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The Canadian Bar Association (CBA) has been engaged in a fierce internal debate over the Association’s decision, now revoked, to intervene in Chevron’s appeal to 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 this case).

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 against another?

On the Chevron Ecuador case, there is strong disagreement between the CBA sections. Many members of the CBA raised both procedural and substantive concerns with the decision to intervene, and some threatened to resign. Objections came from the Canadian Hispanic Bar Association, the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights Section, and many individuals, some of whom wrote an open letter to CBA published in the Globe and Mail.

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 provincial sections.

In response to these fierce internal objections, the CBA announced that it would withdraw its intervention:

“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 Intervention policy.”

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 a whole.

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