The Canadian Bar Association Needs to Make Some Changes
principles and regulations.
On October 16, 2014, the Canadian Bar Association (CBA) dropped its application 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 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 correct. 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 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.