On April 30, 2015 the Supreme Court of Canada granted leave to appeal
with costs to Jessica Ernst for her claim against Alberta
Energy Regulator ("AER"). The leave decision from
Canada's top court comes after Alberta's Court of Appeal
dismissed Ms. Ernst's appeal of the lower court decision which
held that Alberta's Energy Resources Conservation Board (now
the AER) is immune from private civil claims and certain Canadian
Charter of Rights and Freedoms challenges.
In 2007, Ms. Ernst brought an action against EnCana Corporation
for damage to her water supply allegedly caused by EnCana's
hydraulic fracturing ("fracking") activity. In 2011, Ms.
Ernst amended her statement of claim to include
Alberta Environment and Sustainable Resource Development
("ASRD"). Ms. Ernst claimed ASRD owed her a duty to
protect her water supply and failed to address her complaints about
The Supreme Court of Canada will consider the September 15, 2014 Alberta Court of Appeal
decision that dealt with Ms. Ernst's claim against AER for
"negligent administration of a regulatory regime"
connected to her claims against EnCana. Ms. Ernst also claimed
damages for breach of her freedom of expression under the
Charter. She alleged that AER refused to accept
communications from her during regulatory proceedings.
Alberta's Court of Appeal held that AER does not owe a
private law duty of care to protect individual landowners. Even if
AER owed the requisite duty, Alberta's Court of Appeal held
that such an action is barred by the immunity clause under section
43 of the Energy Resources Conservation Act. Alberta's
Court of Appeal also held that section 43 barred Ms. Ernst's
Charter claim for a personal remedy and upheld the
constitutional legitimacy of protecting a regulator from liability
If successful at the Supreme Court of Canada, Ms. Ernst's
claim against AER will be sent back to the lower court for
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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.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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