The latest attempt by Chevron CEO John Watson to foist his company's RICO fraud from the United States onto Canadian courts just got slapped down by a three-judge panel from the Ontario Court of Appeal. This suggests the oil giant faces major hurdles in Canada in its campaign to evade enforcement of a $12 billion liability owed to Ecuadorian indigenous peoples and farmer communities.
The latest Canada decision, which can be read in full here, can only be described as a powerful rebuke to Watson, Chevron General Counsel R. Hewitt Pate, and the company's army of Canadian lawyers who are being paid big bucks to obstruct and delay the case. Consider these key takeaways from the decision:
- Chevron's SLAPP-style harassment attempt to impose a $1 million costs order on the impoverished indigenous groups always was a classic corporate maneuver to evade liability by trying to end the litigation without a resolution on the merits. The Appeals Court vacated the order in its entirety. Chevron General Counsel Pate sent at least 20 high-billing lawyers to court, implicitly disclosing that the company was spending more in legal fees to obtain the costs order than it would have received had it been granted. Worse, almost all of the Chevron lawyers were bland white men in suits whose job apparently is to block aboriginal peoples from collecting money they need to clean up an environmental disaster caused by Chevron. The fundamental disparity in resources – Chevron makes $225 billion annually while the indigenous groups live in poverty due largely to Chevron's pollution – could not have been more stark.
- Chevron's attempt to leverage U.S. Judge Kaplan's completely flawed civil RICO (or "racketeering") decision against the indigenous groups appears to have backfired yet again. It is becoming more apparent in Canada that the Kaplan decision is a debacle for Chevron and actually favors the aboriginal groups on a variety of levels. It is now seen as a product of Chevron's fraud in presenting false testimony from a disgraced witness paid $2 million who later admitted lying in court. No Canadian court wants to be told by a U.S. oil company that it must defer to a U.S. judge – especially one who conducted a hocus-pocus proceeding in favor of Chevron. Violating his duty of neutrality, Kaplan obviously bent over backwards to help the oil major. He also failed to disclose his own ethically dubious investments in the company when presiding over the RICO trial.
- The three Canadian judges implicitly rebuked both Judge Kaplan and the Canadian motions judge who relied heavily on Kaplan's erroneous decision to impose the costs order, while ignoring the Ecuadorian trial court decision at the heart of the case. The Ecuador decision, we might add, was issued by the very court where Chevron for years insisted the trial be held. The panel wrote: "There can be no doubt that the environmental devastation to the appellants' lands has severely hampered their ability to earn a livelihood. If we accept the findings that underlie the Ecuadorian judgment – findings that have not yet been undermined in our courts – Texaco Inc. contributed to the appellants' misfortune." You can say that again – cancer rates in the area are skyrocketing, and untold numbers of people already have perished due to Chevron's refusal to abide by the Ecuadorian court order.
- The Canadian court also found that Chevron obviously doesn't need its costs paid. How obvious is this? The company already has used at least 60 law firms and 2,000 lawyers since the inception of the case. It grosses $225 billion per year. And yet, nary a word was written in all prior decisions on the issue. The Canadian panel confronted it directly: "Chevron Corp. and Chevron Canada have annual gross revenues in the billions of dollars. It is difficult to believe that either of these two corporations... require protection for cost awards that amount or could amount to a miniscule fraction of their annual revenues."
- The decision was also an implicit rebuke to the duplicitous Larry Lowenstein, Chevron's lead lawyer in Canada and a partner in the prestigious Osler law firm. Lowenstein made a cameo before the appeals panel and tried to peddle the Kaplan decision as being the final word on the case. As said, that decision is a product of Chevron's fraud. Lowenstein used Kaplan to try to dupe Canada's judges, but they would have none of it. Osler cannot be so desperate for business that it would stoop to this level of "service" for a company known in environmental circles as a major polluter.
Five years already is way too long for any enforcement action, much less one where thousands of indigenous lives hang in the balance and where a final judgment has been rendered in the preferred jurisdiction of the debtor.