Bar Association (CBA) has been engaged in a fierce
internal debate over the Association's decision, now revoked,
to intervene in Chevron's appealto the Supreme Court. The Ecuadorian
plaintiffs in the case are seeking to enforce a $9.5 billion
judgment obtained in Ecuador for terrible oil pollution and health
damages allegedly caused by Texaco and others. Chevron (the
corporate successor of Texaco) has no direct assets in Canada, but
does have an indirect Canadian subsidiary with substantial assets.
Chevron has obtained a US court decision that the Ecuador judgment
was obtained by fraud, and argues that it cannot and should not be
enforced in Canada.
The CBA originally decided to intervene to support a traditional
pillar of Canadian corporate law: that, for most purposes (barring
fraud), each corporation is a separate legal person, liable for its
own obligations but not for those of their parent and subsidiary
companies. This provoked a furious debate. Which side of this
difficult case is in "the public interest"?
The CBA explained its initial decision to intervene as
"based on our desire to contribute to a debate where
fundamental and foundational principles of business law will be
argued." As set out in the CBA's Public Interest Intervention Policy, the
Association can intervene where the case involves "a matter of
compelling public interest which the Board of Directors then adopts
as policy of the Association" (or where there is matter of
special significance to the legal profession or consistent with a
previously adopted CBA policy, neither of which is applicable in
What is the public interest?
But what is the public interest?
As noted by several members of the Supreme Court in R. v. Zundel:
A survey of federal statutes alone reveals that the term
"public interest" is mentioned 224 times in 84 federal
statutes. The term appears in comparable numbers in provincial
statutes. The term does not and cannot have a uniform meaning in
each statute. It must be interpreted in light of the legislative
history of the particular provision in which it appears and the
legislative and social context in which it is used.
Despite lawyers' prolific use of the term "public
interest", it is very hard to define. Only one Canadian
statute currently in force attempts to provide a definition.
Manitoba's Engineering and Geoscientific Professions
Act states that "public interest" means the
"well-being, convenience and concern of the public at
large". What does that mean? Who is the "public at
large"? Does the "public" include people in other
countries? What are "well-being", "convenience"
and "concern"? How does one weigh one public interest
It seems clear that the CBA failed to follow its own policy to
determine whether its intervention was warranted and appropriate.
In particular, there was insufficient consultation within the CBA;
what was obviously in the "public interest" to business
and corporate lawyers struck many aboriginal and environmental
lawyers as quite the contrary. It is not even clear whether the
business lawyers recognized that other sections would consider the
intervention contentious. There are also questions about the degree
of consultation by the CBA, at the federal level, with the various
In response to these fierce internal objections, the CBA announced that it would withdraw its
"The CBA Intervention Policy requires the legislation and
law reform committee to sanction the factum before it can be filed
with the court. In this case, the L&LR Committee concluded that
while the factum was well-drafted and of a high standard of
quality, it did not meet the specific requirements of the
The CBA has now begun a stakeholder review of its Public Interest Intervention Policy to avoid
similar public disagreements within its ranks. It is not likely
that the CBA will be able to reach a better definition of the
"public interest" than the courts or legislators have.
However, the new policy should do a better job of ensuring adequate
consultation within the organization before it intervenes in the
courts, attempting to speak for Canadian private sector lawyers as
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
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