Landmark Fracking Case Gets a Supreme Court Hearing, Oil patch consultant Jessica Ernst alleges Alberta has intimidated landowners

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2015 04 30 SNAP Calgary Herald coverage Supreme Court Canada granting Ernst leave to appeal her charter case against AER, Alberta Energy Regulator

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2015 04 30 SNAP Calgary Herald coverage if search Supreme Court Canada granting Ernst leave to appeal

Who’s on PostMedia’s Board of Directors?

Jane Peverett (Director)

Ms. Peverett currently serves as a director of Encana, a leading North American energy producer, as well as Northwest Natural Gas Company and Canadian Imperial Bank of Commerce. She is also Chair of the B.C. Ferry Authority, and a director of Associated Electric & Gas Insurance Services Limited. Prior to this Ms. Peverett was President & Chief Executive Officer of BC Transmission Corporation from April 2005 to January 2009, and was previously Vice-President, Corporate Services and Chief Financial Officer. In addition, Ms. Peverett was the President and CEO of Union Gas Limited from April 2002 to May 2003 after serving in various senior roles within Westcoast Energy Inc.

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Jessica Ernst fracking case reaches Canada’s Supreme Court

Landmark Fracking Case Gets a Supreme Court Hearing, Oil patch consultant Jessica Ernst alleges Alberta has intimidated landowners by Andrew Nikiforuk, April 30, 2015,

The Supreme Court of Canada said today that it will hear the landmark case of Jessica Ernst, which squarely challenges how the Alberta government has treated landowners and regulated hydraulic fracturing.

The decision both stunned and exhilarated the 57-year-old Ernst.

“I’ve always known my case was important for water and all Canadians, that’s why I am taking this legal stand,” said Ernst who lives in Rosebud, Alberta.

“The court will now hear my appeal that provincial energy regulators not be legally immune from violating the Canadian Charter of Rights and Freedoms when trying to intimidate citizens harmed by fracking,” added Ernst. Her stand against the industry and the Alberta government has made her a folk hero throughout North America and parts of Europe.

However, a win at the Supreme Court does not mean that she will win her lawsuit, explained Ernst to the Tyee. “It means I would be sent back to the lower court in Alberta to begin my lawsuit against the Alberta Energy Regulator. It means still a very long, hard, expensive journey.”

The Supreme Court only hears about four per cent of all civil Charter claims brought to its doorstep.

Eight years ago, oil patch consultant Ernst sued Alberta Environment, the Energy Resources Conservation Board (ERCB) and Encana, one of Canada’s largest unconventional gas drillers, over the contamination of her well water with hydrocarbons and the failure of government authorities to properly investigate the fouling of groundwater.

The $33-million lawsuit alleges that Encana negligently fractured into fresh water zones more than a decade ago; that the ERCB breached Ernst’s freedoms under the Charter of Rights and Freedoms; and that Alberta Environment performed a problem-plagued investigation in bad faith.

After the Alberta Court of Appeal ruled last year that Ernst could not sue the province’s energy regulator (the lawsuit against Encana and Alberta Environment is slowly proceeding) because of a protective immunity clause, her lawyers asked the Supreme Court to consider reviewing the matter on constitutional grounds.

Ernst’s case raises a number of critical national issues that involve the Canada’s Charter of Rights and Freedoms.

The basic question the Supreme Court must now consider boils down to this: Can a provincial law allow a powerful energy regulator to violate the nation’s Charter of Rights and Freedoms by banishing citizens and falsely branding them as a security threats?

National issues at stake

Cory Wanless, one of Ernst’s Toronto lawyers with the well-known Klippensteins firm, said today’s Supreme Court decision to hear the case merely reinforces its national importance.

“This case is about whether a government regulator can be held accountable for breaching fundamental and constitutional free speech rights of a landowner. Equally fundamentally, this case is about whether governments can pass legislation which gives them a ‘free pass’ to infringe fundamental rights and freedoms without judicial oversight,” said Wanless.

On its website the Supreme Court has summarized Ernst’s case succinctly.

Between November 2005 and March 2007, Ernst alleges that the ERCB (now known as the Alberta Energy Regulator) refused “to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens,” said a court summary.

As a result, Ernst alleges that the energy regulator infringed her “Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent.”

The Supreme Court decision to hear the case means there will be a hearing on the matter over the next six months and that citizens and other parties can intervene and introduce arguments on the matter at hand.

If Ernst is successful at the Supreme Court, the oil patch consultant will be able to reintroduce the energy regulator back into her celebrated lawsuit and it will have to file a statement of defence.

Ernst regards the energy regulator as the guilty party in the lawsuit as well as the institution with the most data on the impacts of hydraulic fracturing on groundwater.

The case has the potential to bring to a national stage the rights of landowners affected by fracking. Study after study has shown that industry cannot always control how the injection of fluids or gases will fracture already cracked and pressurized rocks underground. As a result, the technology has gone out of the targeted zone and connected into freshwater aquifers and other oil and gas wells. It has also caused methane to stray into paths of least resistance and rise to surface.

The highly controversial technology, which has rattled thousands of landowners and spawned hundreds of lawsuits, has also triggered felt earthquakes in Alberta, Colorado, British Columbia, Texas, Ohio, and Oklahoma.

Leave to Appeal granted in Ernst v Alberta Energy Regulator by Jennifer Koshan, April 30, 2015,

PDF Version: Leave to Appeal granted in Ernst v Alberta Energy Regulator

Case commented on: Ernst v Alberta Energy Regulator2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

Today the Supreme Court (Justices Abella, Karakatsanis and Côté) granted leave to appeal with costs in the cause to Jessica Ernst.  The Court’s description of the case is as follows:

Charter of Rights – Constitutional law – Enforcement – Remedy – Freedom of expression – Statutory immunity clause held to preclude adjudication of individual’s action in damages for alleged Charter breach by the regulator – Can a general “protection from action” clause contained within legislation bar a Charter claim for a personal remedy made pursuant to s. 24(1) of the Charter – Can legislation constrain what is considered to be a “just and appropriate” remedy under s. 24(1) of the Charter – Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28.

The applicant owns land near Rosebud, Alberta. She brought an action against: i) EnCana Corporation for damage to her water well and the Rosebud aquifer allegedly caused by its construction, drilling, hydraulic fracturing and other activities in the area; ii) Alberta Environment and Sustainable Resource Development, claiming it owes her a duty to protect her water supply and had failed to address her complaints about EnCana; and iii) the respondent regulator, for “negligent administration of a regulatory regime” related to her claims against EnCana. She brought a further claim for damages against the regulator under s. 24(1) of the Charter for alleged breaches of her s. 2(b) Charter rights. She alleges that from November, 2005 to March 2007, the Board’s Compliance Branch refused to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens. She submits the respondent infringed her s. 2(b) Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent.

The respondent brought an application to strike paragraphs from the Statement of Claim or grant summary judgment in its favour. The Court of Queen’s Bench of Alberta granted the application and struck out the applicant’s negligence and Charter claims. While the Court held that the Charter claims were not doomed to fail and did disclose a cause of action, it held that the courts were precluded from considering the claims by the statutory immunity provision in the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. The Alberta Court of Appeal dismissed the appeal.

There have been several ABlawg posts on the Alberta courts’ earlier decisions in the Ernstlitigation. The most relevant to the issue that is now going to the Supreme Court is my postThe Charter Issue(s) in Ernst: Awaiting Another Day.

This post notes that at the ABQB level, Chief Justice Wittman found that although Ernst’sCharter claim against the ERCB (now AER) should not be struck on the merits, section 43 of the Energy Resources Conservation Act, RSA 2000, c. E-10 (ERCA) barred Ernst’sCharter claim (2013 ABQB 537 at paras 42, 82-88). Ernst had not directly challenged the constitutionality of section 43; notice of constitutional question had not been given to the Attorneys General of Alberta and Canada under section 24 of the Judicature Act, RSA 2000, c J-2. Nevertheless, the Alberta Court of Appeal weighed in on the constitutional legitimacy of section 43, stating that “It cannot be suggested that those sorts of limits on remedies are unconstitutional” (2014 ABCA 285 at para 26). I concluded that because the constitutional issue was not squarely before the Court, its decision “should not be taken as a definitive assessment of the constitutionality of [section 43], nor that of its successor, section 27 of the Responsible Energy Development Act, SA 2012, c R-17.3. That issue awaits another day, and sadly for Ernst, that day will not come in her case, even though herCharter claim against the ERCB was arguable.”

It appears that I must now eat my words, since “that day” does seem to have come; the SCC will consider the constitutionality of section 43 and like sections in other legislation. Ernst framed the issue on appeal as whether legislation can “block an individual from seeking a remedy for a breach of her Charter rights” under s 24(1) of the Charter, which provides that “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such a remedy as the court considers appropriate and just in the circumstance.”  Focusing on the interaction between section 43 of the ERCA and section 24 of the Charter may negate the need for a direct constitutional challenge to section 43. And it should be noted that the Ontario Court of Appeal came to a conclusion contrary to that of the Alberta Court of Appeal about the constitutionality of such statutory bars in Prete v Ontario (1993), 1993 CanLII 3386 (ON CA), 16 OR (3d) 161, application for leave to appeal to SCC dismissed with costs, [1994] 1 SCR x.

For other ABlawg posts on the Ernst litigation see:

Shaun Fluker, Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Martin Olszynski, Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Shaun Fluker, Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Martin Olszynski, Revisiting Regulatory Negligence: The Ernst Fracking Litigation

La Cour suprême va entendre une cause sur la fracturation hydraulique Par Rédaction La Presse Canadienne, 30 avril 2015, journalmetro

OTTAWA – La Cour suprême du Canada va déterminer si une Albertaine peut poursuivre l’autorité réglementaire du secteur énergétique de sa province en lien avec ses allégations selon lesquelles la fracturation hydraulique a contaminé son puits au point où l’on peut mettre le feu à l’eau.

Jessica Ernst a entamé une poursuite en 2007 contre l’autorité albertaine et l’entreprise Encana, établie à Calgary, et a amendé sa déclaration en 2011 pour inclure le ministère de l’Environnement de l’Alberta.

Les tribunaux albertains ont refusé la tentative de la province de faire rejeter l’action entreprise contre elle. Ils ont toutefois exempté le régulateur, citant l’immunité prévue à la Loi sur la protection des ressources énergétiques de l’Alberta.

Mme Ernst a demandé à la Cour suprême de renverser cette décision et les juges ont annoncé jeudi qu’ils acceptaient d’entendre son appel.

Elle allègue que la fracturation hydraulique sur ses terres, au nord-est de Calgary, a relâché des quantités dangereuses de produits chimiques, dont du méthane, dans son puits, et que ses préoccupations n’ont pas été adéquatement examinées.

Comme c’est toujours le cas, la Cour suprême n’a pas donné de motifs pour justifier sa décision d’entendre l’appel.

Jessica Ernst s’en va en Cour suprême! Translation of The Canadian Press article below by Amie du Richelieu, April 30, 2015

Le procès sur la fracturation hydraulique de Jessica Ernst sera entendue à la Cour suprême du Canada

Ma traduction libre du reportage du The Canadian Press (puisque aucun média francophone ne semble s’intéresser à cette cause qui fera sûrement jurisprudence!)

La Cour suprême du Canada décidera si une femme de l’Alberta pourra poursuivre le régulateur énergétique de sa province à cause que la fracturation hydraulique aurait, selon elle, contaminé considérablement son puits à un point tel qu’elle peut mettre le feu à son eau.

La poursuite impliquant la fracturation hydraulique contre Alberta Environment peut aller de l’avant tranche un juge.

Jessica Enrst avait entamé une poursuite légale contre le régulateur et la compagnie énergétique Encana basée à Calgary en 2007, et avait amendé sa requête en 2011 pour y inclure Alberta Environment.

Les cours de l’Alberta avaient refusé une tentative provinciale d’être exclus de la poursuite, mais avaient exempté le régulateur, citant des provisions immunitaires dans la loi albertaine appelée Energy Resources Conservation Act.

Mme Ernst avait demandé à la Cour suprême de revoir cette dernière décision et les juges se sont mis d’accord pour entendre son appel.

Elle prétend que les fracturations hydrauliques faites sur ses terres au nord-est de Calgary ont relâché des quantités dangereuses de produits chimiques comme du méthane dans son puits et que ses inquiétudes n’avaient pas été enquêtées adéquatement.

Comme dans tous les cas de demandes d’aller en appel, les juges n’ont pas donné de raisons pour avoir accepté d’entendre son cas.

Jessica Ernst’s fracking case to be heard by Supreme Court of Canada by The Canadian Press, April 30, 2015, CBC News

The Supreme Court of Canada will decide whether an Alberta woman can sue the province’s energy regulator over her claim that hydraulic fracturing has so badly contaminated her well that the water can be set on fire.

Fracking lawsuit against Alberta Environment can go ahead, judge rules

Jessica Ernst began legal action against the regulator and Calgary-based energy company Encana in 2007 and amended her statement of claim in 2011 to include Alberta Environment.

The Alberta courts turned down a provincial attempt to get out of the case, but exempted the regulator, citing immunity provisions in Alberta’s Energy Resources Conservation Act.

Ernst asked the Supreme Court to revisit the latter decision and the justices have agreed to hear her appeal.

She alleges that fracking on her land northeast of Calgary released hazardous amounts of chemicals such as methane into her well and that her concerns were not properly investigated.

As usual in leaves to appeal, the justices gave no reasons for deciding to hear the case.

Supreme Court will hear Rosebud fracking case by News Talk 770 (CHQR), April 30, 2015,

The woman who launched a lawsuit over fracking on her land northeast of Calgary is elated that the Supreme Court will hear her case against the Alberta Energy Regulator.

Jessica Ernst began her legal action in 2007 claiming fracking on land in the Rosebud area released harmful chemicals into well water, polluting it enough to make it flammable.

The Alberta courts exempted the AER from her lawsuit which also includes Alberta Environment and Encana, but Ernst appealed and now the Supreme Court will determine whether the regulator can be sued.

“I consider what happened today the biggest win, even bigger than what will happen when we have the hearing, because they only hear cases that are of utmost importance to Canadians.”

Ernst claims the energy regulator knew about the water contamination in the community and covered it up, something that hasn’t been proven in court.

“I know the powers out there, the industry is going to work really hard to prevent my case from ever getting into trial. And it may never get into trial. They may drag this out long beyond the end of my life, but I’m going to go all the way because it’s so bad and so many people are being poisoned by this hydraulic fracturing”.

Meanwhile Ernst says her lawsuits against the government and Encana are proceeding very slowly.

Alberta woman brings fracking fight to SCOC by Travis Dosser, April 30, 2015, 630 CHED Edmonton News

In 2007, Jessica Ernst began legal action against Alberta Energy Regulator and Calgary-based energy company EnCana in and a few years later in 2011 amended her statement of claim to include Alberta Environment.

Courts in Alberta turned down a provincial attempt to get out of the case but cited immunity provisions for the regulator, citing Alberta’s Energy Resources Conservation Act.

Ernst claims fracking chemicals contaminated her water well and made the water flammable. She says her water out of the tap can be lit on fire with a lighter and suggests there are many other Albertans in the same boat.

“They found red flag indicators of petroleum industry contamination in the drinking water supply in the hamlet of Rosebud, which gets about 40 to 50,000 visitors a year,” explains Ernst. “They found a whole bunch of toxic manmade chemicals that are not naturally occurring.”

Ernst says the fact that the SCOC will hear her appeal is great news.

“They will hear cases that they determine are of the utmost importance to all Canadians,” explains Ernst. “So what this shows Canadians is that the Supreme Court considers my case, my fracking lawsuit, to be of utmost importance to all Canadians, not just me.”

She says the PC government needs to be voted out because they are allowing this and will continue to allow this sort of thing to happen.

“If people take a stand a say – no, you’re not going to do this to us anymore, you’re not going to poison us for the profits of a few companies,” explains Ernst. “These profits don’t even really stay in Alberta.”

She alleges that fracking on her land northeast of Calgary released hazardous amounts of chemicals such as methane into her well and that her concerns were not properly investigated.

She says the Alberta government seems to care more about companies than Albertans. (twd, The Canadian Press)

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