Canada: Supreme Court Of Canada Dismisses Appeal Alleging Freedom of Expression Breach

Last Updated: January 25 2017
Article by Mark E. Fancourt-Smith and Marko Vesely

In its first decision of 2017, the Supreme Court of Canada addressed the likelihood of successful damages claims against quasi-judicial boards pursuant to s. 24 of the Charter. In a 4-4-1 split decision, the Court ultimately dismissed the appeal and struck the appellant's claim for damages. Given the nature of the split decision, and the fact-specific basis for the result, a closer look is warranted both to understand the decision in question and evaluate its potential reach.

Factual Background

The Energy Resources Conservation Board (the "Board") is an independent quasi-judicial body responsible for regulating Alberta's energy resource and utility sectors. It is responsible for overseeing energy related activities and enforces legislation intended to protect the groundwater supply. The Board was created by the Energy Resources Conservation Act (the "ERCA"), R.S.A. 2000, c. E-10. That statute includes an immunity clause at s. 43 which insulates the Board from actions or proceedings against it "in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board."

Ms. Ernst owns land in Alberta. Throughout 2004 and 2005, she frequently voiced her concerns to the Board about the negative impacts caused by hydraulic fracturing and drilling near her home. She also voiced her concerns publicly.

In December 2007, Ms. Ernst brought claims against the project proponent, the Board, and the government of Alberta. Only one of those claims was still alive before the Supreme Court of Canada, i.e.: whether or not the Board had breached Ms. Ernst's s. 2(b) right to freedom of expression by "arbitrarily, and without legal authority" restricting her communications with the Board for a period of 16 months. She asserted that the Board had punished her for her earlier public criticisms.

The Board brought an application to strike Ms. Ernst's claims. The onus was therefore on the Board to demonstrate that it was "plain and obvious" that Ms. Ernst's claims could not succeed as pleaded. Both the Alberta Court of Queen's Bench and the Court of Appeal found that the immunity clause on its face barred Ms. Ernst's claim for Charter damages and concluded that her claim should be struck out, 2013 ABQB 537; 2014 ABCA 285.

The Issues

While there were three key issues on appeal, the three decisions written by the court addressed these issues in substantially different fashions. Three judges sided with Cromwell J.; one judge sided with Justice McLachlin C.J., Moldaver J. and Brown J.; and Abella J. wrote for herself.

(a) Does s. 43 of the ERCA bar a claim for Charter damages?

Justice Cromwell, writing for himself, and Justices Karakatsanis, Wagner and Gascon, and Justice Abella (writing for herself) held that it is "plain and obvious" that the immunity clause bars a claim for Charter damages, but for slightly different reasons. Justice Cromwell concluded it would be unfair to the Board to rule otherwise, since the case has been argued in the lower courts on this basis. However, Abella J. was of the view that s. 43 is an absolute and unqualified immunity clause and that, absent a successful challenge to the constitutionality of the provision, it bars all claims against the Board.

The Chief Justice, Moldaver J. and Brown J. disagreed. Although this issue was not properly before the lower courts, the circumstances of this case, involving a novel legal problem of significant public importance, compelled the Court to consider the issue. In their view, it was not plain and obvious that Ms. Ernst's claim was barred by the immunity clause. Focusing on the language of "any act or thing done purportedly in pursuant of the [ERCA]," it is arguable that punitive acts or non-adjudicative functions could fall outside the scope of the immunity that s. 43 confers.

(b) Is s. 43 of the ERCA constitutional?

At both the Queen's Bench and the Court of Appeal, Ms. Ernst maintained that she was not challenging the constitutionality of the immunity clause, but rather was challenging the applicability of the clause to her Charter damages claim. It was not until she reached the Supreme Court that this issue was raised. As a result, neither the Attorney General of Alberta nor the Attorney General of Canada received notice of a constitutional question and no evidence was lead as to the constitutionality of the provision.

Justice Abella was critical of this procedural failure, and emphatically declined to rule on the constitutionality of s. 43. Notice to the Attorneys General serves the vital purpose of ensuring courts have a full evidentiary record before invalidating legislation and affords governments the fullest opportunity to support duly enacted statutes. She stated that new constitutional questions ought not to be answered "unless the state of the record, the fairness to all parties, the importance of having the issue resolved by this Court, the question's suitability for decision, and the broader interests of the administration of justice demand it."

The Chief Justice, Moldaver J. and Brown J. also declined to rule on the constitutionality of the provision. In their view, the appeal should have been allowed on the basis of their answers to the other two questions. However, they expressed some support for Abella J.'s approach, commenting in obiter that the record did not provide an adequate basis on which to decide the issue.

Justice Cromwell ruled the provision was constitutional, for two reasons. First, the appellant had simply failed failed to discharge her burden of showing that the law is unconstitutional. Second, however, Cromwell J., found that as Charter damages would never be an appropriate and just remedy for Charter breaches by the Board, and s. 43 did not actually limit the availability of Charter remedies, it could not then be unconstitutional.

(c) Are Charter damages an appropriate remedy as against the Board?

Charter damages may be an "appropriate and just" remedy for a breach of a claimant's Charter rights if the claimant demonstrates that damages would fulfill one or more of the functions of compensation, vindication, or deterrence. However, Charter damages will not be available where countervailing factors, such as alternative remedies or good governance concerns, render s. 24(1) damages inappropriate or unjust, 2010 SCC 27.

Justice Cromwell concluded that it was plain and obvious that Charter damages would never be an appropriate remedy against the Board. Judicial review is available to vindicate any misconduct by the Board and good governance concerns support the Board's immunity – immunity protects the Board's independence and impartiality and ensures the Board is able fulfill its functions without the distraction of time-consuming litigation. His decision reminds litigants and lower courts that courts must be careful not to extend the availability of Charter damages too far.

Those siding with the Chief Justice again, disagreed. In their view, the limited evidentiary record did not support the high threshold mandated by an application to strike. It was not plain and obvious that Charter damages could not, in any circumstances, be an appropriate and just remedy against the Board. It was not obvious that judicial review would fulfill the same the same objectives as an award of Charter damages, namely, vindicating Ms. Ernst's Charter right and deterring future breaches. It was also not plain and obvious, on the record at this junction, that good governance concerns, either alone or together, would be enough to oust a claim for Charter damages.

Justice Abella declined to decide this issue as well, finding that the question of whether Charter damages are appropriate requires a prior determination of the constitutionality of the immunity clause. Though her comments in obiter suggest that, absent the procedural error, she would have otherwise agreed with Cromwell J.

What does all of it mean?

Although the justices reached their conclusions in different ways, the collective result is that s. 43 remains in effect and bars claims against the Board. However, a constitutional challenge of s. 43 and other similar immunity clauses appears to remain open, as there was a limited evidentiary record before the Court to support its ruling. It is unclear whether an argument is still open to litigants to argue that s. 43 does not apply to a claim for Charter damages, as only Abella J. conclusively ruled on the matter.

It is also unclear whether Charter damages are available to litigants as against a quasi-judicial board other than Energy Resources Conservation Board. Although Abella J.'s comments suggest that such a claim would fail, the Court's decisions do not offer a clear majority on this issue.

With thanks to articling student Rochelle Collette for her assistance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Mark E. Fancourt-Smith
Marko Vesely
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.