Jessica Ernst's claim against Alberta Environment and
Sustainable Resource Development ("Alberta Environment")
for negligently carrying out its regulatory regime will be allowed
to proceed after the Alberta Court of Queen's Bench dismissed
the public body's application to strike in a decision dated
November 7, 2014.
Ernst is suing EnCana Corporation and Alberta Environment,
claiming that EnCana's hydraulic fracturing activities and
Alberta Environment's failure to properly monitor and regulate
those activities led to the contamination of her water well and the
Rosebud aquifer, which is the source of fresh water for her home.
Additionally, she alleges that Alberta Environment conducted a
negligent investigation into the contamination of her water well
during a period in which she and other landowners complained of
suspected water contamination.
Alberta Environment brought an application to strike the claim,
arguing that it did not owe Ernst a private duty of care. It also
applied for summary judgment. Both applications were dismissed.
The court found that Ernst had direct contact with Alberta
Environment and that Alberta Environment made specific
representations to her regarding her well water, and so the test
for a sufficiently proximate relationship could be met. If
Ernst's allegations regarding contamination by hydraulic
fracturing were proven, she could establish foreseeable harm.
In its application, Alberta Environment argued that a private
duty of care would conflict with the public interest inherent in
its regulatory statutes and would expose it to indeterminate
liability. The court rejected both these arguments, stating that
"a finding that there is a duty of care does not necessarily
lead to liability – there must be a breach of that duty and
the breach must cause the damage complained of" (para.
54). As such, the door is open for claims based in a private
duty of care against a public regulatory body.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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