Jessica Ernst v. Alberta Energy Regulator
(Alberta) (Civil) (By Leave)
Canadian charter (Non-criminal) - Constitutional law, Enforcement, Remedy, Freedom of expression (s. 2(b)).
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Charter of Rights - Constitutional law - Enforcement - Remedy - Freedom of expression - Statutory immunity clause held to preclude adjudication of individual’s action in damages for alleged Charter breach by the regulator - Is s. 43 of the Energy Resources Conservation Act, R.S.A. 2000, c. E - 10 constitutionally inapplicable or inoperable to the extent that it bars a claim against the regulator for a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms and an application for a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms - Can a statutory immunity clause bar any and all Charter claims for a personal remedy made pursuant to s. 24(1) of the Charter - Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28.
The appellant owns land near Rosebud, Alberta. She brought an action against: i) EnCana Corporation for damage to her water well and the Rosebud aquifer allegedly caused by its construction, drilling, hydraulic fracturing and other activities in the area; ii) Alberta Environment and Sustainable Resource Development, claiming it owes her a duty to protect her water supply and had failed to address her complaints about EnCana; and iii) the respondent regulator, for “negligent administration of a regulatory regime” related to her claims against EnCana. She brought a further claim for damages against the regulator under s. 24(1) of the Charter for alleged breaches of her s. 2(b) Charter rights. She alleges that from November, 2005 to March 2007, the Board’s Compliance Branch refused to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens. She submits the respondent infringed her s. 2(b) Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent.
The respondent brought an application to strike paragraphs from the Statement of Claim or grant summary judgment in its favour. The Court of Queen’s Bench of Alberta granted the application and struck out the appellant’s negligence and Charter claims. While the Court held that the Charter claims were not doomed to fail and did disclose a cause of action, it held that the courts were precluded from considering the claims by the statutory immunity provision in the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. The Alberta Court of Appeal dismissed the appeal.
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