On November 7, 2014, a decision by the Court of Queen's Bench of
Alberta dismissed the Government of Alberta's application to
strike portions of Jessica Ernst's claim against Alberta for
allegedly failing to protect her water supply. The Court also
dismissed Alberta's application for summary judgment.
In 2007, Ms. Ernst brought claims against EnCana Corporation,
Alberta's Energy Resource Conservation Board (ERCB) and the
Government of Alberta. Ms. Ernst sued EnCana for damages to her
water supply allegedly caused by Encana's hydraulic fracturing
(fracking) activity. Ms. Ernst also sued the Government of Alberta
for allegedly failing to protect her water supply. In 2013, Ms.
Ernst's claims against the ERCB for failing to respond to her
concerns about her well water were struck and dismissed. This
decision was upheld by
Alberta's Court of Appeal in September 2014. Ms. Ernst is
appealing the Court of Appeal's decision to the Supreme Court
Only the Government of Alberta participated in the recent
application to strike Ms. Ernst's claim on the basis that she
failed to disclose a reasonable cause of action. In the
alternative, Alberta requested summary judgment dismissing the
action. Alberta argued that Ms. Ernst's claim should be
dismissed on the basis that the statutory regimes applicable to
Alberta establish only a duty of care to the public at large, and
not a private duty of care to Ms. Ernst. Alberta also relied on the
statutory immunity provisions contained in Alberta's
Environmental Protection and Enhancement Act and
Alberta's Water Act. Alberta argued that the statutory
immunity clauses protect the province from lawsuits by individuals
affected by the administration of legislation.
Justice Neil Wittmann held that "while this is a novel
claim, I find there is a reasonable prospect Ernst will succeed in
establishing that Alberta owed her a prima facie duty of
care". Justice Wittmann further held, "there is also a
reasonable prospect that Ernst will succeed in defeating
Alberta's statutory immunity claims on the basis that the
provisions Alberta relies upon do not protect it, or, in the
alternative, that Alberta acted in bad faith, resulting in no
The Court dismissed Alberta's application for summary
judgment, finding that Alberta was unable to establish that there
was no genuine issue requiring trial. The Court also held that
Alberta was unable to establish Ms. Ernst's claim had no
This article was written with the assistance of Mark Youden,
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