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CBA reform outstrips controversial case

New policy addresses historic issues that divided membership
|Written By Judy van Rhijn

The Canadian Bar Association has researched, drafted, and approved its new court intervention policy, while the case that inspired the change is still moving slowly through the court system.  

David McRobert says a new court intervention policy was a necessary step for the CBA.Photo : Laura Pedersen

A hasty decision by the CBA executive to intervene in the Supreme Court`s hearing of Chevron Corporation et al v. Yaiguaje et al prompted a pushback by CBA members that led to a full-scale revision of the policy and process of future interventions, adopted by the CBA last month.

“It was necessary to have a new policy. It clarifies that there is to be more fulsome consultation.

Previously, it was hit and miss. The new policy ensures the process is more uniform,” says David McRobert, an environmental and aboriginal lawyer from Peterborough, Ont., who was one of many members to register their disapproval of the decision to intervene in the Chevron case.

“You may not get consensus, but at least people have a chance to say their piece. There is a great degree of confidence that no one is left out.”

The new policy requires that intervention requests must be submitted to the CBA president and the director of legislation and law reform at least four weeks before the application for leave to intervene is due and must include a feasible plan for robust consultation.

The Intervention Policy Review Committee stipulated that notifications have to be robust enough so that failure to respond can safely be taken to mean a lack of interest in the issue. 

“The committee found a desire among members to have as broad a consultation as possible,” says Michele Hollins, CBA past president. “Every proposed intervention goes to every constituent group. They don’t all have to consent, they don’t all have to reply, but they all have the opportunity to comment.”

There were resignations, protests, and letters to the media when the CBA announced that, because of the interests of the 4,500 in-house lawyers among its membership, it would intervene to raise issues of corporate law before the Supreme Court.  

In fact, the main thrust of the case was the recovery of damages for environmental degradation caused by Texaco (which later merged with Chevron) in Ecuador.  

The CBA’s stance appeared to pit the CBA against the environmental claims of the Ecuadorian villagers, to the great distress of environmental, aboriginal, and human rights lawyers across the country.

McRobert says the CBA is the umbrella organization that represents a tremendous range of interests across Canada, with different laws and different memberships.

“What really brought the issue to the fore was that the executive of the CBA decided to launch an intervention in the Chevron case, but the consultation process was inconsistent with the policy in place at the time,” he says.

McRobert acknowledges that it wasn’t unprecedented for an expedited process to be used, especially in summer when things are a bit quiet. 

“Often, there are very short timelines involved, but the outcome was that the decision was taken without the support of important committees and all the affected provincial organizations.

No matter how finely crafted the intervention was, there was a message to constituents that the position was accepted by the majority of the CBA,” he says.

Adding salt to the wound was the fact that the intervention appeared to be unnecessary and that the CBA intended to brief a law firm that frequently represented Chevron.  

“Chevron was ably represented by its lawyers,” points out McRobert.

“There was really no new argument contributed; nothing that wouldn’t already be canvassed.”

At the last minute, the CBA executive decided not to go ahead, and instead launched a full-scale review of the intervention policy, involving an analysis of all of the intervention proposals from 1992 to 2014, and a review of relevant changes to the SCC rules.

The review committee also canvassed all the membership and other experienced stakeholders.

Its report was presented last June and, based on its recommendations, the new policy was approved by the board in September 2015 and the council in February 2016.

“It was the right decision,” says McRobert.

“It provided the opportunity for the organization to do damage control.”

Hollins has had an oversight role throughout the reform process.

She says the new policy makes great strides.

“The former policy was over 20 years old by the time we looked at it.

Like all organizations, we have evolved, as have the practices around intervention policy. Interventions themselves have changed over the years,” she says.  

“We needed to take a look at how to redraft the policy or make amendments that better reflected what the members expect.”

Hollins confirms that Chevron was the catalyst for the broader review.  

“The scope of consultation was highlighted by Chevron, and also it was timely and appropriate to consider what kind of cases we should be intervening in and those we should not be intervening in,” she says.

In fact, the policy reform has outpaced the case that inspired it.

Yaiguaje v. Chevron has been adjourned until Sept. 12, when competing motions on the available defences will be heard. 

Alan Lenczner, who represents the plaintiffs, advises that his clients have filed a motion to strike out most of the statement of defence of Chevron Corp. and cross-motions in response to claims by Chevron Corp. and Chevron Canada that there are no assets in Canada with which to satisfy the judgement.  

Meanwhile, the CBA is already issuing intervention proposals under its new policy, according to McRobert, who is the public liaison officer for the aboriginal law section in Ontario.  

“Since September, four or five interventions have been proposed.

The drafts have come to me and I have consulted with my colleagues,” said McRobert.

As for the cases themselves, Hollins says the review committee recorded a strong response that interventions should primarily be about the core principles of the legal profession, issues of importance to the legal profession generally and only in exceptional cases, and on substantive legal issues of relevance to lawyers in a particular practice area.

“What the committee found was that the broad support of CBA interventions is more assured in cases relating to core principles, such as solicitor-client privilege and the independence of the judiciary,” explains Hollins.  

“The division of opinion is very low because we all recognize those principles.

The farther you move away from that to substantive law, the more likely you are to find division within a 36,000-member organization.”

The new policy also specifies that the full CBA board must be responsible for approvals, and that interventions must constitute a significant contribution to the case and not merely restate the arguments advanced by the parties.

Counsel representing the CBA must be unbiased and not promote their own agenda. 

Several interventions approved under this policy are already underway.  

“We can say it’s working very well,” advises Hollins.

“More member engagement and transparency are at the forefront of these amendments, followed closely by the very necessary review of the kind of cases the CBA is intervening in.

“The unanimous approval of the policy in February shows we got it right.”

  • Solicitor

    Carl Jonsson
    How are the proposed interventions being submitted to the CBA membership? The Article saysthat since September 4or 5 interventions have been proposed. It also says that several interventions approved under the revised policy are already underway. When did they get submitted to the CBA membership? It don't think I have seen any submissions?

    I think the submission process for the above mentioned proposeals and interventions has to be disclosed and described in some detail.
  • Barrister and Solicitor

    David S McRobert
    Hi Paul - Point well taken but I don't think this was the angle the editors wanted to pursue. An article that I crafted for the Aboriginal Law Section of the Ontario Bar Association early this month discusses many of the issues you mention. regards, David
  • Please add some context

    Paul Morrison
    I'm getting tired of lawtimes articles on the Chevron case which do not mention:

    (a) the Ecuadorian judgment was obtained by fraud (caught on camera by filmmakers);
    (b) the Ecuadorian judge has since defected to the US and has testified he was bribed by plaintiff's counsel;
    (c) The environmental "expert" briefs were ghost written by the Ecuadorian plaintiff's counsel'
    (d) The entire judgment was voided in US federal courts as obtained by fraud, saying it was: "procured through a pattern of racketeering—including bribery, fraud, extortion, obstruction of justice, and other criminal offenses"; and
    (e) Plaintiff's counsel was found guilty of obtaining the judgment by fraud in violation of the RICO act.
  • Attorney & Arbitrator

    Georgialee Lang
    Thank you! for providing this information to us...

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