07 Feb Supreme Court of Canada issues Decision in Jessica Ernst’s Claim for Charter Damages
On January 13th, in Ernst v. Alberta Energy Regulator, the Supreme Court of Canada issued its decision regarding Jessica Ernst’s claim for damages pursuant to s. 24(1) of the Charter. Ernst alleges that her Charter right to freedom of expression was breached by the actions of the AER.
A Brief History of the Ernst Lawsuit
This decision arises from Ms. Ernst’s lawsuit against EnCana Corporation, the ERCB (now the Alberta Energy Regulator (AER)) and Alberta Environment (now Alberta Environment and Parks (AEP)). Ernst claims that negligence in carrying out hydraulic fracturing (fracking) in the area allegedly caused contamination of her groundwater. Both the AER and the AEP sought, in separate motions, to have the claims against them struck. The AEP’s motion to strike was unsuccessful and, as such, the claims against EnCana and the AEP are still ongoing (see dismissal of the AEP’s motion).
However, the motion by the AER to strike was successful and it is this motion that wound its way up to the Supreme Court of Canada. There were 2 aspects to Ernst’s claim against the AER: regulatory negligence and a breach of her Charter right to freedom of expression. The Court of Queen’s Bench determined that Ernst’s claim for regulatory negligence against the AER should be struck. This is because the Court found that the AER did not owe a duty of care to Ernst. Further, the Court of Queen’s Bench held that Ernst’s Charter claim was barred by a statutory immunity clause in the applicable legislation (Energy Resources Conservation Act, s.43). These decisions were affirmed by the Alberta Court of Appeal.
Supreme Court of Canada
At the Supreme Court of Canada, the only matters under appeal related to Ernst’s Charter claim. In particular, Ernst appealed the lower courts’ finding that her Charter claim was barred by application of the statutory immunity clause (ERCB Act, s.43). In addition, Ernst challenged the constitutionality of s. 43. It should be noted that, at the lower courts, Ernst did not directly challenge the constitutionality of this provision but rather its applicability to a Charter claim or its validity to the extent the provision was inconsistent with s. 24(1) of the Charter.
The Supreme Court of Canada rendered a split decision in this case (4-1-4) and, ultimately, Ernst’s appeal was dismissed by the majority of the Court. The reasons for judgment were provided by Cromwell J. (Karakatsanis, Wagner and Gascon JJ. concurring) [the Cromwell Decision]; reasons concurring in the result were provided by Abella J. [the Abella Decision]; and joint dissenting reasons were provided by McLachlin C.J. and Moldaver and Brown JJ. (Côté J. concurring) [the Dissent].
The Cromwell Decision held that the claim for Charter damages ought to be struck out (and, as such, the appeal dismissed). According to the Cromwell Decision, it is “plain and obvious” that s. 43 of the ERCB Act bars Ernst’s claim for Charter damages. Further, the Cromwell Decision states that s. 43 of the ERCB Act cannot be unconstitutional. The conclusion in the Cromwell Decision is that Charter damages are not an appropriate remedy for Charter breaches by the AER and, therefore, s. 43 does not operate to limit remedies under the Charter.
While the Abella Decision agrees that Ernst’s claim for Charter damages ought to be struck and the appeal dismissed, the reasons provided differ from the Cromwell Decision. Because Ernst did not seek to challenge the constitutionality of s. 43 in prior proceedings, there was absence of notice and an insufficient evidentiary record. As such, the Abella Decision provides that the constitutionality of s. 43 ought not to be considered. Further, the Abella Decision states that while it is likely that Charter damages would not be an appropriate remedy against the AER, a prior determination of the constitutionality of the immunity clause is required. The Abella Decision found that, because s. 43 is an unqualified immunity clause, it is “plain and obvious” that it bars Ernst’s Charter claim.
The Dissent found that the appeal ought be allowed (thereby allowing Ernst’s Charter claim to stand). The Dissent found that it is not plain and obvious that Charter damages could not be an appropriate and just remedy in these circumstances. Further, the Dissent concluded that it is not plain and obvious that s. 43 bars Ernst’s claim. The Dissent did not consider it necessary to consider the constitutionality of s. 42 at this stage of the proceedings.
Given the split decision, the precedential value of this decision is not really clear (see Jennifer Koshan’s blog post from January 16, 2017). While the Cromwell Decision and the Abella Decision arrive at the same judgment, the reasoning differs. The Cromwell Decision considers the constitutionality of s. 43 and finds that it is indeed constitutional. However, this conclusion is based on the determination that Charter damages are never appropriate in such a case, therefore s. 43 does not limit Charter remedies and is not unconstitutional. The Abella Decision does not consider the constitutional question (due to the failure by Ernst to provide the requisite notice of constitutional challenge). The Dissent did not consider the constitutionality of s. 43 either (because the appeal was allowed on other grounds). There is no majority decision on the question of constitutionality of s. 43 and none of the decisions provide an analysis of whether quasi-judicial boards in general are immune from Charter claims. It appears that this issue is not yet resolved.
There are a couple of “take aways” for future, potential litigants. It does seem clear that the Court (as per the Cromwell Decision and the Abella Decision) would have preferred that Ernst had proceeded by way of judicial review rather than seeking Charter damages (it should be noted that remedies on judicial review typically are in the nature of a decision being quashed or sent back for reconsideration and not for damages (see Alberta Rules of Court, ss. 3.15 to 3.24). Further, in all decisions, the lack of an evidentiary record to support the constitutional argument was noted. This flows from the failure of Ernst to provide adequate notice.
As mentioned, Ernst’s claims against both EnCana and the AEP are still ongoing. This means several interesting aspects of the negligence actions still remain to be determined (the existence of a duty of care, causation and statutory immunity as applicable to the AEP to name a few). Stay tuned!