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Jessica Ernst is suing EnCana, the Alberta Energy Resources Conservation Board (ERCB) and the Alberta government for the negligent contamination of her property and drinking water during EnCana’s fracking program. The Alberta Court of Appeal recently upheld the case management judge’s decision to strike out certain portions of her claim because they failed to disclose a reasonable cause of action.

Negligence claim against the ERCB – struck out

Ms. Ernst argued that the ERCB should be held liable for the “negligent administration of a regulatory regime”. The case management judge found that the ERCB did not owe her a private duty of care and so could not be held liable. The Court of Appeal agreed, concluding:

[18]  Forcing the Board to consider the extent to which it must balance the interests of specific individuals while attempting to regulate in the overall public interest would be unworkable in fact and bad policy in law. Recognizing any such private duty would distract the Board from its general duty to protect the public, as well as its duty to deal fairly with participants in the regulated industry. Any such individualized duty of care would plainly involve indeterminate liability, and would undermine the Board’s ability to effectively address the general public obligations placed on it under its controlling legislative scheme.

Without such a duty of care owed to Ms. Ernst by the ERCB, there could be no action in negligence.

ERCB protected by statutory immunity

In her appeal, Ms. Ernst argued that that the ERCB statutory immunity provision did not cover omissions, only “any act or thing done”. The Court of Appeal rejected this argument, upholding the case management judge’s conclusion:

[57] I do not accept the argument that the lack of the words “or anything omitted to be done” in section 43, render its interpretation as providing statutory immunity to the ERCB only in situations where it has acted, as opposed to failing to act. A decision taken by a regulator to act in a certain way among alternatives inherently involves a decision not to act in another way. Picking one way over another does not render the ERCB immune from an action or proceeding, depending on its choice. This construction would result in an irrational distinction and lead to an absurdity. Moreover, to the extent that the other statutes providing statutory immunity to the regulator are relevant in that they contain the additional phrase “or anything omitted to be done”, I regard those words as mere surplusage in the circumstances. Therefore, I hold that section 43 bars any actions or proceeding against the ERCB, in terms of both its decisions to act and the acts done pursuant to those decisions, and its decisions not to act. (emphasis added)

Ms. Ernst was also unsuccessful in her appeal of the case management judge’s conclusion that her Charter claim was also barred by the statutory immunity provision. The Court of Appeal found that: “Protecting administrative tribunals and their members from liability for damages is constitutionally legitimate.”

Ms. Ernst must now decide whether to seek leave to appeal to the Supreme Court.

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