JP Mousseau, AUC Counsel Dial-in-Dialogue June 8, 201 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.”

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.

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.

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.

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.

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.

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.

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.

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 damages would undermine the purposes of the immunity.

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 evidentiary record”.

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 immunity in every case is reflective of good governance policy.

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 circumstances i.e., pretty much never.

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).