Canadian Bar Association will not intervene in Chevron Case
In the wake of widespread criticism, the Canadian Bar Association (CBA) has unexpectedly reversed its decision to intervene in Chevron Corporation et al v. Yaiguaje, et al. at the Supreme Court.
The case involves a dispute over whether Canadian courts have jurisdiction to enforce a judgement by an Ecuadorean court and seize Chevron’s assets. A group of indigenous villagers from the Lago Agria regions of Ecuador are seeking the order’s enforcement.
The Ontario Court of Appeal overturned the decision by the trial court not to hear the substance of the case. Chevron has appealed to the Supreme Court of Canada on the question of jurisdiction.
The Bar Association announced its intervention in the case and retained Blake Cassels & Graydon LLP.
In a statement to The Globe and Mail, the CBA defended its initial decision to intervene in support of Chevron’s position, “Our decision to intervene in the upcoming Supreme Court proceedings was based on our desire to contribute to a debate where fundamental and foundational principles of business law will be argued.”
Now, they’ve bowed to criticism from internal committees and the broader legal community and have decided not to intervene.
In reversing its decision, the Association cited opposition from its Legislation and Law Reform Committee, which says the case does not fit with the association’s intervention policy.
“In this case, the Committee concluded that while the factum was well-drafted and of a high standard of quality, it did not meet the specific requirements of CBA’s Intervention Policy. Consequently, under the terms of the Intervention Policy, the CBA came to the conclusion that without the certification of the factum, the Intervention could not move forward and would be withdrawn,” said their statement.
In addition to the Legislation and Law Reform Committee, the association’s aboriginal, environmental and civil litigation committees opposed the intervention. The in-house counsel association and the corporate law section supported intervention in the case.
Critics of the association’s decision to intervene welcomed the reversal.
“I am delighted that the CBA made the right decision not to intervene in the Chevron case,” said Kathryn Deo, Managing Partner at Arbutus Law Group LLP, who had resigned from the CBA in protest.
“I also want to acknowledge the many lawyers and law students across the country who worked tirelessly to bring awareness to this issue and express their concerns to the CBA,” she said.
Judith Rae, an Associate at Olthuis Kleer Townshend LLP and member of the Ontario Bar Association’s aboriginal affairs committee, echoed the sentiment.
“I’m glad to see that the CBA listened to its members at the end of the day, and did the right thing,” said Rae. “As a member, my top concern was that this was not the right intervention for the CBA and not within their policy, and ultimately the CBA leadership reached the same conclusion.”
That conclusion was enough for Deo to forgive the CBA’s apparent misstep.
“I have rejoined the CBA and look forward to resuming my work with the National Aboriginal Law Section Executive,” Deo said.
Not all commentators were happy with the association’s decision to withdraw, however. James Morton, a civil litigator with Steinberg Morton Hope & Israel LLP and past president of the Ontario Bar Association, called the decision “unfortunate.”
In a statement to Law Times, Morton said, “To my thinking, this is one of the most important jurisdictional decisions in my career. It will have a significant impact, depending on the result, on the practice of law and business generally.”
As a result of their decision to withdraw, the association’s factum, prepared by Blakes, will not be considered by the Court.
Even with the bar association withdrawn several active interveners remain: the International Human Rights Program at the University of Toronto Faculty of Law, MiningWatch Canada and the Canadian Centre for International Justice, and the Justice and Corporate Accountability Project.
The Supreme Court’s hearing in this case is scheduled for December 11, 2014, subject to a sealing order.
Michael Scott is a News Editor for Juris Diction. He is currently in his second year of the MPA/JD program.
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