In a 5-4 decision, the Supreme Court of Canada has ruled that Alberta rancher Jessica Ernst cannot sue the province's energy regulator regarding fracking activities on her land that contaminated her well's aquifer so strongly, she could light her tap water on fire.
The highly-anticipated decision closes one chapter in a decade of legal action during which Ernst sued the Calgary-based Encana for negligence, nuisance and trespass, along with Alberta’s Ministry of Environment for failing to conduct adequate investigations. She also sued the provincial regulator for failing to prevent her aquifer in Rosebud, Alta. from being contaminated by toxic chemicals, including methane.
Encana, a natural gas company, was fracking nearby coal beds for methane gas when her aquifer was contaminated northeast of Calgary.
The Supreme Court rejected Ernst’s attempt to sue the Alberta Energy Regulation (AER) on grounds it had violated her constitutional right to free speech under the Charter of Rights and Freedoms in the Canadian constitution when it asked her not to go public with her complaints.
Ernst’s lawyers were disappointed in the results, which means the end of the road for her claim against the regulator.
“In my view, the regulator treated her very badly,” said Cory Wanless of Klippensteins Barristers and Solicitors in Toronto. “Unfortunately, they will not be held to account for that behavior.”
Suing for freedom of expression
A vocal opponent of fracking, Ernst first filed her suit against Encana and the Alberta Energy Regulator (AER) in 2007, after the regulator told her in 2005 that it would no longer engage with her, and refused to explain why. When it finally did by letter, the regulator said it would only communicate with her if she agreed to raise her concerns directly with them and not go to the media or the public.
In October 2006, Ernst wrote to the AER again asking for freedom of communication, but did not get an affirmative response until March 2007. Ernst's suit in the Supreme Court hinged on the 16-month period where she claims she was denied her Charter rights of freedom of expression, a grievance for which she was asking $50,000 in compensation.
“The dissent makes clear that the kind of misconduct alleged by Jessica Ernst could be a serious violation of Charter rights and should be addressed by the law,” said University of Ottawa law professor Lynda Collins, who studies environmental law, after the decision was released on Friday morning. “The majority appears to agree that a regulator punitively refusing to deal with a citizen could violate the Charter but suggests a different procedural route for addressing these concerns.”
In 2013, the regulator had asked the Alberta Court of Queen's Bench to dismiss Ernst’s case, saying that even if her allegations were true, it had no chance of success due to a section of the Energy Resources Conservation Act that grants immunity to the regulator from lawsuits.
Later that year, the Court of Queen's Bench agreed with the regulator and dismissed the case. The Alberta Court of Appeal agreed. In Friday’s decision by the Supreme Court of Canada, four justices also agreed with that decision, and four disagreed, arguing that the regulator had not conclusively proven that Ernst’s legal argument was fundamentally flawed.
Bid rejected by Supreme Court
Justice Rosalie Abella cast the deciding vote. In the end, the Supreme Court decided that because Ernst's lawyers had questioned the constitutionality of the Energy Resources Conservation Act section granting immunity to the AER from lawsuits, without doing so before in the lower courts, it was inappropriate to allow the matter to proceed.
“Ms. Ernst had the opportunity to seek timely judicial review of the Board’s decision,” wrote Abella in her reasons. “She chose not to. Instead, she attempted to frame her grievance as a claim for Charter damages. That is precisely why Section 43 exists —to prevent an end-run by litigants around the required process, resulting in undue expense and delay for the Board and for the public.”
The four dissenting judges, led by Chief Justice Beverley McLachlin, felt that Ernst's case was novel but did have an arguable claim to proceed. They also said that it was not plain and obvious that judicial review would have offered the chance for vindication or deterrence that Charter damages would have.
“The dissent came back powerfully saying that Ernst wasn’t challenging the adjudication – she was challenging the fact that she wasn’t allowed to get to the point of adjudication, that essentially the door was closed to her,” said Collins. “The dissent says that it’s not clear to us that this is threatening the immunity of judges and decision makers.”
Because of the narrow ruling, it focused only on the technical merits of the motion to strike, and not the substance of Ernst's claims that the regulator violated her Charter rights.
Future claims possible for Ernst
“The judgment is probably neutral when it comes to the future of environmental constitutional claims,” Collins added. “It’s obviously a loss for Jessica Ernst; however it doesn’t shut down the possibility to bring a claim like this in the future.
"It’s very technical, and I know that the people who supported Ernst felt that the very important issues of environmental protection, public health and democracy had gotten lost in the legal technicalities, and that’s an understandable concern.”
The BC Civil Liberties Association, an intervenor in the case, expressed disappointment in the decision.
“The Charter guarantees everyone the right to an appropriate and just remedy if their constitutional rights are violated, but a majority of the Court has now said that in some circumstances, legislatures may shield certain government administrative decision makers from Charter scrutiny,” says Laura Track, counsel for BCCLA.
“This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions.”
While the case was decided on narrow technicalities, it leaves open the possibility that other challenges can be made against similar regulators if they are seen to be acting in a punitive manner, as Ernst had alleged with the Alberta Energy Regulator.