Peter Foster: Canadian courts shouldn’t be apologizing for not enforcing a corrupt judgment

The latest Ontario finding acknowledges that the assault on Chevron was an attempt to do an end run around the U.S. court system while skirting Canadian law

Financial Post - Peter Foster 05/06/2018

A Chevron gas station in Corte Madera, California. Photo: Financial Post

What with the Trans Mountain fiasco and flagging foreign investment, the last thing Canada needs is to be seen to be friendly to the attempted enforcement of corrupt judgments from foreign jurisdictions. California-based Chevron Corp. has been fighting such a rancid judgment, from Ecuador, for six years.

The latest decision in this saga, delivered by the Ontario Court of Appeal on May 23, confirms that this case is an assault not merely on Chevron but on Canadian law. However, the decision contains much about which to be concerned.

In 2012, “poor Amazonian natives,” as news reports described them, came to Canada hoping to collect on an Ecuadorean court’s US$18 billion judgment against Chevron for alleged pollution by a subsidiary of Texaco, which Chevron later acquired.

The Ecuadorian judgment has since been roundly condemned by two U.S. courts as a massive fraud, and unenforceable in the U.S. The American courts found that U.S. lawyer Steve Donziger and members of his legal team representing the Amazonian villagers had bribed and threatened Ecuadorian judges, and had even ghost written the decision.

Despite this legal pasting, the Ecuador case continued to be a cause célèbre for trade unionists, Aboriginal activists, vacuous celebrities and the left-liberal media. Renowned Irish-born rabble-rouser Phelim McAleer, who has previously taken on “the dark side of environmentalism,” recently mounted a play on the Chevron Ecuador case in San Francisco in the face of enormous opposition from the local arts community. Performances have been disrupted by environmentalists. Favourable reviews have been spiked.

Some of this reflexive anti-corporate, pro-Aboriginal bias seems to have crept into the Ontario court decision, which invoked sympathy for the “tragedy” that the appellants had suffered “through no fault of their own.”

But what exactly is the nature of the tragedy, and whose fault is it?

The Ontario court acknowledges that the U.S. judgment “detailed a litany of fraudulent behaviour, not by the appellants, but by their counsel in the Ecuadorian proceeding.” This suggests that their counsel might have been foisted on them rather than being the driving force of their fraudulent case.