Geophysical Service Incorporated v Plains Midstream Canada ULC, 2021 ABQB 359

Court of Queen’s Bench of Alberta Citation: Geophysical Service Incorporated v Plains Midstream Canada ULC, 2021 ABQB 359 Date: 20210506 Docket: 1401 00646 Registry: Calgary Between: Geophysical Service Incorporated Plaintiff - and - Plains Midstream Canada ULC, BP Canada Energy Group ULC and Companies A-Z Defendants _______________________________________________________ Endorsement of the Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] Counsel herein appeared before me on May 3, 2021 for advice and directions pursuant to Rule 4.10 on the issue as to whether BP Canada Energy Group ULC (BP) was required to provide an affidavit of records (AOR) in the litigation, before BP could proceed with a long-planned application for

summary dismissal (SDA) against Geophysical Services Incorporated (GSI). Plains Midstream Canada ULC (Plains) was not active in the application, other than to support the position of BP. [ 2 ] By way of brief background (more details are available on the magnum of materials on many of the actions referenced

generally infra ), GSI has, in the last few years, commenced many (more than 24) actions against energy industry parties who have allegedly used or had access to GSI created seismic data relevant to hydrocarbon exploration, allegedly without permission or compensation (there may be other details and causes of action, but this suffices for this purpose).

In due course these actions came into general (and sometimes, specific) case management (CM) in this Court. [ 3 ] In recent times, since on or after about May of 2017, Justice Horner succeeded former Chief Justice Wittmann as Case Management Justice (CMJ), providing general case management to the parties to all the actions commenced by GSI to try to have them resolved individually by negotiations, mediation, forms of trials/hearings in test cases, or trials, all on a number of issues, often in common to some others of the actions.

I have recently taken over this general CM from Justice Horner. [ 4 ] Without getting too specific, Justice Horner, as CMJ, on or about December 13, 2017, made a direction/order that, until further order of the CMJ (in all or individual cases), compliance with

Part 5 of the Rules (Disclosure of Information) was suspended. [ 5 ] Throughout, until today, there have been delays in the cases proceeding because of, inter alia : test cases and other applications before this Court, and appeals to the Court of Appeal, on various matters, including since November 16, 2018; Covid-19 restrictions; and for other reasons. [ 6 ] What precipitated the hearing on May 3, 2021, followed from a hearing before CMJ Horner, on November 16, 2018, requested by GSI, to set a litigation plan, as relates to this action, including the sequencing of the aforementioned issues – BP’s production of an AOR and BPs SDA.

That November 2018 CM hearing (CMH) led to an invitation by BP and the direction/order (unopposed) by Court for GSI to further amend its Statement of Claim (SofC), which resulted in a dispute that ended going to the Court of Appeal, but is now resolved. In essence, the issue on May 3, 2021 was, with the scope of the amendments to the SofC, substantially worked out (if not actually filed), and the litigation could proceed. [ 7 ] At that CMH, BP took the position that its SDA was on a matter of law and

interpretation based on existing and known facts, without the need for discovery or an AOR in advance. BP took the same position before me, and I accept that submission as being accurate [1] . [ 8 ] As to the sequencing between the AOR and the SDA, BP submitted before me that the CMJ, on November 16, 2018, had directed/ordered that the SDA would proceed before the AOR, which direction was not appealed and it was thus finally decided, such that, there being no material change in circumstances, I had no jurisdiction to change that direction/order.

GSI denied any such determination by the CMJ, noting that going into that CMH, GSI had proposed that an AOR would be filed, with intervening steps, leading to trial. BP, on the other hand, referred to the intended SDA and took the position (then, and now), that there is no need for an AOR unless and until the SDA is denied in whole or part, if at all. [ 9 ] In the result, if I find that the BP position is accurate, the matter moves on to a Procedural Order to set out the steps leading to the hearing of the SDA.

If, on the other hand, if the GSI position is accurate, I will need to determine whether, on the merits, BP must provide an AOR before the SDA. [ 10 ] There is a further problem in that the parties did not provide a formal Order resulting from the November 16, 2018 CMH. Thus, reference was necessary to the transcript of the exchange between the CMJ and Counsel on that date. [ 11 ] Having reviewed the transcript of the November 16, 2018 CMH, I find that BP is correct, although the direction could be clearer.

More specifically, BP argued that the result of the CMH was that, with the approval/direction and order of the CMJ, the SDA was (then) proposed to be heard in February or March 2019, after the further amendment of the SOC, and that the disclosure of information (Part 5 of the Rules, including the AOR) would be pushed out to June 2019. I find that was clear from pp. 25-6 of the CMH, as contained in the following transcript excerpts [2] (which necessarily leaves out some detail unnecessary for this decision): COUNSEL FOR GSI: ...

We just amend the dates in our application to accommodate BP bringing their application [SDA]. They [BP] can bring it [SDA] in February, apparently, or March [2019] .... you can set some time frames to make sure that BP has its special [SDA] heard in the February/March [2019] time frame. If they are unsuccessful, then why not have the rest of the litigation plan kick in so we use that February 2020 date? THE COURT: Okay. ... THE COURT: ... [GSI] will issue ... a four-time amended claim ... on or before December 15 th , 2018 ... ... COUNSEL FOR GSI: Right.

And then disclosure of information, we can push that date out to ... THE COURT: June. COUNSEL FOR GSI: Whatever. But we can still keep that, the 2020 date, in the background. If my friend [Counsel for BP] ... is unsuccessful in his

summary dismissal application, then we’re not held up. We don’t lose that trial date.... THE COURT: ... We can tentatively, between us, agree that pending a failed

summary dismissal application by BP, that’s their date.... ... [Discussion about dates]... COUNSEL FOR GSI: ... But we’ll ... revisit ... the litigation plan once this ... application [SDA] ... [is determined.]

RULING (APPLICATION ADJOURNED) THE COURT: So I’m not denying your application.

I’m adjourning it sine die ... with regard to BP. [ 12 ] I conclude that last statement by the CMJ indicates that GSI’s application to set a litigation plan, including the matter of disclosure and an AOR, is adjourned sine die to after the SDA being heard and decided. [ 13 ] With this result, I am without jurisdiction to interfere with the ruling of the CMJ, there being no change of circumstances that are relevant. [ 14 ] Therefore, Counsel for GSI and BP (and Plains to the extent relevant) are directed to complete a Procedural Order for consideration and approval by the Court leading to the hearing of the SDA, including steps, dates and times, as well as briefs (on a staggered applicant, respondent, applicant reply process, with page limits).

I will await their consent draft for Court approval, or an opposed application to the same result. [ 15 ] Costs follow against GSI in favour of BP in such amount as may be agreed or determined by the Assessment Officer, payable forthwith, in any event of the cause. Heard on the 03 rd day of May, 2021. Dated at the City of Calgary, Alberta this 6 th day of May, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: R.J. Daniel Gilborn and Lucinda A. Wong for Geophysical Service Incorporated David R. McKinnon and Ciara J. Mackey for Plains Midstream Canada ULC James W. Rose, Q.C. and Matthew R.

Lindsay, Q.C. for BP Canada Energy Group ULC