Charter Damages and
Administrative Tribunals:
Ernst v. Alberta Energy Regulator
JP Mousseau, AUC Counsel
Dial-in-Dialogue
June 8, 201
The immunity clause
“43 No action or proceeding may be brought
against the Board or a member of the Board
(or board staff) 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.”
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Facts
• Ernst was publicly very critical of the EUB
about its regulation of CBM wells drilled by
EnCana near her home.
• Following a reference by Ernst to Weibo
Ludwig (convicted oilfield saboteur) in
2005, the EUB ceased communications
with Ms. Ernst for 16 months.
• Ernst had problems with her water well and
sued the EUB, EnCana and AENV in 2007.
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Lawsuit against the EUB
• Ernst sued the EUB for:
a) negligence, and
b) damages for breach of her right to
free expression under the Charter (for
refusing to talk to her).
• The EUB brought a motion to strike Ernst’s
claim, relying in part on its statutory
immunity clause.
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Claim for charter damages
24(1) Anyone whose rights or freedoms, as
guaranteed by this Charter, have been
infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy
as the court considers appropriate and just in
the circumstances. . . .
52(1) The Constitution of Canada is the
supreme law of Canada, and any law that is
inconsistent with the provisions of the
Constitution is, to the extent of the
inconsistency, of no force or effect.
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Court of Queen’s Bench
• Test for striking claim: “is it plain and
obvious, assuming the facts pleaded to be
true, that the pleading discloses no
reasonable cause of action.”
• Court found :
•
The Board owed no private law duty of care to
Ernst.
•
The negligence claim and the claim for charter
damages were barred by the immunity clause.
• Ernst’s claim against the AER was struck.
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Court of Appeal
• Confirmed that the Board owed no private
law duty of care to Ernst and that the
immunity clause also barred the action in
negligence.
• Found that “protecting administrative
tribunals and their members from liability
for damages was constitutionally legitimate”
and confirmed that the immunity clause
protected the Board from the claim for
charter damages.
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Supreme Court of Canada
• Ernst accepted that the immunity clause on
its face bars her claim; the issue she
wanted the SCC to decide was whether the
immunity clause is unconstitutional to the
extent that it does so.
• Ernst did not pursue the negligence claim
at the SCC.
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It was a close one
• Cromwell (+3) –immunity clause barred
claim. No factual basis in support of claim.
Charter damages not available - ever.
• Abella - immunity barred claim. No
challenge of the constitutionality of
immunity clause and no notice.
• McLachlin (+3) – immunity clause may not
bar claim, Charter damages may have
been appropriate.
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Cromwell, Karakatsanis, Wagner
and Gascon
• Ernst failed to provide an adequate factual
basis to support her challenge to the
constitutionality of the immunity clause.
• Charter damages could not be an
appropriate remedy against the Board
because judicial review was an effective
alternate remedy and damages in this
instance would be contrary to the demands
of good governance.
• Case-by-case consideration of charter
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damages would undermine the purposes of
Abella
• Focused on Ernst’s failure to give proper
notice of her intention to challenge the
constitutionality of the immunity clause.
• “the public interest requires that the fullest
and best evidence possible be put before
the Court when it is asked to decide the
constitutionality of a law.”
• “there could be profound and obvious
implications for all judges and tribunals
from such a decision and it should not be
undertaken without a full and tested
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McLachlin, Moldaver, Côté and
Brown
• Focused on the test for striking a claim –
not plain and obvious that Ernst’s claim
barred by the immunity clause.
• Disagreed with Cromwell’s conclusion that
countervailing considerations make it plain
and obvious that charter damages never
available for breach alleged
• Judicial review may not achieve same
objectives as charter damages
(Vindication). Questions whether absolute 12
immunity in every case is reflective of good
Some conclusions:
• The law on whether administrative tribunals
are immune from charter damages is
unclear.
• But, in most circumstances, where a
decision maker acts in good faith in
furtherance of a statutory mandate, the
decision make should be immune from
suits, even without a statutory immunity
clause.
• Tribunals should only tackle issues not
raised by the parties in exceptional
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Citations
• Ernst v EnCana Corporation, 2013 ABQB
537 (CanLII), 85 Alta LR (5th) 333.
• Ernst v Alberta (Energy Resources
Conservation Board), 2014 ABCA 285
(CanLII).
• Ernst v. Alberta Energy Regulator, 2017
SCC 1 (CanLII).
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