Dec 6, 2017

Leave to Appeal to Supreme Court of Canada Denied in GSI Seismic Litigation

Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125 (CanLII)

In the latest chapter in the seismic-related litigation brought by Geophysical Services Incorporated (GSI), the Supreme Court of Canada has denied GSI's application for leave to appeal from a judgment of the Alberta Court of Appeal.

GSI is a geophysical services company headquartered in Calgary that creates and markets seismic data. Over the last several years, GSI has commenced two dozen or more lawsuits in the courts of Alberta, Nova Scotia, and Newfoundland and Labrador against oil and gas companies, offshore regulatory boards, and at least one province. The lawsuits are concerned with the alleged improper or unauthorized use of seismic data shot by GSI. We have previously blogged on GSI decisions, here, here and here.

In the decision from which GSI sought leave to appeal, Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125, the Alberta Court of Appeal dismissed an appeal from a trial decision, Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230, that concluded—in the words of the Court of Appeal—that "although GSI has copyright in certain seismic data, the Regulatory Regime that allowed GSI to acquire the data was a complete answer to GSI’s claims against multiple parties for unlawful disclosure and copyright infringement." On appeal, the Court of Appeal stated that "the Regulatory Regime confers on the Boards the unfettered and unconditional legal right after expiry of [a specified period of time] to disseminate, in their sole discretion as they see fit, all materials acquired from GSI and collected under the Regulatory Regime … [and] to grant to others both access and opportunity to copy and re-copy all materials acquired from GSI and collected under the Regulatory Regime." Thus, recipients of the data had not breached GSI's copyright rights.

The decision of the Supreme Court of Canada to deny leave marks the end of the road for GSI's challenge to the effect of the relevant regulatory regime.

In a series of decisions decided subsequent to the Alberta Court of Appeal's decision, the Alberta Court of Queen's Bench granted summary dismissal with respect to a number of GSI claims: Geophysical Services Incorporated v Plains Midstream Canada ULC, 2017 ABQB 462, Geophysical Services Incorporated v Devon ARL Corporation, 2017 ABQB 463, Geophysical Services Incorporated v Murphy Oil Company Ltd, 2017 ABQB 464, Geophysical Services Incorporated v Suncor Energy Inc, 2017 ABQB 465, and Geophysical Services Incorporated v Encana Corporation, 2017 ABQB 466. Four of these five decisions have been appealed. Stay tuned.