Ernst v. Alberta Energy Regulator

Ernst v. Alberta Energy Regulator
Collection
Supreme Court Judgments
Date
2017-01-13
Neutral citation
2017 SCC 1
Report
[2017] 1 SCR 3
Case number
36167
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 36167
Decision Content
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 undertaken without a full and tested evidentiary record. It may or may not be the case that governments will be able to justify immunity from Charter damages, but until the s. 1 justificatory evidence is explored, this Court should not replace the necessary evidence with its own inferences.
While an analysis pursuant to Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, likely leads to the conclusion that Charter damages are not an appropriate and just remedy in the circumstances, the question of whether such damages are appropriate requires a prior determination of the constitutionality of the immunity clause. If the clause is constitutional, there is no need to embark on a Ward analysis. If it is found to be unconstitutional, only then does a Ward analysis become relevant. Here, since E did not seek to challenge the constitutionality of s. 43 in the prior proceedings, there is no record either to justify or impugn the provision. This means that, for the time being, the provision’s constitutionality is intact. It is therefore plain and obvious that E’s claim is barred. E’s Charter claim should therefore be dismissed.
Judicial review was the appropriate means of addressing E’s concerns. The conventional challenge to an administrative tribunal’s decision is judicial review, not an action against the administrative tribunal. When the Board made the decision to stop communicating with E, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enabling legislation. Issues about the legality, reasonableness, or fairness of this discretionary decision are issues for judicial review. E had the opportunity to seek timely judicial review of the Board’s decision. She chose not to. Instead, she attempted to frame her grievance as a claim for Charter damages. That is precisely why s. 43 exists — to prevent an end‑run by litigants around the required process, resulting in 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 damages should be struck out on the basis of a statutory immunity clause, the court must first determine whether it is plain and obvious that Charter damages could not be an appropriate and just remedy in the circumstances of the plaintiff’s claim. If it is not plain and obvious that Charter damages could not be appropriate and just, then the court must determine whether it is plain and obvious that the immunity clause, on its face, applies to the plaintiff’s claim. If it is plain and obvious that the immunity clause applies, then the court must give effect 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 are an 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 the elements 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 breach of s. 2 (b) of the Charter . The second step requires the claimant to demonstrate that damages could fulfill one or more of the functions of compensation, vindication, or deterrence. E has met this threshold, as well. Her allegations are sufficient to establish that the functions of vindication 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 damages could not be appropriate and just. Such considerations include the availability of alternative remedies that will meet the same objectives as an award of Charter damages, and good governance concerns — i.e., policy factors that will justify restricting the state’s exposure to civil liability. Here, the Board has not shown that it is plain and obvious that judicial review will meet the same objectives as an award of Charter damages, namely, vindicating E’s Charter right and deterring future breaches. With respect to good governance, two interrelated principles must be kept in mind. First, Charter compliance is itself a foundational principle of good governance. Second, good governance concerns must be considered in a manner that remains protective of Charter rights, since the “appropriate and just” analysis under s. 24(1) is designed to redress the Charter breach. While the common law recognizes absolute immunity from personal liability for judges and other state actors in the exercise of their adjudicative function, there is nothing in the record which indicates that the Board was acting in an adjudicative capacity in this case. Nor is there a compelling policy reason for which to immunize state actors in all cases, including where, as here, the impugned conduct is said to have been punitive in nature. Further, considerations supporting private law immunity from liability for negligent conduct do not automatically support absolute immunity from Charter damages claims for more 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 not support recognizing a broad, sweeping immunity for the Board in this case, let alone in every case. In the final analysis, 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.
It is also not plain and obvious that E’s claim is barred by the statutory immunity clause. E seeks Charter damages as a remedy 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 the immunity that s. 43 of the Energy Resources Conservation Act confers. While E did not argue that the wording of s. 43 does not apply to her claim, this omission should not impede the just determination of a novel legal issue which has such broad ramifications for the public. E’s assumption that s. 43 bars all actions or proceedings against the Board, regardless of the nature of the claim, is not binding on the Court. Her assumption may ultimately prove correct, but it is not plainly and obviously so at this stage. Since it is not plain and obvious 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 is subsequently determined that s. 43 does, indeed, bar E’s claim for Charter damages, then she may challenge its constitutionality at that juncture.
Therefore, the appeal must be allowed. The test for striking out E’s claim at the outset has not been satisfied, and the matter should 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] 2 S.C.R. 686; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; MacKay v. Manitoba, [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, [1986] 1 S.C.R. 863; Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220; Nelles v. Ontario, [1989] 2 S.C.R. 170; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Manuge v. Canada, 2010 SCC 67, [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] 3 S.C.R. 537; Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, aff’g (2000), 48 O.R. (3d) 329; Morier v. Rivard, [1985] 2 S.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. Ainsworth Engineered Corp., 2009 HRTO 2180, 69 C.H.R.R. D/155; Agnew v. Ontario Assn. of Architects (1987), 64 O.R. (2d) 8; Ermina v. Canada (Minister of Citizenship and Immigration) (1998), 167 D.L.R. (4th) 764; Cartier v. Nairn, 2009 HRTO 2208, 8 Admin. L.R. (5th) 150; Gonzalez v. British Columbia (Ministry of Attorney General), 2009 BCSC 639, 95 B.C.L.R. (4th) 185; Taylor v. Canada (Attorney General), [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, [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, [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., 2011 SCC 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, 2001 SCC 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), 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), 142 D.L.R. (3d) 151; Seweryn v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2016 ABCA 239; R. v. Redhead, 2006 ABCA 84, 384 A.R. 206; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Alkasabi v. Ontario, 1994 CarswellOnt 3639 (WL Can.); Morier v. Rivard, [1985] 2 S.C.R. 716; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Taylor v. Canada (Attorney General), [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] 2 S.C.R. 28; Irwin Toy Ltd. v. Quebec (Attorney General), [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), [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. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Nelles v. Ontario, [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. H175, s. 62.
Judicature Act, R.S.A. 2000, c. J‑2, s. 24.
Justices of the Peace Act, R.S.N.W.T. 1988, c. J‑3, s. 4(5).
Justices of the Peace Act, 1988, S.S. 1988‑89, c. J‑5.1, s. 12.9.
Labour Board Act, S.N.S. 2010, c. 37, s. 11.
Labour Relations Code, R.S.B.C. 1996, c. 244, s. 145.4.
Law Society Act, R.S.O. 1990, c. L.8, s. 9.
Oil and Gas Conservation Act, R.S.A. 2000, c. O‑6.
Oil Sands Conservation Act, R.S.A. 2000, c. O‑7, s. 7.
Pipeline Act, R.S.A. 2000, c. P‑15, ss. 6, 12.
Provincial Court Act, R.S.A. 2000, c. P‑31, s. 68.
Provincial Court Act, R.S.B.C. 1996, c. 379, ss. 27.3, 42.
Public Inquiry Act, S.B.C. 2007, c. 9, s. 32.
Responsible Energy Development Act, S.A. 2012, c. R‑17.3, s. 27.
Sex Offender Information Registration Act, S.C. 2004, c. 10 .
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 179(1).
Authors Cited
Alberta. Ministry of Energy. 2005‑2006 Annual Report. Edmonton: The Ministry, 2006.
Hogg, Peter W., Patrick J. Monahan, and Wade K. Wright. Liability of the Crown, 4th ed. Toronto: Carswell, 2011.
Kligman, Robert D. “Judicial Immunity” (2011), 38 Adv. Q. 251.
Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 10th ed. Toronto: LexisNexis, 2015.
Olowofoyeku, Abimbola A. Suing Judges: A Study of Judicial Immunity. Oxford: Clarendon Press, 1993.
Ontario. Law Reform Commission. Report on the Liability of the Crown. Toronto: The Commission, 1989.
Sugarman, Stephen D. “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.
APPEAL from a judgment of the Alberta Court of Appeal (Côté, Watson and Slatter JJ.A.), 2014 ABCA 285, 580 A.R. 341, 2 Alta. L.R. (6th) 293, 75 Admin. L.R. (5th) 162, 12 C.C.L.T. (4th) 274, 85 C.E.L.R. (3d) 39, 319 C.R.R. (2d) 309, 620 W.A.C. 341, [2014] 11 W.W.R. 496, [2014] A.J. 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 the immunity 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 statutory immunity 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 the immunity 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 with Abella J. that we should hold that it is “plain and obvious” that the immunity clause on its face bars Ms. Ernst’s claim for Charter damages.
[16] To do otherwise is unfair to the Board. In light of Ms. Ernst’s position in her factum and during oral submissions, the Board had no reason to think that there was any doubt that the provision purports to bar her claim. The Board had no indication that this issue was in question, let alone that it could become the basis on which the appeal might be decided against it. The holding proposed by the Chief Justice and Justices Moldaver and Brown would deprive the Board of any opportunity to make submissions on what has become, 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 and without the benefit of any argument on the point, cast doubt on the scope of this immunity clause where there has up until now been none. And in doing that, doubt is also cast on the scope of scores of other immunity provisions in many statutes across Canada. As I see it, 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 immunity provision (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 the provision on its face bars her claim and she has not successfully challenged the provision’s constitutionality, the Court must give effect to the 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 record were not adequate to consider the constitutionality of s. 43, then it should follow that Ms. Ernst’s constitutional challenge cannot succeed and 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 refuse to rule on the law’s constitutionality and yet also refuse to apply the clause. Having had more than ample opportunity to do so, Ms. Ernst has failed to discharge her burden of showing that the law is unconstitutional, a burden sometimes described as a presumption of constitutionality: Manitoba (Attorney General) v. Metropolitan Stores Ltd., [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 the challenge, the challenge fails. As Cory J. put