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CBA drops plans to intervene for Chevron at Supreme Court

A protester holds up a sign as he demonstrates against Chevron's Racketeer Influenced and Corrupt Organizations (RICO) trial in New York, October 15, 2013.

CARLO ALLEGRI/REUTERS

The Canadian Bar Association has done an 11th-hour reversal and dropped plans to intervene at the Supreme Court of Canada on behalf of Chevron Corp. in a high-profile battle involving Ecuadorean aboriginal people.

With the filing deadline Friday, CBA president Michele Hollins sent a letter to members from across the country, saying a review committee determined the case did not meet the association's standards for intervention.

"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 the intervention policy," she wrote.

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Lawyers working in aboriginal affairs, environmental law and civil law had all objected to the association's decision, taken last July, to support Chevron's arguments in an upcoming hearing on whether Canadian courts can enforce a foreign judgment.

After a legal battle that has lasted nearly 20 years, an Ecuadorean court found Chevron liable for oil pollution in the Amazon and demanded $18-billion (U.S.) in 2011. Appeals courts in Ecuador subsequently knocked that down to  $9.5-billion. Chevron has refused to pay and condemned the judgment as the product of fraud and bribery, allegations upheld by a recent U.S. court ruling. Lawyers for the Ecuadorean plaintiffs are appealing that ruling.

The original decision sparked protests from across the country, with some lawyers resigning their CBA membership. Critics complained the action was being driven by Blake Cassels & Graydon LLP, which prepared the factum for free and also does corporate work for Chevron in Calgary.

Despite objections from several of its member groups, the CBA board confirmed its decision last month but reversed course after hearing from its legislation and law reform committee, which must sanction the factum before it is submitted.

That committee had originally recommended against proceeding.

A group of villagers from Ecuador's Lago Agrio region want Canadian courts to enforce that Ecuadorean judgment by seizing assets from Chevron and its Canadian subsidiary. The Ontario Court of Appeal reversed a lower court decision, which refused to order a hearing on the substance of the case; Chevron has appealed the jurisdictional question to the Supreme Court of Canada.

Victoria lawyer Kathryn Deo – who had resigned from the CBA and its aboriginal law committee as a result of the intervention – welcomed the reversal.

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"I am delighted with the news that the CBA will not be intervening in the case," she said in an email. "I commend President Hollins, the board of directors and the [legislation and law reform committee] for following the intervention policy.

"I'm sure it was a difficult decision but it was clearly the right decision and we are appreciative of their courage in reversing course."

A spokesman for Blakes, Gary Nurse, said Blakes had no issue with the decision of the CBA, for which the firm was acting pro bono.

"We are supportive of our client's decision in this matter. We have a great relationship with the CBA and look forward to working with them again in the future," Mr. Nurse said in an e-mail. "As with all client matters, we are not able to comment further."

In an e-mail, Morgan Crinklaw, a spokesman for Chevron, offered no comment on the CBA's decision, but pointed out that ‎some human rights groups have sided with Chevron in a move by lawyers for the Ecuadoreans to appeal a recent U.S. federal court decision that declared the Ecuadorean judgment a product of fraud.

‎"Chevron Corp. and Chevron Canada Limited look forward to demonstrating to the Supreme Court of Canada that the trial court in Ontario has no jurisdiction to hear the action brought by the Ecuadorian plaintiffs," Mr. Crinklaw said.

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About the Author
Global Energy Reporter

Shawn McCarthy is an Ottawa-based, national business correspondent for The Globe and Mail, covering a global energy beat. He writes on various aspects of the international energy industry, from oil and gas production and refining, to the development of new technologies, to the business implications of climate-change regulations. More

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