On September 15, 2014, Alberta's Court of Appeal
dismissed Jessica Ernst's appeal of the lower court decision
holding that Alberta's Energy Resource Conservation Board (the
"Board") is immune from private civil claims and
certain Charter challenges.
Jessica Ernst owns land near Rosebud, Alberta. In 2007, Ms.
Ernst brought claims against EnCana Corporation, the province of
Alberta and the Board. Ms. Ernst sued EnCana for damage to her
water supply allegedly caused by EnCana's hydraulic fracturing
("fracking") activity. Ms. Ernst also sued the province
of Alberta alleging that through its department of Alberta
Environmental and Sustainable Resource Development (now replaced by
the Alberta Energy Regulator) it owed Ms. Ernst a duty to protect
her water supply and failed to adequately respond to her complaints
about EnCana's fracking.
This Appeal dealt with Ms. Ernst's claim against the Board
(now also replaced by the Alberta Energy Regulator) for
"negligent administration of regulatory regime" related
to her claims against EnCana. The Board has regulatory jurisdiction
over the activities of EnCana. Ms. Ernst also had claimed damages
for breach of her freedom of expression under the Canadian
Charter of Rights and Freedoms. She alleged that the Board
refused to accept communications from her during regulatory
Alberta's Court of Appeal held that the Board does not owe a
private law duty of care to protect individual landowners. The
Court of Appeal stated that "any such private duty would
distract the Board from its general duty to protect the public, as
well as its duty to deal fairly with participants in the regulated
industry." Further, even if there was a private law duty of
care, any action against the Board was barred by the immunity
clause under section 43 of the Energy Resources Conservation
Act ("ERCA"). The Court of Appeal dismissed Ms.
Ernst's argument that the Board failed to respond
"reasonably" to Encana's activities and held that a
tortious claim alleging an omission to act was barred by section 43
of the ERCA.
The Court of Appeal also held that section 43 barred Ms.
Ernst's Charter claim for a "personal
remedy". The Court of Appeal concluded that even if the Board
effectively breached Ms. Ernst's freedom of expression, that
"protecting administrative tribunals and their members from
liability for damages is constitutionally legitimate."
The decision upholds the Alberta Energy Regulator's blanket
legal immunity against tortious claims from landowners.
Ms. Ernst has requested leave to the Supreme Court of
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).