She has been called Canada’s Erin Brockovich.
Erin Brockovich, of course, was the single mother whose crusade for justice was depicted in the movie bearing her name, staring Julia Roberts.
Ms. Brockovich was a law clerk. Without formal legal training, she put together a legal case against a multi-billion-dollar corporation. It had attempted to cover up contaminated water near Hinkley, California.
The case settled for US$333 million in 1996, a substantial amount even by American standards.
In Canada, several years later, an individual named Jessica Ernst became concerned about a multibillion-dollar oil company’s hydraulic fracturing and drilling (“fracking”) activities near her rural property.
She was concerned that hazardous and toxic chemicals used in fracking activities were contaminating an aquifer, the source of fresh water supplied to her home through a water well.
Throughout 2004 and 2005, Ms. Ernst frequently raised concerns about the negative impacts caused by oil and gas development near her home. She did so through the Alberta Energy Regulator (AER).
The AER is a statutory body responsible for regulating Alberta’s energy sector.
She also voiced her concerns publicly.
In November, 2005, an AER manager wrote to Ms. Ernst. He told her that all AER staff were instructed to avoid contact with her. He said he had reported her to the RCMP.
When Ms. Ernst sought clarification, she was directed to the AER’s legal branch.
In March 2007, 16 months later, she was informed that she was again free to communicate with any AER staff.
In December 2007, she brought a legal claim against the oil company, the AER, and the government of Alberta.
The claims against the oil company for damage to her water supply and against the provincial government for negligently administering the regulatory regime were not before the Supreme Court of Canada.
The claim against the AER was twofold. First, she alleged it had negligently administered the regulatory
regime.
Second, she alleged that it had breached her s. 2(b) Canadian Charter of Rights and Freedoms (the Charter) right to freedom of expression by restricting her communications with it.
As a result, she said she was unable to properly register her concerns that EnCana was adversely impacting the aquifer and her groundwater supply.
No judicial review was sought in 2005 when the Board decided to stop communicating with her.
Instead, a civil claim was brought in 2007. It was amended in April, 2011 and February, 2012.
As a remedy for the infringement of her right to freedom of expression, she sought $50,000 in damages pursuant to s. 24(1) of the Charter (Charter damages).
The AER applied to strike out certain parts of her claim. If it was successful, those parts against the AER would be prevented from proceeding any further.
The AER relied on a statutory immunity clause, which read:
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.
The first level of court concluded that allegations of negligence against the AER were unsupportable at law. Alternatively, it would have said they were barred by the immunity provision.
That judge concluded that the allegations of a breach of her right to freedom of expression under the Charter ought not to be struck out. But he decided that these claims, too, were barred by the immunity provision.
Critically, the constitutional validity of the immunity provision itself was not challenged.
The Court of Appeal dismissed the appeal.
In Ernst v AER, a 5:4 decision, the Supreme Court of Canada dismissed Ms. Ernst’s appeal.
Four justices, including Justice Beverley McLachlin, the Chief Justice of the Supreme Court of Canada at the time, would have decided in Ms. Ernst’s favour. The Rt. Hon. McLachlin, C.J. also wrote the leading decision on Charter damages, Vancouver v. Ward.
Five justices decided against her, largely due to intricacies involved in bringing a claim of this nature in her circumstances.
Unfortunately, this case highlights the complexities that can be involved in seeking an award of Charter damages for wrongdoing by a public body.
The Charter added complexity to Ms. Ernst’s case. This is a perverse result, given that the Charter is to facilitate ordinary Canadians’ ability to hold public authorities accountable in the courts.
Ms. Ernst’s complaints about being silenced are not unique.
Other public bodies in Western Canada attempt to silence people, too.
Though the potential for seeking Charter damages from public bodies is beginning to open up, this remains an emerging area of the law. Barriers remain, including in B.C.
We can only hope that one day in the not-too-distant future, this remedy will not be beyond the reach of ordinary Canadians.
About Susan Kootnekoff:
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.
Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.
She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.
Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,
Susan moved to the Okanagan with her family, where she currently resides.
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