Norton Rose Fullbright review of Justice Wittmann’s September 2013 ruling: Court finds Alberta Regulator has statutory immunity from hydraulic fracturing suit

Court finds Alberta Regulator has statutory immunity from hydraulic fracturing suit by Alan Harvey, February 21, 2014, Norton Rose Fullbright
The claim also alleged that, by its conduct, the ERCB breached the Canadian Charter of Rights and Freedoms by barring Ernst from communicating with the ERCB through the usual public channels, and thereafter ignored her for a period of time until she agreed to communicate with the ERCB directly only, and not publically through the media or through communications with other citizens. [ERCB management and legal staff tried to intimidate and bully Ernst into silence but failed, so did the RCMP. Ernst never made a deal with the ERCB agreeing to secret communications and the claim does not allege so.]

The ERCB applied for Summary Judgment dismissing the case against it. The Court found that the ERCB did not owe Ernst a private duty of care in the circumstances of this case but did owe her a public duty derived from the Energy Resources Conservation Act (ERC Act). However, as section 43 of the ERC Act expressly provides that no proceedings may be brought against the ERCB in respect of any act or thing done by it under the ERC Act, the Court ordered the allegations of negligence against the ERCB in the Statement of Claim struck out. Although the Court found Ernst’s Charter claim as “novel” and “not necessarily doomed to failure”, it felt that the ERC Act also provided immunity to the ERCB from personal claims for damages under the Charter. It felt that otherwise, aggrieved parties would come to the litigation process dressed in their Charter clothes whenever possible. [Emphasis added]

[Refer also to:

February 3, 2014: Ernst’s Appeal Factum (Appeal Number 1301-0346AC) filed in the Alberta Court of Appeal in Calgary. Hearing set for May 8, 2014.

Alberta Energy Regulator (previously ERCB) Not Immune to Charter, Landowner’s appeal argument foreshadows what could become a major court battle this May ]

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