In a split decision, the Supreme Court of Canada upheld an immunity clause to shield Alberta’s energy resources regulator from liability for damages for breach of the Canadian Charter of Rights and Freedoms (the Charter). Unfortunately, the ruling in Ernst v. Alberta Energy Regulator, 2017 SCC 1 (PDF) provides little clear guidance on whether the immunity clause at issue is constitutionally valid.

Background on Ernst v. Alberta Energy Regulator

The Energy Resources Conservation Board (the Board) is a statutory, independent, quasi-judicial body responsible for regulating Alberta’s energy resource and utility sectors. Pursuant to authority granted by a number of Alberta statutes, the Board grants licenses and makes orders regarding energy-related activities, has the power to conduct investigations and hearings, and has procedures in place to receive public complaints and concerns. The Board was replaced by the Alberta Energy Regulator in 2013.

Jessica Ernst lived in Rosebud, Alberta. She opposed oil and gas development close to her property. Throughout 2004 and 2005, she frequently voiced her concerns to the compliance, investigation, and enforcement offices of the Board, as well as to the media and the public.

In late 2005, Ms. Ernst was informed by the Board that its staff had been instructed to avoid contact with her. When Ms. Ernst wrote several letters asking why she was being excluded from the Board’s public complaint process, she was directed to the Board’s legal branch, which initially ignored and later refused her request for an explanation. She was eventually told that the Board would communicate with her only if she agreed to raise her concerns directly with the Board, and not through the media or members of the public. It was not until early 2007 that the Board informed Ms. Ernst that she was free to communicate with it unconditionally.

In 2007, Ms. Ernst filed a claim alleging that the Board breached her right to freedom of expression under section 2(b) of the Charter by punishing her for past public criticism, and by preventing her from future public criticism, of the Board. She also advanced a claim in negligence for the alleged contamination of her water well resulting from shallow drilling to extract methane gas.

The Board is protected by a broadly-worded immunity clause, found in section 43 of the Energy Resources Conservation Act (the Act). This clause provides that no action may be brought against the Board in respect of any act or thing done purportedly in pursuance of its duties under the Act, or a decision, order, or direction of the Board.

Lower Court Rulings

The case management judge struck Ms. Ernst’s claims.[1] He disposed of her negligence claim on the basis that it was unsupportable at law, as there is no private law duty of care owed to Ms. Ernst by the Board. He also disposed of her claim for Charter damages on the basis that it was barred by the immunity clause. The Court of Appeal unanimously dismissed Ms. Ernst’s appeal.[2]

Ms. Ernst sought and was granted leave to appeal to the Supreme Court of Canada. Only the Charter claim against the Board was before the Supreme Court. The dismissal of her claim in negligence was not appealed.

Supreme Court of Canada Decision

In a split decision, the Supreme Court dismissed Ms. Ernst’s appeal.

Cromwell, Karakatsanis, Wagner, and Gascon JJ.’s Reasons

Four judges concluded that it was plain and obvious that section 43 of the Act barred Ms. Ernst’s claim for Charter damages, and for that reason, her appeal was dismissed. In so finding, they relied on the fact that Ms. Ernst and her counsel accepted and argued that her claim was barred by the immunity clause. Further, the four judges found that Ms. Ernst had failed to discharge her burden of showing that section 43 was unconstitutional. In their view, Charter damages could never be an “appropriate and just” remedy for Charter breaches by the Board, section 43 did not bar a remedy that was otherwise available, and as a result, her challenge to section 43 failed and the immunity clause applied.

These four judges also stated that a damages award might compromise the Board’s impartiality and could have a “chilling effect” on its decision-making. Immunity from claims, they found, allows decision-makers to “fairly and effectively make decisions by ensuring freedom from interference, which is necessary for their independence and impartiality”. These four judges also commented that the availability of judicial review of the Board’s conduct would substantially address the alleged Charter breach, as the immunity clause did not preclude judicial review.

Abella J.’s Reasons

Abella J. agreed with the four judges above in the result, but would have dismissed the appeal on more technical grounds. She focused on the fact that Ms. Ernst did not, at any stage, give the required formal notice of a constitutional challenge. In fact, in both prior proceedings Ms. Ernst expressly denied that she was challenging the constitutionality of the immunity clause. Abella J. stated that this was “not conduct that should be rewarded in this Court with redemptive forgiveness”.

Accordingly, Abella J. agreed with the Court of Appeal that Ms. Ernst’s claim should be dismissed in light of the immunity clause, and that judicial review was the appropriate means of addressing her concerns. However, she did indicate that, in order to assess whether Charter damages were an “appropriate and just” remedy, a determination of the constitutionality of the immunity clause would be necessary.

Reasons of the Dissent

The final four dissenting judges (McLachlin C.J.; Moldaver, Brown, and Côté JJ.) would have allowed Ms. Ernst’s appeal and returned the matter to the Alberta courts, on the basis that it was not plain and obvious that the immunity provision barred her claim for Charter damages. They found that the conduct of the Board, which prevented her from speaking to key offices for several months, fell outside the scope of the immunity granted by section 43. As a result, her claim could not be struck by the immunity clause. However, in light of this conclusion, the dissenting judges found it was not necessary to consider the constitutionality of section 43.

Implications

The Supreme Court’s decision does little to clarify the process for those seeking to bring, or to defend, constitutional challenges against statutory immunity clauses. Although the result of this decision is that the immunity clause protecting the Board was upheld and the claim for Charter damages was dismissed, there is no clear guidance on whether the clause is constitutionally sound. Abella J. and the four dissenting judges essentially declined to consider this issue.

Practically, this decision also reinforces the notion that judicial review may be the more effective route to obtain a remedy against an administrative tribunal. A prompt application for judicial review, although it would not lead to an award of damages, has the potential to achieve relief much sooner. Claiming Charter damages for an administrative decision or action will likely be a lengthier, more convoluted proceeding – and, in light of the Supreme Court’s decision, the outcome of such an action remains uncertain.