Lawsuit Raises Question: What is Public Interest?
The Canadian Bar Association (CBA) has been engaged in a fierce internal debate over the association’s decision, now revoked, to intervene in Chevron’s appeal to the Supreme Court. The Ecuadorian plaintiffs in the case are seeking to enforce a USD 9.5 billion judgment obtained in Ecuador for terrible oil pollution and health damages allegedly caused by Texaco and others. Chevron (the corporate successor of Texaco) has no direct assets in Canada but does have an indirect Canadian subsidiary with substantial assets. Chevron has obtained a US court decision that the Ecuador judgment was obtained by fraud and argues that it cannot and should not be enforced in Canada.
The CBA originally decided to intervene to support a traditional pillar of Canadian corporate law—that, for most purposes (barring fraud), each corporation is a separate legal person, liable for its own obligations but not for those of their parent and subsidiary companies. This provoked a furious debate. Which side of this difficult case is in “the public interest?”
The CBA explained its initial decision to intervene as “based on our desire to contribute to a debate where fundamental and foundational principles of business law will be argued.” As set out in the CBA’s Public Interest Intervention Policy, the association can intervene where the case involves “a matter of compelling public interest which the Board of Directors then adopts as policy of the association” (or where there is matter of special significance to the legal profession or consistent with a previously adopted CBA policy, neither of which is applicable in this case).
But what is the public interest? As noted by several members of the Supreme Court in R. v. Zundel, a survey of federal statutes alone reveals that the term “public interest” is mentioned 224 times in 84 federal statutes. The term appears in comparable numbers in provincial statutes. The term does not and cannot have a uniform meaning in each statute. It must be interpreted in light of the legislative history of the particular provision in which it appears and the legislative and social context in which it is used.
Despite lawyers’ prolific use of the term “public interest,” it is very hard to define. Only one Canadian statute currently in force attempts to provide a definition. Manitoba’s Engineering and Geoscientific Professions Act states that “public interest” means the “well-being, convenience, and concern of the public at large.” What does that mean? Who is the “public at large?” Does the “public” include people in other countries? What are “well-being,” “convenience,” and “concern?” How does one weigh one public interest against another?