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A year after hearing the case, four out of nine judges of the Supreme Court of Canada have ruled in Ernst v. Alberta Energy Regulator that Ms. Ernst cannot make a claim for an alleged breach of her freedom of speech Charter rights by the Alberta Energy Regulator (“Board”). Further, the judges concluded that damages are not an appropriate and just remedy for Charter breaches by the Board. Instead, the judges ruled that a judicial review of the Board’s decision was a “more effective remedy for Charter breaches”, to provide legal clarity and prevent any future breaches. A concurring judge also concluded that the Charter claim could not be heard at this stage. Collectively, these decisions ended any possibility that Ms. Ernst could pursue her claim. Interestingly, four dissenting judges, including the Chief Justice, ruled that Ms. Ernst’s Charter claim could proceed to be heard and a damages award under the Charter could be an appropriate remedy in this circumstance.

As we previously reported, Ms. Ernst started a claim in 2007, claiming that her fresh water supply was contaminated by hydraulic fracturing, known as fracking, and that the Board negligently administered the regulatory scheme. Ms. Ernst also argued that the Board’s decision to bar her from communicating with the Board for a period of sixteen months was an infringement of her constitutional Charter rights to freedom of speech, and that she could seek damages under the Charter for that breach.

Ms. Ernst’s claims were struck by the Alberta Court of Queen’s Bench, which decision was upheld by the Alberta Court of Appeal, on the basis that section 43 of the Energy Resources Conservation Act barred a claim for Charter damages. This section of the Act is an immunity clause that precludes all claims in relation to the Board’s actions done pursuant to the legislation that the Board administers.

At the Supreme Court, Ms. Ernst argued that the immunity clause was unconstitutional. The majority of the court concluded that section 43 was not unconstitutional since a damage claim under the Charter would never be appropriate. The court concluded that granting damages would undermine the effectiveness of the Board and inhibit effective governance. The majority decision was influenced by various factors, including that this would have a potential chilling effect on the behaviour of a state actor.

The dissenting judges took a very different approach to the analysis, first considering whether it was “plain and obvious” that Charter damages could not be an appropriate and just remedy in Ms. Ernst’s situation. If damages could be an appropriate remedy, then the court must determine whether it’s plain and obvious that the immunity clause, on its face, applies to her claim. If it is plain and obvious that it does apply, then the court must give effect to the clause and strike the claim, unless she successfully challenges the clause’s constitutionality.

The dissenting judges concluded that there were facts in Ms. Ernst’s case that, if true, could prove a Charter breach. They also concluded that damages could be an appropriate response to establish the functions of vindication and deterrence. The state could respond to show that damages are not appropriate, and alternative remedies are more appropriate. The dissenting judges concluded, among other reasons, that the state did not prove that a judicial review would meet the same objectives as an award of damages, namely vindicating Ms. Ernst’s Charter right and deterring future breaches. Another reason given was that it was not plain and obvious that the claim was barred by the immunity clause, since it was arguable that the clause should not be operative when the Board’s decision was intended to punish Ms. Ernst, i.e. punitive acts fall outside the scope of immunity of section 43 of the Act. As it was not plain and obvious, the court concluded it was not necessary to consider whether the clause was constitutional at this stage.

Given the court’s dramatically split ruling, it was not at all “plain and obvious” that Ms. Ernst’s claim would fail. A strong dissent of this nature provides an opportunity for a future case and claimant to try again.

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