Principled Limitations on Access to Justice: Awaiting the Next Installment to the Canadian Chapter on the Chevron Saga

Further to my previous comment on this subject, “Principled Limitations on Access to Justice: the Last Installment to the Canadian Chapter on the Chevron Saga?” (posted, 22 June, 2018), I have since confirmed that plaintiffs” counsel will be seeking leave to appeal the Ontario Court of Appeal decision (2018 ONCA 472) which protected Chevron from plaintiffs’ attempts to pierce the corporate veil through Chevron’s Canadian subsidiary, Chevron Canada. If leave to appeal is granted, the criteria for recognition and enforcement of the controversial originating judgment of the Ecuador Court, may be scrutinized in considerably greater detail by the Canadian justice system directly, as opposed to according deference to previous judgments rendered abroad, notably, decisions of the U.S. Federal Courts which found the Ecuador judgment to be tainted by fraud, bribery and judicial corruption.

It merits repeating the point made in my previous comment that fraud is one of a few established “impeachment defences” along with natural justice/ order and fairness and public policy, upon which, a Canadian enforcing court can conduct an inquiry independent of the originating court on whether to enforce a judgment of that court without deference to the originating court or collateral enforcing jurisdictions. Established Supreme Court of Canada authority in Morguard v. De Savoye (1990) and Beals v. Saldanha (2003), is clear on this point as a matter of “full faith and credit” in the domestic context or as a matter of “comity” internationally. In light of what has already been litigated in the Chevron saga, it may be a difficult and complex undertaking to second-guess the U.S. courts with respect to the legitimacy of the originating judgment in Ecuador; but not impossible. The Supreme Court of Canada may indeed choose to provide that opportunity.

H. Scott Fairley is a partner at Cambridge LLP. He received his B.A. in 1974, and LL.B in 1977, from Queens University. He has also received his LL.M in International Legal Studies from New York University in 1979, and his S.J.D. in international and constitutional law from Harvard University in 1987. He has been a Fellow of the Chartered Institute of Arbitrators (FCI Arb) since 1999. Scott was called to the bar in 1982. In 2015, he received the Ontario Bar Association Award of Excellence in International Law.

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