Jessica Ernst is suing EnCana, the Alberta Energy Resources
Conservation Board (ERCB) and the Alberta government for the
negligent contamination of her property and drinking water during
EnCana's fracking program. The Alberta Court of Appeal recently upheld the
case management judge's decision to strike out certain
portions of her claim because they failed to disclose a reasonable
cause of action.
Negligence claim against the ERCB – struck out
Ms. Ernst argued that the ERCB should be held liable for the
"negligent administration of a regulatory regime". The
case management judge found that the ERCB did not owe her a private
duty of care and so could not be held liable. The Court of Appeal
 Forcing the Board to consider the extent to which it must
balance the interests of specific individuals while attempting to
regulate in the overall public interest would be unworkable in fact
and bad policy in law. Recognizing 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. Any such individualized duty of care would plainly
involve indeterminate liability, and would undermine the
Board's ability to effectively address the general public
obligations placed on it under its controlling legislative
Without such a duty of care owed to Ms. Ernst by the ERCB, there
could be no action in negligence.
ERCB protected by statutory immunity
In her appeal, Ms. Ernst argued that that the ERCB statutory
immunity provision did not cover omissions, only "any act or
thing done". The Court of Appeal rejected this argument,
upholding the case management judge's conclusion:
57 I do not accept the argument that the lack of the words
"or anything omitted to be done" in section 43, render its interpretation as
providing statutory immunity to the ERCB only in situations where
it has acted, as opposed to failing to act. A decision
taken by a regulator to act in a certain way among alternatives
inherently involves a decision not to act in another way.
Picking one way over another does not render the ERCB immune from
an action or proceeding, depending on its choice. This construction
would result in an irrational distinction and lead to an absurdity.
Moreover, to the extent that the other statutes providing statutory
immunity to the regulator are relevant in that they contain the
additional phrase "or anything omitted to be done", I
regard those words as mere surplusage in the circumstances.
Therefore, I hold that section 43 bars any actions or proceeding
against the ERCB, in terms of both its decisions to act and the
acts done pursuant to those decisions, and its decisions not to
act. (emphasis added)
Ms. Ernst was also unsuccessful in her appeal of the case
management judge's conclusion that her Charter claim was also
barred by the statutory immunity provision. The Court of Appeal
found that: "Protecting administrative tribunals and their
members from liability for damages is constitutionally
Ms. Ernst must now decide whether to seek leave to appeal to the
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