statement of Claim. [ 50 ] Accordingly I allow

summary dismissal of the Additional Materials claim as there is no evidentiary or legal foundation for it to succeed. 4. Is Murphy entitled to

summary dismissal of GSI’s Audit Claim? [ 51 ] GSI claims at paragraph 29 of the Statement of Claim that it submitted an audit request to Murphy "for all information available regarding the extent of the subject geographic areas of the Exploration Groups" and Murphy's refusal “to provide such information or allow such an audit” was a breach of the 2000 MDLA and caused delay to GSI in becoming aware of the Exploration Groups’ activities. [ 52 ] GSI’s audit request letter is dated May 8, 2012.

It indicates that GSI had become aware that its data was being obtained from, requested by, sent to, accessed by, or was provided to government.

Citing the “Audit provisions” of the 2000 MDLA, GSI asked Murphy “to confirm and disclose in writing ... each and every instance, and the full details” of all GSI data and other confidential information “that has been obtained from, requested by, sent to, accessed by, or was provided to Government.” The audit letter does not seek what is plead, i.e. information about Exploration Group activities. [ 53 ] The audit provision at clause 4.1 of the 2000 MDLA allows GSI representatives, upon reasonable advance notice, to “audit and inspect the working or storage premises of the Licensee to view records and equipment where the Seismic Data ... are being stored, maintained or then in use for the purposes of ensuring that the terms and conditions of this Agreement are being complied with by the Licensee.”

[ 54 ] This audit clause gives GSI fairly broad rights to inspect the working and storage areas of Murphy but not the disclosure rights requested in its letter of May 8, 2012. Nor does the request coincide with the claim in its pleadings. In any event, Murphy responded to GSI’s letter on June 7, 2012 to say that it had no knowledge of disclosure to government of any data or information as described in GSI’s letter. [ 55 ] In sum, GSI’s Audit Claim is dismissed as there is no evidence of a breach as claimed, or at all, of the audit clause. 5. Is Murphy entitled to

summary dismissal of all of GSI’s remaining claims? [ 56 ] Paragraph 12 of the Statement of Claim pleads that “The Seismic Materials that are the focus of the within Action are comprised of: (a) ... “Accessed Materials” ... (b) ... “Agreement Materials” ...; and, (c) ... “Additional Materials”. The reasons above have dealt with the specific claims in relation to each of these subsets of seismic data. [ 57 ] In paragraph 37, there are some further general claims of copyright breaches, conversion, breach of confidence, and unjust enrichment.

More specifically, in argument these claims focussed on the Anadarko email claim, the allegation that seismic material was sold to the CNLOPB, and general claims regarding misuse of seismic data.

a) Does the Anadarko email establish breach of contract or breach of copyright? [ 58 ] Mr. Einarsson produced an email dated June 10, 1999 between Anadarko staff. The email was allowed to be entered as evidence in this matter by Order. The email refers to unlicensed GSI data that Anardarko found. The message goes on to say: “In addition, we have a number of unlicensed GSI lines on our workstation system, part of Murphy’s scanned data set which Murphy gave to us during last year’s lease sale effort. We received and loaded a total of 263 digitally scanned lines.

Of this total, only a small number of lines are unlicensed GSI lines...” [ 59 ] Mr. Jeff Good, General Manager, Land and Commercial, at Murphy searched Murphy’s records and was unable to locate anything to indicate that Murphy gave any information to Anadarko. This email is 17 years old and emails of that era have not been retained. [ 60 ] Based on this evidence, there is nothing to suggest a breach the 2000 MDLA. With respect to any unlicensed data, as discussed above, this is data that would have been in the public domain, so sharing would not be a breach of contract or breach of copyright.

And to the extent licenced data was shared, given the June 1999 date, it must have been seismic data licenced under the 1996 agreement. A breach of that agreement has not been pled, and any sharing before the parties executed the 2000 MDLA cannot be considered a breach of that agreement. [ 61 ] It is possible that there was a breach of copyright in sharing licenced data.

The terms of the licence would have dictated the proper use of that data however and without it being plead it is not possible to determine if indeed there was a breach of copyright, or not. [ 62 ] In any event, again, this claim likely would be lapsed because it occurred over 10 years before GSI filed its Statement of Claim, and there is no basis on this record to find fraudulent concealment to suspend this limitation period. Accordingly, the claim would be dismissed on this basis as well, although I do not need to determine this issue at this point considering my findings above.

b) Did Murphy “sell” data to the CNLOPB? [ 63 ] Mr. Einarsson attests in his March 16, 2015 affidavit that in reviewing Murphy’s production documents, GSI became aware that Murphy “sold” one of GSI’s surveys to the CNLOPB and obtained $250/km for 1,675 km of data from the Board when it had only paid GSI $85/km for the same data, thereby making a profit and breaching its copyright and its agreement with GSI. He claims that this was 1985 Jeanne D’Arc data. (at para 64).

It bases this on documents dated September 13, 1996 and October 11, 1996 seeking credits for expenditures. [ 64 ] This claim is not plead in GSI’s Statement of Claim so it is difficult to guess what it is claiming. Firstly, if it is an alleged “sale” of Jeanne D’Arc material, this data was not licenced under the 2000 Agreement, so not only is the breach not plead, the right licence agreement is also not plead. [ 65 ] Further, the documents referenced by Mr.

Einarsson do not support an inference that anything was “sold”; rather, they show that Murphy could apply for an allowable expenditure credit for seismic data that it had purchased. There is no evidence that any seismic data was actually transferred to the board, let alone sold. As discussed in the Sister Application, GSI v Encana , in relation to the “Submitted Data Claim,” there appears to be a fundamental misunderstanding about what was occurring here. [ 66 ] Accordingly, the evidence does not support any breach of any agreement, let alone the 2000 MDLA as pled, or any breach of copyright.

And again, in any event, this alleged breach occurred well beyond 10 years before the Statement of Claim was filed and as such it is likely statute barred, but I need not decide this latter issue as it is not properly before me and would be moot.

c) Did Murphy otherwise misuse GSI’s seismic data? [ 67 ] In paragraph 37 of the Statement of Claim, GSI generally pleads that Murphy improperly copied seismic material from Boards and other parties; that the data has been converted improperly; that Murphy has been unjustly enriched and breached its obligations of confidence and was negligently misrepresenting the fact that it did not divulge that it had Accessed Data. [ 68 ] As a result of my findings in the Common Issues Decision, all of these claims fail in relation to the Accessed Data since Murphy had full rights to use public domain data as it did.

[ 69 ] These claims also fail in relation to the Agreement Material and Additional Material, as defined in the pleadings. The Agreement Material is the data that is subject to the 2000 MDLA. Any disputes and claims arising from alleged misuse of this data could be addressed through a breach of contract claim and based on the evidence on the record there is no basis for an independent copyright claim in any event. [ 70 ] As for the Additional Material, as discussed above, there is nothing in the evidence to suggest that Murphy benefitted from, used or took possession of any of the Additional Material.

The claim by GSI was a geographic contractual claim but because Murphy is not a signatory to those agreements, it cannot be bound by their provisions. Parties need to put their best food forward in a

summary judgment application to show some foundation for their claim. None was proffered on the claims here. For this reason, I find there is no evidence on the record before me to substantiate a claim for conversion, breach of confidence, or unjust enrichment. Discussion about the record [ 71 ] The principles of

summary judgment have been discussed above, the main principle being whether I can make a disposition that is fair and just to both parties on the existing record. [ 72 ] In this latter regard, GSI complained that the record here is inadequate to make any conclusions, since it did not yet have the benefit of full discovery on all of the allegations pled.

GSI requested, at the conclusion of two days of oral argument, that I consider giving it leave to bring an application to amend its pleadings by adding alleged breaches of the 1996 and 1999 Agreements. [ 73 ] First, with respect to the record, I note that the main evidence relied upon by Murphy is found in affidavits, cross-examination, and answers to undertakings of Mr. Edward Johnston. Murphy also presented the evidence of Mr. Good. GSI complains that he did not have personal knowledge of the facts to which he opined.

I note that many of the claims herein are so dated that Murphy no longer employs anyone who had any direct involvement in the matters at issue, so it would be hard to come by personal information. In any event, it was open to GSI to lead such evidence. I also note that the parties filed complete Affidavits of Records in this matter and, as discussed above, GSI had an opportunity to review those records and raise any concerns. [ 74 ] In sum, I do not believe that sending this matter to trial on the issues pled will put the court in any better position to assess the mainly legal questions that have been argued.

In my view, I have a sufficient record to make a fair disposition on a

summary basis. [ 75 ] With respect to leave to amend its pleadings at this late stage, I will leave that to the Case Management Justice to determine. Conclusion [ 76 ] For the reasons discussed above and the reasons in the Common Issues Decision, I do not believe that there are any issues of merit on the record and in the pleadings that genuinely require a trial. I allow Murphy’s application for

summary dismissal of GSI’s claims, as pled in its Statement of Claim dated December 20, 2013. GSI’s action is dismissed. Heard on the 24 th & 31 st days of January, 2017. Dated at the City of Calgary, Alberta this 26 th day of July, 2017. K.M. Eidsvik J.C.Q.B.A. Appearances: Timothy C. Platnich, Caron & Partners LLP for the Plaintiff Melanie Teetaert and Craig Alcock, Burnet Duckworth & Palmer LLP for the Defendant