Jessica Ernst Appellant v. Alberta Energy Regulator, 2017 SCC 1

SUPREME COURT OF CANADA Citation: Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 Appeal Heard: January 12, 2016 Judgment Rendered: January 13, 2017 Docket: 36167 Between: Jessica Ernst Appellant and Alberta Energy Regulator Respondent - and - Attorney General of Quebec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association and David Asper Centre for Constitutional Rights Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment: (paras. 1 to 60) Cromwell J. (Karakatsanis, Wagner and Gascon JJ. concurring) Reasons Concurring in the Result: (paras. 61 to 130) Abella J. Joint Dissenting Reasons: (paras. 131 to 192) McLachlin C.J. and Moldaver and Brown JJ. (Côté J. concurring)

Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 Jessica Ernst Appellant v. Alberta Energy Regulator Respondent and Attorney General of Quebec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association and David Asper Centre for Constitutional Rights Interveners Indexed as: Ernst v. Alberta Energy Regulator 2017 SCC 1 File No.: 36167. 2016: January 12; 2017: January 13.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for alberta Constitutional law — Charter of Rights — Enforcement — Remedy — Damages — Claim brought against statutory board seeking Charter damages for breaching right to freedom of expression — Board applying to strike claim on basis of immunity clause — Whether claim for Charter damages should be struck out because it discloses no cause of action — Whether immunity clause is constitutionally inapplicable or inoperable to the extent that it bars claim against board for Charter damages — Whether constitutional question should be decided at this stage of proceedings — Canadian Charter of Rights and Freedoms, s. 24(1) — Energy Resources Conservation Act, R.S.A. 2000, c.

E-10, s. 43 . The Alberta Energy Regulator (“Board”) is a statutory, independent, quasi-judicial body responsible for regulating Alberta’s energy resource and utility sectors. E claims that the Board breached her right to freedom of expression under s. 2(

b) of the Canadian Charter of Rights and Freedoms by punishing her for publicly criticizing the Board and by preventing her, for a period of 16 months, from speaking to key offices within it. E brought a claim against the Board for damages as an “appropriate and just” remedy under s. 24(1) of the Charter for that alleged breach.

The Board applied to strike this claim on the basis, among others, that it is protected by an immunity clause — i.e., s. 43 of the Energy Resources Conservation Act — which precludes all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administers. Both the Alberta Court of Queen’s Bench and the Court of Appeal found that the immunity clause on its face bars E’s claim for Charter damages and concluded therefore that it should be struck out. On appeal to this Court, E reformulated her claim to add a challenge to the constitutional validity of s. 43 .

Held (McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting): The appeal should be dismissed. 1. Per Cromwell J. (with Karakatsanis, Wagner and Gascon JJ.): The claim for Charter damages should be struck out and the appeal should be dismissed. It is plain and obvious that s. 43 on its face bars E’s claim for Charter damages. However, because Charter damages could never be an appropriate and just remedy for Charter breaches by the Board, s. 43 does not limit the availability of such a remedy under the Charter and the provision cannot be unconstitutional. 2.

Per Abella J.: E’s claim for Charter damages should be struck and the appeal dismissed. E did not seek to challenge the constitutionality of s. 43 in the prior proceedings. In the absence of proper notice and a full evidentiary record, this Court should not entertain the constitutional argument. This leaves the constitutionality of s. 43 intact. It is therefore plain and obvious that s. 43, an unqualified immunity clause, bars E’s claim.

While it is likely that Charter damages would not be an appropriate and just remedy against this Board, a prior determination of the constitutionality of the immunity clause is required. 3. Per McLachlin C.J. and Moldaver and Brown JJ. (with Côté J.): The application to strike E’s claim must fail and the appeal must be allowed. It is not plain and obvious that Charter damages could not be an appropriate and just remedy in the circumstances of E’s claim against the Board. Nor is it plain and obvious that, on its face, s. 43 bars E’s claim for Charter damages.

As a result, it is not necessary to consider s. 43’s constitutionality at this stage of the proceedings. Per Cromwell, Karakatsanis, Wagner and Gascon JJ.: It is plain and obvious that s. 43 of the Energy Resources Conservation Act on its face bars E’s claim for Charter damages. This conclusion is common ground between the parties. The only issue for decision then is whether E successfully challenged the constitutionality of s. 43. In this case, having had more than ample opportunity to do so, E has failed to discharge her burden of showing that the law is unconstitutional.

It follows that the immunity clause must be applied, and E’s claim for Charter damages struck out.

Charter damages may vindicate Charter rights, provide compensation and deter future violations. But awarding damages may also inhibit effective government, and remedies other than damages may provide substantial redress without having a broader adverse impact. Section 24(1) of the Charter confers on the courts a broad remedial authority. But this does not mean that Charter breaches should always, or even routinely, be remedied by damages. The leading case about when Charter damages are an appropriate and just remedy is Vancouver (City) v. Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28.

If damages would further one or more of the objectives of compensation, vindication and deterrence, it is open to the state to raise countervailing factors to establish that damages are not an appropriate and just remedy. In the present case, when such countervailing factors are considered collectively, they negate the appropriateness of an otherwise functionally justified award of Charter damages against the Board. First, there is an alternative and more effective remedy for Charter breaches by the Board.

Judicial review of the Board’s decisions has the potential to provide prompt vindication of E’s Charter rights, to provide effective relief in relation to the Board’s conduct in the future, to reduce the extent of any damage flowing from the breach, and to provide legal clarity to help prevent any future breach of a similar nature. Further, the statutory immunity clause here cannot bar access to judicial review. Second, good governance concerns are also engaged, as granting damages would undermine the effectiveness of the Board and inhibit effective governance.

Private law thresholds and defences may offer guidance about when Charter damages may be an appropriate remedy. The policy reasons considered capable of negating a prima facie duty of care under the private law of negligence have included (

i) excessive demands on resources, (ii) the potential chilling effect on the behaviour of the state actor, and (iii) protection of quasi-judicial decision making. The same policy considerations weigh heavily here. The Board has the public duty of balancing several potentially competing rights, interests and objectives, and balancing public and private interests in the execution of its quasi-judicial duties.

The jurisprudence cautions against attempting to segment the functions of a quasi-judicial regulatory board such as this one into adjudicative and regulatory activity for the purposes of considering whether its actions should give rise to liability. And the policy reasons that have led legislatures across Canada to enact many statutory immunity clauses, like the one in this case, may also inform the analysis of countervailing considerations relating to good governance.

Overall, opening the Board to damages claims could deplete the Board’s resources, distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions. Finally, to determine the appropriateness of Charter damages against this type of board on a case-by-case basis in a highly factual and contextual manner would largely undermine the purposes served by an immunity.

Not every bare allegation claiming Charter damages must proceed to an individualized, case-by-case consideration on its particular merits. Immunity is easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statement of claim can call into question a decision-maker’s conduct. Even qualified immunity undermines the decision-maker’s ability to act impartially and independently, as the mere threat of litigation, achieved by artful pleadings, will require the decision-maker to engage with claims brought against him or her.

In view of these countervailing factors, Charter damages could never be an appropriate and just remedy for Charter breaches by the Board. Therefore, s. 43 of the Energy Resources Conservation Act does not limit the availability of such a remedy under the Charter and the provision cannot be unconstitutional. Per Abella J.: E is asking this Court to pronounce on the constitutional applicability and operability of s. 43, an immunity clause in the Energy Resources Conservation Act . This is in essence a challenge to the constitutionality of s. 43.

At no stage did E give the required formal notice of a constitutional challenge to s. 43. Until she came to this Court, E denied that she was even challenging the constitutionality of s. 43. E’s approach represents an improper collateral attack on s. 43’s constitutionality. All the provinces have statutes that require notice to be given to the Attorney General of that province, and most require that notice be given to the Attorney General of Canada as well, in any proceeding where the constitutionality of a statute is in issue. Notice requirements serve a vital purpose.

They ensure that courts have a full evidentiary record before invalidating legislation and that governments are given the fullest opportunity to support the validity of legislation. A new constitutional question ought not be answered unless the state of the record, the fairness to all parties, the importance of having the issue resolved, the question’s suitability for decision, and the broader interests of the administration of justice demand it.

The test for whether new issues should be considered is a stringent one, and the discretion to hear new issues should only be exercised exceptionally and never unless there is no prejudice to the parties. The threshold for the exceptional exercise of this discretion is nowhere in sight in this case. First, the public interest requires that the fullest and best evidence possible be put before the Court when it is asked to decide the constitutionality of a law. This requires the participation and input of the appropriate Attorneys General, especially from the jurisdiction of the legislation in question.

In this case, there is no such evidentiary record. The notion of “fairness to the parties” also weighs against this Court exercising its discretion to decide the constitutionality of s. 43. The Board asked this Court not to hear the constitutional question because it was not properly raised in the courts below, leaving it, rather than the Attorney General, unfairly as the sole defender of a provision in its enabling statute.

At the Court of Appeal, the Attorney General of Alberta, for his part, also expressly raised concerns about the lack of notice and his inability to adduce evidence at the trial court and the appellate court. The failure to provide notice about the intention to challenge the constitutionality of s. 43 has resulted in no record and in the Attorney General of Alberta being unable to properly meet the case against it. This makes acceding to the request to determine the constitutionality of the statutory immunity clause inappropriate.

Immunity clauses protecting judicial and quasi-judicial bodies are found in a number of Canadian statutes. Judicial and quasi-judicial decision-makers are also protected by common law immunities. Immunizing these adjudicators from personal damage claims is grounded in attempts to protect their independence and impartiality and to facilitate the proper and efficient administration of justice. The immunity clause here is absolute and unqualified. The legislature clearly chose not to qualify the immunity in any way.

Any argument that it should not apply to conduct alleged to be punitive, or that it applies to adjudicative but not to other kinds of Board decisions, is nowhere evident in the statutory language. Caution should be exercised before undermining the immunity clause in this

case. There are profound and obvious implications for all judges and tribunals from such a decision, and it should not be undertakenwithout a full and tested evidentiary record. It may or may not be the case that governments will be able to justify immunity fromCharter damages, but until the s. 1 justificatory evidence is explored, this Court should not replace the necessary evidence with its owninferences. While an analysis pursuant to Vancouver (City) v.

Ward, 2010 SCC 27 , [2010] 2 S.C.R. 28, likely leads to theconclusion that Charter damages are not an appropriate and just remedy in the circumstances, the question of whether such damages areappropriate requires a prior determination of the constitutionality of the immunity clause. If the clause is constitutional, there is no needto embark on a Ward analysis. If it is found to be unconstitutional, only then does a Ward analysis become relevant. Here, since E did notseek to challenge the constitutionality of s. 43 in the prior proceedings, there is no record either to justify or impugn the provision.

Thismeans that, for the time being, the provision’s constitutionality is intact. It is therefore plain and obvious that E’s claim is barred. E’sCharter claim should therefore be dismissed. Judicial review was the appropriate means of addressing E’s concerns. The conventional challenge to an administrativetribunal’s decision is judicial review, not an action against the administrative tribunal. When the Board made the decision to stopcommunicating with E, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enablinglegislation.

Issues about the legality, reasonableness, or fairness of this discretionary decision are issues for judicial review. E had theopportunity to seek timely judicial review of the Board’s decision. She chose not to. Instead, she attempted to frame her grievance as aclaim for Charter damages. That is precisely why s. 43 exists — to prevent an end-run by litigants around the required process, resultingin undue expense and delay for the Board and for the public.

Per McLachlin C.J. and Moldaver, Côté and Brown JJ. (dissenting): In deciding whether a claim for Charter damagesshould be struck out on the basis of a statutory immunity clause, the court must first determine whether it is plain and obvious thatCharter damages could not be an appropriate and just remedy in the circumstances of the plaintiff’s claim. If it is not plain and obviousthat Charter damages could not be appropriate and just, then the court must determine whether it is plain and obvious that the immunityclause, on its face, applies to the plaintiff’s claim.

If it is plain and obvious that the immunity clause applies, then the court must giveeffect to the immunity clause and strike the plaintiff’s claim, unless the plaintiff successfully challenges the clause’s constitutionality. The framework set out in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, for assessing whether damages arean appropriate and just remedy in the circumstances can be applied at the application to strike stage. To survive an application to strike,the claimant must first plead facts which, if true, could prove a Charter breach; E has met this threshold here.

E’s pleadings establish theelements of an admittedly novel but arguable s. 2(

b) claim. It cannot be said that it is plain and obvious that E cannot establish a breachof s. 2(

b) of the Charter. The second step requires the claimant to demonstrate that damages could fulfill one or more of the functions ofcompensation, vindication, or deterrence. E has met this threshold, as well. Her allegations are sufficient to establish that the functions ofvindication and deterrence could be supported by an award of Charter damages. At the third step, the state may show that countervailing considerations make it plain and obvious that Charter damagescould not be appropriate and just.

Such considerations include the availability of alternative remedies that will meet the same objectivesas an award of Charter damages, and good governance concerns — i.e., policy factors that will justify restricting the state’s exposure tocivil liability. Here, the Board has not shown that it is plain and obvious that judicial review will meet the same objectives as an award ofCharter damages, namely, vindicating E’s Charter right and deterring future breaches. With respect to good governance, two interrelatedprinciples must be kept in mind.

First, Charter compliance is itself a foundational principle of good governance. Second, goodgovernance concerns must be considered in a manner that remains protective of Charter rights, since the “appropriate and just” analysisunder s. 24(1) is designed to redress the Charter breach. While the common law recognizes absolute immunity from personal liability forjudges and other state actors in the exercise of their adjudicative function, there is nothing in the record which indicates that the Boardwas acting in an adjudicative capacity in this case.

Nor is there a compelling policy reason for which to immunize state actors in allcases, including where, as here, the impugned conduct is said to have been punitive in nature. Further, considerations supporting privatelaw immunity from liability for negligent conduct do not automatically support absolute immunity from Charter damages claims formore serious misconduct, including conduct amounting to bad faith or an abuse of power.

Thus, whether the countervailing factors are examined individually or collectively, the record at this juncture does notsupport recognizing a broad, sweeping immunity for the Board in this case, let alone in every case. In the final analysis, it is not plainand obvious that Charter damages could not be an appropriate and just remedy in the circumstances of E’s claim against the Board. It is also not plain and obvious that E’s claim is barred by the statutory immunity clause. E seeks Charter damages as aremedy for actions by the Board that E says were intended to punish her.

It is arguable that such punitive acts fall outside the scope of theimmunity that s. 43 of the Energy Resources Conservation Act confers. While E did not argue that the wording of s. 43 does not apply toher claim, this omission should not impede the just determination of a novel legal issue which has such broad ramifications for thepublic. E’s assumption that s. 43 bars all actions or proceedings against the Board, regardless of the nature of the claim, is not binding onthe Court. Her assumption may ultimately prove correct, but it is not plainly and obviously so at this stage.

Since it is not plain andobvious that s. 43 bars E’s claim, it is not necessary to consider s. 43’s constitutionality at this stage of the proceedings. If it issubsequently determined that s. 43 does, indeed, bar E’s claim for Charter damages, then she may challenge its constitutionality at thatjuncture. Therefore, the appeal must be allowed. The test for striking out E’s claim at the outset has not been satisfied, and the mattershould be returned to the Alberta courts to decide the important issues of free speech and Charter remedies that her case raises. Cases Cited By Cromwell J. Applied: Vancouver (City) v.

Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; referred to: R. v. Sappier, 2006 SCC 54, [2006] 2S.C.R. 686; Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110; MacKay v.

Manitoba, (SCC), [1989] 2 S.C.R. 357; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R.405; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; Mills v. The Queen, (SCC),[1986] 1 S.C.R. 863; Crevier v. Quebec (Attorney General), (SCC), [1981] 2 S.C.R. 220; Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Manuge v. Canada, 2010 SCC67, [2010] 3 S.C.R. 672; Canada (Attorney General) v.

TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Canada (Attorney General) v.McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; Parrish & Heimbecker Ltd. v. Canada (Agriculture and Agri-Food), 2010 SCC 64, [2010]3 S.C.R. 639; Nu-Pharm Inc. v. Canada (Attorney General), 2010 SCC 65, [2010] 3 S.C.R. 648; Canadian Food Inspection Agency v.Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657; Cooper v. Hobart, 2001 SCC 79, [2001] 3S.C.R. 537; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Edwards v.

Law Society ofUpper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, aff’g (2000), 48 O.R. (3d) 329; Morier v. Rivard, (SCC), [1985] 2S.C.R. 716; Crispin v. Registrar of the District Court, [1986] 2 N.Z.L.R. 246; Sirros v. Moore, [1975] 1 Q.B. 118; Hazel v. AinsworthEngineered Corp., 2009 HRTO 2180, 69 C.H.R.R. D/155; Agnew v. Ontario Assn. of Architects (1987), (ON SC), 64O.R. (2d) 8; Ermina v. Canada (Minister of Citizenship and Immigration) (1998), (FC), 167 D.L.R. (4th) 764; Cartierv. Nairn, 2009 HRTO 2208, 8 Admin. L.R. (5th) 150; Gonzalez v.

British Columbia (Ministry of Attorney General), 2009 BCSC 639, 95B.C.L.R. (4th) 185; Taylor v. Canada (Attorney General), (FCA), [2000] 3 F.C. 298, leave to appeal refused, [2000]2 S.C.R. xiv; Garnett v. Ferrand (1827), 6 B. & C. 611, 108 E.R. 576; Fray v. Blackburn (1863), 3 B. & S. 576, 122 E.R. 217; Royer v.Mignault, (QC CA), [1988] R.J.Q. 670; Canada (Attorney General) v. Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81;Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; MacKeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796. By Abella J. Applied: Guindon v.

Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; referred to: R. v. Imperial Tobacco Canada Ltd., 2011SCC 42, [2011] 3 S.C.R. 45; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001SCC 80, [2001] 3 S.C.R. 562, aff’g (2000), 48 O.R. (3d) 329; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R.559; R. v. Aberdeen, 2006 ABCA 164, 384 A.R. 395; TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), (ON CA), 186 D.L.R. (4th) 403; R. v. Lilgert, 2014 BCCA 493, 16 C.R. (7th) 346; Broddy v.

Alberta (Director of Vital Statistics) (1982),1982 ABCA 312 , 142 D.L.R. (3d) 151; Seweryn v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2016ABCA 239; R. v. Redhead, 2006 ABCA 84, 384 A.R. 206; Eaton v. Brant County Board of Education, (SCC), [1997] 1S.C.R. 241; Alkasabi v. Ontario, 1994 CarswellOnt 3639 (WL Can.); Morier v. Rivard, (SCC), [1985] 2 S.C.R. 716;MacKeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796; Taylor v. Canada (Attorney General), (FCA),[2000] 3 F.C. 298; Canada (Attorney General) v. Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81; Vancouver (City) v.

Ward, 2010 SCC 27,[2010] 2 S.C.R. 28; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; Dunsmuir v. New Brunswick,2008 SCC 9, [2008] 1 S.C.R. 190; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. By McLachlin C.J. and Moldaver and Brown JJ. (dissenting) R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2S.C.R. 28; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927; Odhavji Estate v. Woodhouse,2003 SCC 69, [2003] 3 S.C.R. 263; Henry v.

British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; Sirros v. Moore,[1975] 1 Q.B. 118; Gonzalez v. British Columbia (Ministry of Attorney General), 2009 BCSC 639, 95 B.C.L.R. (4th) 185; Taylor v.Canada (Attorney General), (FCA), [2000] 3 F.C. 298, leave to appeal refused, [2000] 2 S.C.R. xiv; Edwards v.Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Mackin v. NewBrunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2S.C.R. 621; Nelles v.

Ontario, (SCC), [1989] 2 S.C.R. 170. Statutes and Regulations Cited Administrative Tribunals Act, S.B.C. 2004, c. 45,

Part 8. Alberta Rules of Court, Alta. Reg. 124/2010, rr. 3.24, 3.68. Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 24. Constitution Act, 1982, s. 52. Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 14. Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 33.1(21), 49(27), 82, 86.2(19). Energy Resources Conservation Act, R.S.A. 2000, c. E-10 [rep. 2012, c. R-17.3, s. 112], ss. 3, 16, 20, 43. Environmental Review Tribunal Act, 2000, S.O. 2000, c. 26, Sch. F, s. 8.1(1). Federal Courts Act, R.S.C. 1985, c. F-7, s. 12(6). Gas Resources Preservation Act, R.S.A. 2000, c. G-4. Human Rights Code, C.C.S.M., c.

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No. 975 (QL), 2014 CarswellAlta 1588 (WL Can.), affirming a decision of Wittmann C.J., 2013 ABQB 537 , 570 A.R. 317, 85 Alta. L.R. (5th) 333, 5 C.C.L.T. (4th) 285, 78 C.E.L.R. (3d) 227, 292 C.R.R. (2d) 333, [2013] 12 W.W.R. 738, [2013] A.J. No. 1045 (QL), 2013 CarswellAlta 1836 (WL Can.). Appeal dismissed, McLachlin C.J. and Moldaver, Côté and Brown JJ. dissenting. W. Cory Wanless and Murray Klippenstein , for the appellant. Glenn Solomon , Q.C. , and Christy Elliott , for the respondent. Written submissions only by Robert Desroches and Carole Soucy , for the intervener the Attorney General of Quebec.

Written submissions only by Stuart Svonkin , Brendan Brammall and Michael Bookman , for the intervener the Canadian Civil Liberties Association. Ryan D. W. Dalziel and Emily Lapper , for the intervener the British Columbia Civil Liberties Association. Raj Anand and Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. The reasons of Cromwell, Karakatsanis, Wagner and Gascon JJ. were delivered by Cromwell J. — I. Introduction [ 1 ] The appellant, Ms.

Ernst, claims that a quasi-judicial, regulatory board, the Alberta Energy Regulator (“Board”), breached her right to freedom of expression under s. 2(

b) of the Canadian Charter of Rights and Freedoms . She brought a claim against the Board for damages as an “appropriate and just” remedy under s. 24(1) of the Charter for that alleged breach. The Board applied to strike this claim on the basis, among others, that it is protected by an immunity clause which precludes all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administers.

[ 2 ] Ms. Ernst’s position, in both her factum and oral argument, is that this immunity provision is unconstitutional because it purports to bar her claim for Charter damages. She submits that the only issue on this appeal is whether the immunity clause is constitutionally inapplicable or inoperable to the extent that it bars a claim against the Board for Charter damages.

She accepts, as the Alberta courts found, that the immunity clause on its face bars her claim; the issue she brings to the Court is whether this immunity clause is unconstitutional to the extent that it does so. [ 3 ] That the provision purports to bar her damages claim is the foundation on which her appeal was argued. It follows that the Court must give effect to the immunity clause and strike Ms. Ernst’s claim unless she successfully challenges the clause’s constitutionality.

In my view, she has not done so. [ 4 ] Like the Alberta courts in this case, although for somewhat different reasons, I conclude that the claim for Charter damages should be struck out. I would therefore dismiss the appeal. II. Background [ 5 ] My reference to the relevant background will be very brief because my colleagues, the Chief Justice and Justices Moldaver and Brown, and Justice Abella, have detailed the claims and proceedings giving rise to the appeal. [ 6 ] In a nutshell, Ms.

Ernst claims that the Board breached her Charter right to freedom of expression by punishing her for publicly criticizing the Board and by preventing her, for a period of 16 months, from speaking to key offices within it. As she alleges in her claim, these restrictions limited her ability “to lodge complaints, register concerns and to participate in the [Board’s] compliance and enforcement process”: A.R., at p. 70. The Alberta Court of Queen’s Bench concluded that Ms.

Ernst has pleaded a breach of her right to freedom of expression under the Charter and that this claim ought not to be struck out at this preliminary stage of the action: 2013 ABQB 537 , 570 A.R. 317.

Notwithstanding the Board’s submissions to the contrary, I accept that conclusion for the purposes of my analysis. [ 7 ] The Board is a statutory, independent, quasi-judicial body responsible for regulating Alberta’s energy resource and utility sectors: Alberta Ministry of Energy, 2005-2006 Annual Report , at p. 7. [1] It has regulatory and quasi-judicial duties under a number of Alberta statutes: Energy Resources Conservation Act , R.S.A. 2000, c. E-10, ss. 16 and 20 , and see, e.g., Gas Resources Preservation Act , R.S.A. 2000, c. G-4; Oil and Gas Conservation Act , R.S.A. 2000, c.

O-6; Pipeline Act , R.S.A. 2000, c. P-15. The Board is responsible for granting and overseeing licenses and making orders regarding energy related activities, such as pipeline construction and oil sand sites: Oil Sands Conservation Act , R.S.A. 2000, c. O-7, s. 7; Pipeline Act , ss. 6 and 12 . The Board has the power to conduct inquiries, inspections, investigations and hearings, and to carry out remedial action where required.

Additionally, the Board has procedures in place to receive public complaints and concerns and to perform its enforcement functions where its orders or regulatory rulings are not complied with. [ 8 ] There is now no dispute that the Board does not owe Ms. Ernst a common law duty of care; her claim in negligence was struck out for that reason and the affirmation of that order by the Court of Appeal has not been appealed: 2014 ABCA 285 , 2 Alta.

L.R. (6th) 293. [ 9 ] The Board is protected by a broadly worded immunity clause, namely, s. 43 of the Energy Resources Conservation Act : Protection from action 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 . [ 10 ] We have received virtually no argument concerning the

interpretation of this clause because it is common ground between the parties that this provision, on its face, purports to bar Ms. Ernst’s claim for Charter damages, to the extent that she has such a claim against the Board. This point leads me to have some difficulty with the reasons of the Chief Justice and Justices Moldaver and Brown. [ 11 ] The Chief Justice and Justices Moldaver and Brown would allow the appeal on the basis that, contrary to Ms. Ernst’s position, it is not plain and obvious that the immunity provision on its face bars her claim for Charter damages.

However, it is not open to the Court to dispose of the appeal on this basis, for several related reasons. [ 12 ] First, not only did Ms. Ernst repeatedly submit, in writing and orally, that the immunity provision on its face bars her claim, this position was the foundation of her appeal. [ 13 ] In her factum in this Court, Ms. Ernst submitted that the immunity provision on its face purports to bar her Charter damages claim. As she put it in her factum, the provision “completely eliminates the right to bring an action against [the Board] in all circumstances . . . .

On its face, s. 43 is a total bar to any ‘action or proceeding’ whatsoever brought against [the Board] by anyone in all circumstances.

Section 43 destroys all rights of action, and entirely eliminates the ability of any and all persons to even start a lawsuit against [the Board], regardless of the nature of the claim”: A.F., at para. 63 (emphasis in original). Ms. Ernst’s position is that the only issue on appeal is the constitutional question: whether the immunity clause is constitutionally inapplicable or inoperable to the extent that it bars a damages claim against the Board for a breach of the Charter : A.F., at para. 41. [ 14 ] Ms. Ernst took the same position — repeatedly — in oral submissions.

Her counsel said that a valid cause of action “is clearly defeated” by the immunity provision: transcript, at pp. 3-4. He referred to the provision as barring any action in respect of “any act or thing done”: p. 12. He also referred to the provision as “an immunity clause of general application” which “simply on its face

seems to apply to all claims against [the Board] no matter what they are about”: p. 12 (emphasis added). He further submitted that theimmunity provision does not simply limit rights or restrict the remedies that are appropriate, but that “it blocks all rights”: p. 12. Ms.Ernst’s counsel further submitted that “the issue for today is

section 43 [i.e. the immunity provision] which is a blanket statutoryimmunity clause. It says no proceeding or action no matter what we do”: pp. 19-20 (emphasis added). [15] The Court of course is not bound by positions taken by parties on questions of law such as this one: see, e.g., R. v.Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 62. But I see no reason to think that Ms. Ernst’s position on the

interpretation of theimmunity provision is wrong in law. No one has cited any authority — and I am aware of none — to suggest that it is wrong. I agree withAbella J. that we should hold that it is “plain and obvious” that the immunity clause on its face bars Ms. Ernst’s claim for Charterdamages. [16] To do otherwise is unfair to the Board. In light of Ms. Ernst’s position in her factum and during oral submissions, theBoard had no reason to think that there was any doubt that the provision purports to bar her claim.

The Board had no indication that thisissue was in question, let alone that it could become the basis on which the appeal might be decided against it. The holding proposed bythe Chief Justice and Justices Moldaver and Brown would deprive the Board of any opportunity to make submissions on what hasbecome, unbeknownst to the parties, the key point in the case.

This is unfair. [17] Finally, the reasons of the Chief Justice and Justices Moldaver and Brown, without citing authority in support andwithout the benefit of any argument on the point, cast doubt on the scope of this immunity clause where there has up until now beennone. And in doing that, doubt is also cast on the scope of scores of other immunity provisions in many statutes across Canada. As I seeit, this result is unnecessary, undesirable and unjustified. [18] I will therefore approach the appeal on the basis that Ms.

Ernst herself urged us to adopt — that the immunityprovision (s. 43) purports to bar her Charter damages claim. [19] That leaves only one issue for decision: Has Ms. Ernst successfully challenged the constitutionality of s. 43? If theprovision on its face bars her claim and she has not successfully challenged the provision’s constitutionality, the Court must give effect tothe immunity clause and strike the claim. III. Analysis [20] Ms. Ernst has not successfully challenged the constitutionality of s. 43.

If, as my colleagues would hold, the recordwere not adequate to consider the constitutionality of s. 43, then it should follow that Ms. Ernst’s constitutional challenge cannot succeedand the appeal should be dismissed, contrary to the result reached by the Chief Justice and Justices Moldaver and Brown. In my view,however, we should consider the constitutional challenge on its merits, and when we do so, the appeal should still be dismissed. A.

If the Record Were Inadequate to Address the Constitutionality of the Provision, the Appeal Must Be Dismissed [21] When a court is faced with an immunity clause that bars a plaintiff’s claim (as this one does), the court cannot refuseto rule on the law’s constitutionality and yet also refuse to apply the clause. Having had more than ample opportunity to do so, Ms. Ernsthas failed to discharge her burden of showing that the law is unconstitutional, a burden sometimes described as a presumption ofconstitutionality: Manitoba (Attorney General) v.

Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110, at pp. 124-25. [22] Where a person challenging a law’s constitutionality fails to provide an adequate factual basis to decide thechallenge, the challenge fails. As Cory J. put it on behalf of the Court in MacKay v. Manitoba, (SCC), [1989] 2 S.C.R.357, at p. 366, “the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to theappellants’ position” (emphasis added). [23] It follows that if, as Ms.

Ernst maintains, the immunity provision clearly purports to bar her damages claim, and ifthe record before the Court is not adequate to permit a decision on its constitutionality, then the immunity clause must be applied, Ms.Ernst’s claim for Charter damages struck out and the appeal dismissed. B. Charter Damages Would Never Be an Appropriate Remedy Against This Board [24] If Charter damages could never be an appropriate and just remedy for Charter breaches by the Board, then s. 43does not limit the availability of such a remedy under the Charter and the provision cannot be unconstitutional.

In my view, Charterdamages could not be an appropriate remedy. [25] Underlying the question of whether Charter damages could be an appropriate remedy is a broader issue. It concernshow to strike an appropriate balance so as to best protect two important pillars of our democracy: constitutional rights and effectivegovernment; see, e.g., Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 79. Granting Charterdamages may vindicate Charter rights, provide compensation and deter future violations.

But awarding damages may also inhibiteffective government, and remedies other than damages may provide substantial redress for the claimant without having that sort ofbroader adverse impact. Thus there is a need for balance with respect to the choice of remedies. This concern for balance wasemphasized recently in Henry v. British Columbia (Attorney General) in words that are especially apt in this case: “Courts shouldendeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies.

Nevertheless, when it comes to awardingCharter damages, courts must be careful not to extend their availability too far” (2015 SCC 24, [2015] 2 S.C.R. 214, at para. 91). [26] The leading case about when Charter damages are an appropriate and just remedy is Vancouver (City) v. Ward,2010 SCC 27, [2010] 2 S.C.R. 28. Applying the principles set out in that case, damages are not an appropriate and just remedy forCharter violations by this Board. Not every bare allegation claiming Charter damages must proceed to an individualized, case-by-caseconsideration on its particular merits.

Ward held that Charter damages will not be an appropriate and just remedy where there is aneffective alternative remedy or where damages would be contrary to the demands of good governance. These considerations, takentogether, support the conclusion that the proper balance would be struck by holding that damages are not an appropriate remedy.

[27] Section 24(1) of the Charter confers on the courts a broad remedial authority. As has been said, “[i]t is difficult toimagine . . . a wider and less fettered discretion”: Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863, at p. 965. This broaddiscretion should not be narrowed by “casting it in a straight-jacket of judicially prescribed conditions”: Ward, at para. 18. But this doesnot mean that Charter breaches should always, or even routinely, be remedied by awards of Charter damages.

The remedy of damages islimited to situations in which it is “appropriate and just” because it serves one or more of the compensatory, vindicatory and deterrentpurposes which support that choice of remedy: Ward, at para. 32. Countervailing factors may establish that damages are not anappropriate and just remedy even though they would serve these ends: Ward, at para. 33. [28] The list of countervailing factors is not closed. So far, two have been identified: the existence of alternative remediesand concerns for good governance: Ward, at para. 33; see also para. 42.

I conclude, therefore, that Ward does not preclude the immunityof the Board to Charter damages. Rather, Ward set out two countervailing factors that could negate the appropriateness of Charterdamages and specifically left open the development of others. [29] The jurisprudence does not require that every pleaded claim for Charter damages be assessed on an individualized,case-by-case basis. Ward, for example, specifically contemplates the development of new defences to Charter damages claims and thesedefences are not limited to enhanced liability thresholds.

Countervailing factors against granting Charter damages may be of a moregeneralized nature, reflecting the availability of other remedies, the accumulated wisdom of the common law and strong indications ofpublic policy. [30] First, there is an alternative remedy — judicial review — that substantially addresses the alleged Charter breach.Judicial review is available to vindicate Charter rights and to clarify the law so as to prevent similar future breaches.

Second, goodgovernance concerns are also engaged as granting damages undermines the effectiveness of the Board and inhibits effective governance.Third, to determine the appropriateness of Charter damages against this type of board on a case-by-case basis in a highly factual andcontextual manner largely undermines the purposes served by an immunity. [31] When these countervailing factors are considered collectively — that is, when one looks at their cumulative effect— they negate the appropriateness of an otherwise functionally justified award of Charter damages against this Board.

In short, damagesare not an appropriate and just remedy for the Board’s Charter breaches.

(1) Judicial Review Is an Available Alternative Remedy [32] The first countervailing factor discussed in Ward was the availability of alternative remedies: para. 33. Once theclaimant establishes that damages would further one or more of the objectives of compensation, vindication and deterrence, it is open tothe state to show that other remedies are available that will sufficiently address the breach: para. 35.

As stated in Henry, where anotherremedy is available to effectively address a Charter breach, damages may be precluded by virtue of this countervailing factor: para. 38.In my view, the availability of judicial review to address alleged Charter breaches by the Board is a strong countervailing factor. [33] I have no doubt, as my colleague Justice Abella notes, that judicial review is available to address the Board’s allegedCharter breaches. Both the Alberta Court of Queen’s Bench and the Court of Appeal so found. Ms.

Ernst does not deny this in her factumand the brief oral submissions suggesting that judicial review was not available were not persuasive. Further, the statutory immunityclause cannot bar access to judicial review: Crevier v. Quebec (Attorney General), (SCC), [1981] 2 S.C.R. 220. [34] The availability of judicial review is important for two reasons. [35] First, judicial review can provide substantial and effective relief against alleged Charter breaches by a quasi-judicialand regulatory board like this one. The facts of this case strikingly illustrate the utility of the remedy of judicial review.

The basis of Ms.Ernst’s complaint is that the Board abused its discretion and breached the Charter by refusing to deal with her. If that claim wereestablished in the context of judicial review, a superior court could set aside the directive which Ms. Ernst alleges was issued to stopinteraction with her and could order corrective action. Such orders would go a long way towards vindicating Ms. Ernst’s Charter rights. [36] Moreover, judicial review would in all likelihood provide vindication in a much more timely manner than an actionfor damages.

Again, the facts of this case provide a good example of how this could be so. Ms. Ernst did not start her action for damagesuntil some two years after the alleged breach, and several months after the Board had rescinded the directive which she challenged. Aprompt application for judicial review had the potential to achieve practical relief much sooner. While an application for judicial reviewwould not have led to an award of damages, it might well have addressed the breach much sooner and thereby significantly reduced theextent of its impact as well as vindicated Ms.

Ernst’s Charter right to freedom of expression. Finally, judicial review would haveprovided a convenient process to clarify what the Charter required of the Board. That sort of clarification plays an important role inpreventing similar future rights infringements. [37] Thus, judicial review of the Board’s decisions and directives has the potential to provide prompt vindication ofCharter rights, to provide effective relief in relation to the Board’s conduct in the future, to reduce the extent of any damage flowingfrom the breach, and to provide legal clarity to help prevent any future breach of a similar nature.

While the remedies available underjudicial review do not include Charter damages, Ward directs us to consider the existence of alternative remedies, not identical ones:para. 33. [38] The availability of judicial review is important for a second reason: it distinguishes this case from others in whichthe Court has crafted an elevated liability threshold in preference to a complete immunity. For example, the rationale for denyingabsolute immunity to prosecutors in Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170, does not apply to claims againstquasi-judicial regulatory boards.

Lamer J. (as he then was) in Nelles found that none of the alternative remedies to a civil suit formalicious prosecution adequately redressed that wrong: p. 198. However, unlike in Nelles, a claimant who alleges the decision or actionof a quasi-judicial regulatory body has infringed his or her Charter rights or freedoms is not without a remedy, given the availability ofjudicial review.

Similarly, in Henry, which established an elevated liability threshold for Charter damages for failure of the prosecutor’sduty to disclose, the majority of the Court noted that such conduct is, for practical purposes, largely untouchable by way of judicialreview: para. 49. In contrast to the claims arising out of alleged misconduct by prosecutors as in Nelles and Henry, there is a wide range

of remedies available through judicial review for Charter breaches by quasi-judicial and regulatory boards such as this one. The availability and utility of the remedy of judicial review in this context supports a different remedial balance than was struck in Nelles and Henry . [ 39 ] The Court’s decision in Hinse v. Canada (Attorney General) , 2015 SCC 35 , [2015] 2 S.C.R. 621, like the decision in Henry , underlines the importance of the entire context in establishing this remedial balance. And, of course, the availability of judicial review is only one of these considerations.

The issue in Hinse was whether the general Quebec rules of extracontractual civil liability apply to the federal Crown in relation to the exercise of the royal prerogative of mercy: para. 45. In deciding on the proper scope of immunity, the Court considered the context: the nature of the Minister’s functions in exercising the royal prerogative of mercy; the relevant law in relation to the liability threshold applying to Crown prosecutors; the availability of judicial review; and the general principles of civil law.

As the Court noted, significant differences in the content of the duties under consideration mean that the duties must be analyzed from a different perspective: para. 44. Both Hinse and Henry demonstrate that the contours of liability must be considered in the context of, among other things, the particular state actor, having regard to the nature of the duties, the potential availability of other remedies and general principles of liability. That is the analysis that I have conducted in this case. [ 40 ] Ms.

Ernst submits that the potential to be granted a remedy through judicial review cannot be used to bar a Charter claim under s. 24(1) . Citing Manuge v. Canada , 2010 SCC 67 , [2010] 3 S.C.R. 672, Ms. Ernst argues that if a plaintiff has pleaded a valid cause of action for Charter damages, the provincial superior court should not decline jurisdiction on the basis that the claim could be pursued by judicial review. This submission, however, overstates the holding in Manuge and the other TeleZone line of cases: Canada (Attorney General) v.

TeleZone Inc. , 2010 SCC 62 , [2010] 3 S.C.R. 585; Canada (Attorney General) v. McArthur , 2010 SCC 63 , [2010] 3 S.C.R. 626; Parrish & Heimbecker Ltd. v. Canada (Agriculture and Agri-Food) , 2010 SCC 64 , [2010] 3 S.C.R. 639 ; Nu-Pharm Inc. v. Canada (Attorney General) , 2010 SCC 65 , [2010] 3 S.C.R. 648; Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada , 2010 SCC 66 , [2010] 3 S.C.R. 657 . The issue in those cases was whether a successful application for judicial review was a prerequisite to seeking damages. The Court held it was not.

The Court did not comment on the appropriateness of a Charter damages award against a quasi-judicial board. [ 41 ] In sum, judicial review is an alternative, and more effective, remedy for Charter breaches by the Board. And, as I will discuss, the availability of judicial review is only one of the countervailing factors that weigh heavily against the appropriateness of Charter damages awards against the Board.

(2) Good Governance Concerns (

a) The “Practical Wisdom” of Private Law [ 42 ] “[C]oncern for effective governance” was the second category of factors identified in Ward as militating against damages being an appropriate and just remedy: para. 38. The Court in Ward noted that “the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. . . . [I]mmunity is justified because the law does not wish to chill the exercise of policy-making discretion”: para. 40.

Quintessentially, the Board is a state actor whose responsibilities are of a policy-making and adjudicative nature. [ 43 ] Charter damages are, of course, a distinct and autonomous remedy. But that does not mean that the development of that remedy should ignore the accumulated insights of the general law.

Ward noted that private law thresholds and defences may offer guidance about when Charter damages may be an appropriate remedy because “the existing causes of action against state actors embody a certain amount of ‘practical wisdom’ concerning the type of situation in which it is or is not appropriate to make an award of damages against the state”: para. 43. Considering private law is not, of course, simply transposing private law rules into the Charter context.

The majority of the Court in Henry , for example, considered the policy factors outlined in the malicious prosecution context in Nelles and found it appropriate to rely on them heavily in establishing the liability threshold for Charter damages: Henry , at paras. 66-74 . It is therefore helpful to consider the law governing Ms. Ernst’s private law claim in negligence against the Board. [ 44 ] No one contests that the Board owes Ms. Ernst no duty of care under the private law of negligence.

In negligence law, whether there is a duty of care depends on the existence of foreseeability and proximity, and the absence of countervailing policy considerations: Cooper v. Hobart , 2001 SCC 79 , [2001] 3 S.C.R. 537, at para. 30 ; Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129. In the case of public regulators, for reasons of insufficient proximity or countervailing policy considerations, or both, courts have generally held that these state actors do not owe claimants a duty of care: Cooper ; Edwards v.

Law Society of Upper Canada , 2001 SCC 80 , [2001] 3 S.C.R. 562. [ 45 ] The policy reasons considered capable of negating a prima facie duty of care have included (

i) excessive demands on resources, (ii) the potential “chilling effect” on the behaviour of the state actor, and (iii) protection of quasi-judicial decision making: see, e.g., A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at §9.65, citing S. Sugarman, “A New Approach to Tort Doctrine: Taking the Best From the Civil Law and Common Law of Canada” (2002), 17 S.C.L.R. (2d) 375, at p. 388 . [ 46 ] The reasons of the Court of Appeal called on these sorts of policy considerations to uphold the Court of Queen’s Bench’s finding that the Board did not owe a duty of care to Ms.

Ernst: Forcing the Board to consider the extent to which it must balance the interests of specific individuals while attempting to regulate in the overall public interest would be unworkable in fact and bad policy in law. Recognizing any such private duty would distract the Board from its general duty to protect the public, as well as its duty to deal fairly with participants in the regulated industry.

Any such individualized duty of care would plainly involve indeterminate liability, and would undermine the Board’s ability to effectively address the general public obligations placed on it under its controlling legislative scheme. [para. 18] [ 47 ] Brief reference to the Board’s mandate underlines the wisdom of these comments.

Section 3 of the Energy Resources Conservation Act required the Board to undertake its duties respecting proposed energy resource projects in light of the public interest and with regard to the social, economic, and environmental effects of the project. The Board had the public duty of balancing several potentially competing rights, interests and objectives. Allowing claimants to bring claims for damages against the Board has the

potential to deplete the Board’s resources, with respect to both funds and time. Allowing a claimant to bring a damages claim against theBoard may also result in defensive actions by the Board, which would “chill” its ability to otherwise carry out its statutory dutieseffectively and in the public interest.

Likewise, the Board is required to balance public and private interests in the execution of its quasi-judicial duties, and this responsibility is inconsistent with being liable to an individual claimant for damages. [48] This jurisprudence also cautions against attempting to segment the functions of a quasi-judicial regulatory board suchas this one into adjudicative and regulatory activity for the purposes of considering whether its actions should give rise to liability.

Forexample, in Edwards, this Court endorsed the Ontario Court of Appeal’s refusal to distinguish between the Law Society’s adjudicativeand investigatory functions for the purpose of the duty of care analysis: see para. 11, citing (2000), 48 O.R. (3d) 329 (C.A.), at para. 30.The Board has a broad mandate to, among other things, conduct inquiries and investigations, make inspections and conduct hearings,making it impractical and artificial to try to distinguish among its various roles for the purposes of liability. [49] While, as noted, Charter damages are an autonomous remedy, and every state actor has an obligation to be Charter-compliant, the same policy considerations as are present in the law of negligence nonetheless weigh heavily here, particularly in light ofthe availability of judicial review to uphold constitutional rights. (

b) Statutory and Common Law Immunities [50] The strong common law immunity of judges from civil suits has been extended by common law and statute to manyquasi-judicial bodies and agencies including administrative bodies such as the Board, as aptly articulated by my colleague Justice Abellain her reasons; and see also, e.g., Morier v. Rivard, (SCC), [1985] 2 S.C.R. 716; Crispin v. Registrar of the DistrictCourt, [1986] 2 N.Z.L.R. 246 (H.C.), at p. 252; Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.), at p. 136, cited by Morier, at pp. 739-40;Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180, 69 C.H.R.R.

D/155, at para. 84; Agnew v. Ontario Assn. of Architects (1987), (ON SC), 64 O.R. (2d) 8 (Div. Ct.); Ermina v. Canada (Minister of Citizenship and Immigration) (1998), (FC), 167 D.L.R. (4th) 764 (F.C.T.D.); Cartier v. Nairn, 2009 HRTO 2208, 8 Admin. L.R. (5th) 150; Courts of Justice Act,R.S.O. 1990, c. C.43; Provincial Court Act, R.S.A. 2000, c. P-31; Court of Queen’s Bench Act, R.S.A. 2000, c. C-31; A. A.Olowofoyeku, Suing Judges: A Study of Judicial Immunity (1993), at pp. 1-32; P. W. Hogg, P. J. Monahan and W. K. Wright, Liability ofthe Crown (4th ed. 2011), at p. 289.

This immunity is broad and has been applied even in the face of alleged human rights infringements:Hazel; Cartier; Gonzalez v. British Columbia (Ministry of Attorney General), 2009 BCSC 639, 95 B.C.L.R. (4th) 185; Taylor v. Canada(Attorney General), (FCA), [2000] 3 F.C. 298 (C.A.), leave to appeal refused, [2000] 2 S.C.R. xiv.

The common lawis a source of “practical wisdom” about exposing quasi-judicial and regulatory decision-makers such as the Board to damages claims.And the policy reasons that have led legislatures across Canada to enact many statutory immunity clauses, like the one that protects thisBoard, may also inform the analysis of countervailing considerations relating to good governance.

Of course, these sorts of statutoryprovisions cannot override constitutional rights, but the policy reasons on which they are based can and should be taken into account bya reviewing court. [51] The rationales underlying the common law and statutory immunity for quasi-judicial and regulatory decision-makersfall into two main interrelated categories. First, immunity from civil claims permits decision-makers to fairly and effectively makedecisions by ensuring freedom from interference, which is necessary for their independence and impartiality: Morier, at pp. 737-38,citing Garnett v.

Ferrand (1827), 6 B. & C. 611, 108 E.R. 576, at pp. 581-82, and Fray v. Blackburn (1863), 3 B. & S. 576, 122 E.R.217. Second, immunity protects the capacity of these decision-making institutions to fulfill their functions without the distraction oftime-consuming litigation. [52] These grounds for immunity resonate in the context of claims for Charter damages. [53] If actions for Charter damages were brought against the Board, it would inevitably be involved in defending thosesuits and thereby distracted from its statutory responsibilities.

As Hogg, Monahan and Wright observe in relation to judicial immunity,the public relies on judges and the courts to resolve difficult problems, and “a judge would be placed in an intolerably vulnerableposition, and there would be no end to litigation, if a disappointed litigant could turn around and bring fresh proceedings against thejudge”: p. 283.

The same may be said of quasi-judicial decision-makers: Ontario Law Reform Commission, Report on the Liability ofthe Crown (1989), at p. 29. [54] Furthermore, allowing Charter damages claims to be brought for the Board’s actions and decisions has the potentialto distort the appeal and review process. The corollary of immunity is that a judicial or quasi-judicial decision can be challenged onlythrough judicial review or the appeals process: Royer v.

Mignault, (QC CA), [1988] R.J.Q. 670 (C.A.), at pp. 673-74.This prevents judicial and quasi-judicial decision-makers from having to justify their decisions beyond the justification disclosed by therecord which will be available for appeal or judicial review: Canada (Attorney General) v. Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81,at para. 136, per Mainville J.A., concurring.

It is worth remembering that in order not to compromise the decision-maker’s impartiality orthe finality of his or her decision, the decision-maker has a limited role in an appeal or judicial review proceeding: see, e.g., Ontario(Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147. However, no such limit can apply to the scope ofa quasi-judicial regulatory board’s defence against damages claims. Moreover, damages claims against such bodies, whether under theCharter or otherwise, open up new avenues of collateral attack.

By protecting judicial and quasi-judicial decision-makers from having todefend their decisions against damages suits, the immunity simultaneously strengthens public confidence in the legal system, preservesimpartiality, both in fact and in perception, and closes off routes of collateral attack. See MacKeigan v. Hickman, (SCC),[1989] 2 S.C.R. 796, at pp. 828-30. [55] To conclude on this point, the policy reasons that underlie the common law and statutory immunities for regulatoryand quasi-judicial boards like this one relate directly to the types of good governance concerns identified in Ward.

Opening the Board todamages claims will distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise itsimpartiality, and open up new and undesirable modes of collateral attack on its decisions.

(3) Case-by-Case Consideration Undermines the Purposes of the Immunity

[56] Ms. Ernst argues that claims for Charter damages must be assessed on a case-by-case basis to determine whetherdamages would be an appropriate and just remedy. However, as has been pointed out many times, requiring a case-by-case examinationof particular claims largely undermines the purpose of conferring immunity in the first place: Gonzalez, at para. 49. [57] Immunity is easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statementof claim can call into question a decision-maker’s conduct: Gonzalez, at para. 53.

Even qualified immunity undermines the decision-maker’s ability to act impartially and independently, as the mere threat of litigation, achieved by artful pleadings, will require thedecision-maker to engage with claims brought against him or her. As Lord Denning M.R. held, to be truly free in thought, judges shouldnot be “plagued with allegations of malice or ill-will or bias or anything of the kind”: Sirros, at p. 136, cited by Morier, at pp. 739-40. C. To Sum Up [58] As Ms. Ernst accepts, the immunity clause purports to bar her claim for Charter damages.

That being the case, herdamages claim must be struck and the appeal dismissed unless she succeeds in challenging the constitutionality of the immunityprovision. She has failed to do so. It follows that her claim for Charter damages should be struck out and the appeal dismissed. [59] I would answer the constitutional question as follows: Is s. 43 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10, constitutionally inapplicable or inoperable to the extent that itbars a claim against the regulator for a breach of s. 2(

b) of the Canadian Charter of Rights and Freedoms and an application for a remedyunder s. 24(1) of the Canadian Charter of Rights and Freedoms? Answer: To the extent that s. 43 purports to bar a claim for Charter damages, the answer is no. IV. Disposition [60] I would dismiss the appeal with costs. The following are the reasons delivered by [61] Abella J. — Two statutory provisions are at stake.

The first is Alberta’s requirement that before a constitutionalchallenge can be brought, the government must be given notice so that the law is given a thorough airing, with all parties having achance to bring and test the evidence. This protects the public interest by ensuring that laws are not casually or cavalierly either set asideor upheld. It also ensures the existence of a full and proper record on appeal. [62] The second provision is an immunity clause protecting an administrative tribunal (like almost all quasi-judicial andjudicial bodies in Alberta and the rest of Canada) from being sued for damages.

This protects the public interest by ensuring thatadjudicative bodies responsible for making independent decisions are not casually or cavalierly dragged into litigation that drains theirattention and public resources. [63] Jessica Ernst is asking this Court to decide whether an immunity clause insulating a quasi-judicial tribunal fromlawsuits, bars her from bringing a claim for Charter damages against that tribunal. [64] Ms.

Ernst’s claim is for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms from a quasi- judicial administrative body, the Energy Resources Conservation Board.[2] She claims that Charter damages are warranted because ofthe Board’s decision to stop communicating with her, in essence finding her to be a vexatious litigant. Bypassing judicial review, shechose instead to designate the Board’s decision as unconstitutional, claiming it breached her right to freedom of expression under s. 2(b)of the Charter.

The Alberta Court of Queen’s Bench and the Alberta Court of Appeal had no difficulty finding that s. 43 of the EnergyResources Conservation Act, R.S.A. 2000, c. E-10, an immunity clause in the Board’s enabling statute, bars any and all claims againstthe Board, including claims for Charter damages. [65] Ms. Ernst at no stage gave the required formal notice of a constitutional challenge to s. 43. In fact, in both priorproceedings, she expressly denied that she was challenging the constitutionality of the immunity clause. Instead, she was challenging theapplicability of the clause to her Charter claim.

She claimed to be entitled to a remedy for a Charter breach under s. 24(1), regardless ofwhether s. 43 entitled her to get a remedy. [66] Ms. Ernst’s argument that she was not seeking to challenge the validity of s. 43, only its applicability to a Charterdamages claim, is unsustainable. The immunity clause either complies with the Charter or it does not. But either way, there must be ajudicial determination of the constitutional validity, and therefore the constitutional applicability, of the provision. Ms.

Ernst’s argumentthat the immunity clause does not apply when a Charter remedy is being sought, is an argument that there is no need to go through thenecessary steps to determine whether a provision is Charter-compliant in order to disregard it. This invokes Alice in Wonderland. [67] Since Ms. Ernst did not seek to challenge the constitutionality of s. 43 in the prior proceedings, there is no recordeither to justify or impugn the provision. This means that for the time being, the provision’s constitutionality is intact, which means thatthe Board’s immunity is intact, which means that Ms.

Ernst cannot, under these circumstances, legally sustain a claim that the Board isvulnerable to a damages claim, either under the Charter or otherwise. As a result, I agree with the Alberta courts that Ms. Ernst’s claimought to be struck. [68] R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 , [2011] 3 S.C.R. 45, sets out the accepted test forstriking out a claim: A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonablecause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v.

Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where

a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure TreatmentCentre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, (SCC), [1980] 2 S.C.R. 735. . . . . . . The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminarymotions, like the one at issue in Donoghue v. Stevenson[, (FOREP), [1932] A.C. 562 (H.L.)].

Therefore, on a motion tostrike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming thefacts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side ofpermitting a novel but arguable claim to proceed to trial (at paras. 17-21). [69] This is not a cascading, multi-factored test, it is a simple one: Is it plain and obvious that s. 43 bars Ms.

Ernst’sclaim? [70] The immunity clause in this case is absolute and unqualified: 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) inrespect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any ofthose Acts or a decision, order or direction of the Board. [71] The legislature clearly chose not to qualify the immunity in any way. Any argument that it should not apply toconduct alleged to be punitive, or that it applies to adjudicative but not to other kinds of Board decisions, is nowhere evident in thestatutory language. That is precisely why determining the constitutionality of the clause based on a full evidentiary record is soimportant.

It may be that the clause could be amended to permit suits for punitive conduct, but that is not what the clause now says.Moreover, creating a novel distinction between adjudicative and non-adjudicative conduct for purposes of limiting the scope of theimmunity clause, strikes me as being an unhelpful unravelling of established jurisprudence. [72] As a result, it is plain and obvious, based on the plain and obvious language of s. 43, that Ms. Ernst’s claim isbarred.

The fact that her claim alleges “punitive” conduct cannot change the unqualified language in s. 43. [73] Without a proper determination of the constitutionality of the immunity clause, there can be no assessment of itsinapplicability or inoperability. It follows that Ms. Ernst’s claim for Charter damages should be struck, and the appeal dismissed. Background [74] The Board is an independent quasi-judicial body responsible for regulating the development of Alberta’s energyresources.

It licenses gas wells and enforces legislative and regulatory provisions that are intended to protect the groundwater supplyfrom interference or contamination due to oil and gas development. The Board has detailed procedures for receiving and investigatingpublic complaints, conducting compliance inspections, and taking appropriate enforcement and remedial action when necessary. As setout in its enabling legislation, the Board is authorized to conduct hearings, inquiries and investigations, award costs and receivewitnesses. [75] Ms. Ernst owns land near Rosebud, Alberta.

She opposed the activities of EnCana Corporation, which engaged inhydraulic fracturing and drilling close to her property. Throughout 2004 and 2005, Ms. Ernst frequently voiced her concerns about thenegative impacts caused by oil and gas development near her home. She did this through contact with the Board’s compliance,investigation and enforcement offices. She also voiced her concerns publicly. [76] EnCana’s activities resulted in Ms. Ernst bringing claims against EnCana, the Board, and the government of Albertain December of 2007. [77] The claim against EnCana was based on damage to Ms. Ernst’s water supply.

Alberta was sued because it had failedto respond to her complaints about EnCana’s activities notwithstanding that it owed Ms. Ernst a duty to protect her water supply. Ms.Ernst’s claims against EnCana and against the province were not before this Court. [78] The claim against the Board was binary. One claim was in negligence, alleging that the Board, which has regulatoryjurisdiction over the activities of EnCana, had negligently administered the regulatory regime under the Energy Resources ConservationAct. [79] The second claim against the Board was that it had breached Ms. Ernst’s s. 2(

b) right to freedom of expression by“arbitrarily, and without legal authority” restricting her communications with the Board. [80] Ms. Ernst claimed that because of her public criticisms, and because of a reference she made to Weibo Ludwig (whowas convicted for carrying out bombings and other destructive acts against oil industry installations in Alberta), the Board prohibited herfrom communicating with it. As a result, Ms.

Ernst claimed she was unable to properly register her concerns that EnCana was adverselyimpacting the Rosebud Aquifer and her groundwater supply. [81] The Manager of the Board’s Compliance Branch wrote to Ms. Ernst and told her that all staff were instructed toavoid further contact with her, and that he had reported her to the Attorney General of Alberta, the RCMP and the Board’s FieldSurveillance Branch.

[82] When Ms. Ernst sought clarification of the restrictions she faced, she was directed to the Board’s Legal Branch,which informed her that the Board “took a decision in 2005 to discontinue further discussion with” her, and would not re-opencommunications through the regular channels unless she agreed to raise her concerns only through the Board. [83] In March 2007, Ms. Ernst was informed that she was again free to communicate with any staff at the Board. [84] Rather than seeking judicial review of the Board’s decision to stop communicating with her when she was firstinformed of this in November 2005, Ms.

Ernst waited two years and then filed a statement of claim on December 3, 2007, an amendedstatement of claim on April 21, 2011, and a second amended statement of claim on February 7, 2012. [85] The remedy Ms. Ernst sought for this second breach was “damages in the amount of $50,000.00 under section 24(1)of the Canadian Charter of Rights and Freedoms”. [86] The Board applied to strike out portions of Ms.

Ernst’s pleadings for failing to disclose a reasonable cause of action.It relied on its immunity clause, s. 43 of the Energy Resources Conservation Act, arguing that it provided a complete bar to both thenegligence and Charter damage claims against the Board. The Board also argued that the appropriate way for Ms. Ernst to challenge theBoard’s discretionary decision was through judicial review. [87] The case management judge at the Queen’s Bench, Wittmann C.J., found that the proposed negligence claim wasunsupportable at law since there was no private law duty of care owed to Ms.

Ernst by the Board based on this Court’s decisions inCooper v. Hobart, 2001 SCC 79 , [2001] 3 S.C.R. 537, and Edwards v. Law Society of Upper Canada, 2001 SCC 80 ,[2001] 3 S.C.R. 562 ((2013), 2013 ABQB 537 , 85 Alta. L.R. (5th) 333 (Q.B.), at paras. 28-29). [88] Wittmann C.J. also held that s. 43 barred Ms. Ernst’s claim for Charter damages. He stated that in order to properlychallenge the constitutionality of s. 43, Ms. Ernst was required to give the necessary notice to the Attorneys General of Alberta andCanada but had failed to do so: . . . if Ernst seeks as a remedy a declaration striking down

section 43 of the [Energy Resources Conservation Act], a Notice ofConstitutional Question should be given to the Attorneys General of Alberta and Canada, pursuant to

section 24 of the Judicature Act,RSA 2000, c J-2. The ensuing constitutional litigation could be pursued in a procedural matrix, which would consider the constitutionalvalidity of the legislation, including whether a

section 1 Charter defence might be available to the Legislature in the event a Charterbreach is found.

The procedural requirement to provide a Notice of Constitutional Question facilitates full argument of any constitutionalissues and is a matter of procedural fairness necessary to ensure the Attorneys General of Alberta and Canada have an opportunity to beheard (at para. 89). [89] In Wittmann C.J.’s view, to allow personal Charter damage claims to circumvent statutory immunity clauses wouldcause the “[p]arties [to] come to the litigation process dressed in their Charter clothes whenever possible”, and to allege “such a breach .. . in litigation against the government wherever possible”. [90] In any event, Wittmann C.J. noted that Ms.

Ernst w

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