Updated October 16.
Dear Members,
I am writing to you today as BC Branch President and as a member of the National CBA Board of Directors, which yesterday affirmed by a majority vote, after a full review of the issues including hearing speakers representing both sides, a July decision of the CBA Executive Officers (the “original decision”) to intervene in the Chevron case at the Supreme Court of Canada. This decision and the original decision have attracted significant debate and controversy, and I want to ensure that you are informed about the reasoning behind the Board's decision, and its relevance to all CBA members.
In the Chevron case, a court in Ecuador awarded damages to a group of Ecuadorian villagers for environmental harm caused by Texaco, which later merged with Chevron Inc. based in the US. An action was started in Ontario to pursue the assets of Chevron Canada toward the $9.5B damages awarded to the villagers in the judgment against Chevron Inc. The case is now before the Supreme Court of Canada.
In essence, this case is about whether Canadian entities can be held liable for foreign judgments against related entities despite the absence of any actions at issue on the part of the Canadian entity. If this case results in changes to existing Canadian law, it could significantly expand domestic liability well beyond the control and borders of Canadian businesses and non-profits organizations. At the Supreme Court of Canada, CBA will be speaking to the history of the current law in Canada with respect to the "corporate veil" that prevents this kind of risk for Canadian entities, the reasoning behind that law, and the potential impact on economic security and broader Canadian society should the law change.
The second legal issue of importance in this case affects any entity with offices in more than one province: the Ontario court agreed to hear this matter despite Chevron Canada having no headquarters in Ontario and having not engaged in any activities at issue in that jurisdiction. The broader implication is that anyone seeking to bring an action against a business or organization with a presence in more than one jurisdiction could "shop" jurisdictions and/or bring multiple actions in jurisdictions other than that in which an action occurred or where an organization's headquarters is located. The CBA will be arguing that allowing this would set a harmful new precedent for the administration of justice in Canada.
We have heard from a number of members who are unhappy with the CBA's decision to intervene in this case, and with the process of consultation leading up to the original decision. The CBA has committed to immediately review its intervention process and to implement any necessary improvements to ensure that all concerned parties are involved in important decisions such as this one. It is my belief that we derive much of our strength from the diversity of perspectives and expertise the CBA brings to legal issues, and it is important to ensure that we have as many voices as possible 'at the table' for every deliberation and decision.
We have also heard from members who appreciate the CBA stepping forward in the recognition that this is an important case that could change the legal landscape of our country. I believe it is one of the hallmarks of our organization that we bring an objective, analytical eye to the larger implications of any legal case that stands to change the law. And, when required, we step in -- even when that choice is not universally popular.
We are committed to ensuring that the CBA is relevant and directly accountable to you as a member. I invite you to contact me directly to talk about this or any other issue related to the work of the CBA.
Alex Shorten
CBABC President