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.
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.”