Geophysical Service Incorporated v Suncor Energy Inc, 2017 ABQB 465

Court of Queen’s Bench of Alberta Citation: Geophysical Service Incorporated v Suncor Energy Inc, 2017 ABQB 465 Date: 20170726 Docket: 0901 08209 Registry: Calgary Between: Geophysical Service Incorporated Plaintiff - and - Suncor Energy Inc. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Introduction [ 1 ] The Defendant, Suncor Energy Inc. (“Suncor”) brings an application for

summary judgment against some, but not all, of the claims brought by the Plaintiff, Geophysical Service Incorporated (“GSI”). Suncor also sought a stay of the claims described as the “Husky Claims”, but that application was adjourned at the hearing. [ 2 ] Suncor seeks relief against GSI’s claims founded in breach of contract, in particular in relation to GSI’s Transfer Fee Claim, Audit Claim, Secondary Submissions Claim, and Exploration Groups Claim. It does not seek

summary dismissal in this application of the copyright, conversion, detinue, or unjust enrichment claims set out in the pleadings. [ 3 ] At the hearing, GSI conceded that its Secondary Submissions Claim for more than $20 million in damages arising from

Petro-Canada’s alleged improper disclosure of confidential GSI information to government authorities in 1980 and 1989 is out of time. This claim is dismissed. [ 4 ] Suncor’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 Murphy Oil Company Ltd , 2017 ABQB 464 , and Geophysical Service Incorporated v Encana Corporation , 2017 ABQB 466 . Procedural irregularities [ 5 ] There are a few procedural irregularities in relation to this application that I must address up front. Suncor filed an Amended Application for

Summary Judgment on June 20, 2016. It seeks dismissal of the claims made in specified paragraphs of GSI’s Amended Statement of Claim, broadly described as the “Petro-Canada Claims”. On August 22, 2016, however, GSI filed an Amended Amended Statement of Claim. The Consent Order granting permission to file the further amended claim reserved Suncor’s right to make limitations arguments, in particular under

section 6 of the Limitations Act , RSA 2000, c L-12 at the pending

summary judgment application or at trial. [ 6 ] Suncor did not file an Amended Amended Application in response to GSI’s Amended Amended Statement of Claim, yet both parties proceeded with the

summary judgment application in reference to the Amended Amended Statement of Claim, including arguments under the Limitations Act . These reasons will resolve the

summary judgment application on the basis that it seeks

summary judgment in relation to the claims made in the August 20, 2016 Amended Amended Statement of Claim. Factual background [ 7 ] GSI filed its original claim against Suncor on June 2, 2009 (the “Original Claim”). The Original Claim sought relief from Suncor for allegedly accessing, viewing, or otherwise using seismic data known as the Labrador Material in connection with a joint bid with Husky Oil Limited for an offshore Labrador exploration lease block (the “Husky Claims”). [ 8 ] GSI amended its Statement of Claim on June 20, 2012. The new claims can be broadly characterized as the “Petro-Canada Claims”.

They arose from Suncor’s merger with Petro-Canada. GSI further amended its Statement of Claim, as mentioned above, in August 2016 allegedly to particularize its contractual Transfer Fee Claim. [ 9 ] Suncor is the corporate successor to Petro-Canada pursuant to a court-approved plan of arrangement and consequent amalgamation on August 1, 2009. The amalgamated company continued as Suncor. The property, liabilities and obligations of each amalgamated company continued in Suncor pursuant to

section 186 of the

Canada Business Corporations Act , RSC 1985, c C-44. [ 10 ] It appears from the evidence that Mr. Einarsson, GSI’s Chief Operating Officer and corporate representative in this case, became aware of the planned amalgamation as early as April 2009. An email written by Mr. Einarsson on April 21, 2009 refers to the pending merger and, at his questioning Mr. Einarsson recalled that Suncor notified him that a merger was imminent.

Suncor formally served GSI with a notice of amalgamation on August 4, 2009. [ 11 ] In that letter, Suncor advised GSI that Suncor and Petro-Canada had amalgamated effective August 1, 2009 and that the amalgamated corporation was now carrying on business as Suncor. Suncor also explained that as a result of the amalgamation, Suncor became entitled to all properties, rights and liabilities of Suncor and Petro-Canada.

With respect to its licensing agreements with GSI, Suncor stated that since the merger was the result of an amalgamation, “no assignments or transfer documentation from either Suncor Energy Inc. or Petro-Canada is required.” [ 12 ] Prior to 1997, Petro-Canada had licensed data from GSI on an ad hoc basis. In 1997, GSI and Petro-Canada entered into a General License Agreement for the “Jeanne D’Arc 3D Swath Program” (the “1997 GLA”).

In 1998, GSI and Petro-Canada entered into General License Agreement #PCAN0498 (the “1998 GLA”). [ 13 ] On June 28, 2001, GSI and Petro-Canada entered into a Master Data License Agreement (the “2001 MDLA”).

The parties subsequently executed six supplemental agreements between 2001 and 2009 pursuant to the 2001 MDLA through which Petro-Canada, and later Suncor, licensed various sets of seismic data from GSI. [ 14 ] The details of the six supplemental agreements are as follows: Supplemental Agreement Date Survey licensed Amount of data June 28, 2001 Orphan 2000 10,440 km May 1, 2002 East Coast 1972 951.75 km December 20, 2006 Labrador 2003-2006 1,621.8688 km October 24, 2008 Vintage data 13,469.709 km (Baffin Bay, East Coast, High Arctic)

February 19, 2009 East Coast Canada 178.338 km November 4, 2009 1971-2008 Labrador Surveys [ 15 ] The October 24, 2008 Supplemental Agreement brought a significant amount of pre-1998 data, known as legacy or vintage data, under the 2001 MDLA (the “October 2008 Agreement”). Petro-Canada did not receive anything new from signing this supplemental agreement, nor did it pay anything to GSI. At the time, GSI explained its request for the October 2008 Agreement as a desire to update its records.

Petro-Canada viewed the agreement as nothing more than a housekeeping exercise. [ 16 ] Nonetheless, the October 2008 Agreement clearly states that all the seismic lines identified will be subject to the terms of the 2001 MDLA. Initially, there was some dispute as to the impact of this supplemental agreement, but Suncor eventually conceded that the 2001 MDLA applies from October 24, 2008 onwards to the vintage data licensed under this agreement. [ 17 ] There is also some dispute in relation to the November 4, 2009 Supplemental and Amending Agreement (the “November 2009 Agreement”).

Suncor submits the purpose of this agreement was to obtain shape files from GSI. Shape files indicate where two- dimensional seismic data is located over a given area by identifying the start point, end point, and length of the line; it submits shape files are not seismic data. GSI, by contrast, alleges that the agreement also licensed data from GSI’s Labrador Surveys from 1971 to 2008.

The November 2009 Agreement states as follows: ...This Amending Agreement shall serve to expand the information provided to the Licensee to include the 1971-2008 GSI Labrador Surveys and to expand disclosure to include Shape-files on the same conditions of limited use and confidentiality. [ 18 ] This language suggests that the November 2009 Agreement licensed more vintage data and not merely shape files; however, as I will discuss later in these reasons, I need not decide this issue to decide this application. [ 19 ] Suncor became a party to the 2001 MDLA and its associated supplemental agreements pursuant to the amalgamation.

The Petro-Canada Claims allege a variety of breaches by Petro-Canada of the 2001 MDLA and the general license agreements, for which Suncor is now liable, as well as by Suncor post-amalgamation. The details of these claims will be described in the discussion and analysis below. Issues [ 20 ] The issues in this

summary judgment application are as follows: 1. Do GSI’s June 20, 2012 amendments take effect as if they were filed on the date of the Original Claim? 2. Is Suncor entitled to

summary dismissal of GSI’s Transfer Fee Claim? 3. Is Suncor entitled to

summary dismissal of GSI’s Audit Claim? 4. Is Suncor entitled to

summary dismissal of GSI’s Exploration Groups Claim? Legal Principles 1. Law of

summary judgment [ 21 ] The principles applicable to

summary judgment applications are set out 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. [ 22 ] If material 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. 2. Principles of contractual

interpretation [ 23 ] 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 and Analysis 1. Do GSI’s June 20, 2012 amendments take effect as if they were filed on the date of the Original Claim?

[24] On June 20, 2012, GSI amended its Original Claim. Under rule 3.62(1)(

a) of the Alberta Rules of Court, Alta Reg 124/2010, aparty can amend its pleadings without seeking court approval so long as pleadings have not closed. The general rule is that theamendments then take effect as if they were filed on the date of the original claim: Cartwright v Cartwright Canada Inc., 2007 ABQB189. GSI seeks to take advantage of this earlier date to defend against Suncor’s limitations arguments. [25] GSI submits that because pleadings had not closed, it did not require court approval for its amendments and the claims addedon June 20, 2012 should benefit from the original filing date of June 2, 2009. Law on

section 6 of the Limitations Act [26] In my view, while a party may amend before the close of pleadings, if an amendment raises the possibility of a limitationsargument, the party should seek leave of the court: Korte v Cormie (1996), 1996 ABCA 15 , 178 AR 199 (CA) at para 38. In thecircumstances here, GSI should have sought the court’s permission to bring its amendments. [27] Had GSI brought such an application, the court would have had three choices: (1) determine that the limitation period had notexpired and allow the amendments; (2) rule that the limitation period had expired and consider whether

section 6 of the Limitations Actapplied to allow amendments beyond the limitation period, if the elements of the test were satisfied; or, (3) allow the amendmentssubject to a determination of the limitation issues at trial. The same analysis needs to be undertaken here, even though the amendmentshave already been made. [28] There is no doubt the amendments were brought after the expiry of the limitation period. Thus, the analysis depends onwhether the exception contained in section 6(2) of the Limitations Act applies.

This exception permits amendments to pleadings after theexpiry of the limitation period if the added claims are “related to the conduct, transaction or events described in the original pleading inthe proceeding.” [29] GSI has the burden of proving that the added claims are related to the original pleading. The test for relatedness has beenarticulated in a number of ways and can best be summarized as whether the proposed claims simply elaborate on the original allegationsor whether they add something more substantive.

If the added claims arise out of the same sequence of events, the same continuingrelationship, and the same factual background, then they will count as related claims. [30] Chief Justice Wittmann explained the nature of the analysis in Dow Chemical Canada Inc. v Nova Chemicals Corp., 2010ABQB 524 at para 70: Whether an amendment arises out of the same events as the original pleading is a matter of degree and judgment with which a certainamount of specificity is required.

An overbroad definition would bestow on the plaintiff an unlimited ability to add on statute-barredclaims. [Citations omitted.] [31] GSI brought its Original Claim against pre-amalgamation Suncor. The Original Claim alleges that, in the course of preparingfor its joint bid with Husky in 2008, Suncor gained access to the Labrador Material, which was licensed to Husky under its ownagreement with GSI.

The pleadings make claims for copyright infringement, breach of obligations of confidence, conversion andinducing breach of contract. [32] The claims added in June 20, 2012 arise from Suncor’s merger with Petro-Canada in August 2009. The primary claims are forbreach of contract in relation to the 2001 MDLA, a contract to which Suncor did not become a party until two months after the OriginalClaim was filed. [33] There is nothing about the Petro-Canada Claims that is related to the conduct, transaction or events described in the OriginalClaim in this proceeding.

It is impossible for them to be related, since the Petro-Canada Claims arise from a contract held by a separateentity that was not affiliated with Suncor at the time of the Original Claim. The Petro-Canada Claims require proof of a completelydistinct set of facts and events.

They relate to a contract held by a different entity than the entity sued in the Original Claim; theamalgamation triggering any potential liability against Suncor had not yet occurred. [34] In DeSoto Resources Limited v Encana Corporation, 2010 ABCA 110 the Court of Appeal affirmed the chambers judge’sdecision to deny amendments that raised claims for breach of contract in relation to an agreement that had not been mentioned in theoriginal pleadings.

The same situation exists here; the Original Claim does not mention the 2001 MDLA or any of GSI’s agreement withPetro-Canada. [35] In Wrzesien v Arnett & Burgess Pipeliners Ltd., 2013 ABQB 59, Manderscheid J wryly noted at para 46 that “...anamendment speaks from the date of the original issuance of the statement of claim.

As a result, the pleading generally cannot beamended to refer to events which occurred after filing of the Statement of Claim.” Similarly, in this case, the pleadings should nothave been amended to include breaches of contract arising from an amalgamation that occurred after the filing of the Original Claim. Conclusion on

section 6 of the Limitations Act [36] I do not accept that Petro-Canada Claims’ clock for limitation purposes is entitled to start at a filing date that pre-dates thealleged injurious acts. The Petro-Canada Claims cannot benefit from the date of the Original Claim, since they do not relate to theconduct, transactions, and events in that pleading. Any limitations analysis in relation to these claims must use the date these claims wereadded. 2. Is Suncor entitled to

summary dismissal of GSI’s Transfer Fee Claim? [37] In the 2016 amendments to the Statement of Claim, GSI alleges that Suncor and Petro-Canada breached the terms of various

license agreements between GSI and Suncor’s predecessors, identified as the “pre-2001 Agreements”, by transferring GSI’s seismic databetween Suncor companies, and later between Petro Canada and Suncor, “without having obtained GSI’s prior written approval andpaying the requisite license fees to GSI.” GSI alleges that Suncor is liable for transfer fee damages arising from these breaches in theamount of US $12,915,250.40 for the pre-2001 Agreements and US $7,731,554.90 for the 2001 MDLA data. [38] In support of its claim, GSI cites clause 4.4 of the 1997 and 1998 Agreements, which states that generally the licensee may nottransfer its rights or obligations under the agreement without GSI’s written approval.

GSI argues that its damages are the loss oftransfer/license fees to which it would have been entitled for licensing the data covered by these agreements. [39] With respect to the 2001 MDLA, GSI argues that clause 12.1 applies to require the negotiation of transfer fees upon a transferthat is not a 100% acquisition of the outstanding shares of the licensee. [40] Suncor argues that although the pre-2001 Agreements prohibit the assignment or transfer of contractual rights without GSI’sconsent, assets are not transferred or assigned in law upon an amalgamation.

Further, Suncor argues that these agreements do notcontemplate the payment of transfer fees on an amalgamation in any event. [41] With respect to the claim for transfer fees pursuant to the 2001 MDLA, Suncor submits that it was an “Acquiring Entity”, asdefined, and that by virtue of the amalgamation it acquired 100% of the shares of Petro-Canada, thus satisfying clause 12.1(

a) such that itowes no transfer fees. In the alternative, it submits that 12.1(c), upon which GSI relies, is an unenforceable agreement to agree. [42] Finally, Suncor argues that the Transfer Fee Claim is statute barred. It submits GSI had knowledge of the amalgamationaround the time it happened in August 2009, yet it waited until August 2016 to add the $20 million Transfer Fee Claim to its pleadings. [43] GSI argues that its claims are saved by

section 6 of the Limitations Act in that the Transfer Fee Claim merely particularizessome of the contract claims made in the June 2012 Amended Statement of Claim. [44] The resolution of this claim requires

interpretation of the relevant contractual provisions of the pre-2001Agreements and the2001 MDLA. It also requires an assessment of Suncor’s limitations defence. Analysis [45] In my view, I accept Suncor’s argument that transfer fees are generally not payable on an amalgamation. The case law andsections 181 and 186 of the

Canada Business Corporations Act submitted by Suncor to support this proposition were not disputed byGSI. In sum, an amalgamation generally does not effect an assignment or a transfer of an agreement, nor does it result in a transfer ofassets or liabilities: Zurich Canadian Holdings Ltd. v Questar Exploration Inc., 1998 ABQB 489 at paras 54 & 56, affirmed 1999ABCA 75 at para 35.

This Court of Appeal case summarises the state of the law, as supported by the Supreme Court in R v Black &Decker (SCC), [1975] 1 SCR 411. [46] As such, the law supports Suncor’s position that it did not need to obtain GSI’s consent to assume the assets and liabilitiesassociated with the pre-2001 Agreements or under the 2001 MDLA. The general clauses 4.4 and 2.1 barring transfers without GSI’sconsent in the pre-2001 Agreements do not apply. [47] GSI argued however that the 2001 MDLA in particular dealt with “mergers” and as such this agreement would apply insteadof the general common law legal position.

It referred to clause 12.1 in this regard and submitted that this clause requires payment oftransfer fees on amalgamation or “mergers”. [48] Clause 12.1 sets out when transfer fees must be paid: 12.1 Transfer Fees Acquisitions/Mergers: If an Acquiring Entity acquires Ownership or Control of the Licensee or otherwise acquiresall or substantially all the assets of the Licensee, then such Acquiring Entity or any entity related to it shall be entitled to a transfer ofthis Agreement or, at the option of the Licensor, to obtain a license, utilizing Licensor’s then current form of license agreement, to usethe Seismic Data, and Reprocessed Seismic Data upon payment of the following transfer consideration to Licensor: (

a) in the case of an acquisition of 100% of the outstanding common stock or other voting securities (in circumstances where theLicensee is a corporation or other entity which issues voting securities) ... no transfer fee shall be payable; ... (

c) In all other cases, a transfer fee shall be negotiated. [49] “Acquiring Entity” is a defined term in the 2001 MDLA. It means: ...as of and from the date hereof, an entity which is not a Related Entity and which directly or indirectly acquires (

i) all or substantially allof the assets of the Licensee (or its parent company) by purchase, combination, trade, bankruptcy, reorganization or otherwise includingits rights to use the Seismic Data, or Reprocessed Seismic Data or (ii) Ownership or Control of the Licensee, whether by purchase ofvoting securities, merger, bankruptcy, reorganization or otherwise including the rights to use the Seismic Data, or ReprocessedSeismic Data. [50] Suncor obtained 100% of Petro-Canada’s shares through a plan of arrangement, thereafter approved by court order. Therefore,I accept that it was an “Acquiring Entity”, as defined.

Clause 12.1 states that when an Acquiring Entity obtains 100% of the shares of theLicensee, then it “shall be entitled” to a transfer for no fee. Accordingly, even if clause 12.1 is to resorted to, I also accept Suncor’salternative argument that it owes no transfer fees under the 2001 MDLA. [51] In the further alternative, and in any event, I also conclude that these claims are statute barred. GSI submits that it raised the

Transfer Fee Claim in its 2012 Amended Statement of Claim. I find that the 2012 Amended Statement of Claim makes no reference tothe pre-2001 contracts. The addition of these claims in 2016 for transfer fees allegedly owing from acquisitions or mergers that occurredbefore 2001 is barred by the ultimate limitation period (any such claims arose more than 10 years before the claim was filed and cannotbe advanced now).

There is no evidentiary basis for any exception, such as fraudulent concealment, to apply to avoid the application ofthis limitation period. [52] As for the claim for transfer fees allegedly owing for data under the 2001 MDLA as a result of the 2009 merger, I find thatGSI had actual knowledge of the amalgamation from Suncor’s August 4, 2009 letter.

GSI argues that there is no evidence to show whenit learned that Suncor would not pay the transfer fees, yet the letter reveals Suncor’s position that “no assignments or transferdocumentation is required”. [53] I find that GSI knew or ought to have known of its potential entitlement to transfer fees in August 2009 (although, as noted, Ido not accept that any such fees are owed). It had an obligation to enforce any belief to that entitlement within the two-year limitationperiod.

The June 2012 amendments, even if they assert a right to transfer fees (which in my view they do not), were made more than twoyears after GSI knew or ought to have known of its claim. I find that GSI’s Transfer Fee claim was added by the 2016 amendments andthat it is completely unrelated to the events that comprise the original Husky Claims, as discussed above, so

section 6 of the LimitationsAct does not apply. Conclusion on Transfer Fee Claim [54] In my view, I can make a fair and just determination of the Transfer Fee claim on the record before me and find that notransfer fees are payable pursuant to the general law on amalgamation, or alternatively, the specific wording of the 2001 MDLA. Furtherin the alternative, these claims are barred by the limitation period. GSI’s claim for transfer fees is dismissed. 3. Is Suncor entitled to

summary dismissal of GSI’s Audit Claim? [55] GSI alleges that it terminated the 2001 MDLA as a result of Suncor’s refusal to permit an audit as requested in GSI’s August3, 2011 letter. GSI seeks damages of $18,000 per month from September 16, 2011, the alleged termination date, for Suncor’s retention ofseismic data. The resolution of this claim requires

interpretation of the audit provision of the 2001 MDLA. Analysis [56] I do not accept that the audit request and subsequent termination of the agreement were in keeping with the terms of the 2001MDLA entered into with Petro Canada.

The audit provision at clause 4.1 of the 2001 MDLA permits an audit of Petro Canada’s (andSuncor’s, post-amalgamation) working and/or storage premises and must be accompanied by evidence of a breach of the agreement: 4.1 Upon any evidence of or receipt of reasonable and credible information relating to a potential breach of this Agreement, whichshall be disclosed to the Licensee, during normal business hours and at any time during which the Licensee is in possession or control ofthe Seismic Data, or Reprocessed Seismic Data, Licensor or its authorized representatives, upon reasonable advance notice, mayconduct a Licensee supervised audit and inspection of the working and or storage premises of the Licensee to view records andequipment where the Seismic Data, or Reprocessed Data are being stored, maintained or then in use for the sole purpose of ensuringthat the confidentiality and non-disclosure terms and conditions of this Agreement are being complied with by the Licensee. [57] GSI’s letter to Suncor cited as the basis for its audit request the formation of an Exploration Group between pre-amalgamationSuncor and Husky, on or about November 15, 2008.

It alleges that “both companies that were party to this Exploration Group had anobligation to license data” and that “Suncor has failed to license the required data”. GSI’s letter made the following demands: Pursuant to Clause 4.1 GSI AUDIT; GSI informs you it wishes to exercise its rights to audit Suncor, and seeks to

schedule an audit of allthe information available including but not limited to agreements, notes, correspondence, transmittals, reports, emails, presentations,meeting agendas, GSI data obtained from Husky, memos, etc. ... both internally and between Husky and Suncor as it relates to theLabrador EL 1108 obtained on November 15, 2008 jointly between Suncor and Husky. ... [58] GSI’s audit request is problematic because it seeks information that was created or transmitted before the amalgamation andbefore Suncor became a party to the 2001 MDLA.

The audit clause requires evidence of “reasonable and credible information relating toa potential breach” of the agreement, yet the activities alleged to be in breach of the agreement occurred in November 2008 between pre-amalgamation Suncor and Husky, at a time when the 2001 MDLA was still held by Petro-Canada, and before Suncor was subject to itsterms. The audit clause of the 2001 MDLA cannot be used to investigate Suncor’s actions before it became bound by the agreement. [59] The effect of an amalgamation is for the two amalgamating corporations to come together and continue as one.

The SupremeCourt of Canada has cited the analogy of a “river formed by the confluence of two streams, or the creation of a single rope through theintertwining of strands”: R v Black & Decker Manufacturing Co., (SCC), [1975] 1 SCR 411 at 421. While the post-amalgamation corporation (Suncor) remains liable for the liabilities of the pre-amalgamation corporations (Petro Canada), there is noauthority to suggest that GSI may travel “upstream” from the August 1, 2009 confluence of two streams in an effort to apply the 2001MDLA to Suncor’s pre-amalgamation activities.

Conclusion on Audit Claim [60] Accordingly, GSI’s audit request sought information to which it was not entitled. Suncor’s refusal was not a justifiable reasonfor GSI to terminate the 2001 MDLA. GSI’s claim for damages of $18,000 per month from the date of the alleged termination isdismissed.

4. Is Suncor entitled to

summary dismissal of GSI’s Exploration Groups Claim? [ 61 ] The Exploration Groups Claim is somewhat more difficult to resolve. GSI pleads that Suncor is liable to indemnify it for the alleged failure of Exploration Group members (the “EG members”) to pay licensing fees of more than US $23 million.

According to GSI, the obligation to equalize (as it calls it), or license seismic data, is triggered when a third party Prospective Venture Participant or Prospective Purchaser becomes an EG member. [ 62 ] Suncor sought further particulars from GSI, including information about the geographic areas in which the alleged Exploration Groups were active and a line-by-line identification of the seismic data in issue. [ 63 ] On March 5, 2014, GSI filed a Further Reply to Request for Particulars (the “Exploration Group Particulars”) that identifies, at Tabs A through PP, a number of Exploration Licenses (“ELs”), Significant Discovery Licenses (“SDLs”), and or Production Licenses (“PLs”) (together “exploration licenses”) in the vicinity of GSI licensed data in which Suncor and third party companies have an interest.

GSI listed the specific lines of seismic data for which it is claiming equalization from Suncor on behalf of each EG member. [ 64 ] Ms. Donna Stuckless, Senior Commercial Advisor Lands/Exploration at Suncor, built on the Exploration Group Particulars in her affidavit evidence.

She conducted a comprehensive analysis of GSI’s indemnity claims by examining publicly available records from the Canada-Newfoundland and Labrador Offshore Petroleum Board (the “CNLOPB”) and Suncor’s records, as well as the affidavit evidence of Glen Stewart, Coordinator of Geoscience Data Management and Data Trading for Suncor. [ 65 ] At the hearing, counsel for Suncor provided a colour-coded chart identifying the claims it submits are barred because the data was not acquired under the 2001 MDLA; the claims that it submits are barred by the ultimate limitation period; the claims that it submits are barred by the regular two year limitation period; and so forth.

The chart is a

summary of the relevant affidavit evidence. GSI requested time to respond and, in due course, GSI submitted to me an amended chart containing its submissions in relation to each claim, as well as its position on whether there is a conflict in the evidence. [ 66 ] GSI also filed a short new affidavit from Mr. Einarsson, sworn after the hearing on February 17, 2017. Suncor objected to the late admission of this evidence. I have not relied on it. Suncor sought leave to return before me to make further arguments in reply to GSI’s position but I did not believe that this was necessary. The resolution of the Exploration Groups Claim requires

interpretation of the relevant contractual provisions and a detailed examination of the evidence adduced in support of the claim. Contractual provisions related to the Exploration Groups Claim [ 67 ] The Exploration Groups Claim is governed by a number of clauses of the 2001 MDLA.

An Exploration Group is defined at clause 1.1(g): “Exploration Group” means any individuals, companies or other entities, (generally limited to exploration and production companies) 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 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 (5) miles of any of the Seismic Data or the Reprocessed Seismic Data. [ 68 ] In other words, EG members are third parties who have a formal or informal agreement with the Licensee (in this case, Petro- Canada/Suncor) to participate in a “venture”, a suitable short-form for the possible arrangements described above. [ 69 ] “Seismic Data” is also a defined term in the 2001 MDLA.

It is data “that has been invoiced for or identified in the Supplemental Agreements entered into between the parties hereto during the term of this Agreement.” Thus, the geographic location of the venture in relation to GSI data licensed under the 2001 MDLA is the starting point for an Exploration Groups Claim. [ 70 ] The other terms relevant to the Exploration Groups Claim are that of a Prospective Venture Participant and a Venture Participant: “Prospective Venture Participants” means prospective investors and prospective participants with the Licensee taking steps or expressing an interest in participating in farm-outs, options, royalty arrangements, exploration or development projects, operating units, joint acquisition of acreage or other similar arrangements which involve the acquisition or utilization of petroleum, natural gas or hydrocarbon properties or joint interests in petroleum, natural gas or hydrocarbon rights in lands covered by or within five (5) miles of the Seismic Data or Reprocessed Seismic Data. “Venture Participants” means third parties that meet the definition of an Exploration Group.

i) Is Suncor liable to indemnify GSI for Prospective Venture Participants? [ 71 ] At clause 6, “Protection of Seismic Data, and Reprocessed Seismic Data; Non-Disclosure; and Use by Third Parties”, the 2001 MDLA establishes the extent to which the Licensee, in this case Petro-Canada and later Suncor, can show data licensed from GSI to Prospective Venture Participants. Clause 6.3(d)(

i) states: 6.3(d)(

i) Upon the execution of the required confidentiality agreement, the Seismic Data, and any Reprocessed Seismic Data may be shown by the Licensee to its Prospective Venture Participants and Prospective Purchasers provided that: (

A) such Seismic Data, and Reprocessed Seismic Data are in a geographically localized area relevant to a single prospect, parcel, posting, nominated block, or area subject to a potential farm out, such that the requirement to license data shall apply for this area pursuant to

Schedule “D” Item 4; and (

B) such display is for the sole purpose of permitting the Prospective Venture Participants or Prospective Purchasers to evaluate their possible participation in such venture . Such parties may not remove the Seismic Data, or the Reprocessed Seismic Data from the

Licensee’s premises or make or retain copies thereof in whole or in part. Any such disclosure to Prospective Venture Participants or Prospective Purchasers shall be subject to the provisions of

Article 6.3(

e) below. [ 72 ] The right of a Prospective Venture Participant to view licensed Seismic Data ends upon that party becoming an EG member. According to the

definitions above, a Prospective Venture Participant becomes an EG member when that individual, company or other entity’s prospective interests crystallize into a formal or informal agreement to join a venture with Suncor. At that time, the new EG member must license the relevant data from GSI.

If not, the Licensee, here Petro-Canada/Suncor, becomes liable to GSI for the payment: 6.3(d)(ii) In the event that a Prospective Venture Participant or Prospective Purchaser becomes a member of an Exploration Group, the rights of access to the Seismic Data , and Reprocessed Seismic Data of such Prospective Venture Participant or Prospective Purchaser shall cease immediately .

Each member of the Exploration Group shall be required to obtain a license from Licensor for all Seismic Data and Reprocessed Seismic Data then licensed to the Licensee under this Agreement in respect of the area which is the subject of the Exploration Group together with the area within five (5) miles thereof , at the current group member licensing rates for such Seismic Data ...

The Licensee shall indemnify the Licensor for any failure by the Prospective Venture Participant or Prospective Purchaser to pay such license fees. [ 73 ] This clause establishes that Suncor’s indemnification liability arises only if a Prospective Venture Participant becomes an EG member and then fails to pay GSI’s licensing fee. The indemnity obligation crystallizes at that time.

In my view, it is not an ongoing obligation for the purposes of limitations legislation. ii) Is Suncor liable to indemnify GSI for Venture Participants? [ 74 ] Clause 6.3(d)(iii) of the 2001 MDLA addresses the possibility of the existence of an Exploration Group before data is licensed from GSI. It contemplates that a Venture Participant may meet the definition of an EG member at the time Petro-Canada/Suncor licensed data from GSI.

In such a situation, Suncor was under an obligation to notify GSI of the existence of the Exploration Group and its membership: 6.3(d)(iii) In cases where there are existing venture participants or third parties that are within the definition of an Exploration Group in an established Exploration Group prior to the licensing of Seismic Data those partners shall be disclosed to Licensor prior to any negotiations to license Seismic Data to the Licensee.

Should the Licensee and Venture Participants wish to benefit from the group license discounts offered by Licensor this shall be disclosed to Licensor prior to negotiation between the parties.

Should the Venture Participants not wish to license the same quantity or any quantity of Seismic Data from Licensor this should be disclosed to Licensor and negotiations between Licensor and Licensee shall then occur. [ 75 ] This clause speaks of notice and disclosure, namely, notifying GSI prior to licensing data, that the data about to be licensed falls within an area in which Suncor is already involved in an Exploration Group. The clause does not contain an explicit indemnity obligation.

GSI suggests that the general indemnity obligation at clause 10.5 applies to require Suncor to pay license fees on behalf of these Venture Participants. Clause 10.5 states: 10.5 The Licensee shall indemnify Licensor for any losses, costs ..., damages and expenses whatsoever arising out of any breach of this Agreement by the Licensee or any party described in

Article 2.4 hereof. ... [ 76 ] Clause 2.4 identifies the parties for whom Suncor is liable to indemnify: The Licensee hereby acknowledges, covenants and agrees that any breach of the terms and conditions of this Agreement by a Related Entity or by any Consultants, agents, employees, representatives, processors, contractors or other advisors of either the Licensee or any Related Entity, or by any Prospective Venture Participants or Prospective Purchasers or any of their respective Consultants, agents, employees, representatives, processors, contractors or other advisors shall be deemed to be a breach of this Agreement by the Licensee. [ 77 ] The obligation in 6.3(d)(iii), upon which GSI relies to establish the indemnity obligation, is Suncor’s obligation to notify GSI if there are existing Venture Participants or third parties that fall within the definition of an Exploration Group prior to licensing data from GSI.

It is not an obligation on the third party EG member; as such, there can be no breach by a third party for which Suncor is liable. I also note, without deciding the point, that clause 2.4 does not refer to Venture Participants, as that term is defined, so it is unclear whether any obligation to indemnify would extend to them in any event.

Conclusion regarding Suncor’s indemnification obligation [ 78 ] All of the above leads to the conclusion that GSI’s claim for indemnification by Suncor for licensing fees owed by EG members must be limited to claims against Suncor for Prospective Venture Participants who became EG members after the date upon which Seismic Data was licensed pursuant to a supplemental agreement under the 2001 MDLA. I have accepted Suncor’s position that the indemnity obligation exists only in relation to data licensed under the 2001 MDLA and its associated supplemental agreements.

None of the other predecessor agreements between GSI and Petro-Canada contain such a clause. The 2001 MDLA is generally a forward looking document and does not incorporate prior licenses. [ 79 ] The 2008 Supplemental Agreement specifically brought a significant amount of “legacy” data under the auspices of the 2001 MDLA. Suncor is liable to indemnify GSI for any EG members active in the geographic area bounded by this data who joined Exploration Groups after the date of that supplemental agreement.

The indemnity obligation cannot arise before the date on which the data became licensed under the 2001 MDLA, and thereby became subject to its terms. [ 80 ] As noted earlier in these reasons, there is a dispute as to whether the 2009 Supplemental Agreement re-licensed vintage data or merely provided shape files. This question will have to be addressed to resolve the Exploration Groups claim. If vintage data was re- licensed under the 2009 Supplemental Agreement, then the principles set out above will apply.

[ 81 ] The first step in each Exploration Group claim is to determinate whether third parties are involved in an Exploration Group within the geographic vicinity of GSI data licensed by Suncor under the 2001 MDLA. The first critical date to examine is the date of the supplemental agreement under which the data was licensed. No Exploration Group claim can arise before this date.

The second relevant date will be the date, after the licensing of the data, that a third party or Prospective Venture Participant became an EG member. [ 82 ] Earlier, I concluded that the Exploration Group claims were filed on June 20, 2012. These claims do not benefit from the 2009 filing date of the Original Claim because they did not satisfy the test under

section 6 of the Limitations Act . As such, the application of the 10-year ultimate limitation period means that any indemnity obligation arising from a third party joining an Exploration Group before June 20, 2002 is limitations barred, subject to any potential fraudulent concealment arguments.

i) Dismissed Exploration Groups Claims [ 83 ] Accordingly, the claims under the following tabs of the Exploration Group Particulars are dismissed because none of the data in those claims was licensed under the 2001 MDLA: E, F, J, M, N, O, P, EE, GG, LL, and NN. GSI agreed that the data identified in these claims was not licensed under the 2001 MDLA that agreement. [ 84 ] GSI also conceded in its reply to Suncor’s chart that the indemnity claims contained at tabs D, HH and KK of the Exploration Group Particulars should be dismissed.

GSI confirmed that Suncor had not licensed data from GSI for these Exploration Groups. [ 85 ] The remainder of the Exploration Group claims contain one or more lines of Seismic Data licensed under the 2001 MDLA. In many cases, however, there is no indemnity claimed for those particular lines, presumably because those lines already were licensed by EG members.

For this reason, the claims under the following tabs of the Exploration Group Particulars also are dismissed: A, B, C, G, R, X, DD, OO, and PP. ii) Remaining Exploration Groups Claims [ 86 ] After eliminating all of the above claims, the contractual indemnity claims that remain are for one or two lines of Seismic Data under the 2001 MDLA in relation to Exploration Groups set out at the following tabs of the Exploration Group Particulars: H, I, K, L, Q, S, T, U, V, W, Y, Z, AA, BB, CC, FF, II, JJ, and MM. [ 87 ] Suncor argues that the existence of these Exploration Groups was discoverable using publicly available information obtained from the CNLOPB.

The license abstracts exhibited to Ms. Stuckless’ affidavit, which she obtained from the CNLOPB, contain the information that Suncor alleges forms the basis of GSI’s Exploration Groups Claims, including the geographic area covered by each license, the parties to it, when they became a party, and their percentage of interest.

According to Suncor, these license abstracts reveal that no third parties joined these Exploration Groups after the date upon which data was licensed, or they did so more than two years, and in some cases, more than ten years, before GSI brought its claim. [ 88 ] Suncor also argues that there is a discrepancy between the Exploration Group Particulars and Mr. Einarsson’s evidence. Specifically, there are lines for which GSI claims an indemnity in the Exploration Group Particulars, but for which Mr. Einarsson fails to set out a claim in his August 17, 2015 affidavit (the “August Affidavit”).

GSI submits that it intended no change to its claim and that I should consider all GSI evidence, not just one affidavit. [ 89 ] I accept that the absence of this evidence from the August Affidavit may have been an inadvertent error, given the large volume of seismic lines and indemnity calculations contained in the evidence. I will not dismiss GSI’s claim in relation to these Exploration Groups at this stage on this ground alone. [ 90 ] GSI argued more generally that the evidence regarding Exploration Groups was not properly developed for this

summary dismissal application, since it started out as a limitations-based application. It submits that Exploration Groups usually begin informally, prior to any public evidence of their activity. Exploration Groups are the end result of a process whereby a Prospective Venture Participant is persuaded to become an EG member. Prospective Venture Participant activity is private and without disclosure by the licensee to GSI, as required under the 2001 MDLA, and the execution of confidentiality agreements, GSI says that there is no way for it to know of this activity.

Furthermore, it argues that EG members come and go, and when a new member joins, a new Exploration Group is formed and the obligation to equalize arises again for those EG members who have not equalized. [ 91 ] GSI acknowledges that formal exploration licenses, such as those contained in the CNLOPB abstracts, can provide information about potential Exploration Groups, since this documentation shows the original participants in the licenses and how the participants changed over time. Mr.

Einarsson suggests in his affidavit, however, that these licenses may not tell the whole story. [ 92 ] I conclude that I cannot make a fair and just determination of the remaining Exploration Groups Claims on this

summary judgment application. I am somewhat concerned about the differences between the parties identified under formal exploration licenses and the somewhat broader definition of EG members in the 2001 MDLA.

I appreciate the parties’ submissions that one can presume an Exploration Group was formed at some time prior to the issuance of a formal exploration license, since the formal license is the manifestation of some form of joint venture, but I am not prepared to decide limitations questions, in particular, based on this evidence. [ 93 ] Second, Suncor’s evidence appeared to focus on when it gained or sold an interest in a particular exploration license, yet the trigger for the indemnity claim is the point at which a Prospective Venture Participant became an EG member, as a result of a formal or informal agreement.

In my view, these are factual determinations that must be made at trial. Perhaps it will not be possible to trace Exploration Group membership, as per the definition in the 2001 MDLA, in which case the parties will have to return to the formal licenses as the most reliable evidence of such membership and changes thereto; however, the focus must be on when a given third party joined a venture with Suncor. [ 94 ] The chart at

Schedule A summarizes the remaining Exploration Group indemnity claims and comments on some of the discrepancies between the Exploration Group Particulars and the affidavit evidence in relation to those claims.

[ 95 ] In sum, the resolution of the limitations aspect of these claims requires determining the date upon which each of the alleged EG members became EG members and whether this date was after Suncor licensed GSI data under the relevant Supplemental Agreement and after June 20, 2002 (the date 10 years prior to the filing of GSI’s Exploration Groups Claim), subject to any potential fraudulent concealment arguments. If the relevant date is more than two years before GSI brought its claim (namely, before June 20, 2010), then GSI must show that it did not know, nor ought it to have known, of the Exploration Groups Claim before that date.

d) Partners’ Material Claim [ 96 ] As a subset of its Exploration Groups Claim, GSI submits that Suncor was obliged to enter into a use-license with GSI for all data that GSI had licensed to Suncor’s Exploration Group partners (the “Partners’ Material”). [ 97 ] Suncor is not a party to the license agreements that GSI might have had with the other alleged EG members. It is trite law that there can be no liability in contract where there is no privity.

There is no document or agreement in evidence that obligates Suncor to enter into a license agreement with GSI on the basis that the other EG members had licensed data from GSI. [ 98 ] The agreement between the parties, the 2001 MDLA, does not create the obligation GSI seeks to enforce. 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 . [ 99 ] GSI’s claim for approximately $4 million in damages from Suncor for licence fees for the Partners’ Material is dismissed. Conclusion [ 100 ] Suncor is granted

summary judgment dismissing GSI’s Transfer Fee Claim, Audit Claim, Secondary Submission Claim, and Partners’ Material Claim. Suncor is awarded partial

summary judgment in relation to the Exploration Groups Claim as set out above. The remaining Exploration Groups Claim is set out in the chart in

Schedule A. Heard on the 1 st and 2 nd days of February, 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 Trevor McDonald & Craig Alcock, Burnet, Duckworth & Palmer LLP for the Defendant

Schedule A Exploration Group Particulars Tab Seismic Data under 2001 MDLA Relevant Supplemental Agreement Other comments H LAB-06-121 LAB-06-184 Dec. 2006 In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $23,309 and $40,798 for alleged EG members Eni and Conoco’s failure to license 30.038 km and 52.576 km of data, respectively. I N-75-718F Nov. 2009 In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $7,529 for alleged EG member Conoco’s failure to license 20.025 km of data. There is some dispute regarding the

interpretation of this Supplemental Agreement and whether it brought data under the MDLA. K ORO-125 June 2001 In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $15,763 for alleged EG member Devon’s failure to license 20.313 km of data.

L LAB-03-102 LAB-04-124 Dec. 2006 In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $25,522 from each alleged EG member for the failure to license 32.89 km of data: BP, Encana, Lone Pine Resources, Baytex Energy, Gotthold Holding Ltd., Tredavco Investments, Enstar Petroleum, CNRL, The Paddon Hughes Development, and Denco Investments. Q EC-71-32 Oct. 2008 In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $7,539 for alleged EG member Statoil’s failure to license 20.05 km of data.

S EC-71-31 EC-71-32 FP-99-0255 Oct. 2008 Oct. 2008 Feb. 2009 GSI’s reply to Suncor’s chart identifies three lines as being under the MDLA, but the Exploration Group Particulars make no claim for these three lines in relation to alleged EG member Husky and no claim for EC-71-31 or EC-71-32 in relation to alleged EG member Chevron. In the Exploration Group Particulars, GSI seeks indemnification of $14,579 for alleged EG member Chevron’s failure to license 18.788 km of seismic data (FP-99-0255). This is one of the claims omitted from the August Affidavit.

T EC-71-32 FP-99-0255 Oct. 2008 Feb. 2009 GSI’s reply to Suncor’s chart identifies two lines as being under the MDLA, but the Exploration Group Particulars makes no claim in relation to FP-99- 0255. In the Exploration Group Particulars, GSI seeks indemnification of $7,538 and $5,658 for alleged EG members Nalcor’s and Statoil’s failure to license 20.05 km and 15.05 km of seismic data (EC- 71-32), respectively. The August Affidavit contains no reference to EC- 71-32 in relation to Nalcor.

There is also no reference to EC-71-32 in relation to Statoil for this Exploration Group, but EC-71-32 is mentioned in relation to two other Exploration Groups in which Statoil was allegedly an EG member. U EC-71-27 EC-71-32 Oct. 2008 Oct. 2008 GSI’s reply to Suncor’s chart identifies these two lines as being under the MDLA, but the Exploration Group Particulars make no claim in relation to EC- 71-27. In the Exploration Group Particulars, GSI seeks indemnification of $2,632 for alleged EG member Statoil’s failure to license 7.0 km of seismic data (EC-71-32).

In the August Affidavit, there is no reference to EC- 71-32 in relation to Statoil for this Exploration Group, but EC-71-32 is referenced in relation to two other Exploration Groups in which Statoil was allegedly an EG member. V EC-71-27 EC-71-32 Oct. 2008 Oct. 2008 In the Exploration Group Particulars, GSI seeks indemnification of $9,438 for alleged EG member Mosbacher’s failure to license 25.1 km of seismic data (both lines).

The August Affidavit only includes the claim for EC-71-27 in relation to this Exploration Group; it references EC-71-32 in relation to two other Exploration Groups in which Mosbacher was allegedly an EG member. The Exploration Group Particulars make no claim for EC-71-27 in relation to alleged EG member Statoil at all and it also makes no claim for EC-71- 32 in relation to alleged EG member Statoil, because that line was included in the claim for the Exploration Group set out at T.

W FP-99-0255 Feb. 2009 In the Exploration Group Particulars, GSI seeks indemnification of $20,401 for alleged EG member Nalcor’s failure to license 26.29 km of seismic data. This claim was omitted from the August Affidavit; in fact, there is no reference to FP-99-0255 in relation to Nalcor for any Exploration Group. Y FP-99-0255 Feb. 2009 In the Exploration Group Particulars, GSI seeks indemnification of $8,846 for alleged EG member Nalcor’s failure to license 11.4 km of seismic data.

This claim was omitted from the August Affidavit; in fact, there is no reference to FP-99-0255 in relation to Nalcor for any Exploration Group. Exploration Group Particulars Tab Seismic Data under 2001 MDLA Relevant Supplemental Agreement Other comments

Z FC-83-18C FP-99-0255 Feb. 2009 Feb. 2009 In the Exploration Group Particulars, GSI seeks indemnification of $2,726 and $11,756 from each alleged EG members Statoil and Exxon for their failure to license 7.25 km and 15.15 km of seismic data (both lines). In the Exploration Group Particulars, GSI also seeks indemnification of $11,756 for alleged EG member Chevron’s failure to license 15.15 km of seismic data (FP-99-0255). The August Affidavit contains no reference to either FC-83-18C or FP-99-0255 in relation to Statoil, Exxon, or Chevron for any Exploration Groups.

AA EC-71-32 Oct. 2008 In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $3,798 each for alleged EG members Mosbacher and Statoil for their failure to license 10.1 km of seismic data. BB EC-71-32 Oct. 2008 In both the Exploration Group Particulars and the August Affidavit, GSI makes no indemnification claim in relation to alleged EG member Statoil because the line was already included in the Exploration Group claim set out at AA.

CC EC-71-32 FP-99-0255 Oct. 2008 Feb. 2009 In the Exploration Group Particulars, GSI makes no indemnification claim in relation to alleged EG member Statoil because these lines were already included in relation to the Exploration Group claims set out at Q and II. In the Exploration Group Particulars, GSI seeks indemnification of $3,778 for alleged EG member Mosbacher’s failure to license 10.05 km of seismic data (EC-71-32).

In the Exploration Group Particulars, GSI makes no claim for FP-99-0255 in relation to alleged EG member Mosbacher because the line was already included in relation to the Exploration Group claims set out at II. The August Affidavit makes no reference to EC-71- 32 in relation to this Exploration Group, but makes a claim in relation to Mosbacher for this line for the Exploration Groups set out at AA and MM.

FF EC-71-32 FP-99-0255 Oct. 2008 Feb. 2009 In the Exploration Group Particulars, GSI makes no claim in relation to alleged EG member Statoil for EC-71-32 because this line was already included in the claim for the Exploration Groups set out at Q and T. In the Exploration Group Particulars, GSI claims $14,696 for alleged EG member Statoil’s failure to license 18.938 km of seismic data (FP-99-0255). The August Affidavit contains no reference to FP- 99-0255 in relation to Statoil. Exploration Group Particulars Tab Seismic Data under 2001 MDLA Relevant Supplemental Agreement Other comments

II EC-71-32 FP-99-0255 Oct. 2008 Feb. 2009 In the Exploration Group Particulars, GSI makes no claim in relation to Murphy Oil or Statoil for EC- 71-32 because this line was included in the Exploration Group claim under MM for Murphy and under Q for Statoil. In the Exploration Group Particulars, GSI seeks indemnification of $1,241 for alleged EG member Mosbacher’s failure to license 3.3 km of seismic data (EC-71-32). The August Affidavit omits this claim.

In the Exploration Group Particulars, GSI seeks indemnification of $17,489 each from alleged EG members Murphy Oil, Mosbacher, Chevron, Statoil, and Exxon for their failure to license 22.538 km of seismic data (FP-99-0255). The August Affidavit omits all reference to FP-99- 0255 in relation to all of these alleged EG members. JJ EC-71-27 Oct. 2008 The parties agree that the indemnity obligation for this Exploration Group is $3,328.

MM EC-71-27 OR EC-71-32 Oct. 2008 Oct. 2008 GSI’s reply to Suncor’s chart identifies EC-71-27 in relation to this Exploration Group; however, the Exploration Group Particulars identify EC-71-32. Presumably, GSI intended to refer to EC-71-32 in its submissions, to match its Exploration Group Particulars. In the Exploration Group Particulars, GSI makes no claim in relation to alleged EG member Statoil for EC-71-32 because it was already included in the Exploration Group claim set out at Q and T.

In both the Exploration Group Particulars and the August Affidavit, GSI seeks indemnification of $7,538 and $1,786 from alleged EG members Murphy and Mosbacher, respectively for their failure to license 20.05 km and 4.75 km of seismic data (EC-71-32). Exploration Group Particulars Tab Seismic Data under 2001 MDLA Relevant Supplemental Agreement Other comments