In Ernst v. Alberta (Energy Resources
Conservation Board), 2014 ABCA 285, the Court of Appeal
upheld the decision of a Case Management Judge who struck out
portions of a claim for not disclosing a reasonable cause of
action. The Court upheld a prohibition on the ability of an
individual to bring a claim against a regulator and the application
of immunity clauses to both claims for damages in tort and breach
of the Canadian Charter of Rights and Freedoms
Jessica Ernst sued EnCana Corporation for damage to her fresh
water supply purportedly caused by EnCana's hydraulic
fracturing. Ernst also sued the Energy Resources Conservation Board
("ERCB") for negligent administration of a regulatory
regime and for damages resulting from a violation of her right to
expression under the Charter. Ernst alleged that between
November 24, 2005 and March 20, 2007, the ERCB's compliance
branch refused to accept any communications from her. This refusal,
allegedly, constituted a violation of her Charter right to
freedom of expression.
The ERCB successfully applied to have portions of Ernst's
claim struck. The Judge found that:
The proposed negligence claim against the ERCB was
unsupportable at law.
No private law duty of care was owed by the ERCB to Ernst.
In the alternative, any claim against the ERCB was barred by
the immunity provisions found in section 43 of the Energy
Resources Conservation Act, RSA 2000, c. E-10.
On Appeal, Ernst raised three issues:
Did the ERCB have a private law duty of care to Ernst?
Does section 43 of the Energy Resources Conservation
Act bar a claim for negligent omissions?
Can section 43 of the Energy Resources Conservation
Act bar a Charter claim?
Cause of Action and Negligence The Court confirmed that generally there is
insufficient foreseeability and proximity to establish a private
law duty of care in situations involving an individual and a
regulator. In addition, multiple policy considerations exist
against regulators owing a duty of care and being "insurers of
last resort for everything that happens in a regulated
industry". Regulators cannot effectively balance the interests
of specific individuals while at the same time attempting to
regulate in the overall public interest. The Court concluded that
recognizing a duty of care owed to individuals would undermine a
board's ability to address its obligations to the general
Immunity Clause: Section 43 The ERCB argued that even if a private law duty of
care existed, any action was foreclosed by the immunity provisions
of section 43 of the Act. Ernst argued that section 43 was
limited to an act or thing actually done.
Rejecting this, the Court held such a narrow interpretation was
inconsistent with the broader purposes of the legislation. To
accept Ernst's argument was to hold that the immunity provision
was intended to only be operative for half of all decisions made by
a regulatory body, as any decision involves a choice between
options one of which is not acted upon.
Charter Claim The Appellant sought damages for breach of section
2(b) of the Charter. The Court of Appeal confirmed that a
claim in damages for breach of a Charter right was barred
by section 43 of the Act, rejecting the Appellant's
argument that section 43 was inapplicable to remedies for Charter
The Court noted that remedies for Charter breaches are
governed by well-established legal rules, which mandate that to be
"appropriate and just" remedies must be measured, limited
and principled. The Court acknowledged that protecting
administrative tribunals and their members from liability for
damages is constitutionally legitimate and there is nothing
constitutionally illegitimate about provisions like section 43.
The Court of Appeal's decision suggests that parties who are
dissatisfied with the result of regulatory proceedings will be
limited to existing remedies such as judicial review and appeals.
Novel claims in tort or constitutional law will be difficult to
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