OPINION
12 Obiter Dicta
After Intervenus Interruptus in Chevron Case
The Canadian Bar Association Needs to Make Some Changes
erin garbett › staff writer
O
n october 16, 2014, the Canadian Bar
Association (CBA) dropped its applica tion to intervene in Chevron v Yaiguaje,
an upcoming Supreme Court case, just
before the October 17 filing deadline. Chevron is
appealing an Ontario Court of Appeal decision
allowing a group of Ecuadorian villagers to seek
damages from Chevron’s Canadian assets. In 2011,
an Ecuadorian court awarded nineteen billion dollars to the villagers for environmental contamination committed by Texaco which Chevron purchased
in 2001. This past November, the ruling was upheld
by Ecuador’s highest court, but the amount was
reduced to $9.51 billion. The Ontario Superior Court
judge denied the villagers’ attempt to seek damages
in Canada, saying that the Ecuadorian ruling has
no practical effect in Canada; the Ontario Court of
Appeal overturned this decision.
After announcing their intention to intervene
on September 29, the CBA felt an immediate backlash. An online petition was initiated and a protest organized by University of Toronto, Osgoode,
and McGill law students was held on October 9. The
national aboriginal law, environmental, energy, and
resources law, and civil litigation sections, as well as
several other legal organizations, firms, and professionals wrote letters criticizing the CBA’s decision.
An open letter signed by 113 lawyers was published in the Globe and Mail on October 10, pressing that the CBA must intervene only when there is
wide consensus. Several members resigned from the
CBA, while many others terminated their membership. After the legislation and legal reform committee refused to sanction the factum (a necessary step
before submission), the CBA decided not to proceed.
Before continuing, it is important to clarify that I
do not wish to comment on the merits of the appeal
sought by Chevron or whether the villagers ought to
be able to seek damages in Canada. For the purposes
of this article, I
only seek to outline my concerns
about the actions
of the CBA.
Regarding
conflict of interest, the CBA asserts their character “is based equally
on [their] expertise” and that they aim to find a “balance of views” both within an interest section and
amongst different sections. When deciding to intervene in the Chevron case, the CBA went against the
advice of the legislation and law reform committee,
the civil litigation section, and the National Sections
Council Executive. Beyond this, no effort was made
to seek the opinion of the aboriginal law section,
the environmental, energy and resources law section, or the constitutional and human rights sections. Immediately before making their decision, the
National Board met, but no opportunity was given to
members to raise their concerns. Also deeply unsettling is the fact that Blakes, Cassel and Graydon LLP,
a firm that works with Chevron, was hired to write
the factum to be submitted.
The CBA states that their reputation is “based
in no small part on [their] objectivity and independence,” of which I can find none here. The CBA
ê If they wish to regain the members they lost, and their reputation, the Canadian Bar Association must rethink their
principles and regulations.
willfully ignored interest sections that are key to the
Chevron case and went against the advice sought
from other sections. Furthermore, they forewent any
semblance of neutrality by hiring a firm with ties to
Chevron to write their factum. This staggering lack
of objectivity casts serious doubt on the CBA’s ability
(and even their desire) to remain impartial.
It should be noted that these policies are meant
to be specific to public statements by CBA members.
One could argue that they do not apply to interventions and they
would be absolutely cor rect.
To this end, I say
that these policies need to be
broadened and
strengthened so as to include other functions of the
CBA. In light of the Chevron controversy, the association should seriously consider extending their conflict of interest policies to include when, if, and how
they intervene in a case. By not including conflict of
interest principles in their intervening regulation,
the CBA leaves the door open for an event like this
to occur again.
Moving on to their regulations on intervening,
the CBA maintains that it will only seek to intervene
in cases that are consistent with a previously adopted
policy, a matter of compelling public interest which
will then be adopted as a policy of the association,
or a matter of special significance to the legal profession. None of these circumstances apply to the
Chevron case. There is no adopted policy in the CBA
consistent with their reasons for intervening, and no
relevant policy was enacted prior to their decision.
The Chevron case will of course bring forward legal
issues that are significant; it would be impossible to
“...the CBA went against the
advice of the legislation and law
reform committee...”
argue otherwise. The ruling by the Supreme Court
will likely provide clarity on issues of corporate liability and jurisdictional enforcement, and will facilitate better legal advice in the future. However, this
can be said of most, if not all, cases heard before the
Supreme Court of Canada; intervention by the CBA
cannot be justified merely because a case is in any
way significant.
Are these policies binding on the CBA and its
actions? No, absolutely not. However, they are indicative of the organization’s purpose: to broadly represent Canadian legal professionals and law students.
In seeking to intervene, the CBA put forth a message that it is willing to listen solely to some sections within the association while ignoring others.
Although I was likely not going to rip up my membership card, I am overjoyed that the CBA made the
decision not to move forward. They represent over
thirty-seven thousand members across the country;
when they act and speak, they do so for us all. When
deciding to intervene, the CBA needs an obvious
and clear consensus within its membership. If this
doesn’t exist, they shouldn’t intervene, simple as
that. Not only do they need make an effort to adhere
to the principles they have in place, they need to
improve and expand these principles to ensure this
does not happen again. u