Supreme Court

Administrative Law

Private law remedies

Damages for unlawful administrative action

Any tort claim against board was barred by s. 43 of Energy Resources Conservation Act (Alta.)

Plaintiff brought action against three defendants; energy corporation, conservation board and province. Claim against corporation was for alleged damage to water well which was source of fresh water for plaintiff’s home. Claim against board was for negligence in administration of regime and failure to respond to plaintiff’s concerns. Claim against province was based on resource development board’s alleged failure to protect plaintiff’s water supply or respond to complaints. Portions of statement of claim were struck. Plaintiff’s appeal was dismissed. Appellate court found case management judge correctly applied test for determining whether board owed private law duty of care. Appellate court found forcing board to consider extent to which it must balance interests of specific individuals while attempting to regulate overall public interest would be unworkable in fact and bad policy in law. Appellate court found case management judge correctly concluded that any tort claim was barred by s. 43 of Energy Resources Conservation Act. Appellate court found interpreting section so that board and its members would only be protected for about half of their conduct would be absurd Appellate court found case management judge correctly concluded that s. 43 of Act barred Canadian Charter of Rights and Freedoms claim. Plaintiff appealed. Appeal dismissed. Plaintiff did not successfully challenge constitutionality of s. 43 of Act. Damages were not appropriate and just remedy for Charter violations by board. Judicial review was appropriate remedy. Board had public duty of balancing several potentially competing rights, interests and objectives. Allowing claims for damages against board had potential to deplete board’s resources of money and time, and could result in defensive actions by board. Allowing Charter damages claims to be brought for board’s actions and decisions had potential to distort appeal and review process. Requiring case-by-case examination of particular claims undermined purpose of immunity.

Ernst v. Alberta Energy Regulator (2017), 2017 CarswellAlta 32, 2017 CarswellAlta 33, 2017 SCC 1, 2017 CSC 1, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanisn J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellAlta 1588, 2014 ABCA 285, Jean Côté J.A., Jack Watson J.A., and Frans Slatter J.A. (Alta. C.A.).

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