The Court of Appeal of Alberta has confirmed that the Energy Resources Conservation Board (now known as the Alberta Energy Regulator) is immune from a negligence lawsuit by a landowner claiming that hydraulic fracturing caused hazardous amounts of methane, ethane and chemicals to contaminate her water well.

The appellant, Jessica Ernst, owns land near Rosebud, Alberta. She sued EnCana Corporation for damage to her fresh water supply allegedly caused by EnCana’s activities, notably construction, drilling, hydraulic fracturing and related activities in the region. The Energy Resources Conservation Board had regulatory jurisdiction over the activities of EnCana, and the appellant has sued it for what was summarized as “negligent administration of a regulatory regime” related to her claims against EnCana. The appellant also sued the Province of Alberta, alleging that it (through its department Alberta Environment and Sustainable Resource Development) owed her a duty to protect her water supply, and that it failed to respond adequately to her complaints about EnCana’s activities.

In addition, Ms. Ernst alleged in her claim that she participated in many of the regulatory proceedings before the Board, and that she was a “vocal and effective critic” of the Board. She alleged that between November 24, 2005 to March 20, 2007 the Board’s Compliance Branch refused to accept further communications from her. For this she has advanced a claim for damages for breach of her right to free expression under the Canadian Charter of Rights and Freedoms.

The Board applied to strike out certain portions of Ms. Ernst’s pleadings for failing to disclose a reasonable cause of action. The case management judge found that the proposed negligence claim against the Board was unsupportable at law. He applied the three-part analysis relating to foreseeablity, proximity and policy considerations. He found no private law duty of care was owed to Ms. Ernst by the Board.

In the alternative, the case management judge found that any claim against the Board was barred by s. 43 of the Energy Resources Conservation Act:

• 43 No action or proceeding may be brought against the Board or a member of the Board… 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 Alberta Court of Appeal agreed with the lower court and dismissed Ms. Ernst’s argument that the Board failed to respond “reasonably” to EnCana’s activities and held that a tortuous claim alleging an omission to act was barred by section 43 of the Act. The Court of Appeal also held that section 43 barred Ms. Ernst’s Charter claim for a “personal remedy”. The Court of Appeal concluded that even if the Board effectively breached Ms. Ernst’s freedom of expression, that “protecting administrative tribunals and their members from liability for damages is constitutionally legitimate.”

Ms. Ernst has said in the media she will appeal this latest decision against her to the Supreme Court of Canada.

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