Law Times

Page 2 OctOber 6, 2014 • Law Times www.lawtimesnews.com NEWS Rae, says several people from her firm, Olthuis Kleer Town- shend LLP, have resigned their membership and notes she's "definitely considering it." "I have two concerns. The first is that I don't think this is a good case for CBA intervening and if they were intervening, I don't think it's the right position to be taking," she says. The CBA should properly consult members when it decides to intervene in a controversial matter, according to Rae. She says even the legislation and law reform committee of the CBA, which is responsible for reviewing appropriate matters for interven- tion, is against the decision to in- tervene in this case. In its application to intervene, the CBA wrote that it has "a direct and significant interest in the is- sues raised in this appeal" as 4,500 of its members are in-house law- yers, some of whom have corpo- rations as clients. In a statement to Law Times, the CBA admitted the issues around the case are "arguably deplorable" but still defended its decision to intervene. "The CBA appreciates fully that the circumstances surround- ing this case are controversial, ar- guably deplorable. The decision to intervene does not mean that the CBA supports Chevron or their actions in Ecuador in any way, shape or form," the CBA said. In its intervention, the CBA will speak to the principles of corporate identity, also known as the corporate veil. "This includes the notion of 'enterprise liability,' or one corpo- ration being liable for the actions of another. This concept has aris- en in the context of this case, one that we believe has the potential to upend the foundations of Ca- nadian corporate law, and which is unrecognized anywhere else in the world," it said. "The second question focuses on jurisdiction — the enforceabil- ity of foreign judgments in Cana- da," the CBA continued. "In this case, the Ontario court granted jurisdiction even though Chev- ron Canada is not headquartered in Ontario and is not engaged in any activities at issue in that juris- diction. The CBA will be arguing that this jurisdiction shopping would set a harmful new prec- edent for the administration of justice in Canada." 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Price(s) subject to change without notice and subject to applicable taxes. 00223IF-A45791 Available risk-free for 30 days Order online: www.carswell.com/raindance Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 CBA controversy Causation critical legal status as a person in Canada. The decisions have arisen in rela- tion to claims for the right to life and security of fetuses. The Crim- inal Code is in fact very specific about when it considers a baby to have been born alive. Section 223 states: "A child becomes a human being within the meaning of this act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an indepen- dent circulation; or (c) the navel string is severed." The issue raised by the Costco case is a different one as the in- fant was born and died days after the collision. But lawyer Lorne Sabsay says the Crown will likely have to prove the baby was in- jured in vitro during the collision. "If it was the fact that the mother was injured and as a re- sult of the injuries to the mother she couldn't sustain the life of her unborn child, then I think it's arguable that the subsection does not apply," he says. "If, however, the Crown can show that there were injuries to the actual child itself, which was born alive and subsequently suc- cumbed to those injuries, I think by virtue of s. 223, subsection 2 . . . that they could be successful." Criminal lawyer Gary Grill also believes the charge in relation to the infant could have merit. "I think the point was the fe- tus was still alive in vitro but then after the C-section it died. If they can establish a causation from the earlier point to that death, then the charge might be sus- tainable," says Grill, a certified specialist in criminal law. "If they can say at the time the person became [a person], so to speak, and on the day of their birth they died as a result of an action even prior to their ex- istence, then perhaps that per- son is culpable in their death," he adds. LT Continued from page 1 Continued from page 1

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