On Jessica Ernst, and the Vagaries of Justice in Canada

  • She a dead ringer for “Hot Lips Houlihan” of M*A*S*H fame!

  • The very concept of immunity – whether for government departments, cabinet ministers, MP’s, Mayors, Council members, corporations, CEOs is fundamentally repugnant and fascistic.

    It declares that certain abstract structures and the people hiding within/behind those structures are above the rule of law, have been granted the Immunity to Act With Impunity.

    What the fuck is that about ??!!

    Even without immunity the balance of justice would be skewed in favour of TheCrownInc and its minions and hangers on by virtue of preferential access to resources, inside information, influential people and the like.

    The primary obligation and duty of public servants and government entities is to THE PUBLIC. For them to grant themselves the freedom to commit breach-of-trust and dereliction of duty-of-care and malfeasant misconduct and beyond the reach of the courts and justice system, without fear of consequences is sociopathological.

    WHEN they screw up and do the crimes, their people need to do the times.

    In this particular case, the top administrators of the Alberta Energy Regulator and its associated Ministers were and are acting as Trojan Horse corporatist agents shielding their clients from the consequences of their defacto clients’ ill-intentioned actions and depriving the public form pursuing lawful remedies.

    A reasonable starting point for their dishonourable behaviour would be to lock them in stocks in the public square for a good round of pillorying, followed by summary dismissal without compensation or pensions or legal recourse.

    >In the split ruling, one of the Supreme Court judges,
    >Rosalie Abella, said the regulator found Ernst a
    >“vexatious litigant,” though no regulator in Alberta
    >has ever described Ernst as such.

    Judge Rosalie Abella’s conduct in pronouncing Ernst a vexatious litigant is a profound error in judgement raising questions as to her competence. It is not within her jurisdiction to even make such a comment revealing her unprofessional attitude and error.
    Had that matter been put forth by the defendant, it may have been appropriate to rule on that matter. To add that “finding”, essentially augmenting the case for the defence, which was already found to be protected and immune from consequences is both practicing law from the bench – an unlawful and unprofessional conduct – and a gratuitous reverse-SLAPP to the litigant intended to commit permanent harm. …

    “Judge Rosalie Abella’s conduct in pronouncing Ernst a vexatious litigant is a profound error in judgement raising questions as to her competence. It is not within her jurisdiction to even make such a comment revealing her unprofessional attitude and error.

    Had that matter been put forth by the defendant, it may have been appropriate to rule on that matter. To add that ‘finding’, essentially augmenting the case for the defence, which was already found to be protected and immune from consequences is both practicing law from the bench – an unlawful and unprofessional conduct – and a gratuitous reverse-SLAPP to the litigant intended to commit permanent harm.”

    Thanks for this kootzie.

    Clearly Justice Abella should have recused herself, since she obviously has a festering chip on her shoulders. Or …

    Thumbnail

    Took a year for the Ernst ruling. I’d say Justice Abella had plenty of time to think about it.

  • This is heart wrenching for all of us. AER wins on a technicality and environment loses again! Why should AER be above the law and Encana go on fracking like crazy? Supreme Court has made a Supreme Mistake. Please support Jessica with a donation and /or card; she deserves our heartfelt thanks. www.ernstversusencana.ca/

  • …declares a claimant to be a ‘vexatious litigant,’ The technical term for that is a pain in the ass.

    • Seems to be more than one “technical” term:

      “Vexatious litigation has also been referred to as legal bullying … and such litigants, legal terrorists.”

      http://www.duhaime.org/LegalDi…

      None of which apply in this case, as Ms. Ernst explains in her letter:

      “The fact is, in 2005 the EUB judged me a criminal, not a ‘vexatious litigant,’ and punished me without due process and without any evidence. To this day, the regulator has never filed a motion in any court accusing me of being a ‘vexatious litigant.’ None of the defendants in my case have.

      In Justice Abella’s ruling, I have now been labelled a ‘vexatious litigant’ attributed to the regulator, also without due process and without any evidence. I find this exceedingly shocking and thoroughly unsettling.”

      Isn’t it interesting that “vexatious litigant” has just popped out of nowhere, and we now have a Supreme Court justice shovelling obvious untruths into the regulator’s mouth? Very unprofessional I think. Can’t wait to hear the reason for that.

      Here’s Ernst’s letter in it’s entirety:

      “Jessica Ernst

      Box 753 Rosebud

      Alberta T0J 4T0

      January 25, 2017

      Open Letter to Chief Justice Beverley McLachlin

      C/O Canadian Judicial Council

      Ottawa, Ontario K1A 0W8

      Dear Chief Justice Beverley McLachlin,

      Re: January 13, 2017 Ernst vs AER Supreme Court of Canada Judgement by Justice Rosalie Abella

      I write to bring to your attention a concerning matter regarding Justice Abella’s reasons in the above decision.

      I have followed Justice Abella’s remarkable career for a long time, watching her gently and caringly uphold our Charter; I have always had great respect and admiration for her and her work. So it stuns me that in her above decision in describing why I was banished by the Alberta Energy and Utilities Board (EUB, now AER), Justice Abella labels me a “vexatious litigant” and attributes 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.” (para. 64)

      I was no such thing. I was a landowner suffering endless sleepless nights because of Encana’s many unattenuated compressors near my home. I was the subject of lies and bullying by the company and regulator. I tried to get the EUB to engage honestly and respectfully with me and others impacted in my community, to enforce the regulations and appropriately address Encana’s non-compliances. I studied Encana’s noise assessments and the regulator’s deregulation; I documented their fraudulent and outright misrepresentations. Many in my community raised concerns. When we asked Encana if there was frac’ing in our community, we were told no (two years later, I found out Encana had already by that time repeatedly fractured into our drinking water aquifers).

      I was not a “litigant” at that time, so it was impossible for me to be a “vexatious” one.

      Later in her judgement, Justice Abella acknowledges in fact I was not a litigant:

      “Rather than seeking judicial review of the Board’s decision to stop communicating with her when she was first informed of this in November 2005, Ms. Ernst waited two years and then filed a statement of claim on December 3, 2007….” (para. 84)

      It is disheartening to me that Justice Abella believes I spent two years just waiting and “chose not to” (para. 129) seek judicial review. During that time, I ran my business, tried to find legal counsel willing to help, helped hundreds of impacted citizens, and researched the frac impacts that were besieging my home and community – including the water and energy regulators covering-up that Encana had broken the law and fractured our drinking water aquifers, keeping it secret from those of us living in explosive risk in our homes.

      The day I received Mr. Jim Reid’s November 24, 2005 banishment letter, I immediately sought legal advice. An Alberta lawyer sent me a copy of ERCA Section 43 and told me he would not help me, except to apologize or take the issue public. I was shocked. I have lived much of my life with our Charter of Rights and Freedoms, which I love and respect deeply. I knew then, as I know now, that my Charter rights had been violated and I had the right to seek remedy, but it took me nearly two stress-filled years to find a law firm willing to help.

      It is a serious finding when a court declares a claimant to be a “vexatious litigant,” resulting in the claimant being restricted or having no further access to the courts. In my understanding, Canadian energy regulators do not have the legal authority to find and declare citizens to be “vexatious litigants,” especially when those citizens are not litigants. The fact is, in 2005 the EUB judged me a criminal, not a “vexatious litigant,” and punished me without due process and without any evidence. To this day, the regulator has never filed a motion in any court accusing me of being a “vexatious litigant.” None of the defendants in my case have.

      In Justice Abella’s ruling, I have now been labelled a “vexatious litigant” attributed to the regulator, also without due process and without any evidence. I find this exceedingly shocking and thoroughly unsettling.

      I note that Justices Cromwell, Karakatsanis, Wagner and Gascon do not address Justice Abella’s “vexatious litigant” statement in the ruling, but you and Justices Côté, Brown and Moldaver do:

      “Our colleague Abella J. suggests that the Board, in deciding to stop communicating with Ms. Ernst, ‘in essence f[ound] her to be a vexatious litigant’ (para. 64). We see no basis for our colleague’s characterization.” (para. 172)

      Thank you for acknowledging this. I respectfully ask that Justice Abella’s statements be retracted or corrected (they appear in the summary and para. 64, and were published by various media). It is extremely distressing to me that false and seriously damaging statements are made and left to stand in my Supreme Court of Canada ruling. My main concerns are that:

      1) The two defendants remaining in my lawsuit may attempt to use Justice Abella’s statements against me;

      2) Justice Abella’s statements could prejudice future judges against me; and

      3) I continue to live with escalating harmful energy industry impacts, where the regulator – with no public interest in their mandate since 2013 – has established they are punitive towards me, and may also attempt to use Justice Abella’s statements against me.

      The EUB judged and punished me without due process and without any evidence, because they were admittedly humiliated. In my seeking remedy for that, the Supreme Court of Canada has done the same, but the reason is unclear. I cannot understand why Justice Abella made such statements and why the Court published them.

      Our Charter, emulated the world over, is now fractured for civil Canadians because of my loss. I expect our energy regulators will take advantage of this to enable industry’s profits and harms. I will live with that burden for the rest of my life. Must I also suffer the repercussions of being defamed in a Supreme Court of Canada ruling?

      I respectfully request answers and correction in whichever way you deem fair and just.

      Thank you for your time and attention to this matter.

      Sincerely,

      Jessica Ernst”

      http://www.ernstversusencana.c…

  • I haven’t been following the story of this case and I don’t have the knowledge about the issues to comment on the case itself, but perhaps a view I’ve long held might be helpful.

    Alberta’s Court of Queen’s Bench CJ Neil Wittman summarily dismissed a complaint I filed with the Canadian Judicial Council in 2010. I cite that fact merely as an indication that I know something about the regime that Ms. Ernst is fighting.

    I’ve never directly contended with Rosalie Abella, but I’ve developed a rather negative impression of her. That’s admittedly based on fairly limited evidence, but it’s evidence I’ve found compelling. Ms. Abella is of a certain school that adamantly believes that the full panoply of so-called administrative justice agencies should generally be accorded by the courts near absolute deference.

    Before she was ever appointed to a superior court she held the post of Chair of the Ontario Labour Relations Board. And in 1988 she gave an address at a conference in Ottawa entitled, “Canadian Administrative Tribunals: Towards Judicialization or Dejudicialization?”. It was published in volume 2 of the Canadian Journal of Administrative Law & Practice (1988-1989). This was the speech in which she used the memorable term “herculean feistiness” to describe what tribunal adjudicators need in order to act independently and with integrity. The full text of this speech ought to be put online.

    Some years ago I asked the Supreme Court to provide me with the text of another speech – one that Justice Abella gave to an audience in London in 2011. I was told that the speech hadn’t been published and that Ms. Abella doesn’t share her speaking notes. But the speech had been published – albeit just a scanned copy put online by someone at the University College of London:

    http://www.ucl.ac.uk/constitut…

  • It’s simply shocking that Nikiforuk would stoop so low as to expose the abysmal chasms in our justice system. As a proud Canadian, I’d wager my neighbour’s water supply that Canada is the best-regulated banana republic in the world.
    Canada is not Nigeria, believe me. When oil & gas companies contaminate your water in Canada, they do it ethically. In Canada, women including Jessica Ernst are allowed to drive. They may not be allowed justice, but you can’t have everything.

  • This ongoing case further demonstrates the power of the carbon oligarchy. When the uberrich can take over the United States through unlimited electoral propaganda, it is easily imaginable that the same forces are at work in Canada, pursuing essentially the same ends.

  • I find this absolutely F#$@ing unbelievable! This is however how corporations are allowed to treat individuals and even entire communities if they are not happy with what is happening to them. What are we all going to do about getting some changes made around here? It’s easy not to care when it’s not you being effected but believe me it could be any day and you will need support. We have to stand together on issues like this one.

  • c’mon Andrew – Canada’s legal system is not now nor has it ever been about justice. If it has lost sight of justice, it’s because it has never sought it in the first place. Canada has a system of law which as often as not allows the privileged to evade justice or any semblance thereof.

  • Courts at times appear to be mere extensions of government and industry.

  • So, the boys and girls dressed up in the Santa Clause suits are supposed to be impartial and have some sense of intelligence, justice and fair play.
    Anyone with an eye and an asshole would find this decision to be an absolute travesty.
    Who says ideology and a little crinkle under the table doesn’t abide this this soiled court.

    At times they get it wrong (Ernst) and at times they get it right (Teacher’s decision, and many First Nations issues). Supreme Court decisions can be reversed and have been, however, it’s usually a whole different group of Justices that do so.

    I do think it is imperative that we take the opportunity to not only whine about the decision but write to the SCC, but first try and read the SCC decision, Ernst’s letter and Sossin’s comments.

    Thanks to Nikiforuk for his caring and sometimes hard hitting journalism. I sure hope he’s read by more than Tyee readers.

  • Let’s not forget that it’s exactly the same a-holes and political toadys who are promoting the Trans Mountain pipeline and the ‘safe’, ‘world-class’ Maritime Spill Response.
    Let’s remember that these people have never told a truth and are not likely to begin now.

  • The immunity clause decision is simply OrWELLian……

    Then this bit here……

    Alberta Chief Justice Neil Wittmann, who serves as case management judge for Ernst’s ongoing lawsuit, recently described vexatious litigants as “those who persistently exploit and abuse the processes of the court in order to achieve some improper purpose or obtain some advantage.”

    This is precisely what happen in the Shawnigan quarry case, but it was and often is, the company and governments that collude to “persistently exploit and abuse the processes of the court in order to achieve some improper purpose or obtain some advantage.”

    To turn the tables and call out an activist of Ernst’s caliber is a gross double standard and certainly an affront to the charter.

    So I agree with Andrew when he says, “But that’s not a fair description of Ernst, who had never filed a lawsuit until an alleged combination of corporate and government negligence filled her well water with explosive levels of methane.”

    Finally one understands why activism that may actually impact the oil and gas crowd is a totally undesirable pursuit. 10 years, property and treasure, reputation, piece of mind and solace all sacrificed for court decisions that only set us all back.

    • Nikiforuk asks the question:

      “Just imagine how long Ernst might have to wait for the highest court in
      the land to correct “a false and seriously damaging” characterization in
      a ruling — let alone undo the damage of a ruling that effectively
      erodes the nation’s freedoms”

      Abella’s term on the Supreme Court ends in 2021. So my guess would be 4 years unfortunately. A very dangerous decision.

      We shouldn’t forget the landowners in NE BC who have suffered the same injustice from fracking and now the Supreme Court of Canada, or at least one of the Justices.

      “To turn the tables and call out an activist of Ernst’s caliber is a gross double standard and certainly an affront to the charter.”

      Oh fer crine out loud, what’s with the “activist” label? Ernst is suing over a public health threat and the abuse that goes with it, not marching.

      “In 2007, Ernst, then still an oil patch consultant with her own thriving business, sued the Alberta government, Encana and the Alberta Energy Regulator for alleged negligence over the contamination of local aquifers during a period of intense and shallow fracking of coal seams near her home in central Alberta.

      She did not take the decision lightly.

      But when the government failed repeatedly to uphold the law, Ernst saw no other recourse but to exercise her civic duties.

      As an ordinary citizen, she thought that she had a duty to protect groundwater, a critical public resource, from further contamination. She also thought her lawsuit might help to end the mistreatment of landowners in areas of intensive hydraulic fracturing.

      Democracies fail when their citizens fail to correct the state’s injustices or those of the marketplace.”

      CITIZENS … not activists.
      ____

      “Finally one understands why activism that may actually impact the oil and gas crowd is a totally undesirable pursuit. 10 years, property and treasure, reputation, piece of mind and solace all sacrificed for court decisions that only set us all back.”

      Activism? How about just seeking justice for the damages, abuse, and rampant fraud by industry, regulators and governments?

      Not everyone takes that shit lying down when they’re the brunt of it. Sure, lots of people gag and settle, and they’re just as big a problem as the contamination and fraud. Water moves, even contaminated water – it’s a public health threat – so when people gag and help the industry, regulators and governments keep the contamination a secret – it’s like aiding and abetting. Cowards.

      Ernst clearly doesn’t buy into that shit. Thank gawd.

      • “I stand proudly before you, fellow graduates, believing, as did my father, that democracies and their laws represent the best possibility of justice, and that lawyers are the people who have the duty to make that justice happen,”

        Supreme Court Justice Abella told a crowd of new Yale Law School graduates. (2016)

        Perhaps send this article to the 2016 Yale Law School graduates so they can appreciate “democracy” at the hands of Justice Abella.

        That’s beautiful. It really is. Truly inspiring. But I think she should have told those graduates the truth; lawyers are irrelevant, when you have a “justice” who gets to make up her own garbage.

        I think Justice Abella should be promoted to the prestigious Alberta Energy Regulator … the sky’s the limit as they say, and let’s face it; regulator threats/PR coming from Canada’s Supreme Court bench just doesn’t seem right. She deserves to move up.

        “an activist of Ernst’s caliber” fits the description of a “vexatious litigant.” A pain.

      • but it was and often is, the company and governments that collude to persistently exploit and abuse the processes of the court in order to achieve some improper purpose or obtain some advantage.”

        Am I a pure Bred Canadian???? Yes!!! I was born in this Country and raised by hard working, poor grand parents..Am I a proud Canadian?? Was once, but find it extremely difficult to look to the heavens when I read about people like Jessica Ernst or spend over 60 hours in a Canadian Court Room knowing that our so called Judicial System would be sending a NINE year old female child back from Canada to Egypt and to heavens only knows her future. Especially when her young mother managed to get her out of Egypt less than a year ago (Sharia Law and their bible is the KORAN)

        WE, maybe YOU will be (CELEBRATING) Canada’s 150 years and I for ONE wonder why???? WE have and had 150 Years or more of Corporate ownership of this country aided and abetted by two Parties that take their orders from the elite owned Corporate Parties..

        Yes!! Jessica is another victim of CORPORATE Justice administered by certain Judges who seem to be in bed with Corporate interests.

        Yes!! At 81 I AM sincerely sick of Politicians, Judges, Some gestapo type Police and Elites who think they are Gods.

      • There are those of us that don’t take it lying down, that is true, and Ernst is certainly one of them.

        I was not using the term “activist” in a derogatory sense in any way. I was just referring to her ten years of work, which can no doubt be considered or referred to as ‘activism.’

        My overall point was simply to underscore the nature of much activism today, even from those that are the best among us, often results in setbacks and much sacrifice which is a deterrent to many.

        • I think it’s just another bullshit label Kevin. “Eco-terrorist.” “Vexatious litigant.” And now “Activist.” Add it to the steaming pile.

          “My overall point was simply to underscore the nature of much activism today, even from those that are the best among us, often results in setbacks and much sacrifice which is a deterrent to many.”

          Well, let’s “hope” people aren’t too deterred. I think the setbacks and sacrifices have only just begun – unless of course people just decide to go hide when the next “punitive” dictator comes to town.

          “’Shark Tank’ star and Conservative Party of Canada leadership candidate Kevin O’Leary says he would force all Canadian provinces to allow fracking.

          … It is banned or under review in a number of provinces but O’Leary told the Halifax Chronicle-Herald Monday that he would override provinces that are not ‘pro-jobs.’

          ‘I want to see development of natural gas, period, and it’s going to happen. This is the domain of each premier but at the end of the day, if their policies are not pro-jobs then they’ll have to deal with me. That’s how I lead,’ O’Leary told the Chronicle Herald during an interview.

          ‘If I find any leadership, regardless of party, is not supporting economic growth for their people, I’ll be very punitive. There’s many tools I have as prime minister, and I will apply them.’

          … O’Leary is already the front-runner in the party’s contest and a recent Ipsos poll suggests that he could beat Prime Minister Justin Trudeau’s Liberals if an election were held now.”

          http://dailycaller.com/2017/01…

          All those “slogans” use to define a “citizen”.

          • Yep. Once you’re frac’d, you’re everything but. Obviously industry impacted citizens don’t have enough abuse heaped on them.

            Forgot to add “nutcase” to the steaming pile, compliments of the AER’s lead counsel.

            “What tends to happen is that the people who go yapping to the media are typically seen as nutcases.”

            www.youtube.com/watch?v=LKuCR3…

          I am cool with “Citizen”…..

    • It’s pretty clear who’s being vexatious, and it isn’t Ernst.

  • There have been many drownings at ‘Charter beaches’. tide comes in and the undertow takes you away.

    It seems Justice Rosalie Abella lives in a Trumpian alternate reality, where decisions are based on alternate facts.

    I wonder if we will see another Wiebo Ludwig? the ingredients are there…

    • IMO, there will be many Wiebo Ludwigs. That’s what the police are gearing up for. The authorities don’t much give a damn about so-called “external threats” to this nation. But because they fear the “rabble”, they are quite willing to come down hard on we the people. Someone mentioned not too long ago in one of these threads that the Liberals fear the people. That person is sooooo right!

    • “Civil disobedience has an honourable history, and when the urgency and moral clarity cross a certain threshold, then I think that civil disobedience is quite understandable, and it has a role to play.” Al Gore

    • And if you can’t afford a container for the ingredients, check with the RCMP. When it comes to covering the cost in high-pressure-cooker situations, they’ve been known to help out.

    • When take away the roots of justice from both government and the judiciary you leave only one path open.

  • From Ms. Ernst’s letter:

    “The EUB judged and punished me without due process and without any evidence, because they were admittedly humiliated. In my seeking remedy for that, the Supreme Court of Canada has done the same, but the reason is unclear. I cannot understand why Justice Abella made such statements and why the Court published them.

    Our Charter, emulated the world over, is now fractured for civil Canadians because of my loss. I expect our energy regulators will take advantage of this to enable industry’s profits and harms. I will live with that burden for the rest of my life. Must I also suffer the repercussions of being defamed in a Supreme Court of Canada ruling?”

    What a colossal shit-show. From the regulators all the way to the Supreme Court of Canada.

    And to them I say; she’s better than you – all of you.

  • It is time the courts in Canada listened to the people and the issues they bring forward.

    • It is not for the courts to listen to the people. The courts’ job is to uphold the law; that is where the Supreme Court has failed.

      In this case it was the Charter of Rights and Freedoms and they failed unfortunately. But. Supreme Courts have reversed decisions by previous Supreme Courts.

      Sossin: “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.”

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