Law Times

Page 2 OctOber 20, 2014 • Law Times www.lawtimesnews.com undertake this file for the CBA. We look forward to working with them again in the future." According to several sources, the legislation and law reform committee had recommended against the intervention before the CBA decided to inter- vene in the matter. The CBA's decision to intervene in the multi- national oil company's battle against a group of indigenous people in Ecuador stirred significant controversy among members of the bar and re- sulted in protests against and resignations from the organization. The Ecuadoran claimants who had obtained judgment for $9.5 billion in a local court against Chevron are now seeking to enforce that judgment against the company's assets in Ontario. The CBA had emphasized it wouldn't be sup- porting either party in the matter but would speak to "foundational corporate law principles" such as the corporate veil. But many members of the bar said they don't stand behind those principles and that powerful corporations need to be more ac- countable. Not all lawyers agree. "I think those corporate principles are necessary and appropriate," says Mor- ton, a former president of the Ontario Bar Associa- tion. Some executive members of the CBA's aborigi- nal law section opposed the CBA's move and had resigned over its decision to intervene. In addition, organizations like the Law Union of Ontario had urged their members to quit the CBA as well. Last week, opponents organized a protest in Toronto against the CBA's decision to intervene. Demonstrators carried signs that read, "This is why people hate lawyers," and "Lawyers, show Chevron that your integrity is not for sale." Judith Rae, a member of the aboriginal law sec- tion, says the CBA "did the right thing" in pulling the plug on its intervention. "I'm glad to see that the CBA listened to its mem- bers at the end of the day and did the right thing," she says. "As a member, my top concern was that this was not the right intervention for the CBA and not within their policy, and ultimately the CBA leadership reached the same conclusion." McRobert says the decision to intervene in the first place ref lected a "powerful corporate arm" within the CBA. He doubts that members who have resigned from the CBA will return now that "they have seen an aspect of the organization that they didn't know existed." The Chevron matter will be before the Supreme Court in December. According to the Wall Street Journal, a U.S. court was highly critical of the Ec- uadoran court ruling in March. U.S District Court Judge Lewis Kaplan found the Ecuadoran ruling was obtained through coercion and bribery, the publication reported. Kaplan, it noted, found the lawyer representing the plaintiffs had fabricated evidence and promised $500,000 to an Ecuadoran judge in exchange for the ruling. Kaplan's ruling is under appeal. LT NEWS LLP. He found it odd, for exam- ple, that a court would declare a team the winner of a game it didn't play in. "Just because Team A beats Team B and Team B beats Team C, that doesn't mean that if Team A plays Team C, Team A would win," he says. Once the judge found the On- tario association's decision re- garding the semifinals couldn't stand, he could have sent the matter back to the organization to decide what happened next, according to Polyzogopoulos. "Maybe it should have been up to the OSA then to decide, given that the Cobras should not have been disqualified, what happens [next]," he says. But Tim Danson, the lawyer who represented the Cobras, says what Nordheimer did was to restore the Cobras' victory that was "stolen from them through an egregious miscar- riage of justice." His clients wanted to arrange for a match between the Cobras and the Panthers, but that wasn't possible, says Danson, adding it would have been unfair for Nor- dheimer to allow the Ontario association to make the ultimate decision of who was the winner of the finals. "How can you give it back to the same organization that en- gaged in an egregious, egregious miscarriage of justice?" he says, adding the decision sends an important message to sports or- ganizations. "These sports associations and federations really do have a holier-than-thou attitude that they cannot be held accountable for their decisions, that they are immune from any kind of judi- cial review," he adds. "And as a consequence, when people are immune and they are not ac- countable, you get abuses and the facts of this case could not illustrate this point better." Leanne Standryk, a sports lawyer at Lancaster Brooks & Welch LLP, says the courts of- ten show deference to decisions made by sports organizations. "There tends to be, by arbitra- tors and judges, a certain defer- ence given to referees, umpires, and other officials in the sports who are responsible for applying the rules for any particular game or competition," she says. "The reason why is because there is this understanding that those involved in sports, such as the referees, the sports organi- zations, are those that are inti- mately acquainted with the rules and regulations of their sport," she adds. The recourse to go to court should always be available to those involved, Standryk notes, adding the court's intervention should include deference to the people who have the technical knowledge and an intimate un- derstanding of the game. But in this case, Nordheimer said the Ontario association didn't deserve deference. "The end result is that the OSA reached a conclusion that finds no foundation in the evidence that was before it. In effect, the OSA has arbitrarily, and unfair- ly, changed the result of a match and has done so for no apparent- ly legitimate reason. As such, the decision of the OSA is one that does not deserve deference from this court," he wrote. "It is a conclusion that was unreasonable in the circum- stances and it is a conclusion that was made without giving the Cobras a fair opportunity to be heard." While Nordheimer suggest- ed the courts "should be loathe" to intervene in sport matches, he said that doesn't mean they don't have jurisdiction in these matters. "We have a team of teenage boys who won an im- portant game on the playing field only to have that victory subsequently taken from them by the actions of certain offi- cials within the governing body. Our society works constantly to instill in young people certain basic principles among which are that people should treat each other with fairness and that ev- eryone should be subject to, and should play by, the same rules. Our belief in those principles is best demonstrated by how we deal with issues such as arose in this case," he wrote. "If this victory is taken from these boys through a process that is fundamentally unfair, as I believe it to have been in this case as I shall explain below, then, in accordance with our stated principles, it would be ex- pected that steps would be avail- able to rectify that result," he added. "If we say that there is no recourse available to correct that unfairness, what message do we then send as to our true belief in the importance of fair play?" The role of the Ontario as- sociation is very much a public one, the judge said, noting the case isn't about a school game or a neighbourhood league. The Canadian Soccer Asso- ciation issued a statement say- ing it would abide by the ruling and designate the Cobras as the province's representative at the national championship. "Canada Soccer and the On- tario Soccer Association tried to broker a deal that, in the spirit of fair play, would have allowed two clubs to attend the 2014 Canada Soccer Sport Chek National Championships — namely the West Toronto Cobras and the Woodbridge Strikers, who have been denied participation in the national championship as a re- sult of the court ruling. Regret- tably, an agreement could not be reached," the organization said. Kurt Pereira, counsel for the association, says he doesn't have instructions from his client to comment on the ruling. LT In the pension world today, evolution is a descriptive understatement. While deficits are shrinking as the economy improves, few employers want to face the experience of the last few years again. Hence the need to de-risk. As the focus shifts away from DB plans, target benefit plans are making their mark as a plausible alternative to wholesale conversion to DC plans. But there are risks and there are hurdles: what should sponsors do? COURSE HIGHLIGHTS • Minimizing Risk For Plan Trustees And Pension Committee Members: A Legal Primer • Longevity Risk Management • Actuarial Risk Management • Dc De-Risking • Target Benefit Plans: Risk Management By A Different Name REGISTER BEFORE OCTOBER 31 AND SAVE $300! Toronto, December 2, 2014 • Calgary, December 9, 2014 For more information or to register, please contact Lexpert® Events at: 1-877-298-5868 or e-mail: register@lexpert.ca Webinar also available! THE PENSION DE-RISKING CONUNDRUM: INNOVATION & TRENDS Untitled-1 1 2014-10-15 7:34 AM Fair play emphasized Continued from page 1 U.S. judge highly critical of Ecuadoran court ruling Continued from page 1

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