The Honourable Neil Wittman, Alberta's Chief Justice of the
Court of Queen's Bench, has ruled that a landowner is entitled
to carry on her lawsuit against Alberta's Environment and
Sustainable Resource Development Department (ESRD) for allegedly
being negligent in monitoring and regulating EnCana Corporation
(EnCana) in the hydraulic fracturing of a well, and negligent in
investigating the alleged contamination of her water well.
The landowner, Jessica Ernst, originally sued EnCana, ESRD and the
Energy Resources Conservation Board (ERCB) in 2007. Recently, the
case against the ERCB was thrown out on the grounds that the ERCB
did not owe her a private duty of care and that the legislation
under which it operates provided statutory immunity.
Please review our previous blog posts on these decisions,
The most recent development is that ESRD applied to the Court to
strike out parts of Ms. Ernst's pleadings to allegations of
negligent administration of a regulatory regime and the relief
sought, including damages on the grounds that they failed to
disclose a reasonable cause of action. In the alternative, ESRD
sought summary judgment dismissing the case against it on the basis
that Ms. Ernst's claim has no merit.
The Chief Justice ruled against both motions.
With respect to the application to strike part of the pleadings,
the Chief Justice noted that striking the parts of the pleadings
requested by ESRD would have the effect of having the entire claim
against ESRD struck. ESRD argued that the test for striking an
entire claim is whether it is plain and obvious or beyond
reasonable doubt that the claim cannot succeed. The Court, however,
disagreed and applied a test of whether, assuming the facts pleaded
were true, there is a reasonable prospect that the claim will
The Chief Justice then determined that prima facie there
was a private duty of care owed by ESRD to Ms. Ernst as the
allegations in the claim, assuming they are true, concern direct
contact between ESRD officials and Ms. Ernst and assert that
specific representations were made by ESRD to Ms. Ernst. The Chief
Justice found that there were no public policy considerations which
ought to negate or limit that private duty of care.
ESRD also argued that it had statutory immunity like had previously
been found for the ERCB. However, the legislation under which ESRD
operated was different than that of the ERCB, and that the
provisions granting immunity only applied for acts and omissions of
ESRD undertaken in good faith. As Ms. Ernst alleged that the ESRD
had acted in bad faith, and as the Court presumed the facts alleged
to be true for the purpose of the motion, the Court ruled ESRD did
not have statutory immunity.
As for the summary judgment application, the Court applied the rule
that a defendant is entitled to summary judgment when there is no
merit to the claim against it. The Chief Justice noted that the
onus was on ESRD to establish that there was no genuine issue
requiring a trial, and that ESRD had failed to satisfy him that
there was no merit in Ms. Ernst's claim.
Meanwhile, Ms. Ernst is trying to get the Supreme Court of Canada
to hear her appeal of the decision allowing the ERCB to exit the
lawsuit as an application for leave to the Supreme Court has been
filed by Ms. Ernst.
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