Summary

I. Introduction

[1] This is an Application for judicial review under section 18.1 of the Federal Courts Act (RSC 1985, c F-7) [the Federal Courts Act] in respect of the decision made by the Trade Law Bureau of Global Affairs Canada [the Trade Law Bureau] on October 9, 2019, allegedly refusing to remove members of the team working for, and with, the Trade Law Bureau as counsel for Her Majesty the Queen [the Government Team] on the Applicants' arbitration proceeding under the North American Free Trade Agreement [NAFTA] [the NAFTA Proceeding] for an alleged conflict of interests.

[2] The document that is the subject of this Application is a letter dated October 9, 2019, from the Senior Counsel and Deputy Director of the Trade Law Bureau and addressed to the Applicants' counsel.

[3] Under the heading "Claim by the Investors of Geophysical Service Inc. ("GSI") against the Government of Canada under the North American Free Trade Agreement," the Senior Counsel and Deputy Director of the Trade Law Bureau writes:

We have considered the points made in your letter of September 20, 2019. We respectfully disagree with GSI's position and maintain that there is no legal basis to support removing Ms. Dosman or anyone else from Canada's legal team in this dispute.

We have confirmed Ms. Dosman's temporary removal from the file as a gesture of continuing good faith, but this situation cannot continue indefinitely without causing undue prejudice to Canada's ability to defend against your client's claims. We would be open to meet with you and a representative of Vannin in Ottawa to discuss this matter further. Please let me know your availability.

[4] For the reasons exposed below, I am satisfied that (1) the decision is not amenable to judicial review under the Federal Courts Act, as it is of a private nature; and (2) it is not proper for the Court to intervene in an arbitration process engaged under Chapter 11 of the NAFTA. I will consequently dismiss the Application for judicial review.

II. Background

[5] The Applicants are GSI, a United States company that creates marine seismic data, and Messrs. Theodore, Harold and Russel Einarsson, who present themselves as investors in GSI.

[6] Vannin Capital [Vannin] is a third-party funder that provides financial resources to potential claimants in exchange for a share of the case proceeds. At the relevant time, Vannin had offices in London, Paris, Sydney, Jersey, the Isle of Man, New York and Washington, D.C.

[7] On or around October 10, 2018, the Applicants served a "Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA" to the Government of Canada. The record before the Court includes an article from the Blacklock's Reporter published on October 12, 2018, citing Mr. Paul Einarsson and Borden Ladner Gervais LLP [BLG] on the nature of the NAFTA claim, and valuing said claim at $1 billion. On January 28, 2019, the parties to the arbitration met for consultations.

[8] On February 8, 2019, BLG and Vannin executed a Non-Disclosure and Common-Interest Agreement. Mr. Harold Paul Einarsson signed only the Agreement's Appendix, as BLG's instructing client.

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Geophysical Service Incorporated (GSI) v Canada - Notice of Intent to Submit a Claim to Arbitration Under NAFTA Chapter Eleven - 15 October 2018

• OGEL: Geophysical Service Incorporated (GSI) v Canada - Notice of Intent to Submit a Claim to Arbitration Under NAFTA Chapter Eleven - 15 October 2018
• TDM: Geophysical Service Incorporated (GSI) v Canada - Notice of Intent to Submit a Claim to Arbitration Under NAFTA Chapter Eleven - 15 October 2018

Claim by the Investors of Geophysical Service Inc. ("GSI") under the North American Free Trade Agreement ("NAFTA")

• OGEL: Geophysical Service Incorporated (GSI) v Canada - NAFTA - Notice of Arbitration - 3 April 2019
• TDM: Geophysical Service Incorporated (GSI) v Canada - NAFTA - Notice of Arbitration - 3 April 2019