Alberta Energy Regulator in Legal La La Land: AER’s “Public Statement” lies about Ernst vs AER Supreme Court of Canada ruling

Supreme Court of Canada Ernst v. Alberta Energy Regulator decision Public Statement by AER, January 13, 2017, AERNR2017-01

Calgary, Alberta (Jan 13, 2017)… Today’s Supreme Court of Canada (SCC) decision is an important one to regulators across the country. This was an important decision affecting the ability of regulators to carry out their responsibilities, which was evident in the participation of other provinces in the proceeding in support of the AER.

[AER Dishonesty Check:

Not one province attended the hearing in support of AER, not even Alberta.

From the Supreme Court of Canada Docket #36167 Ernst vs AER:

2016-01-08 Will not be making oral submission and no one will be present…Attorney General of Quebec

2015-12-22 Notice of withdrawal…Attorney General for Saskatchewan

2015-12-17 Notice of withdrawal…Attorney General of British Columbia

2015-12-17 Correspondence received from…the Attorney General of Canada. They are discontinuing as interveners and will not file a factum or present oral arguments.

End AER Dishonesty Check]

The decision has validated the position held by the AER that the claims against the AER’s predecessor, the Energy Resources Conservation Board (ERCB), should be dismissed. The Court did not find there was a breach of Ms. Ernst’s Charter rights, and made no findings of negligence on the part of the AER or its predecessor the ERCB.

[Legal Reality Check:

“As this case arises from a motion to strike her claim based on pleadings, all the facts alleged by Ernst must be accepted by the Court as true.”

Ernst still has a valid Charter claim against the AER, the courts just ruled she can’t seek remedy even though the Charter guarantees remedy. The Supreme Court ruled that Ernst’s only remedy for the AER breaching her Charter rights was to seek judicial review which Ernst was not permitted to seek at the time the AER breached her rights. Legal Catch 22.

2017 01 19: Alberta Energy Regulator’s Response to Ernst Case ‘Inaccurate and Misleading’, Say Professors Agency misrepresents Supreme Court ruling on right to sue over alleged Charter violations, they say.

End Legal Reality Check]

The Court recognized that permitting the claim would hinder the AER’s ability to carry out its statutory duties effectively and in the public interest.

[Alberta’s Responsible Energy Development Act (REDA) Reality Check:


End Alberta’s REDA Reality Check]

The AER appreciates that the courts at all levels took the time to carefully consider this important matter and in each instance issued clear, well-reasoned decisions.

[Legal Reality Check:

The ruling was a 3-way split: 4/1/4.

2017 01 21: Damaging the Charter: Ernst vs Alberta Energy Regulator

End Legal Reality Check]

The Alberta Energy Regulator ensures the safe, efficient, orderly, and environmentally responsible development of hydrocarbon resources over their entire life cycle.

[AER Safety Reality Check:

AER has no public health or public interest mandate. Refer above to REDA Reality Check.

AER engaged in fraud covering-up Encana breaking the law and fracturing Rosebud’s drinking water aquifers and contaminating them.

In Ernst’s direct experiences, AER is a malicious bully towards the harmed citizen every time she presented documented evidence of Encana non-compliances.

End AER Safety Reality Check]

This includes allocating and conserving water resources, managing public lands, and protecting the environment while providing economic benefits for all Albertans.

[Economic Loss Reality Check:

Ernst is an Albertan but is receiving economic losses from the AER’s gross negligence and acts in bad faith covering-up Encana’s illegal Rosebud aquifer frac’ing and AER violating Ernst’s Charter rights trying to intimidate her silent, and punish her for providing evidence of Encana’s non-compliances and publicly exposing the AER for the fraud that it is.

End Economic Loss Reality Check]

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For more information, please contact:
Ryan Bartlett, AER Public Affairs
Phone: 403-669-3916
E-mail: email hidden; JavaScript is required
Media line: 1-855-474-6356


[Refer also to:

2017 01 21: Damaging the Charter: Ernst v. Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Law School

It is always open to the Supreme Court to reach a conclusion on a question of constitutional interpretation even if it differs from the position advanced by the parties. For reasons set out below, in my view, the premise the Court accepts in Ernst, that a statutory immunity clause can bar a Charter claim, is flawed.

First, a preliminary motion to strike Ernst’s claim against the Board because of the statutory bar to Charter damages should not depend on whether she has a strong or weak case to actually establish her entitlement to damages, nor on whether the Crown has or does not have grounds to raise countervailing factors. Either her Charter claim is barred (in which case the analysis of countervailing factors is irrelevant), or it is not barred (in which case the analysis of countervailing factors is premature).

Second, the existence of countervailing factors in this case is not compelling. The majority asserts that because judicial review is available on administrative law grounds, this alternative remedy militates against the availability of Charter damages. The effect of the majority finding is that while a common law remedy (judicial review) cannot be barred by statute, a constitutional remedy (Charter damages) can be. This finding is puzzling. Statutes must be interpreted in ways that safeguard, not inhibit, the protection of Charter rights and freedoms.

The countervailing good governance concerns also fall flat. Cromwell J. notes that the Board must be free from the anxiety of constant litigation in pursuing its statutory goals. While this might be relevant where a claim relates to someone aggrieved by the regulatory actions of a regulator, Ernst involves a regulator engaging in punitive behaviour in an attempt to silence a complainant. A suit for Charter damages is not the same as a suit for civil damages, and the Court’s desire to frame the former as a species of the latter (rather than as part of the spectrum of remedies for Charter beaches per se) leads the majority of the Court, in my view, down a problematic path.

The search for remedies that are “just and appropriate” under s.24 of the Charter is fundamentally distinct from the search for a duty of care and breach under the common law tort of negligence.

While I think the dissenting Justices come to the right conclusion, their reasoning is also based on a faulty premise.

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.

An immunity clause can preclude only those claims that a legislature has the constitutional authority to bar—that includes civil claims for damages, but it cannot bar Charter claims…

cannot be precluded by an act either of a provincial legislature or of Parliament (unless the notwithstanding clause under s.33 is invoked…

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.

[Emphasis added]

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