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Top court backs judicial review as remedy for Charter breaches

Thursday, January 26, 2017 @ 7:00 PM | By Cristin Schmitz

The constitutionality of scores of statutory immunities that arguably shield public officials from Charter damages claims remains an open question after a convoluted three-opinion judgment from the Supreme Court in which a majority identifies judicial review as the appropriate avenue for challenging Charter breaches by regulators.

The divided top court voted 5-4 on Jan. 12 to dismiss the appeal of Jessica Ernst, whose $50,000 Charter damages claim against the Alberta Energy Regulator for allegedly trying to silence her public criticism of fracking was struck out at the preliminary stage by the Alberta courts below: Ernst v. Alberta Energy Regulator 2017 SCC 1.

The top court’s majority affirmed that, in the absence of a successful Charter challenge to the regulator’s general statutory immunity, the board is protected against Ernst’s Charter damages claim by s. 43 of the Energy Resources Conservation Act (ERCA) which stipulates that “no action or proceeding” may be brought against the regulator or its officials in respect of “any act or thing done purportedly” in pursuance of the ERCA.

Ernst was widely seen as a far-reaching test case on whether general statutory immunities bar Charter damages claims. But since only four of the five majority judges expressly affirmed the constitutionality of s. 43, some counsel and commentators say the door remains open to future Charter attacks on myriad similar legislative immunities that also arguably shield state actors at the federal, provincial and municipal levels (including justice system players and law society benchers) from personal remedies under s. 24(1) of the Charter.

Murray Klippenstein of Toronto’s Klippensteins, co-counsel for Ernst with Cory Wanless, told The Lawyers Weekly his client is “deeply concerned that some of the wording in the [opinions] raises a worry that we might end up with effectively a Charter-free zone for abuses by some government officials.”

He added: “When one reads the various decisions it’s not clear that these immunity clauses actually do comply with the Charter so this may have to be revisited by the Supreme Court in the years ahead. It appears that the bottom line is that a majority of the court have not in fact pronounced on the constitutionality of statutory immunity clauses in regards to Charter damages.”

Glenn Solomon of Calgary’s JSS Barristers, co-counsel with Christy Elliott for the successful respondent board, said the decision’s ratio “is that where there is a personal claim for Charter damages in the case of a regulatory body that has public duties and an immunity clause, [s. 24(1)] Charter damages are not an appropriate and just remedy in the circumstances because judicial review is.”

(In the event of a Charter breach, s. 24(1) authorizes “such remedy as the court considers appropriate and just in the circumstances.”)

Groups who intervened at the Supreme Court to argue that legislators can’t effectively “end run” around the Charter by enacting blanket statutory immunities to shield the executive, called the majority’s decision troubling.

“I think that the worst thing that comes out of this case is twofold,” explained Sukanya Pillay, executive director and general counsel for the Canadian Civil Liberties Association in Toronto. “One is the presumption of the validity of statutory immunities for Charter breaches, and second that judicial review of administrative action…is the better course to go on. And I find that concerning because there is no guarantee that any judicial review outcome would satisfy the threefold purposes of a Charter remedy, which are vindication, deterrence and compensation.”

Cheryl Milne, co-counsel with Raj Anand of Toronto’s WeirFoulds for the intervener David Asper Centre for Constitutional Rights, said by e-mail: “The decision seems to raise more questions than it answers. The majority finds that judicial review is the appropriate avenue for redress, but conflates process with remedy, and doesn’t really address the limits of the remedies available under judicial review.”

Pillay suggested that if there been a proper evidentiary record for the court to consider the constitutionality of s. 43, the outcome might have been different. “But I think the dissent is strong and agree with its reasons, and I think that next time somebody has a Charter breach there are elements in the dissent which could assist them.”

The energy regulator argued that s. 43 is a constitutionally valid limit on personal damages claims under the Charter. Ernst did not directly attack the provision’s constitutionality, but rather argued it was inoperative, or did not apply, to block her Charter claim — a position flatly rejected by the majority which said she failed to give the timely notice to the federal and provincial attorneys general required for constitutional challenges and failed to provide evidence to bolster what was effectively a request for a constitutional declaration. The majority reasoned that since she failed to successfully challenge the constitutionality of the immunity clause, which on its face bars her claim, her claim must be struck.

The majority also told Ernst that she should have used judicial review to challenge the board’s alleged breach of her s. 2(b) Charter-protected freedom of expression — a route they said is generally a more timely and effective way to obtain a remedy for Charter breaches by quasi-judicial regulatory boards.

Speaking for Justices Andromache Karakatsanis, Richard Wagner and Clément Gascon (Justice Rosalie Abella was the fifth majority judge, but gave her own reasons for dismissing Ernst’s appeal), Justice Thomas Cromwell (now retired) reasoned that s. 43 cannot be unconstitutional because damages under s. 24(1) of the Charter can never be an “appropriate and just” remedy for Charter breaches by the board.

“Opening the board to damages claims will 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 attacks on its decisions,” Justice Cromwell explained. However judicial review of the board’s decisions and directives is available to address the alleged Charter breaches. Judicial review is likely to provide more timely vindication of rights and more effective relief in relation to the board’s future conduct, while reducing the extent of the damages flowing from the breach and providing legal clarity to help prevent any future breaches, he said. “There is a wide range of remedies available through judicial review for Charter breaches by quasi-judicial and regulatory boards such as this one.”

In her concurring opinion dismissing Ernst’s appeal, Justice Abella highlighted the “profound and obvious implications for all judges and tribunals” if general immunity clauses are held to be unconstitutional. In asking the court to pronounce on the constitutional applicability and operability of s. 43, Ernst was in essence challenging the section’s constitutionality — without having provided the requisite notice and full and tested evidentiary record.

In dissent, Chief Justice Beverley McLachlin and Justices Michael Moldaver and Russell Brown wrote in joint reasons endorsed by Justice Suzanne Côté that the case presents a “novel and difficult legal problem” involving the interplay between legislative immunity clauses and s. 24(1) of the Charter.

They went on to reject the majority’s conclusion it was it plain and obvious that Ernst’s claim is barred by the statutory immunity clause on its face (although the appellant conceded that point from the outset) since it is arguable that punitive and abusive actions by the board fall outside the immunity clause. If a court subsequently determines that s. 43 does apply to bar Ernst’s claim for Charter damages, then she may challenge the provision’s constitutionality at that time. The minority argued the case should be returned to the Alberta courts to decide “the important issues of free speech and Charter remedies that her case raises.”

Milne said it is hard to predict what impact the decision will have. “I think that it is clear that the quasi-judicial functions of government tribunals and administrative bodies are shielded from Charter damages claims, but can a mere statutory provision shield even more government action from this type of accountability? The court is very divided on this issue.”

Ernst became an outspoken water activist after shallow drilling for gas near her rural property so contaminated the groundwater with methane that the well water from her faucet became explosive. She sued the Alberta Energy Regulator for negligence and for allegedly trying to silence her by refusing to accept further complaints and communications from her unless she stopped raising her concerns with the media and public.