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Constitutional Law - Canadian Charter of Rights and Freedoms - Remedies for denial of rights - Procedural remedies - Damages

Thursday, February 02, 2017 @ 7:00 PM  


Appeal by Ernst from a judgment of the Alberta Court of Appeal affirming a decision striking her claim against the Alberta Energy Regulator. Ernst owned land near Rosebud, Alberta. She opposed the activities of EnCana Corporation, which engaged in hydraulic fracturing and drilling close to her property. Ernst claimed that the Alberta Energy Regulator (Board), a quasi-judicial regulatory board, breached her right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. She asserted that the Board had arbitrarily, and without legal authority, restricted her communications with it and that she was therefore unable to properly register her concerns that Encana was adversely impacting the Rosebud Aquifer and her groundwater supply. 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 was protected by an immunity clause which precluded all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administered. Both the Alberta Court of Queen’s Bench and the Court of Appeal found that Ernst’s claim for Charter damages should be struck out. The Board was protected by a broadly worded immunity clause, namely, s. 43 of the Energy Resources Conservation Act (Act). Ernst’s position was that this immunity provision was unconstitutional because it purported to bar her claim for Charter damages. She submitted that the only issue on this appeal was whether the immunity clause was constitutionally inapplicable or inoperable to the extent that it barred a claim against the Board for Charter damages. She accepted, as the Alberta courts found, that the immunity clause on its face barred her claim. The issue was therefore whether this immunity clause was unconstitutional to the extent that it did so.

HELD: Appeal dismissed. It was plain and obvious that the immunity clause on its face barred Ernst’s claim for Charter damages and Ernst had not successfully challenged the provision’s constitutionality. Although s. 24(1) of the Charter conferred on the courts a broad remedial authority, this did not mean that Charter breaches should always, or even routinely, be remedied by awards of Charter damages. Applying the principles set out in the Ward case, damages were not an appropriate and just remedy for Charter violations by the Board when several countervailing factors were considered. First, there was an alternative remedy, judicial review, that substantially addressed the alleged Charter breach. Judicial review of the Board’s decisions and directives had the potential to provide prompt vindication of 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. Second, good governance concerns were also engaged as granting damages undermined the effectiveness of the Board and inhibited effective governance. Allowing claimants to bring claims for damages against the Board had the potential to deplete the Board’s resources, with respect to both funds and time. Allowing a claimant to bring a damages claim against the Board could also result in defensive actions by the Board, which would “chill” its ability to otherwise carry out its statutory duties effectively and in the public interest. If actions for Charter damages were brought against the Board, it would inevitably be involved in defending those suits and thereby distracted from its statutory responsibilities. Furthermore, allowing Charter damages claims to be brought for the Board’s actions and decisions had the potential to distort the appeal and review process. Finally, determining the appropriateness of damages against the Board on a case-by-case basis would largely undermine the purpose of conferring immunity in the first place. Immunity was easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statement of claim could call into question a decision maker’s conduct. In light of these countervailing factors, Charter damages could never be an appropriate and just remedy for Charter breaches by the Board. As a result, s. 43 of the Act did not limit the availability of such a remedy under the Charter and the provision could not be unconstitutional. Ernst’s claim for Charter damages was struck out.