Ernst v Alberta Energy Regulator

By 5-4, the appeal was dismissed with costs,^[2][3][6] although for different reasons than were expressed by the Alberta courts.

Cromwell J held that, as Ernst had not successfully challenged the constitutionality of the immunity clause protecting the ERCB, the appeal must fail. However, the constitutional challenge still needed to be considered on its merits:^[13]

1. If an immunity provision clearly purports to bar a damages claim, and if the record before the Court is not adequate to permit a decision on its constitutionality, then the immunity clause must be applied.^[14]
2. Charter damages could never be an appropriate and just remedy for such breaches by the Board, so the immunity clause cannot be unconstitutional. Vancouver (City) v Ward^[15] was endorsed, as "Charter damages will not be an appropriate and just remedy where there is an effective alternative remedy or where damages would be contrary to the demands of good governance."^[16]
3. Judicial review would "provide vindication in a much more timely manner than an action for damages", and "there is a wide range of remedies available through judicial review for Charter breaches by quasi-judicial and regulatory boards".^[17]
4. The Board owed Ernst no duty of care under the private law of negligence, "for reasons of insufficient proximity or countervailing policy considerations, or both".^[18] In addition, "Opening the Board to damages claims will distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions."^[19]

Abella J was more succinct in explaining why Ernst's claim must fail:

Ms. Ernst’s argument that she was not seeking to challenge the validity of , only its applicability to a Charter damages claim, is unsustainable. The immunity clause either complies with the Charter or it does not. But either way, there must be a judicial determination of the constitutional validity, and therefore the constitutional applicability, of the provision. Ms. Ernst’s argument that the immunity clause does not apply when a Charter remedy is being sought, is an argument that there is no need to go through the necessary steps to determine whether a provision is Charter-compliant in order to disregard it. This invokes Alice in Wonderland.

Since Ms. Ernst did not seek to challenge the constitutionality of in the prior proceedings, there is no record either to justify or impugn the provision. This means that for the time being, the provision’s constitutionality is intact, which means that the Board’s immunity is intact, which means that Ms. Ernst cannot, under these circumstances, legally sustain a claim that the Board is vulnerable to a damages claim, either under the Charter or otherwise. As a result, I agree with the Alberta courts that Ms. Ernst’s claim ought to be struck.

...

Ms. Ernst had the opportunity to seek timely judicial review of the Board’s decision. She chose not to. Instead, she attempted to frame her grievance as a claim for Charter damages. That is precisely why 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.

McLachlin CJ, in a joint dissent with Moldave and Brown JJ, would have allowed the appeal, returning the case to the Alberta courts to decide upon the issues relating to free speech and Charter remedies,^[20] because:

1. It was not plain and obvious that Charter damages could not be an appropriate and just remedy.^[21]
2. It was not plain and obvious that the immunity clause applied to Ernst's claim.^[22]
3. Therefore, it was unnecessary to answer the constitutional question as to the validity of the immunity clause in the case of a Charter breach.^[23]

• Nikiforuk, Andrew (2015). Slick Water: Fracking and One Insider’s Stand Against the World’s Most Powerful Industry. Vancouver: Greystone Books. ISBN 978-1-77164-076-3.