Earlier this week the Supreme Court of Canada granted Jessica
Ernst leave to appeal a ruling of the Alberta Court of Appeal. The
ruling confirmed a lower court decision to strike out portions of
Ernst's claim for not disclosing a reasonable cause of action.
The Court of Appeal decision upheld a prohibition on the ability of
an individual to bring a claim against a regulator and the
application of immunity clauses to claims for damages in tort and
breach of the Canadian Charter of Rights and Freedoms
Jessica Ernst resides in Rosebud, Alberta. She alleges fluid
used by EnCana in hydraulic fracturing operations contaminated the
aquifers which provide her well with water. She also alleges that
the Energy Resources Conservation Board ("ERCB" - now the
Alberta Energy Regulator) and Alberta Environment
("AENV") failed in their regulatory duties to protect her
water and investigate her claims.
In September 2014, the Court of Appeal dismissed the claims of
Ernst against the ERCB. Ms. Ernst's actions against AENV and
EnCana were unaffected by that ruling. As
previously reported the Court of Appeal confirmed that
generally there is insufficient foreseeability and proximity
between an individual and a regulator to establish a private law
duty of care on the part of the regulator. The Court of Appeal also
confirmed that, even if a private law duty of care existed
vis-à-vis a regulator, any action for damages would be
barred by the immunity provisions contained in the regulator's
governing statute. Similarly, the Court of Appeal confirmed any
claim for damages stemming from a breach of Charter rights is
barred by the same immunity provisions.
Leave to Appeal
The Decision of the Supreme Court of Canada to grant Ms. Ernst
leave to appeal is noteworthy. Potentially at risk is the
long-standing practice of granting regulators immunity in the
prosecution and conduct of their duties. It will be interesting to
see how the court balances the need of regulators to regulate while
at the same time giving effect to the rights of those who appear
before or are otherwise affected by a regulator's decision.
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