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Supreme Court of Canada Grants Leave to Fracking "Crusader"


By Gavin Fitch, Q.C. and Michael Barbero

Earlier this week the Supreme Court of Canada granted Jessica Ernst leave to appeal a ruling of the Alberta Court of Appeal. The ruling confirmed a lower court decision to strike out portions of Ernst's claim for not disclosing a reasonable cause of action. The Court of Appeal decision upheld a prohibition on the ability of an individual to bring a claim against a regulator and the application of immunity clauses to claims for damages in tort and breach of the Canadian Charter of Rights and Freedoms ("Charter").

Jessica Ernst resides in Rosebud, Alberta. She alleges fluid used by EnCana in hydraulic fracturing operations contaminated the aquifers which provide her well with water. She also alleges that the Energy Resources Conservation Board ("ERCB" - now the Alberta Energy Regulator) and Alberta Environment ("AENV") failed in their regulatory duties to protect her water and investigate her claims.

In September 2014, the Court of Appeal dismissed the claims of Ernst against the ERCB. Ms. Ernst's actions against AENV and EnCana were unaffected by that ruling. As previously reported the Court of Appeal confirmed that generally there is insufficient foreseeability and proximity between an individual and a regulator to establish a private law duty of care on the part of the regulator. The Court of Appeal also confirmed that, even if a private law duty of care existed vis-à-vis a regulator, any action for damages would be barred by the immunity provisions contained in the regulator's governing statute. Similarly, the Court of Appeal confirmed any claim for damages stemming from a breach of Charter rights is barred by the same immunity provisions.

Leave to Appeal
The Decision of the Supreme Court of Canada to grant Ms. Ernst leave to appeal is noteworthy. Potentially at risk is the long-standing practice of granting regulators immunity in the prosecution and conduct of their duties. It will be interesting to see how the court balances the need of regulators to regulate while at the same time giving effect to the rights of those who appear before or are otherwise affected by a regulator's decision.

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