Canada: The Supreme Court Of Canada Provides Limited Guidance On The Constitutionality Of Immunity Clauses For Tribunals

In Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court split 4-4-1 over the constitutionality of an immunity clause in favour of the Alberta Energy Regulator (the "Board"). The case was resolved largely on procedural grounds. For example, Justice Abella—the "1" in the 4-4-1 split—held that Ms. Ernst's failure to provide notice of her constitutional challenge to the immunity clause was fatal to her claim. Meanwhile, the remaining eight judges divided over the issue of whether to accept Ms. Ernst's concession that the immunity clause actually barred her claim against the Board. As a result, the Court largely left the constitutionality of immunity clauses to another day and Ernst has questionable precedential value.


The Board is a quasi-judicial tribunal that regulates the oil and gas industry in Alberta and has a specific process for communicating with the public and hearing public complaints. Ms. Ernst frequently criticized the Board. In response, the Board excluded Ms. Ernst from its public complaints process and instructed its staff not to communicate with her.

Ms. Ernst alleged that the Board thereby breached her Charter s. 2(b) right to freedom of expression and sought Charter damages. However, the Board is protected by an immunity clause: Energy Resources Conversation Act, R.S.A. 2000, c. E-10, s. 43.

The Board applied to strike Ms. Ernst's claim on the basis of the immunity clause. In response, Ms. Ernst argued that the immunity clause was unconstitutional because it prevented her from bringing a claim for Charter damages. However, Ms. Ernst did not raise that argument in the courts below. Accordingly, the Court considered three issues:

  1. whether it was plain and obvious that the immunity clause barred Ms. Ernst's claim;
  2. whether it was plain and obvious Charter damages could not be an appropriate remedy for a Charter breach by the Board; and
  3. whether Ms. Ernst's failure to provide notice of her constitutional challenge was fatal to her claim.

The 4-4-1 split

Justice Cromwell (joined by Justices Karakatsanis, Wagner, and Gascon) only considered the first two issues. First, Cromwell J. accepted Ms. Ernst's concession that the immunity clause, on its face, barred her claim for Charter damages. Second, Justice Cromwell held that Charter damages could never be an appropriate remedy for a Charter breach by the Board. On this issue, Justice Cromwell held that judicial review was an alternative and more effective remedy for Charter breaches by the Board and that allowing claims for Charter damages against a quasi-judicial tribunal like the Board would distract it with time-consuming litigation and result in a "chilling effect" on its decision-making. In the result, Justice Cromwell struck out Ms. Ernst's claim.

Chief Justice McLachlin and Justices Moldaver and Brown (joined by Justice Côté) dissented. Addressing the issues in the reverse order from Cromwell J., they held that it was possible that Charter damages could be an appropriate remedy against the Board given the novelty of Ms. Ernst's claim. In response to Cromwell J., the dissent was not satisfied that judicial review would be an effective remedy and held that there was no reason to immunize state actors from Charter damages when they were not performing adjudicative functions. The dissent also did not accept Ms. Ernst's concession and found that the relationship between the immunity clause and the Charter was not plain and obvious given the importance and novelty of the issue. In the result, the dissent would have allowed Ms. Ernst's claim to proceed.

Justice Abella focused on the third issue and held that Ms. Ernst's failure to provide notice of her constitutional challenge was fatal. In doing so, Abella J. agreed with Cromwell J. that it was plain and obvious that the immunity clause barred Ms. Ernst's claim. However, Abella J.'s conclusion was based on her interpretation of the immunity clause, not Ms. Ernst's concession. While Abella J. decided the case on that basis, she also stated that it was unlikely that Charter damages could ever be an appropriate remedy against the Board and agreed with Cromwell J. that judicial review would have been the appropriate remedy for Ms. Ernst. Similarly, Abella J. criticized "artificial binary distinctions" between adjudicative and other administrative decisions. In the result, Abella J. joined Cromwell J. in striking Ms. Ernst's claims.


In summary, a majority of the Court (per Cromwell and Abella JJ.) found that it was plain and obvious that the immunity clause barred Ms. Ernst's claim for Charter damages. Yet because Cromwell J. did so on the basis of Ms. Ernst's concession, the issue arguably remains undecided.

A different majority of the Court (the dissent and Abella J.) did not rule on the constitutionality of the immunity clause or on the issue of whether Charter damages could ever be an appropriate and just remedy against the Board (even though Abella J. suggested they could not). Accordingly, these issues will likely arise again in the future. However, the Court didn't clarify the framework that might apply in that future case. The dissent and Abella J. both indicated that a government could justify an immunity clause under Charter s. 1, but did not identify the underlying Charter right that an immunity clause might violate.

As a result, Ernst arguably has limited precedential value. On the other hand, all nine judges were supportive of immunizing at least adjudicative decisions from Charter damages claims and a majority of the Court (per Cromwell Abella JJ.) was supportive of immunizing administrative bodies and their employees from Charter damages more generally. Those conclusions may limit the prospects of success for a future constitutional challenge to immunity clauses.

Case Information

Ernst v. Alberta Energy Regulator, 2017 SCC 1

Docket: 36167

Date of Decision: January 13, 2017

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