Subject: Clarifications to Kevin Van Tighem’s “Betrayed, The Jessica Ernst Decision,” Alberta Views April 2017.
Date: Wed, 5 Apr 2017 23:51:38 -0600
Re: Clarifications to Kevin Van Tighem’s “Betrayed, The Jessica Ernst Decision,” Alberta Views April 2017.
[Red hilight is text Alberta Views edited out of Ernst’s Letter to the Editor]
Thank you for the support. I’d like to clarify a few things.
Mr. Van Tighem wrote: “By the time the case migrated up the judicial food chain to the Supreme Court of Canada, Ernst added another complaint: that her rights under Canada’s Charter of Rights and Freedoms had been violated by the regulator. … Another [justice] rejected her case because, in his view, the Charter rights question had been added too late and should have been considered by lower courts first.”
To clarify, I didn’t add another complaint. The Charter claim against the Alberta Energy Regulator (AER) was in my first 2007 court filing, and argued at Alberta’s Court of Queen’s Bench and Court of Appeal before it was argued at the Supreme Court. Gowlings law firm – Agent for the AER – summarized Supreme Court Rule 60 regarding my case: “the Chief Justice on motion stated a constitutional question for [my] appeal which in the end she herself declined to answer in dissent, as did Justice Abella for other reasons, leaving only 4 of 9 members of the Court providing an answer.” Rule 60 was removed on January 1, 2017, two weeks before the court released my ruling. Notably, parties are now “expected to identify and frame their own constitutional question at the leave and appeal stages.”
Mr. Van Tighem wrote: “Four justices said Ernst should have simply sought a judicial review of the original well approvals.”
To clarify, my case before the Supreme Court was not about well approvals. It was about whether or not the Alberta government’s legislated legal immunity for the AER trumps Canada’s supreme law – our Charter of Rights and Freedoms. In 2005, the regulator abused their powers, judged me a criminal, punished me without due process and without any evidence, cut off communication and banished me from energy regulation in a malicious attempt to intimidate and silence me. The next year, the regulator admitted in a witnessed, recorded meeting that the real reason they did this was because they felt humiliated by my speaking out, but still argued in 2012 court documents that I was a criminal – an eco-terrorist: “By ceasing communications and reporting the Plaintiff to the RCMP, the ERCB was responding appropriately to a real threat of violence. The ERCB ceased communication in order to protect its staff, the Alberta public and the Alberta oil and gas industry from further acts of eco-terrorism.”
Chief Justice Wittmann of Court of Queen’s bench ruled in 2013 that I have a valid Charter claim against the AER (previously ERCB). He also ruled: “I agree with Ernst that the ERCB cannot rely on its argument on the Weibo eco-terrorism claim, in the total absence of evidence. There is none.” But using the immunity clause, and to prevent citizens from seeking justice for Charter violations “dressed up in their Charter clothes,” Justice Wittmann ruled I can’t sue the industry-funded regulator (AER). Stunningly, he ruled a year later that I can sue the taxpayer-funded regulator (Alberta Environment), even though they too have an immunity clause.
After a long stressful process, great expense to me and the generous Canadians who graciously sent donations, and the constitutional issue not being addressed – the Supreme Court confused the law. Four justices say the AER’s immunity clause bars Charter damage claims, one says “not sure yet,” and four say it doesn’t. And in a chilling twist, the swing judge, Justice Rosalie Abella, introduced unsupported “facts” into her ruling. Rather than use the AER’s fabricated argument that I was banished for being an eco-terrorist – or even their admitted reason of feeling humiliated – Justice Abella injected something new and untrue, and attributed it to the regulator: “When the Board made the decision to stop communicating with E, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enabling legislation.”
Of note, I was not a litigant in 2005 when the regulator judged me a criminal and banished me. As well, to this day, the regulator has never filed a motion in any court or sent me a letter accusing me of being a “vexatious litigant.” None of the defendants in my case have. Justice Abella’s unfounded statement published by the Supreme Court and media, is extremely concerning and damaging. Now that I am a litigant (as of 2007), the “vexatious litigant” designation by a Supreme Court justice could harm my ongoing lawsuit against Encana and Alberta Environment. It’s very serious when a court declares a claimant to be a “vexatious litigant,” and could result in restrictions or no further access to the courts, so I have filed a complaint with the Canadian Judicial Council regarding Justice Abella’s conduct. It can be read on the lawsuit page at ernstversusencana.ca. Anyone can challenge the abuse of power by our regulators, governments and courts. This from the Canadian Judicial Council website: “Any member of the public can make a complaint to the Council provided the complaint is about judicial conduct, is made in writing, and is about a specific federally appointed judge. ….most complaints come from the general public. … Every complaint is considered seriously and conscientiously. You do not have to be represented by a lawyer…. There is no fee charged and no deadline….”
The valid Charter claim against the AER was not struck by the Supreme Court, but the justices left me with no way to seek our right to remedy. They also confirmed for me that when it comes to the oil and gas industry, abuse of power in Canada is rampant – and overlooked or ignored. Only four of our Supreme Court justices, including Chief Justice McLachlin, acknowledged that Justice Abella’s statement had “no basis” – the other four were silent.
Mr. Van Tighem wrote that we all lost at the Supreme Court. He couldn’t be more right.
References & Additional Information:
Making a complaint to the Canadian Judicial Council: https://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_complaint_en.asp
The Lawsuit, Ernst v. Encana Corporation: https://ernstversusencana.ca/the-lawsuit/
Jessica Ernst Complaint to the Canadian Judicial Council: https://ernstversusencana.ca/jessica-ernst-open-letter-to-chief-justice-beverley-mclachlin-regarding-false-and-seriously-damaging-statements-in-justice-rosalie-abellas-ruling-ernst-vs-aer/
Supreme Court of Canada ruling in Ernst vs AER (para 64): https://ernstversusencana.ca/wp-content/uploads/2017-01-13-SCC1-Supreme-Court-of-Canada-Ruling-Ernst-v-AER-Alberta-Energy-Regulator.pdf
SUPREME COURT’S FIRST DECISION OF 2017: STRIKING SECTION 24(1) CHARTER DAMAGES CLAIM AGAINST A REGULATOR: https://gowlingwlg.com/en/canada/insights-resources/supreme-court%E2%80%99s-first-decision-of-2017-striking-section-24(1)-charter-damages-claim-against-a-regulator
One final point of interest to those who follow the Supreme Court’s practice and procedure – in this case the Chief Justice on motion stated a constitutional question for the appeal which in the end she herself declined to answer in dissent, as did Justice Abella for other reasons, leaving only 4 of 9 members of the Court providing an answer. Effective January 1, 2017, the Amended Rules have dispensed with the former Rule 60 motions to state constitutional questions. Instead, under new Rule 33, parties are expected to identify and frame their own constitutional question at the leave and appeal stages. This new procedure is bound to require more scrutiny by Attorneys General looking to decide whether to intervene in a constitutional question that the Court itself has not yet defined.
The Constitutional Question in Ernst vs AER Ordered by Chief Justice Beverley McLachlin: https://ernstversusencana.ca/wp-content/uploads/2015-06-29-Ernst-vs-AER-service-of-Notice-of-Constitutional-Question-to-Attorney-Generals-Federal-Provinces-and-Yukon.pdf
IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTION BE STATED AS FOLLOWS:
- Is s. 4 3 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-1 0, constitutionally inapplicable or inoperable to the extent that it bars a claim against the regulator for a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms and an application for a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms
ERCB Brief filed in 2012 (para 133): https://ernstversusencana.ca/wp-content/uploads/2013/01/2012-12-05-Brief-of-ERCB.pdf
J Wittmann’s ruling in 2013 granting AER immunity (para 42): http://www.canlii.org/en/ab/abqb/doc/2013/2013abqb537/2013abqb537.html?searchUrlHash=AAAAAQASaSBhZ3JlZSB3aXRoIGVybnN0AAAAAAE&offset=1506
J Wittmann’s ruling in 2014 denying Alberta Environment immunity (para 71): https://www.canlii.org/en/ab/abqb/doc/2014/2014abqb672/2014abqb672.html
Below is a scan of Alberta Views’ edited version of Ernst’s letter published in the June 2017 issue:
This Land: Betrayed, The Jessica Ernst decision by Kevin Van Tighem, March 29, 2017, in Alberta Views April print issue.
But Ernst won a victory of sorts: She got the AER to show its true colours. That same day, the agency posted a smug and tone-deaf media release congratulating themselves. Among other things, the release stated: “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.”
That statement was a complete and almost certainly deliberate misrepresentation of the legal decision. The Supreme Court actually chose to be silent on Ms. Ernst’s Charter rights and never addressed the question of negligence. If ordinary citizens were the audience for that media release, the AER’s gloating and post-truthy response makes no sense. But we weren’t the audience.
Where the AER is concerned, it was never about us. The AER is staffed by oil-industry insiders and entirely funded by oil and gas revenues. They know who butters their bread. Given the real audience for that media release, it wasn’t tone-deaf at all; it was meant to reassure.
Jessica Ernst may have lost her legal battle, but she got the AER to prove that it is—as has long been argued by its critics—a captive agency almost fully in the service of the very industry it’s supposed to regulate.
In the early 1990s the AER’s predecessor, the Energy Resources Conservation Board, approved a number of coalbed methane wells around Ernst’s home near Rosebud. Encana, which drilled the wells, used fracking to release methane from shallow coal seams. Water wells in the area promptly began to go sour. Ernst’s was among them. Her taps began to spew foam. The bubbles were natural gas. She couldn’t drink the water anymore—but she could light it on fire.
When a gas or oil company contaminates groundwater in Alberta, they usually cut private deals to make the problem disappear. In exchange for cash, a new water well or a commitment for trucking potable water in from far away, the landowner signs a non-disclosure agreement with the company. With no public record of the transaction, the industry and its regulator continue blithely to assure us that no evidence exists of oil and gas drilling poisoning our groundwater.
Ernst, however, wouldn’t play the cover-up game. She refused to sign a non-disclosure agreement. She refused to be bullied by threats from lawyers. She kept asking awkward questions. She simply refused to behave like a nice, tame Albertan properly subservient to Big Oil.
She’s an Albertan who had the gall to stand up for her rights. The court’s majority ruling dodged the question of whether the AER abused its powers.
Finally the agency simply slammed the door on her. For months, Ernst was denied all access to a public agency set up to address public concerns. So she sued them. The AER insisted they can’t be sued, because their enabling legislation grants them immunity. By the time the case migrated up the judicial food chain to the Supreme Court of Canada, Ernst added another complaint: that her rights under Canada’s Charter of Rights and Freedoms had been violated by the regulator.
January’s decision was a close split. Four justices said Ernst should have simply sought a judicial review of the original well approvals. Another rejected her case because, in his view, the Charter rights question had been added too late and should have been considered by lower courts first. Combined, the five were a majority; they dismissed Ernst’s case on technicalities without looking at the evidence.
Chief Justice Beverley McLachlin and three other justices, however, found in support of Ernst. The dissenting justices pointed out that while the AER might be immune from liability for regulatory decisions “…there is nothing in the record which indicates that the board was acting in an adjudicative capacity in this case… here, the impugned conduct is said to have been punitive in nature.” Exactly. Jessica Ernst is an Albertan who had the gall to stand up for her rights. The majority ruling dodged the question of whether the AER—appointed to impartially consider and respect the interests of all Albertans—abused its powers in locking her out.
So the core issue was never decided. But instead of a sophisticated and respectful response, the AER’s self-congratulatory media release conceded nothing to those of us who expect them to keep our water safe. Why?
Because that media release wasn’t written for us. It was written for the oil and gas industry that captured the regulator years ago. The message to the AER’s corporate buddies was: “Don’t worry about uppity Albertans. We’ve still got your back, and nothing’s going to change.”
Jessica Ernst fought for all of us. We lost. And we learned just how alone we really are. #
PDF of the print version of Van Tighem’s article
Kevin Van Tighem spent three decades studying, interpreting and managing nature in Canada’s western national parks.