The saga of Rosebud, AB resident Jessica Ernst continues (
click here to read the original email alert).
On the heels of a recent Court of Appeal ruling which found Ms.
Ernst could not sue the Energy Resources Conservation Board
("ERCB"), Chief Justice Wittmann has dismissed an
application by Alberta Environment ("AENV") to strike the
claim against it. In denying the application, the Chief Justice has
cleared the path for Ernst to argue that AENV owed her a private
duty of care and is liable to her for damages (see Ernst v. EnCana Corporation, 2014
Ms. Ernst has been engaged in a lengthy legal battle with
EnCana, the ERCB, AENV, and others in relation to alleged
contamination of her water well. Ms. Ernst contends fracking fluid
used by EnCana contaminated the Rosebud aquifers which provide her
In September the Court of Appeal dismissed the claims of Ernst
against the ECRB (predecessor to the Alberta Energy Regulator). Ms.
Ernst's action against AENV and EnCana were unaffected by that
Emboldened by the Court of Appeal decision, AENV brought an
application to effectively end Ernst's claim against it. The
application sought to strike all portions of the claim pertaining
to AENV as no reasonable cause of action existed. Specifically,
AENV argued that it did not owe a private duty of care to Ms.
Ernst, or in the alternative, that any claim against it would fail
on account of the statutory immunity AENV enjoyed under
legislation. AENV also argued it should be granted summary judgment
against Ernst as, for the same reasons, the claim had no merit.
The Court rejected both arguments. Chief Justice Wittmann noted
the prospect of finding sufficient proximity giving rise to a duty
of care between a regulator and individual may exist where a
regulator "embarks upon a course of conduct calling for
operational decisions relating to that individual".
The Court rejected AENV's claims that it enjoyed statutory
immunity under the Environmental Protection Enhancement
Act ("EPEA") and the Water Act.
The Court interpreted the immunity provisions cited as not
expressly extending to AENV. Rather, the wording of these sections
provided immunity to individuals exercising functions under the
respective acts. The Court went on to note that the statutory
provisions at issue differed from those relating to the ERCB which
did expressly grant immunity to the regulator.
The Court, having found a reasonable cause of action exited,
held that summary judgment was inappropriate.
Lastly, the Court expressed its displeasure with AENV by
awarding triple costs to Ms. Ernst. In so doing, the Court pointed
out that Ms. Ernst was "wholly successful" in the
application. The Court expressed annoyance with the fact that,
despite an earlier failed attempt, AENV had made a second attempt
to hae the claim struck and viewed the application as unnecessarily
While seemingly a victory for those seeking recourse against
regulators, we caution against relying heavily on this decision.
Justice Wittmann was required, by the nature of the application, to
accept the allegations in the Statement of Claim as proven. It was
on this basis that he concluded a private duty of care may exist.
Justice Wittmann acknowledged, and the fact remains, that Ms. Ernst
still faces the difficult task of proving the required proximity,
breach of duty, and resulting damages necessary to establish a
claim in negligence.
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