The Ernst decision: Taking issue with a divided Supreme Court

By Supriya Tandan January 25, 201725 January 2017

The Ernst decision: Taking issue with a divided Supreme Court

Though the Supreme Court of Canada recently denied an Alberta woman’s claim for damages against the province’s energy board, it remains unresolved whether its members could be sued for infringing a Canadian’s Charter rights and seek a remedy under Section 24 (1) of the Charter.  The Court’s majority found it to “be plain and obvious that s. 43 of the Energy Resources Conservation Act” – granting immunity to the regulator –  “on its face bars [Ernst’s] claim for Charter damages.”

It’s a decision that has raised a lot of eyebrows.

The plaintiff, Jessica Ernst, is an Alberta landowner and vocal opponent of fracking and drilling operations close to her home. She actively engaged with board members, voiced her concerns and dramatically demonstrated the toxicity of her well water by setting it on fire. These actions led to a decision by the Energy Resources Conservation Board (now the Alberta Energy Regulator) to cut-off communications, limiting her ability to speak to the media and to the public for a period of 16 months. In her lawsuit against EnCana, Alberta Environment and the regulator, she claims the latter’s decision constituted a Charter violation at section 2, which guarantees freedom of expression, and sought damages under s. 24 of the Charter.

In his decision, Justice Cromwell reasoned that the conduct and decisions of boards is more appropriately addressed by judicial review. Also, to ask the court to intervene on the conduct of administrative boards would raise concerns over good governance, “chilling” the ability for administrative boards to do their jobs. Finally, he wrote that allowing Ernst’s claim would frustrate the very purpose of statutory immunity clauses. He therefore decided that since the board enjoys immunity, as afforded to it under s.43 of the Energy Resources Conservation Act, Ernst cannot claim that it violated her right to freedom of expression.

Jennifer Koshan, a law professor at the University of Calgary, regrets that the top court was unable to provide guidance  to anyone willing to challenge similar statutory immunity clauses:

The constitutionality of s 43 (and similar immunity clauses) is still a live issue – the Court did not rule that the Board, the Alberta Energy Regulator, or any other Canadian regulator are immune from Charter damages claims; the majority only held that Ernst won’t have the benefit of challenging the immunity in her own litigation.

The issue remains contentious. In her dissent, Chief Justice McLachlin considered when the boards should receive immunity, arguing that a distinction could be made between the conduct of boards and their roles as adjudicators:

…There is nothing in the record, which indicates that the Board was acting in an adjudicative capacity when it informed Ms. Ernst that she could no longer write to the Board until she stopped publically criticizing it. We see no compelling policy rationale to immunize state actors in all cases, including where, as here, the impugned conduct is said to have been “punitive” in nature. To be precise, what Ms. Ernst alleges is that the Board, far from exercising an adjudicative function, effectively sought to punish her by barring access to those functions so long as she continued to criticize the Board in public…

With three justices siding with Justice Cromwell and three siding with Justice McLachlan, the fate of Ernst’s claims rested on Justice Abella. She concurred with Justice Cromwell, but for different reasons. In essence, she refused to specifically address the constitutionality of the immunity clause because Ernst did not follow proper procedure in launching a constitutional challenge to legislation. She therefore decided the case in favour of the Alberta Energy Regulator, writing that the issue of Charter damages should be considered after the constitutionality of immunity clauses is determined.

Writing for Gowlings WLG, Jeff Beedell, Matthew Estabrooks and John Wilson  identify a continuum in interpreting when and how Charter damages can be awarded:

While the reasons of Justice Cromwell and Justice Abella, read together, reflect a majority decision that Charter damages are (likely) not an appropriate and just remedy in these circumstances, the three sets of reasons delivered in Ernst form a kind of continuum between the opposing values of “good governance” (meaning the independence and impartiality of adjudicators/regulators) and the need to ensure that Charter breaches are meaningfully redressed. It remains to be seen where along that continuum the Court will next go.

Lorne Sossin is clearly unimpressed with the first SCC ruling in 2017 and comes down hard on the court:

By suggesting that the merits of the Charter damages have to be assessed before considering the scope of the statutory immunity clause, the dissenting Justices, like the majority, seem to put the statutory cart before the constitutional horse.

[…]

The case is not about whether the Charter was breached, or, if so, whether Charter damages are appropriate—rather, this case is about whether a claimant should have a chance to prove her allegations of a Charter breach warranting damages as a remedy, and whether a statute can bar her from having such an opportunity. In my view, by upholding the validity of a statute to bar a Charter remedy, this first judgment of 2017 has damaging potential to erode the enforcement of Charter rights.

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