Access to Justice Opened for Ecuadorians – Asking Canada to Enforce a Polluter Pays Decision Against Chevron

Filed in 2017 Blog Posts, Blog by on October 31, 2017

Canada has a long history of polluter pays decisions. The precedent setting case for polluter pays in Canada occurred in 1994 in a Supreme Court of Canada (SCC) case, in which Friends of the Earth intervened represented by Ecojustice.

Imperial Oil had appealed to the SCC a clean up order for contamination on their 1918 refinery site which had been sold for housing in 1979, inadequately remediated and built on.  The Supreme Court of Canada upheld the order and commented that the polluter pays principle encourages sustainable development, by assigning polluters the responsibility for addressing contamination they are responsible for and imposing on them the direct cost related to the pollution caused by their activities.

By putting a direct cost on pollution, the polluter pays principle has the power to change corporate behaviour.  By requiring Imperial Oil to pay, the Supreme Court firmly enshrined the polluter-pays principle in Canadian law and provided justice to the town of Levis and affected homeowners.

In the intervening decades, there have been many applications of polluter pays.  It’s clear that the polluter pays principle is a foundation of environmental law in Canada.

Today, Indigenous people and settlers from a village in Ecuador are asking the courts in Canada – not to make the decision on polluter pays; their court has already ruled against Chevron in favour of the Ecuadorians.  Rather they’re asking Canada to enforce the decision for clean-up to the tune of $9.6 billion.  They’re asking Canada for justice because the polluter, Chevron, operates one of its 1,500 subsidiaries in Canada and, therefore, earns some portion of its annual $225 billion revenues in Canada.

Let’s be clear – the indigenous people and settlers earn an average of $20/day and they have persevered since the early 90s when they first sought justice against Texaco’s (now owned by Chevron) environmental destruction and its human health impacts.

Surely Canada should consider this case on its merits.  Today’s decision by the Ontario Court of Appeal says, “Courts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits… The Rules explicitly provide that an order for security for costs should only be made where the justness of the case demands it…the unique factual circumstances of this case compel the conclusion that the interests of justice require that no order for security for costs be made.  To conclude otherwise, in our view, would result in an unjust order for security for costs.”

The Court concluded, “The history of this litigation, which has been ongoing for almost twenty-five years, makes clear that Chevron Corporation has and, it may be anticipated, will employ all available means to resist enforcement of the Ecuadorian judgment. This, of course, is within its rights. However, this reality makes it difficult to accept that the motion for security for costs was anything more than a measure intended to bring an end to the litigation.”

The Ecuadorians have come to a country that delivers on polluter pays, a country where their case for enforcement of a polluter pays decision will be heard on its merits.  The court recognized this is a public interest case – Ecuadorians will not personally profit should they win the case but rather the environment will be cleaned up and health issues addressed.

I am satisfied that the Canadian courts are providing access to justice for the Ecuadorians. Now, let justice prevail.

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