Ernst v. EnCana Corporation, 2013 ABQB 537

Court of Queen ’ s Bench of Alberta Citation: Ernst v. EnCana Corporation, 2013 ABQB 537 Date: 20130919 Docket: 0702 00120 Registry: Hanna/Drumheller Between: Jessica Ernst Plaintiff - and - EnCana Corporation, Energy Resources Conservation Board and Her Majesty the Queen In Right of Alberta Defendants _______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ I. Introduction................................................................................................................

Page: 2 II. Background................................................................................................................ Page: 3 III. The ERCB Application................................................................................................ Page: 4

A. Striking the Fresh Claim.................................................................................. Page: 5 1. The Ernst Negligence Claim Against the ERCB.................................. Page: 6 a. Overview................................................................................ Page: 6 b. Duty of Care and Statutory Immunity................................... Page: 10 c. The Charter Argument.......................................................... Page: 15 2. The Charter Claim and the Limitations Act .......................................

Page: 20 The Positions of the Parties........................................................................... Page: 21 a. The Position of the ERCB..................................................... Page: 21 b. The Position of Ernst............................................................. Page: 21 3. Statutory Immunity and the Ernst Claims.......................................... Page: 22 a. Statutory

Interpretation Argument......................................... Page: 22 b. Constitutional Argument....................................................... Page: 24 B. Ordering Particulars...................................................................................... Page: 31 C. Costs............................................................................................................. Page: 31 1. Position of the ERCB........................................................................ Page: 31 2. Position of Ernst................................................................................

Page: 31 3. Decision............................................................................................ Page: 32 IV. Alberta ’ s Application................................................................................................ Page: 33 A. Overview...................................................................................................... Page: 33 B. Grounds Asserted by Alberta........................................................................ Page: 36 C. General Principles......................................................................................... Page: 36 D.

Positions of the Parties.................................................................................. Page: 37 1. Alberta.............................................................................................. Page: 37 2. Ernst.................................................................................................. Page: 39 3. Analysis............................................................................................ Page: 39 V. Overall Conclusion................................................................................................... Page: 40 A.

The ERCB Application.................................................................................. Page: 40 B. Costs of the April 2012 Applications............................................................ Page: 41 C. Alberta ’ s Application.................................................................................... Page: 41 D. Costs............................................................................................................. Page: 41 I. Introduction

[ 1 ] Jessica Ernst (“Ernst”) sued EnCana Corporation (“EnCana”), the Energy Resources Conservation Board (the “ERCB”) and Her Majesty the Queen in Right of Alberta (“Alberta”). The claims against EnCana are for damaging the Ernst water well and the Rosebud aquifer, the source of fresh water supplied to the Ernst home near Rosebud, Alberta.

It is alleged that, between 2001 and 2006, EnCana engaged in a program of shallow drilling to extract methane gas from coal beds and, in so doing, used a technique known as hydraulic fracturing, which included the use of hazardous and toxic chemicals in its hydraulic fracturing fluids, resulting in contamination of the Rosebud aquifer and the Ernst water well.

The claim against EnCana is grounded in a number of different legal theories, including negligence, nuisance, the rule in Rylands v Fletcher , and trespass. [ 2 ] The claim against the ERCB is that it was negligent in its administration of its statutory regulatory regime, that it failed to respond to Ernst concerns about water contamination from the EnCana drilling activity, that the ERCB knew that EnCana had perforated and fractured directly into the Rosebud aquifer, and that it failed to respond.

Further, it is alleged that the ERCB owed a duty to Ernst to take reasonable steps to protect her well water from foreseeable contamination. It is also alleged that, by its conduct, the ERCB breached

section 2(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982 c 11 (the “ Charter ”), by barring Ernst from communicating with the ERCB through the usual public communication 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. [ 3 ] The claim against Alberta is specifically against Alberta Environment and Sustainable Resource Development (“Alberta Environment”).

Ernst alleges she relied on Alberta Environment to protect underground water supplies and to responsibly and reasonably respond to any of her complaints; that by October 2004, Alberta Environment knew that EnCana was diverting water from underground aquifers without the required permits from Alberta Environment; and that a number of land owners had made complaints regarding suspected contamination of the Rosebud aquifer by mid-2005. It is alleged that, in late 2005, Ernst contacted Alberta Environment to report her concerns about EnCana’s activities.

Further, it is alleged that Alberta Environment failed to take any action until March 2006, when it tested the Ernst well and other water wells in the region. The tests allegedly indicated high concentrations of methane, hazardous chemicals and petroleum pollutants. Ernst claims that Alberta Environment’s investigation into the contamination of the Ernst water well was conducted negligently and in bad faith and prevented the Alberta Research Council from conducting an adequate review on the information provided by Alberta Environment.

It is alleged that Alberta Environment owed a duty to Ernst to protect her water well from foreseeable contamination caused by drilling for shallow methane gas, that it failed to conduct a reasonable investigation and to take remedial steps to correct damage, and that Alberta Environment breached its duty to Ernst. II. Background [ 4 ] Ernst filed the original Statement of Claim on December 3, 2007 and an Amended Statement of Claim on April 21, 2011. A Second Amended Statement of Claim was filed February 7, 2012.

Applications were made by EnCana, the ERCB and Alberta to strike paragraphs from the Second Amended Statement of Claim. In addition, the ERCB sought

Summary Judgment against Ernst. The applications were returnable April 26 and 27, 2012 and were heard by the Case Management Justice, Madam Justice Veldhuis. At the hearing, Madam Justice Veldhuis suggested that Ernst consider redrafting the Statement of Claim in a manner that complied with the Alberta Rules of Court , Alta Reg 124/2010 (the “ ARC ”). Counsel agreed, with the result that a Fresh Statement of Claim (the “Fresh Claim”) was drafted. Thus, the applications returnable April 26 and 27, 2012 did not proceed, and are moot insofar as the Second Amended Statement of Claim is concerned.

The Fresh Claim was filed June 25, 2012. The Fresh Claim is the subject of the present applications. [ 5 ] The present applications were returnable before Madam Justice Veldhuis on January 18, 2013. The present applications are brought respectively by the ERCB and Alberta. EnCana has not made any application with respect to the Fresh Claim. [ 6 ] In its application, the ERCB requests an Order striking certain paragraphs of the Fresh Claim; in the alternative, granting

Summary Judgment in favour of the ERCB; in the further alternative, better particulars with respect to the same paragraphs in the Fresh Claim; costs of the April 2012 application on a full indemnity basis and costs of the present application on the same basis. [ 7 ] Alberta’s application seeks an Order from the Court striking certain paragraphs, or portions thereof, from the Fresh Claim; or in the alternative, particulars and costs. [ 8 ] In accordance with the practice of the Court, written briefs were filed by the ERCB, Alberta and Ernst. Counsel argued the applications orally before Madam Justice Veldhuis on January 18, 2013. Madam Justice Veldhuis reserved her decision. On February 8,

2013, Madam Justice Veldhuis was appointed a Justice of the Court of Appeal of Alberta with her residence in Edmonton. Thereafter, Iwas advised by Madam Justice Veldhuis that she met with counsel for all of the parties, who agreed that I would become the CaseManagement Judge. Counsel was advised that I would be willing to rehear the applications.

The parties appeared before me on aconference call on April 15, 2013 and agreed that I would decide the applications based on the written briefs and materials filed and onthe basis of a transcript of the oral argument made January 18, 2013, with the caveat that should the Court require further oral argumentfrom the parties, it would reconvene to hear it.

The Court is able to decide the applications without reconvening. [9] I note that, subsequent to argument and before the release of this decision, the Energy Resources Conservation Act, RSA2000, c E-10 (the “ERCA”) was repealed and replaced by the Responsible Energy Development Act, SA 2012, c R-17.3 uponProclamation on June 17, 2013. This resulted in the creation of the Alberta Energy Regulator, which succeeded the ERCB. However, theERCA remains the applicable statute in force at the time the allegations in Ernst’s Fresh Claim arose. As a result, this decision referencesthe ERCA and the ERCB. III.

The ERCB Application [10] The specific paragraphs the ERCB seeks to have struck from the Fresh Claim are paragraphs 24-58, 81-84 and 87. Paragraphs24-58 are all subsumed under the heading “B. Claims Against the Defendant ERCB”. They are then divided into (I) “NegligentAdministration of a Regulatory Regime” and (ii) “Breach of s.2(

b) of the Canadian Charter of Rights and Freedoms.” Paragraphs 81-84of the Fresh Claim are under the heading “III. DAMAGES” alleging that Ernst suffered damages as the result of the ERCB’s negligenceand breach of Ernst’s Charter rights, and that those damages include general and aggravated damages, punitive and exemplary damages,interest and costs. In the alternative, the ERCB asks the Court to grant

Summary Judgment in favour of the ERCB. [11] In some cases, the nature of the remedy, if granted, may have consequences in the event of a successful application. But inthis case, the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”) would seemingly preclude a new Statement of Claim beingissued in the event of success in striking out the claim. An order granting

Summary Judgment would bar a future claim on the samesubject matter, applying the doctrine of res judicata. [12] The grounds asserted by the ERCB in support of both remedies is that no private duty of care is owed by the ERCB to Ernst,and that the ERCB is immune from liability for any acts done in the circumstances by reason of the statutory provisions of

section 43 ofthe ERCA. A.

Striking the Fresh Claim [13] The ERCB cites the following authorities pertaining to the applicable law in an application to strike a Statement of Claim:ARC, r 1.2 and 3.68; Donaldson v Farrell, 2011 ABQB 11 at para 30; Roasting v Lee (1998), (AB KB), 222 AR 234at para 6, 63 Alta LR (3d) 260; First Calgary Savings & Credit Union Ltd v Perera Shawnee Ltd, 2011 ABQB 26; Tottrup v Lund, 2000ABCA 121, 255 AR 204; SA (Dependent Adult) v MS, 2005 ABQB 549, 383 AR 264; Hunt v Carey Canada Inc, (SCC),[1990] 2 SCR 959; Hughes Estate v Hughes, 2006 ABQB 159, 396 AR 250, varied 2007 ABCA 277, 417 AR 52; Alberta AdolescentRecovery Centre v Canadian Broadcasting Corporation, 2012 ABQB 48, 396 AR 250. [14] There is no serious dispute between Ernst and the ERCB as to the proper legal test to strike a Statement of Claim or portionsthereof.

Rule 3.68 of the ARC states as follows: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; ...

(2) The conditions for the order are one or more of the following: ... (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim;

(

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). [ 15 ] The ERCB also cites ARC , Rule 1.2 which states as follows: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, ... (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. [ 16 ] The test articulated is that it must be “plain and obvious” that the pleading does not disclose a reasonable cause of action: First Calgary Savings & Credit Union Ltd at para 4 . Or, as stated by Ernst, the Supreme Court of Canada has cast the “plain and obvious” test as being “beyond reasonable doubt”: Hunt at para 32 . Neither novelty, complexity, nor length, prevents a plaintiff from proceeding with the case unless it is certain to fail: Hunt at para 33 .

I will proceed to deal with the argument presented by the ERCB and Ernst in three parts. Firstly, I address the negligence claim and the duty of care issue. Secondly, I discuss the Charter argument. And thirdly, I examine the impact of the Limitations Act and the statutory immunity argument on the claims. 1. The Ernst Negligence Claim Against the ERCB a. Overview [ 17 ] The claim in negligence against the ERCB is set forth in paragraphs 24-41 of the Fresh Claim: 24. The ERCB is the government agency responsible for overseeing and regulating the oil and gas industry, including all aspects of CBM development.

In particular, the ERCB is exclusively tasked with licensing gas wells, and enforcing significant legislative and regulatory provisions that are intended to protect the quality and quantity of groundwater supply from interference or contamination due to oil and gas development, including CBM Activities. 25. These legislative and regulatory provisions are contained in, among other sources, Oil and Gas Conservation Regulations , Alta.

Reg. 151/1971; Guide 65: Resources Applications for Conventional Oil and Gas Reservoirs (2003); Guide G-8: Surface Casing Depth - Minimum Requirements (1997); Guide 9: Casing Cement, Minimum Requirements; Guide 56: Energy Development Application Schedules (2003); and Informational Letter IL 91-11; Coalbed Methane Regulation (1991). 26.

In or before 1999, the ERCB used its statutory powers to establish a detailed Compliance Assurance Enforcement Scheme, which included set procedures for receiving and investigating public complaints, inspecting oil and gas operations to ensure that licenses were in compliance with all applicable rules, and taking appropriate enforcement and remedial action against oil and gas companies when non- compliance occurred.

This scheme was operationalized through the Operations Division of the ERCB, and specifically both through the ERCB’s Compliance, Environment and Operations Branch, and its Public Safety / Field Surveillance Branch. The ERCB’s Operations Division operates numerous Field Offices located throughout Alberta.

27. The ERCB made numerous public representations regarding what individuals adversely impacted by oil and gas activities could expect from the ERCB’s enforcement branches and field offices and from its published investigation and enforcement compliance mechanisms. In particular, the ERCB represented that: a. the ERCB ensures that water and agricultural lands are protected from adverse impacts caused by oil and gas activities; b. the ERCB specifically protects all freshwater aquifers from adverse impacts caused by oil and gas activities; c.

ERCB Field Offices are responsible for, and do in fact, inspect oil and gas operations to ensure compliance with all applicable standards, specifications and approval conditions; d. ERCB field staff investigate and respond to all public complaints to ensure that appropriate action is taken; and e. when non-compliance is identified, the ERCB triggers an established policy for ERCB enforcement action. 28. These representations had the effect of, and were limited to, encourage and foster reliance on the ERCB by Ms. Ernst and other landowners. In particular, Ms.

Ernst relied on the ERCB to prevent negative impacts on groundwater caused by oil and gas development; to respond promptly and reasonably to her complaints regarding impacts on her well water potentially caused by CBM Activities; and to take prompt and reasonable enforcement and remedial action when breaches of regulations or other requirements were identified. 29. Prior to engaging in CBM activities, EnCana submitted to the ERCB license applications for the EnCana Wells.

The ERCB knew that EnCana intended to engage in new and untested CBM Activities at the EnCana Wells at shallow depths underground located at the same depths as in-use freshwater aquifers, including the Rosebud Aquifer. Despite this knowledge, the ERCB licensed the EnCana Wells without taking adequate steps to ensure that EnCana would take proper precautions to protect freshwater aquifers from contaminations caused by shallow CBM Activities. 30.

Between 2001 and April 1, 2006, with the knowledge of the ERCB, EnCana conducted shallow CBM Activities at dozens of EnCana Wells in close proximity to the Rosebud Aquifer and the Ernst Water Well, as detailed above. 31. On or before January 2005, the ERCB knew that various landowners who rely and depend upon the Rosebud Aquifer had made several complaints regarding possible contamination of well water supplied by the Rosebud Aquifer. These complaints also raised concerns about possible connections between potential water contamination and local oil and gas activities. 32.

In or around late 2005 and throughout 2006, Ms. Ernst attempted to engage in direct and personal interactions with the ERCB on the specific issue of water contamination at her property and to register her concerns regarding specific EnCana wells. During this period, Ms. Ernst attempted to use ERCB’s publicized compliance and enforcement mechanisms. Ms. Ernst specifically interacted with various employees of the ERCB including, among others, Mr. Neil McCrank, the then-Chairman of the ERCB; Mr. Richard McKee, a senior lawyer at the ERCB; and Mr. Jim Reid, Manager of the ERCB’s Compliance and Operations Branch. 33.

As a result of Ms. Ernst’s direct interaction with the ERCB, the ERCB knew that Ms. Ernst had serious and substantiated concerns regarding her water and oil and gas development including that: a. the quality of her well water had suddenly radically worsened in 2005 and 2006; b. there was good reason to believe that the radical change in her water was specifically linked to EnCana’s CBM Activities at the EnCana Wells; and c. EnCana had breached ERCB requirements while conducting CBM activities at the nearby EnCana Wells. 34.

On or before March 2006, the ERCB knew that EnCana had perforated and fractured directly into the Rosebud Aquifer. 35. In or around 2006, the ERCB knew that Alberta Environment had conducted tests on Ms. Ernst’s well water indicating that her water was contaminated with various chemical contaminants, and contained very high levels of methane.

36. Despite clear knowledge of potentially serious industry-related water contamination and knowledge of potential breaches of ERCB requirements, the ERCB failed to respond reasonably or in accordance with its specific published investigation and enforcement process. Instead, the ERCB either completely ignored Ms. Ernst and her concerns, or directed her to the ERCB’s legal counsel, Mr. McKee, who in turn refused to deal with her complaints. 37.

Despite serious water contamination necessitating truck deliveries of safe water to the Plaintiff’s household and to other landowners who also depend upon the Rosebud Aquifer, the ERCB did not conduct any form of investigation into the causes of contamination of Ms. Ernst’s well water or the Rosebud Aquifer. 38.

At all material times, the ERCB owed a duty to the Plaintiff to exercise a reasonable standard of care, skill and diligence in taking reasonable and adequate steps to protect her well water from foreseeable contamination caused by drilling for shallow methane gas; to conduct a reasonable investigation after contamination of her water was reported; and to take remedial steps to correct the damage caused. 39.

The ERCB breached this duty, and continues to breach this duty, by failing to implement the ERCB’s own specific and published investigation and enforcement scheme; failing to conduct any form of investigation; and arbitrarily preventing the Plaintiff from participating in the usual regulatory scheme. 40.

Particulars of the ERCB’s negligence include: a. failing to take reasonable steps to ensure that the EnCana Wells licensed by the ERCB would not pose a serious risk of contamination to the Plaintiff’s underground freshwater sources, including the Rosebud Aquifer; b. failing to adequately inspect and investigate known and/or credible allegations of water contamination of Plaintiff’s underground freshwater sources, including the Rosebud Aquifer, and of the possible link between such contamination and the EnCana Wells license by the ERCB. c. failing to adequately inspect and investigate known and/or credible allegations of breaches of oil and gas requirements under the jurisdiction of the ERCB at the EnCana Wells; d. failing to use available enforcement powers to stop CBM Activities that were causing contamination of the Plaintiff’s underground freshwater sources, including the Rosebud Aquifer and to remediate water contamination and other harms caused by oil and gas industry activity that had already occurred; e. failing to implement the ERCB’s established and publicized enforcement and investigation scheme; f. failing to conduct adequate groundwater testing and monitoring; g. failing to investigate potential long-term impacts of CBM Activities on the Rosebud Aquifer; and h. failing to promptly inform the Plaintiff of potential contamination of the Rosebud Aquifer and of the potential risks posed by such contamination to the Plaintiff’s health, safety and property. 41.

The ERCB’s various omissions as listed above were taken in bad faith. b. Duty of Care and Statutory Immunity [ 18 ] The essence of the ERCB argument is that the duty of care issue is separate and distinct from the statutory immunity argument and that the ERCB, as a statutory body, does not owe Ernst a private duty of care. The ERCB says that there can be no cause of action against the ERCB, for without a duty of care, there can be no action in negligence. The ERCB also relies on

section 43 of the ERCA for its statutory immunity argument. Ernst joins issue on each of these points by alleging the ERCB can and does owe Ernst a duty of care and that the statutory immunity clause, properly interpreted, provides no immunity to the ERCB in the circumstances. [ 19 ] The parties have cited the following authorities: Cooper v Hobart , 2001 SCC 79 , [2001] 3 SCR 537; Anns v Merton London Borough Council , [1977] 2 All ER 118, [1977] UKHL 4, [1978] AC 728, (UK HL) ; Edwards v Law Society of Upper Canada , 2001

SCC 80, [2001] 3 SCR 562; Fullowka v Pinkerton’s of Canada Limited, 2010 SCC 5, [2010] 1 SCR 132; R v Imperial Tobacco CanadaLtd, 2011 SCC 42, [2011] 3 SCR 45; Peter W Hogg, Patrick J Monahan & Wade K Wright, Liability of the Crown, 4th ed (Toronto:Carswell, 2011); Nette v Stiles, 2010 ABQB 14, 489 AR 347; Burgess (Litigation Guardian of) v Canadian National Railway (2005), (ON SC), 78 OR (3d) 209 (SCJ), aff’d (2006), (ON CA), 85 OR (3d) 798 (CA), leave to appealto SCC refused, 31698 (February 8, 2007); Smorag v Nadeau, 2008 ABQB 714, 461 AR 156; Swinamer v Nova Scotia (AttorneyGeneral), (SCC), [1994] 1 SCR 445; Condominium Corp No 9813678 v Statesman Corp, 2009 ABQB 493, 472 AR 33; Adams v Borrel, 2008 NBCA 62, 297 DLR (4th) 400, leave to appeal to SCC refused, 32888 (February 19, 2009); Just v BritishColumbia, (SCC), [1989] 2 SCR 1228; Ingles v Tutkaluk Construction Ltd, 2000 SCC 12, [2000] 1 SCR 298; Rothfield vManolakos, (SCC), [1989] 2 SCR 1259; Heaslip Estate v Mansfield Ski Club Inc, 2009 ONCA 594, 96 OR (3d) 401;Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129; Sauer v Canada, 2007 ONCA 454, 31 BLR (4th) 20; Oil and Gas Conservation Act, RSA 2000, c O-6, ss 4(b), 4(f); Morguard Properties Ltd v Winnipeg (City), (SCC), [1983] 2 SCR 493; Tardif (Estate of) v Wong, 2002 ABCA 121, 303 AR 103; Alberta Utilities Commission Act, SA 2007, c A-37.2, s 69; Agrology Profession Act, SA 2005, c A-13.5, s 98(1); Alberta Human Rights Act, RSA 2000, c A-25.5, s 41; Child and FamilyServices Authorities Act, RSA 2000, c C-11, s 19; Court of Queen’s Bench Act, RSA 2000, c C-31, s 14; Emergency Medical Aid Act,RSA 2000, c E-7, s 2; Farm Implement Act, RSA 2000, c F-7, s 44; Fisheries (Alberta) Act, RSA 2000, c F-16, s 42; Gaming and LiquorAct, RSA 2000, c G-1, s 32; Health Professions Act, RSA 2000, c H-7, s 126(1); Health Quality Council of Alberta Act, SA 2011, c H-7.2, s 23; Persons with Developmental Disabilities Community Governance Act, RSA 2000, c P-8, s 20; Regulated Forestry ProfessionAct, RSA 2000, c R-13, s 95(1); Safety Codes Act, RSA 2000, c S-1, s 12(1); Securities Act, RSA 2000, c S-4, s 222(1); Mercure v AMarquette & Fils Inc, (SCC), [1977] 1 SCR 547; Encampment Creek Logging Ltd v Alberta, 2005 ABQB 787, 402 AR55; Berardinelli v Ontario Housing Corp, (SCC), [1979] 1 SCR 275; Tottrup; ERCA, ss 2(e.1), 43; Responsible EnergyDevelopment Act. [20] From these authorities, a number of principles arise.

The approach for assessing whether to impose a duty of care on a publicauthority was set out in Anns and is the analysis to be undertaken in Canada. The two-step analysis was described in Cooper at paragraph24 as follows: In Anns, supra, at pp. 751-52, the House of Lords, per Lord Wilberforce, said that a duty of care required a finding of proximity sufficientto create a prima facie duty of care, followed by consideration of whether there were any factors negativing that duty of care.

This Courthas repeatedly affirmed that approach as appropriate in the Canadian context. [21] In Fullowka, the Supreme Court of Canada reiterated the test, including a consideration of foreseeability of harm in thedetermination of whether there is a prima facie duty of care, at paragraph 18: This question must be resolved by an analysis of the applicable legal duties, following the approach set down by the Court in a numberof cases, including Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80,[2001] 3 S.C.R. 562; Odhavji Estate v.

Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Childs v. Desormeaux, 2006 SCC 18, [2006] 1S.C.R. 643; and Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. The analysis turns onwhether the relationship between the appellants and the defendants discloses sufficient foreseeability and proximity to establish a primafacie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care: see,e.g., Hill, at para. 20.

The analysis must focus specifically on the relationships in issue, as there are particular considerations relating toforeseeability, proximity and policy in each: see, e.g., Hill, at para. 27. [22] The

summary contained in Liability of the Crown at pages 242-243 sets out the following principles: 1) A public authority will not be open to liability for negligence unless the public authority was in a “close and direct” or proximaterelationship with the plaintiff. 2) The relevant statutory scheme is not the exclusive, or even a necessary, source of proximity in cases involving public authorities:Hill and Fullowka, as well as Cooper and Edwards, on one reading, provide the support for this conclusion. 3) However, the statutory scheme will preclude a duty of care, where such a duty would conflict with the statute: Hill provides thesupport for this conclusion. 4) In addition, the statutory scheme may also play a positive role in establishing proximity: Fullowka provides the support for this

conclusion. The cases do not explicitly foreclose the possibility of an exceptional case where the statutory scheme alone will establish proximity: that possibility was implicitly left open in Cooper and Edwards ; explicitly left open in Broome , which was that statutory duties “do not generally, in and of themselves, give rise to private law duties of care”; and affirmed in Elder Advocates.

However, the cases are clear that the statutory scheme will, by and large, not be sufficient to establish proximity, and that it will be necessary to point to other factors, arising from the actual relationship between the parties, to establish the required nexus or “closeness of connection”: all six decisions provide the support for this conclusion, either explicitly or by implication. 5) Factors suggesting proximity include physical and causal closeness, assumed or imposed obligations, and “expectations, representations, reliance, and the property or other interests involved”.

The courts are reluctant to find proximity between a public authority and members of the public with whom the public authority has had no contact, even if the public authority has knowledge of a general risk of harm and legal authority to prevent or minimize that risk: Cooper; Edwards . The courts are less reluctant to find proximity where a public authority has contact with a member of the public, making it aware of a specific risk of harm: Fullowka . [footnotes omitted] [ 23 ] The learned authors go on to state that it is clear that statutes alone are generally not sufficient to establish necessary proximity.

Ernst relies heavily on the line of authority involving a statutory investigation and inspection regime. [ 24 ] Counsel for the ERCB argues that one of the latest iterations of the distinguishing features of a private law duty of care owed by regulator is contained in Fullowka . In that case, unionized miners were on strike. Replacement workers were brought in. A striking miner circumvented security and set off an explosion that killed nine miners. The families claimed against a number of parties, including the security company and the Crown for negligently failing to prevent the explosion and deaths.

The alleged private law duty of care was that the mine inspectors had a statutory duty to inspect the mine and to order the cessation of work if they considered it unsafe. The labour dispute had become violent before the explosion. [ 25 ] Justice Cromwell, for the Court, distinguished Cooper and Edwards with respect to the proximity analysis. In Cooper , the Registrar of mortgage brokers regulated the mortgage broker in question. A client of the mortgage broker suffered damages. The allegation was that the Registrar owed a duty to the broker’s client.

Similarly in Edwards , it was alleged that the Law Society owed a duty to a claimant who was a client of a regulated lawyer. [ 26 ] In Fullowka , Justice Cromwell stated at paragraphs 41-45: 41. In the case of the mining safety regulators and the miners, the closeness of the relationship is somewhere between that in Hill , on the one hand, and Cooper and Edwards on the other. Under the MSA [ Mining Safety Act ], the onus for maintaining mine safety is on the owner, management and employees of the mine.

Section 2 of the MSA imposes on management the duty to take all reasonable measures to enforce the Act and on workers the duty to take all necessary and reasonable measures to carry out their duties according to the Act. Under s. 3, the owner is to ensure that the manager is provided with the necessary means to conduct the operation of the mine in full compliance with the MSA and under s. 5(3), the manager, or the competent person authorized by the manager, is to personally and continually supervise work involving unusual danger in an emergency situation.

A worker has the right to refuse to do any work when he or she has reason to believe that there is an unusual danger to his or her health or safety (s. 8(1)(a)) and is to report the circumstances to the owner or supervisor (s. 8(2)). A worker acting in compliance with these provisions is protected against discharge or discipline for having done so (s. 8(9)). Thus, much as the regulatory schemes at issue in Cooper and Edwards put the onus on lawyers and mortgage brokers to observe the rules, the scheme set out in the MSA puts the onus on mine owners, management and workers to observe safety regulations.

The role of the mining inspectors is essentially to see that the persons who have the primary obligation to comply with the MSA -- mine owners, managers and workers -- are doing so. In that sense, their role is analogous to the roles of the Law Society and the Registrar of Mortgage Brokers discussed in Edwards and Cooper . 42. However, the relationship between the inspectors and the miners was considerably closer and more direct than the relationships in issue in Edwards or Cooper .

While no single factor on its own is dispositive, there are three factors present here which, in combination, lead me to this conclusion. 43. The persons to whom mining inspectors are said to owe a duty -- those working in the mine -- is not only a much smaller but also a more clearly defined group than was the case in Cooper or Edwards . There, the alleged duties were owed, in effect, to the public at large because they extended to all clients of all lawyers and mortgage brokers.

44. In addition, the mining inspectors had much more direct and personal dealings with the deceased miners than the Law Society or the Registrar had with the clients of the lawyer or mortgage broker in Edwards and Cooper . As pointed out in Hill , in considering whether the relationship in question is close and direct, the existence, or absence, of personal contact is significant. The murdered miners were not in the sort of personal contact with the inspectors as the police in Hill were with Mr. Hill as a particularized suspect.

However, the relationship between the miners and the inspectors was much more personal and direct than the relationship between the undifferentiated multitude of lawyers’ clients and the Law Society as considered in Edwards or the undifferentiated customers of mortgage brokers as considered in Cooper .

As the trial judge found in this case, visits by inspectors to the mine during the strike were “almost daily” occurrences, 11 official inspections were conducted and at any time a tour of the mine was required, the inspector would be accompanied by a member of the occupational health and safety committee (para. 256). There was therefore more direct and personal contact with miners than there was with the clients in either Cooper or Edwards . 45 Finally, the inspectors’ statutory duties related directly to the conduct of the miners themselves.

This is in contrast to the Law Society in Edwards or the Registrar in Cooper who had no direct regulatory authority over the claimants who were the clients of the regulated lawyers and mortgage brokers. [ 27 ] Applying the contrasting authorities analysed by Cromwell J. in Fullowka and the principles articulated in the other authorities as summarized in Liability of the Crown , I am of the view that the duties owed by the ERCB in the circumstances of this case are not private duties. They are public duties. The necessary relationship of proximity between Ernst and the ERCB is absent.

The duties of the ERCB owed to the public are derived from the ERCA . [ 28 ] None of the paragraphs in the Fresh Claim elevate the ERCB’s public duties to a private duty owed to Ernst. She stands in her relationship to the ERCB much like the plaintiffs in Edwards and Cooper to the regulators in those cases, notwithstanding that she was in direct contact with the ERCB.

In all three instances, a member of the public may communicate with the regulator (the Law Society of Upper Canada in Edwards , the Registrar under the Mortgage Brokers Act , RSBC 1996, c 313 in Cooper , and the ERCB in this matter), but the regulator has no direct regulatory authority over the member of the public. Whether a private duty arises does not turn on whether an individual does or does not communicate directly with the regulator; regardless, there is no sufficient proximity to ground a private duty.

Nor was there a relationship established between Ernst and the ERCB outside the statutory regime which created a private duty. [ 29 ] Having found no private duty owed and no sufficient proximity to ground a public duty, it is unnecessary to determine whether the harm to Ernst was foreseeable. It is also unnecessary to consider the second part of the Anns test, that is, whether there would be any policy reason, assuming proximity, to impose a private duty. [ 30 ] In the result, there will be an Order striking the allegations of negligence against the ERCB contained in paragraphs 24-41 inclusive. c.

The Charter Argument [ 31 ] In the Fresh Claim, Ernst alleges that the ERCB breached her

section 2(

b) rights that she holds under the Charter . [ 32 ] This

section states: 2. Everyone has the following fundamental freedoms: ... (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication [ 33 ] The Fresh Claim contains allegations pertaining to the Charter breach in paragraphs 42-58 as follows:

42. In its role as the government agency responsible for regulating all aspects of the oil and gas industry, the ERCB has established a specific forum and process for communicating with the public and hearing public complaints and concerns regarding the oil and gas industry. 43. The ERCB, as a public body, invited and encouraged public participation and communication in the regulatory process, including through both its Compliance and Operations Branch, and its Field Surveillance Branch.

In particular, in communications directly with landowners located adjacent to oil and gas developments, the ERCB emphasizes the importance of public involvement in the regulation of oil and gas development in Alberta and strongly encourages such public participation. 44. The ERCB further frequently represented to such landowners that it is responsible for responding to and addressing all public complaints, including by investigating all such complaints. 45. Throughout 2004 and 2005, Ms.

Ernst frequently voiced her concerns regarding negative impacts caused by oil and gas development near her home both through contact with the ERCB’s compliance, investigation and enforcement offices, and through other modes of public expression, including the press and through communication with institutions and fellow landowners and citizens. 46. Ms. Ernst was a vocal and effective critic of the ERCB. Her public criticisms brought public attention to the ERCB in a way that was unwanted by the ERCB and caused embarrassment with the organization. 47. Ms.

Ernst pleads that as a result of, and in response to, her public criticisms, the ERCB seized on an offhand reference to Weibo Ludwig made by Ms. Ernst and used it as an excuse to restrict her speech by prohibiting her from communicating with the ERCB through the usual channels for public communication with the ERCB. These serious restrictions greatly limited her ability to lodge complaints, register concerns and to participate in the ERCB compliance and enforcement process. As a result, Ms.

Ernst was unable to adequately register her serious and well-founded concerns that CBM Activities were adversely impacting the Rosebud Aquifer, and her groundwater supply. 48. In particular, in a letter dated November 24, 2005, Mr. Jim Reid, the Manager of the Compliance Branch of the ERCB, informed Ms. Ernst that he had instructed all staff at the Compliance Branch of the ERCB to avoid any further contact with her. Mr. Reid also notified Ms. Ernst that he had reported her to the Attorney General of Alberta, the RCMP and the ERCB Field Surveillance Branch. 49. On December 6, 2005, Ms.

Ernst wrote to the ERCB to seek clarification of what was meant by Mr. Reid’s comments, and what restrictions she faced when attempting to communicate with at the ERCB. This letter was returned unopened. 50. On December 14, 2005, Ms. Ernst wrote to Mr. Neil McCrank, the then-Chairman of the ERCB, to seek further clarification. Ms. Ernst did not receive a response. 51. On January 11, 2006, Ms. Ernst again wrote to Mr. McCrank and again asked for clarification. Mr. McCrank failed to provide any further clarification or explanation regarding the restriction of communication. Instead, Mr. McCrank directed Ms.

Ernst to Mr. Richard McKee of the ERCB’s legal branch. Mr. McKee continued to ignore, deflect and dismiss Ms. Ernst’s request for an explanation regarding her exclusion from effective participation in the ERCB public complaints process and her request for the reinstatement of her right to communicate with the ERCB through the usual channels. 52. In his communications with Ms. Ernst, Mr. McKee, on behalf of the ERCB, confirmed that the ERCB took a decision in 2005 to discontinue further discussion with Ms. Ernst, and that the ERCB would not re-open regular communication until Ms.

Ernst agreed to raise her concerns only with the ERCB and not publicly through the media or through communications with other citizens. 53. On October 22, 2006, Ms. Ernst again wrote to Mr. McCrank to request that she be permitted to communicate unhindered with the ERCB like any other member of the public. Specifically, Ms. Ernst requested the right to be able to file a formal objection to oil and gas development under the usual ERCB regulatory process for receiving such objections. Mr. McCrank did not respond to this request.

54. On March 30, 2007, 16 months after the original letter restricting Ms. Ernst’s participation in ERCB processes, Mr. McCrankinformed Ms. Ernst that she was again free to communicate with any ERCB staff. 55. Ms. Ernst pleads that Mr. Reid’s letter and the subsequent restriction of communication were a means to punish Ms. Ernst for pastpublic criticisms of the ERCB, to prevent her from making future public criticisms of the ERCB, to marginalise her concerns and to denyher access to the ERCB compliance and enforcement process, including, most importantly, its complaints mechanism. 56. Ms.

Ernst pleads that the decision to restrict her communication with the ERCB, and the decision to continue such restriction, wasmade arbitrarily, and without legal authority. 57. Throughout this time, Ms. Ernst was prevented from raising legitimate and credible concerns regarding oil and gas related watercontamination with the very regulator mandated by the government to investigate and remediate such contamination and at the very timethat the ERCB was most needed.

Her exclusion from the ERCB’s specific and publicized investigation and enforcement processprevented her from raising concerns with the ERCB regarding its failure to enforce requirements under its jurisdiction, including thoseaimed at protecting groundwater quantity and quality. 58. The ERCB’s arbitrary decision to restrict Ms. Ernst’s communication with the ERCB, specifically by prohibiting her fromcommunicating with the enforcement arm of the ERCB, breached Ms. Ernst’s rights contained in s.2(

b) of the Canadian Charter ofRights and Freedoms by: a. punitively excluding Ms. Ernst from the ERCB’s own complaints, investigation and enforcement process in retaliation for hervocal criticism of the ERCB, thereby punishing her for exercising her right to free speech; and b. arbitrarily removing Ms.

Ernst from a public forum of communication with a government agency that had been established toaccept public concerns and complaints about oil and gas industry activity, thereby blocking her and preventing her from speaking in apublic forum that the ERCB itself had specifically established to facilitate free speech. [34] The parties have cited the following authorities with respect to the Charter argument: Irwin Toy Ltd v Quebec (AttorneyGeneral), (SCC), [1989] 1 SCR 927; Baier v Alberta, 2007 SCC 31 at para 20, [2007] 2 SCR 673; Ontario (AttorneyGeneral) v Dieleman (1994), (ON SC), 20 OR (3d) 229 (Gen Div); R v Breeden, 2009 BCCA 463, 277 BCAC 164,leave to appeal to SCC refused, 33488 (April 22, 2010); Ross v New Brunswick School District No 15, (SCC), [1996] 1SCR 825; Public Service Alliance of Canada v Canada, 2001 FCT 890, 209 FTR 306; Pacific Press, A Division of Southam Inc v BritishColumbia (Attorney General) (1998), (BC SC), 52 BCLR (3d) 197 (SC), aff’d (BC CA), 61 BCLR(3d) 377 (CA), leave to appeal to SCC refused, 27045 (May 21, 1999); Committee for the Commonwealth of Canada v Canada, (SCC), [1991] 1 SCR 139; Haydon v Canada, (FC), [2001] 2 FC 82 (FCTD); Pridgen v University of Calgary, 2010 ABQB 644, 497 AR 219, aff’d 2012 ABCA 139, 524 AR 251; R v Watson, 2008 BCCA 340, 83 BCLR (4th) 243, leave toappeal to SCC refused, 33037 (June 18, 2009); Cunningham v Alberta (Minister of Aboriginal Affairs and Northern Development), 2009ABCA 239, 457 AR 297, reversed 2011 SCC 37, [2011] 2 SCR 670; Greater Vancouver Transportation Authority v CanadianFederation of Students - British Component, 2009 SCC 31, [2009] 2 SCR 295. [35] The position of the ERCB with respect to the Charter argument is that whether a breach of

section 2(

b) has occurred involvesa two-stage analysis. Relying on Irwin Toy, the two steps are, first, whether the activity in question is a protected form or method ofexpression. If it is, it then must be decided whether the purpose or effect of the government action infringes on the right to freeexpression. [36] Both parties agree that

section 2(

b) is to be given a broad and purposive

interpretation. However, the ERCB relies on Baier toassert that Charter protection of free expression would not extend to situations where there are threats or acts of violence. [37] The ERCB goes on to cite Dieleman for the proposition that any Charter right to free expression does not include the right toan audience.

[ 38 ] The ERCB relies on paragraph 47 of the Fresh Claim where Ernst alleges her reference to Weibo Ludwig was “offhand”. Ernst alleges the ERCB used it as an excuse to restrict her speech by prohibiting her from communicating with the ERCB through the usual channels for public communication with the ERCB. The ERCB says the significance of this comment is the context of numerous violent acts of eco-terrorism against oil and gas development in Alberta which were undertaken by Weibo Ludwig. Further, the ERCB says it is required to take such threats seriously, and that it reported the threat to the RCMP.

Moreover, the ERCB asserts that paragraphs 42-58 of the Fresh Claim demonstrate that Ernst continued to contact the ERCB after it ceased communications with her, and that the gist of her claim is not that the ERCB breached her right to free expression, but rather, that it did not respond to her communications or did not respond in a way that Ernst found satisfactory. This, it is said, leads to a proposition that the

section 2(

b) Charter right is not a right to be listened to, but rather, only a right to speak. [ 39 ] Ernst argues the Charter issues by alleging two forms of breach: first, that the ERCB violated Ernst’s

section 2(

b) Charter right by punishing her for criticizing the ERCB in public and to the media, and second, that Ernst’s right to freedom of expression was infringed because she was prohibited and restrained in her communication with the ERCB.

The first argument is based on paragraphs 55- 57 of the Fresh Claim, where Ernst claims that in a letter dated November 24, 2005 from the ERCB, all staff at the Compliance Branch of the ERCB were instructed to avoid further contact with her, that she was reported to the RCMP, and that these restrictions “were a means to punish” Ernst for past public criticisms and were calculated to prevent her from making future public criticisms of the ERCB.

The second breach alleged by Ernst is that, in November 2005, the ERCB took action against Ernst which was intended to, and did in fact, restrict and constrain Ernst’s ability to communicate with key officials of the ERCB. Further, Ernst asserts that her expression was not a “violent expression” and that there is no foundation for this argument by the ERCB because there is no evidence in front of the Court to establish that assertion. [ 40 ] With respect to the ERCB’s assertion that

section 2(

b) of the Charter does not guarantee the right to an audience or a captive audience, Ernst denies that she is making that claim. Reference is made to Dieleman , where it was held that enjoining a free safe zone around abortion clinics was not an infringement of the protestors’

section 2(

b) Charter right because women who sought to use the abortion clinics were, in effect, “a captive audience” and could not avoid listening to the protestors by their free choice. Ernst argues that this is an entirely different situation, as there is no “captive audience” as in Dieleman .

Further, Ernst argues that the ERCB does not and cannot respond to the first Charter breach claim, that is, that the ERCB sought to punish Ernst for her speech by prohibiting her from communicating with the Compliance Branch of the ERCB. [ 41 ] Citing Baier , Ernst argues that positive rights cases are those where a government has, through a statute, created a platform for expression that only some individuals are able to access, but says that Ernst does not make any claims for a positive right of expression requiring government support.

Ernst says she invokes the circumstance that the ERCB has taken an action which limits, prohibits or restricts or otherwise constrains free expression. Ernst says that the restriction on her communication was arbitrary. [ 42 ] Taking all of the arguments into consideration, it is to be remembered that because a cause of action may be novel, it is not necessarily “doomed to fail” by reason of novelty alone.

One might question whether it is possible for a government entity, which admittedly the ERCB is, not to owe a private law duty to a plaintiff and thus cannot be held liable in negligence to her, but that, at the same time, may have breached her Charter rights, giving rise to a claim for damages. But the claim for a breach of a Charter right is not dependant on the proximity analysis originating in Anns , nor the distinction between a public law and a private law duty.

To a certain extent, a claim for a Charter breach is based upon the establishment of a right and an infringement of it by the action of a government or government agency. That is what is alleged here and, however novel the claim might be, I cannot say that it is doomed to fail or that the claim does not disclose a cause of action. 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. [ 43 ] Therefore, unless the Limitations Act is engaged so as to prohibit the Fresh Claim based on the Charter argument, or unless the statutory immunity clause bars the Charter claim, it will stand. 2. The Charter Claim and the Limitations Act [ 44 ] Section 3(1) of the Limitations Act states as follows: 3

(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred,

(ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. The Positions of the Parties a. The Position of the ERCB [ 45 ] The ERCB argues that

summary judgment may be granted if a claim is filed outside the limitation period: Borchers v Kulak , 2009 ABQB 457 , 479 AR 136 at para 36 . The ERCB also argues that the Limitations Act applies to a constitutional cause of action where personal claims for a constitutional remedy are in issue: Ravndahl v Saskatchewan , 2009 SCC 7 , [2009] 1 SCR 181 at paras 16- 17 . [ 46 ] The ERCB acknowledges there is no affidavit evidence in support of its application for

summary dismissal of the Charter claim on the basis of the Limitations Act , and asserts that it does not need to file any evidence because “on the plaintiff’s own facts, the purported decision to exclude her from the ERCB complaint process took place on or before November 24 th , 2005, more than 2 years before the Plaintiff filed her Statement of Claim.” ERCB Written Brief, para. 149. [ 47 ] The reference to November 24, 2005 is an allegation contained in paragraph 48 of the Fresh Claim. The ERCB also submits that the

summary judgment rules contained in the ARC specifically reference that judgment may be given “at any time and in action” when admissions of fact are made in a pleading: ARC , r 7.2(a). The ERCB concedes that Rule 7.3(2) states that an application for

summary judgment “must be supported by an affidavit swearing positively that one or more of the grounds described in sub-rule (1) have been met”, but points out that the sentence carries on to state an alternative, namely “or by other evidence to the effect that the grounds have been met”. It simply asserts that “other evidence” referenced in Rule 7.3(2) includes admissions of fact in the pleadings. b. The Position of Ernst [ 48 ] Ernst submits that because the original Statement of Claim was filed December 3, 2007, the ERCB’s Application for

Summary Judgment, in order to be successful, must contain proof that Ernst knew before December 3, 2005 that a Charter breach had occurred, that the breach was attributable to the ERCB, and that the breach warranted bringing a proceeding. Further, Ernst says that the ERCB cannot prove, nor has it proven, any of these elements. As an example, Ernst states that the pleadings are entirely silent on the crucial issue as to when Ernst actually received and read the November 24, 2005 letter. [ 49 ] I agree with the submissions of Ernst on the Limitations Act issue.

Asserting in a pleading as a matter of fact that a letter dated November 24, 2005 crystallized a Charter claim, if any, in favour of Ernst is not the same as alleging that any event occurred with the knowledge of the plaintiff, so as to constitute an admission of fact. There is no admission of fact that Ernst received the letter prior to December 3, 2005, only that the letter is dated prior to then. That is not sufficient proof upon which to ground an order granting

summary judgment, assuming that it is an admission of fact constituting a ground for dismissal. I do not decide whether the other elements asserted by Ernst have been proven or not, in terms of whether a Charter breach has occurred or, if so, whether the conduct of the ERCB warranted bringing an action prior to December 3, 2005. 3. Statutory Immunity and the Ernst Claims [ 50 ] I must ascertain whether the statutory immunity clause,

section 43 of the ERCA , serves to bar the Ernst claims for negligence

and damages for a Charter breach in any event. That

section states as follows: 43. No action or proceeding may be brought against the Board or a member of the Board or a person referred to in

section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board. [ 51 ] The ERCB argues that this

section is an absolute bar to the Ernst claims against it. Ernst argues that

section 43 cannot bar her claim. She advances a statutory

interpretation argument and a constitutional argument in support of her position. I consider both arguments below. a. Statutory

Interpretation Argument [ 52 ] Ernst elaborates on principles of statutory

interpretation to argue that

section 43 does not protect the ERCB in the circumstances. Ernst basically says that her claim against the ERCB is for the sin of omission, not comission. She asserts that the statutory protection afforded the ERCB by

section 43 is in respect only of “any act or thing done or purported to be done” not any act or thing it omitted to do. In support of her argument, Ernst cites

section 69 of the Alberta Utilities Commission Act which states as follows: 69. No action or proceeding in respect of any act or thing done or omitted to be done or purported to be done or omitted to be done in good faith under this or any other enactment or under a decision, order or direction of the Commission may be brought against the Commission, any member or any person referred to in section 68(1). [ 53 ] In addition, Ernst cites the Responsible Energy Development Act ,

section 27 which states as follows: 27. No action or proceeding may be brought against the Regulator, a director, a hearing commissioner, an officer or an employee of the Regulator, or a person engaged by the Regulator, in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment. [ 54 ] As noted, this statute came into force on June 17, 2013.

It repeals the ERCA and establishes a single Alberta Energy Regulator, to, amongst other things, consider and decide applications pertaining to energy resource enactments including pipelines, wells, processing plants, mines and other operations for the recovery of energy resources. [ 55 ] Given that statutes restricting action are to be strictly construed, Ernst says that

section 43 of the ERCA affords no protection to the ERCB because her claim against the ERCB stems not from the ERCB’s actions, but from its failure to act. [ 56 ] The ERCB replies, emphasizing adjectives in the Fresh Claim against the ERCB, namely that it did not respond “reasonably” (paragraph 36 of the Fresh Claim), failed to conduct a “reasonable investigation” (paragraph 38 of the Fresh Claim), arbitrarily prevented “the Plaintiff from participating in the regulatory scheme” (paragraph 39 of the Fresh Claim), and so on. In short, the ERCB says that the claim against it is for what it did, and falls squarely within the provisions of

section 43. [ 57 ] I do not accept the argument that the lack of the words “or anything omitted to be done” in

section 43, render its

interpretation as providing statutory immunity to the ERCB only in situations where it has acted, as opposed to failing to act. A decision taken by a regulator to act in a certain way among alternatives inherently involves a decision not to act in another way. Picking one way over another does not render the ERCB immune from an action or proceeding, depending on its choice. This construction would result in an irrational distinction and lead to an absurdity.

Moreover, to the extent that the other statutes providing statutory immunity to the regulator are relevant in that they contain the additional phrase “or anything omitted to be done”, I regard those words as mere surplusage in the circumstances. Therefore, I hold that

section 43 bars any actions or proceeding against the ERCB, in terms of both its decisions to act and the acts done pursuant to those decisions, and its decisions not to act. [ 58 ] Therefore, even if I had found that the ERCB owed a duty of care to Ernst sufficient to establish a tort claim, her claim in

negligence is barred in any event by

section 43 of the ERCA. b. Constitutional Argument [59] That leads to the question as to whether there is a reason in principle not to apply the reasoning I have already given, in termsof the statutory immunity of the ERCB, to the personal claim for damages pursuant to the Charter, as well as the claim for negligence. [60] During oral argument, counsel for Ernst argued that the government cannot legislate immunity to preclude legal action arisingout of its own Charter breaches.

Counsel for Ernst handed to the Court an excerpt from the case Prete v Ontario (1993), (ON CA), 16 OR (3d) 161 (CA), application for leave to appeal to SCC dismissed with costs, [1994] 1 SCR x. In that case, a claimfor damages as a remedy was brought pursuant to section 24(1) of the Charter, alleging the Attorney General of Ontario arbitrarily,capriciously and without any reasonable grounds preferred a direct indictment on a charge of murder against the plaintiff.

The issuebefore the Court was whether a six-month limitation period in section 11(1) of the Public Authorities Protection Act, RSO 1980, c 406,barred the proceedings. That

section prohibited any action against any person in the intended execution of any statutory or other publicduty, unless it was commenced within six months after the cause of action arose. [61] The Court also considered the applicability of a statutory immunity clause in the Proceedings Against the Crown Act, RSO1980, c 393. Sections 5(1) and 5(6) provide: 5(1) Except as otherwise provided in this Act and notwithstanding

section 11 of the

Interpretation Act, the Crown is subject to allliabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort committed by any of its servants or agents; (

b) in respect of a breach of duties that one owes to one’s servants or agents by reason of being their employer; (

c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and (

d) under any statute, or under any regulation or by-law made or passed under the authority of any statute. ... 5(6) No proceeding lies against the Crown under this

section in respect of anything done or omitted to be done by a person whiledischarging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has inconnection with the execution of judicial process. [emphasis added] [62] In Prete, the Court, relying on the judgment of Lamer J. in Nelles v Ontario, (SCC), [1989] 2 SCR 170, statedthat prosecutorial immunity, to the extent it may bar a remedy under the Charter, cannot stand alone. The Court said that these reasonswere “strongly persuasive” that a statutory enactment cannot bar a Charter remedy, and pointed out that section 32(1)(

b) of the Charterapplies to the legislature of government in each province: para 8. Similarly, the Court in Prete found that there would be no immunityavailable under section 5(6) of the Proceedings Against the Crown Act, where a Charter remedy is claimed. [63] One of the interesting propositions from Prete is that a claim for malicious prosecution without any Charter aspect may besubject to a statutory limitation or protection afforded to the Crown or the Attorney General, while the same claim brought under theCharter, would be subject to no such bar. [64] The statutory immunity clause in

section 43 of the ERCA applies to “any act or thing done” in pursuance of the ERCA or anyAct administered by the ERCB. The statutory immunity clause in section 5(6) of the Proceedings Against the Crown Act in Prete appliesto all liabilities in tort under

section 5, which are set out in section 5(1). I am not bound by the Ontario Court of Appeal decision in Prete,

and find it is distinguishable in any event on the basis of the wording of the statutory immunity clause. [ 65 ] I must therefore determine whether a generally worded statutory immunity clause will apply when a claim is asserted for damages for a Charter breach. There is appellate and Supreme Court of Canada jurisprudence on the issue of whether a limitation period applies to a Charter claim.

Distinctions are made as to whether the claim is personal (for example, seeking damages for breach of an individual’s Charter rights) or general (such as seeking the striking down of legislation), and whether the limitation period applies to everyone, or is specific in its application. The law relating to whether a limitation period applies to a Charter claim provides a helpful starting point in determining whether the statutory immunity clause in

section 43 of the ERCA applies in this case. [ 66 ] In Alexis v Darnley , 2009 ONCA 847 , 100 OR (3d) 232, leave to appeal to the SCC refused, 33560 (April 29, 2010), the Ontario Court of Appeal found that a general Limitations Act, 2002 provision applied to a personal claim under section 24(1) of the Charter .

At paragraphs 16 and 17, the Court reviewed a number of cases from provincial Courts of Appeal and found that limitation periods of general application, that is, that are applicable to everyone, apply to personal Charter claims, but do not apply to statutes which immunize the government itself from a Charter claim. This is distinguishable from Prete , where the issue was a six-month limitation period that applied only to the Crown. [ 67 ] The only Alberta case cited by the parties was Garry v Canada , 2007 ABCA 234 , leave to appeal to SCC denied [2008] 1 SCR viii.

Garry was an application before a single justice of the Court of Appeal to restore an appeal to the list, and stands as some authority in Alberta for the proposition that general limitation periods apply to Charter claims. Justice Côté noted that “no authority has been shown to say that general limitation periods do not apply to Charter claims”: para 21. He goes on to distinguish Prete on the basis that: ...[ Prete ] was about interpreting the short limitation period for suing the Crown and public authorities in Ontario. Alberta has no equivalent legislation; the Crown gets no special treatment here.

That case is not about general limitation statutes: para 21. [ 68 ] The Supreme Court of Canada has considered the application of statutory limitation periods to personal claims for constitutional relief in several cases, including Ravndahl . In Ravndahl , the plaintiff was a widow whose former husband died of injuries he sustained during his employment. As a result, the plaintiff received benefits under the Saskatchewan Workers ’ Compensation Act of 1978 (the “ WCA ”). She lost her benefits pursuant to

section 68 of the WCA in 1984, when she remarried. After the Charter came into effect on April 17, 1985, the WCA was amended and ultimately provided for compensation to continue to be paid to a surviving dependent spouse if he or she remarried after April 17, 1985. The plaintiff brought an action in 2000 pursuant to the equality provision in

section 15 of the Charter , seeking an order reinstating her spousal pension and awarding damages, and declaring that the WCA , as amended in 1985, was of no force and effect. [ 69 ] The Supreme Court of Canada concluded that the plaintiff’s personal claims for declarations and damages were statute-barred by the limitation period, but that her claim for a declaration of constitutional invalidity was not. Chief Justice McLachlin, for the Court noted: 16 ...Personal claims for constitutional relief are claims brought as an individual qua individual for a personal remedy.

As will be discussed below, personal claims in this sense must be distinguished from claims which may enure to affected persons generally under an action for a declaration that a law is unconstitutional. 17 The argument that The Limitation of Actions Act does not apply to personal claims was abandoned before us, counsel for the appellant conceding that The Limitation of Actions Act applies to such claims. This is consistent with this Court’s decision in Kingstreet Investments Ltd. v.

New Brunswick (Finance) , 2007 SCC 1 , [2007] 1 S.C.R. 3, which held that limitation periods apply to claims for personal remedies that flow from the striking down of an unconstitutional statute: paras 16-17. [ 70 ] These principles were recently reiterated by the Supreme Court of Canada in Manitoba Metis Federation Inc. v.

Canada (Attorney General) , 2013 SCC 14 , 355 DLR (4 th ) 577, where the majority concluded: 134 ...[A]lthough claims for personal remedies flowing from the striking down of an unconstitutional statute are barred by the running of a limitation period, courts retain the power to rule on the constitutionality of the underlying statute. ...

135 Thus, this Court has found that limitations of actions statutes cannot prevent the courts, as guardians of the Constitution, fromissuing declarations on the constitutionality of legislation. By extension, limitations acts cannot prevent the courts from issuing adeclaration on the constitutionality of the Crown’s conduct: paras 134-135. [See also: Ravndahl at para 17; Kingstreet Investments Ltd vNew Brunswick (Finance), 2007 SCC 1, [2007] 1 SCR 3 at para 59] [71] In Manitoba Metis Federation, the Manitoba Metis Federation sought declaratory relief, not personal remedies. They made noclaim for damages or land.

The Supreme Court of Canada concluded that The Limitation of Actions Act did not apply, and the claim wasnot statute-barred. [72] In contrast, the plaintiff in this case does not seek to strike down legislation; she seeks a personal remedy, namely damages. Ifthe issue in dispute were the applicability of a limitation period found in a general limitations statute, it is clear that the generallimitations statute would apply to this action. [73] The difficulty this Court is faced with is that a statutory immunity clause is not the same as a limitation period in a generallimitations statute.

Section 43 of the ERCA purports to bar absolutely any action brought against the ERCB. On the face of it, this wouldinclude a Charter claim for a personal remedy, as opposed to an application challenging a provincial statute or regulation on the basis ofits validity against Charter scrutiny. A statutory immunity clause is of general application in the sense that it immunizes a governmentagency from suit, and does not target individual parties. At the same time, this does not necessarily deprive a party of any remedy.

Aswas pointed out in oral argument by counsel for the ERCB, the time-tested and conventional challenge to an administrative tribunal’sdecision is judicial review, not an action against the administrative tribunal. [74] I see commonalities between statutory immunity provisions and limitation periods of general application that apply to Charterclaims for personal remedies. Both are statutory bars to claims that may otherwise have merit.

In Prete, the Ontario Court of Appealconcluded that both the limitation period and the statutory immunity provisions in the Proceedings Against the Crown Act could notinfringe upon the plaintiff’s ability to seek a remedy under the Charter. Justice Carthy, for the majority, noted: Put in this Charter context, I see no valid comparison between procedural rules of court and statutory limitation periods.

I do see identitybetween statutes granting immunity and those imposing limitation periods after the time when the limitation arises: para 14. [75] Where a party seeks a general constitutional remedy, as opposed to a personal remedy, a statutory immunity clause will notapply. In the pre-Charter decision Amax Potash Ltd v Saskatchewan, (SCC), [1977] 2 SCR 576, the Supreme Court ofCanada considered whether a statutory provision giving absolute immunity for government actions could be challenged as violating theConstitution.

The Government of Saskatchewan sought to pass legislation imposing a tax on potash producers, who brought an actionchallenging the validity of the tax as beyond the powers of the Province. They sought a declaration of invalidity and repayment of allmoneys that may be paid by them on account of the tax. Saskatchewan relied on a statutory immunity clause in The Proceedings Againstthe Crown Act, RSS 1965, c 98, s 5(7).

Justice Dixon, for the Court, concluded that: ...s. 5(7) of The Proceedings against the Crown Act is ultra vires the Province of Saskatchewan in so far as it purports to bar the recoveryof taxes paid under a statute or statutory provision which is beyond the legislative jurisdiction of the Legislature of Saskatchewan: at594. [76] The principle underlying the Court’s decision is that the preservation of the Constitution is paramount.

Justice Dixon citedearlier Supreme Court of Canada authority in British Columbia Power Corporation Ltd v British Columbia Electric Co Ltd, (SCC), [1962] SCR 642 at 644: In a federal system, where legislative authority is divided, as are also the prerogatives of the Crown, as between the Dominion and theProvinces, it is my view that it is not open to the Crown, either in right of Canada or of a Province, to claim a Crown immunity basedupon an interest in certain property, where its very interest in that property depends completely and solely on the validity of thelegislation which it has itself passed, if there is a reasonable doubt as to whether such legislation is constitutionally valid.

To permit it todo so would be to enable it, by the assertion of rights claimed under legislation which is beyond its powers, to achieve the same results asif the legislation were valid. ...

[ 77 ] This Court considered the constitutionality of a Crown immunity provision in Alberta v Kingsway General Insurance Co , 2005 ABQB 662 , 53 Alta LR (4 th ) 147. In that case, the Government of Alberta passed legislation to freeze auto insurance premiums. Kingsway General Insurance Company (“Kingsway”) commenced legal action against Alberta for damages and declaratory relief as a result of this legislation. Subsequently, the Government of Alberta passed further legislation explicitly naming Kingsway’s lawsuit, extinguishing it without costs, and precluding similar litigation against Alberta. In response to Alberta’s motion for

summary judgment on the basis of the legislation extinguishing Kingsway’s lawsuit, Kingsway sought a declaration that the legislation providing immunity to Alberta was ultra vires the government of Alberta, or otherwise unconstitutional. [ 78 ] This Court considered whether the legislation extinguishing Kingsway’s lawsuit was of no force and effect under

section 52 of the Constitution Act, 1982 , noting that “[o]ne of the Courts’ most important roles in relation to the rule of law is to ensure that legislatures conform to the Constitution”: para 62. This Court concluded (at para 67): Thus, characterization of legislation as a Crown immunity clause does not end the inquiry.

Such a clause does not shield the Crown from constitutional challenges to the legislation, whether or not it purports on its face to do so. [...] [ 79 ] In Kingsway General , this Court concluded the impugned legislation was not aimed at evading the Constitution, even assuming that Kingsway could succeed in its action for damages: para 84. This Court found that, in its essence, the impugned legislation barred a claim, not a litigant, and was not materially different from other limitations statutes or statutory immunity legislation: para 72. It targeted insurers, but treated them all equally: para 87.

The impugned legislation was not ultra vires the Government of Alberta: para 160. [ 80 ] The remedies sought in Amax Potash and Kingsway General were general; the relief sought was to strike or read down legislation providing immunity. The principle set out in those decisions that statutory immunity clauses cannot protect the government from constitutional challenges is the same approach as has been taken in respect of limitation periods.

The question remains whether the same principle applies to when a plaintiff seeks damages or other personal remedies for a Charter breach. [ 81 ] I cannot accede to the proposition that statutory immunity clauses in favour of government officials or tribunals have no application when a personal claim for damages for a Charter remedy is asserted. The mischief that arises circumventing an otherwise valid immunity provision is obvious.

Parties would come to the litigation process dressed in their Charter clothes whenever possible. [ 82 ] I conclude that statutory immunity clauses apply to claims for personal remedies pursuant to the Charter . I reach this conclusion for two reasons. Firstly, it is my view that the reasons why limitation periods apply to claims for personal remedies under the Charter also apply to statutory immunity clauses because statutory immunity clauses and limitation periods are both legislated bars to what may otherwise be a meritorious claim. [ 83 ] Secondly, there are strong policy reasons for the

[…]