By Jeff Gray, The Globe and Mail
30 November 2012
Toronto lawyer Alan Lenczner, acting for the Ecuadorean plaintiffs trying to collect on an $18.3-billion (U.S.) judgment against Chevron Corp. for oil pollution in the Amazon, made what he called a "plea" to an Ontario judge Friday.
"These plaintiffs have waited 20 years for this, to get this judgment," Mr. Lenczner told Mr. Justice David Brown of the Ontario Superior Court.
Mr. Lenczner was retained by the Ecuadorean and U.S. lawyers acting for the Amazon villagers dogging Chevron to pay up on the massive judgment won in Ecuador last year – a judgment the oil giant dismisses as fraudulent and refuses to pay.
Mr. Lenczner, who also acts for embattled Toronto Mayor Rob Ford, is trying to get Chevron to hand over Canadian assets to satisfy the Ecuadorean ruling – assets the plaintiffs say could be worth $12-billion. He was in court Friday responding to a move by Chevron's lawyers to try to have the case tossed out on jurisdictional grounds.
On Thursday, Judge Brown had asked Chevron's lawyers why the case was before his court at all, since it remained under appeal in Ecuador.
Mr. Lenczner told court Friday that foreign judgments by lower courts, even those under appeal, are considered final under Canadian law. He also said Chevron declined to post a bond in Ecuador, which would have stayed the judgment pending the company's appeal there.
Judge Brown said Friday he would not adjourn the case pending the result of the Ecuadorean appeal. And he said he would reserve his decision on Chevron's jurisdiction motion and likely not issue a ruling on that until February.
Chevron argues the plaintiffs' case should be tossed out on jurisdictional grounds, relying on recent court decisions that change the rules for how Canadian courts assume jurisdiction. Chevron's lawyers argued that the plaintiffs do not have the grounds to claim that the assets of Chevron Corp.'s Canadian subsidiaries should be considered as though they were directly owned by the U.S. parent.
But Mr. Lenczner told court Friday that Chevron's arguments did not apply, since this case is merely about recognizing and then trying to enforce a foreign judgment, not litigating the underlying dispute.
If the judgment is recognized but it turns out that Chevron has no assets to seize here, he said, that is a problem for the plaintiffs, not Chevron.
"If you've got no assets here, let it go? Why are you here? Why do you have seven lawyers here?" Mr. Lenczner said.
He also addressed Chevron's arguments that Chevron Canada is a largely independent, indirect subsidiary that, under long-established legal principles, should not have to cover the debts of its U.S. parent. Mr. Lenczner said San Ramon, Calif.-based Chevron Corp. makes the final decision on all its subsidiaries' major investments, and that Chevron Canada sends dividends back to its parent. Chevron Corp. also guarantees loans for its Canadian subsidiary, he told the court.
"It is a tightly controlled company," Mr. Lenczner said.
The two-decade fight, perhaps the highest-profile environmental legal battle in the world, has seen Chevron and the plaintiffs' U.S. and Ecuadorean lawyers accuse the other of fraud and bribery, allegations both sides deny. An Ecuadorean court recently increased the original judgment to $19-billion.
The dispute dates back to a lawsuit first filed against Texaco, which Chevron later acquired. The Ecuadoreans accused Texaco of leaving an environmental catastrophe behind after oil drilling that started in the 1960s. But Chevron argued that Texaco had paid its portion of the cleanup costs when it pulled out of Ecuador in the 1990s.