Canada, Environment / Environmental Law, Litigators

The View From Up North: Has The CBA Crossed The Line?

Is the Canadian Bar Association sticking its nose where it doesn't belong?

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The Canadian Bar Association (CBA) is the prime industry group for Canadian lawyers coast to coast. In essence the CBA is an advocacy group that also provides its members with continuing legal education and networking opportunities. It has 37,000 members, so it speaks for a lot of Canadian lawyers.

Let’s move half a world south to the Lago Agrio region of Ecuador. An energy giant, Chevron, apparently caused a bit of nuisance there. The indigenous villagers in the region sued Texaco (which Chevron subsequently purchased) for causing extensive pollution and won a local judgement for $9.51 billion. I haven’t taken a trip to Lago Agrio, but I suspect from the size of the judgement we aren’t talking about a few puffs of black smoke.

The plaintiffs are now chasing Chevron’s assets all over the world, including Ontario. Chevron hath protested with vehemence that its Ontario assets should not be at risk. The Ontario Court of Appeal ruled last year that the Ecuadorian plaintiffs “deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits” in Ontario. Thus, the C.A. has at least opened the door for the plaintiffs to realize on Chevron’s Ontario property in satisfaction of the multi-billion dollar judgement. Here’s the shocker: Chevron has appealed to the Supreme Court of Canada.

This is where the CBA comes in….

The CBA has asked for neutral intervener status in the SCC case. It wants the opportunity to argue that it would be bad for Canadian courts to recognize “enterprise liability,” which essentially says a giant corporation’s kids can be held liable for the sins of the father. The Ecuadorian judgement was pronounced against Chevron Corp. Chevron’s Canadian operations are run through an indirect subsidiary, Chevron Canada Ltd. Therefore, according to all that “separate legal entity” and “corporate veil” mumbo jumbo we learned in law school, the Ecuadorians shouldn’t be allowed to touch Chevron’s Canadian assets.

The CBA also has an issue with jurisdiction. Chevron Canada is not even headquartered in Ontario. The CBA feels the plaintiffs are jurisdiction shopping, presumably because they see an opportunity for a favourable ruling from the Ontario courts. The CBA thinks the Court of Appeal decision sets a bad precedent and may open the floodgates to more foreign plaintiffs taking advantage of Ontario’s warm hospitality.

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The CBA’s decision to intervene has caused a bit of a kerfuffle. Several CBA members have resigned as a result. It appears that aboriginal lawyers have the biggest problem with the CBA’s decision, which shouldn’t be a surprise. The environment committee and the legislative and law reform committee also recommended against getting involved. Most recently, the civil litigation committee asked the CBA to step away from the matter. Thus, there are several prominent committees that think the CBA should mind its own business.

The CBA had this to say: “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.” It added, “[t]his is an important issue for Canada.”

My first question: who is the “our” in that statement? There has been enough backlash to assume the CBA doesn’t speak as one voice for its 37,000 members. That leads to my fundamental problem with this: The CBA is an industry group. What business does it have sticking its nose into substantive questions of law and procedure, especially in front of the court? I can understand if it wants to put out a position paper for membership consideration, but actually stepping into battle and arguing a position when it has no ties to the case seems wrong.

We have a justice system where plaintiffs and defendants get to hire great lawyers to make the most relevant arguments to the case. Last time I checked, Supreme Court justices can easily get into Mensa. What does the CBA think it will add to this case that their Lordships and Ladyships won’t pick up from the mega-dollar partners who will argue on behalf of the litigants? Chevron Canada used Benjamin Zarnett of Goodmans, an absolute superstar, for the Court of Appeal case. The plaintiffs used Alan freakin’ Lenczner. I’m confident whatever counsel appears will ably assist the Supreme Court to get the gist of this case with or without the CBA’s intervention.

Additionally, there are certainly lawyers who agree with the CBA’s position and want it to intervene in this case. As noted above, there are several prominent committees against intervention. So, that’s a problem. The CBA isn’t a duly elected, government body that represents lawyers. It’s a club funded by dues-paying members. By taking sides, it is naturally going to please some members and anger others. When it uses the phrase “[o]ur decision,” it sounds as if it speaks for a consensus, when nothing is farther from the truth. I don’t think it should intervene on substantive or procedural matters unless the association truly represents a consensus, which, of course, will never happen.

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The other baffling thing for me: if the CBA is going to request intervenor status, why would it hire Blakes to help write the SCC brief on its behalf? Blakes apparently does corporate work for Chevron in Calgary. You simply can’t hire a firm that has ties to the defendants. Period, full stop. It kills your credibility. Blakes is a great firm. I’m sure its lawyers will do their jobs ably and ethically. I have no doubt of that. But, it still reflects poorly on the CBA. There are dozens of qualified law firms the CBA could have retained. Surely there are a bunch of available firms that have no ties to Chevron?

At the end of the day, it’s your club. What do you want from it? Do you want one that actively intervenes in controversial court battles, despite the fact its positions might not reflect your views? Or, do you want a club that focuses on making your life better by providing education, government lobbying, and networking? When it comes to advocacy, there are times when it is appropriate for the CBA to get involved — for example, when a court case might weaken solicitor-client privilege. I believe most lawyers welcome the CBA’s active participation in those cases that will directly affect a lawyer’s ability to practice.

But, outside of that, I personally hope the CBA will stick to what I consider its most important purpose: using all those member fees to put on informative conferences and great cocktail socials.

That’s the View From Up North. Have a wonderful week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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