SUPREME
COURT OF CANADA
Citation:
Ernst v. Alberta Energy Regulator, 2017 SCC 1
|
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)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
ernst v.
alberta energy regulator
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 (the “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,
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 .
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Courts of Justice Act, R.S.O. 1990, c. C.43,
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Energy Resources Conservation Act,
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Environmental Review Tribunal Act, 2000,
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s. 12(6) .
Gas Resources Preservation Act, R.S.A.
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Human Rights Code, C.C.S.M.,
c. H175, s. 62.
Judicature Act, R.S.A. 2000, c. J‑2,
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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.
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Labour Board Act, S.N.S. 2010, c. 37,
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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,
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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 judgment of Cromwell, Karakatsanis,
Wagner and Gascon JJ. was delivered by
Cromwell J. —
I.
Introduction
[1]
The appellant, Ms. Ernst, claims that a
quasi-judicial, regulatory board, the Alberta Energy Regulator (the “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.
76. 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 it on behalf of the Court in MacKay v.
Manitoba, [1989] 2 S.C.R. 357, at p. 366, “the absence of a factual base is
not just a technicality that could be overlooked, but rather it is a flaw
that is fatal to the appellants’ position” (emphasis added).
[23]
It follows that if, as Ms. Ernst maintains, the
immunity provision clearly purports to bar her damages claim, and if the record
before the Court is not adequate to permit a decision on its constitutionality,
then the immunity clause must be applied, Ms. Ernst’s claim for Charter
damages struck out and the appeal dismissed.
B.
Charter Damages Would Never Be an Appropriate
Remedy Against This Board
[24]
If Charter damages could never be an
appropriate and just remedy for Charter breaches by the Board, then s.
43 does not limit the availability of such a remedy under the Charter and
the provision cannot be unconstitutional. In my view, Charter damages
could not be an appropriate remedy.
[25]
Underlying the question of whether Charter
damages could be an appropriate remedy is a broader issue. It concerns how to
strike an appropriate balance so as to best protect two important pillars of
our democracy: constitutional rights and effective government; see, e.g., Mackin
v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405,
at para. 79. Granting 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 for the claimant without having that sort of
broader adverse impact. Thus there is a need for balance with respect to the
choice of remedies. This concern for balance was emphasized recently in Henry
v. British Columbia (Attorney General) in words that are especially apt in
this case: “Courts should endeavour, as much as possible, to rectify Charter
breaches with appropriate and just remedies. Nevertheless, when it comes to
awarding Charter damages, courts must be careful not to extend their
availability too far” (2015 SCC 24, [2015] 2 S.C.R. 214, at para. 91).
[26]
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. Applying the principles set out in that case,
damages are not an appropriate and just remedy for Charter violations by
this Board. Not every bare allegation claiming Charter damages must
proceed to an individualized, case-by-case consideration on its particular
merits. Ward held that Charter damages will not be an appropriate
and just remedy where there is an effective alternative remedy or where damages
would be contrary to the demands of good governance. These considerations,
taken together, support the conclusion that the proper balance would be struck
by holding that damages are not an appropriate remedy.
[27]
Section 24(1) of the Charter confers on
the courts a broad remedial authority. As has been said, “[i]t is difficult to
imagine . . . a wider and less fettered discretion”: Mills v. The Queen,
[1986] 1 S.C.R. 863, at p. 965. This broad discretion should not be narrowed by
“casting it in a straight-jacket of judicially prescribed conditions”: Ward,
at para. 18. But this does not mean that Charter breaches should always,
or even routinely, be remedied by awards of Charter damages. The remedy
of damages is limited to situations in which it is “appropriate and just”
because it serves one or more of the compensatory, vindicatory and deterrent
purposes which support that choice of remedy: Ward, at para. 32.
Countervailing factors may establish that damages are not an appropriate and
just remedy even though they would serve these ends: Ward, at para.
33.
[28]
The list of countervailing factors is not
closed. So far, two have been identified: the existence of alternative remedies
and concerns for good governance: (Ward, at para. 33; see also para.
42). I conclude, therefore, that Ward does not preclude the immunity of
the Board to Charter damages. Rather, Ward set out two
countervailing factors that could negate the appropriateness of Charter
damages and specifically left open the development of others.
[29]
The jurisprudence does not require that every
pleaded claim for Charter damages be assessed on an individualized,
case-by-case basis. Ward, for example, specifically contemplates the
development of new defences to Charter damages claims and these defences
are not limited to enhanced liability thresholds. Countervailing factors
against granting Charter damages may be of a more generalized nature,
reflecting the availability of other remedies, the accumulated wisdom of the
common law and strong indications of public policy.
[30]
First, there is an alternative remedy — judicial
review — that substantially addresses the alleged Charter breach.
Judicial review is available to vindicate Charter rights and to clarify
the law so as to prevent similar future breaches. Second, good governance
concerns are also engaged as granting damages undermines the effectiveness of
the Board and inhibits effective governance. Third, 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 largely undermines
the purposes served by an immunity.
[31]
When these countervailing factors are considered
collectively — that is, when one looks at their cumulative effect — they negate
the appropriateness of an otherwise functionally justified award of Charter damages
against this Board. In short, damages are not an appropriate and just remedy
for the Board’s Charter breaches.
(1)
Judicial Review Is an Available Alternative
Remedy
[32]
The first countervailing factor discussed in Ward
was the availability of alternative remedies: para. 33. Once the claimant
establishes that damages would further one or more of the objectives of
compensation, vindication and deterrence, it is open to the state to show that
other remedies are available that will sufficiently address the breach: para.
35. As stated in Henry, where another remedy is available to effectively
address a Charter breach, damages may be precluded by virtue of this
countervailing factor: para. 38. In my view, the availability of judicial
review to address alleged Charter breaches by the Board is a strong
countervailing factor.
[33]
I have no doubt, as my colleague Justice Abella
notes, that judicial review is available to address the Board’s alleged Charter
breaches. Both the Alberta Court of Queen’s Bench and the Court of Appeal so
found. Ms. Ernst does not deny this in her factum and the brief oral
submissions suggesting that judicial review was not available were not
persuasive. Further, the statutory immunity clause cannot bar access to
judicial review: Crevier v. Quebec (Attorney General), [1981] 2 S.C.R.
220.
[34]
The availability of judicial review is important
for two reasons.
[35]
First, judicial review can provide substantial
and effective relief against alleged Charter breaches by a
quasi-judicial and regulatory board like this one. The
facts of this case strikingly illustrate the utility of the remedy of judicial
review. The basis of Ms. Ernst’s complaint is that the Board abused its
discretion and breached the Charter by refusing to deal with her. If
that claim were established in the context of judicial review, a superior court
could set aside the directive which Ms. Ernst alleges was issued to stop
interaction with her and could order corrective action. Such orders would go a
long way towards vindicating Ms. Ernst’s Charter rights.
[36]
Moreover, judicial review would in all
likelihood provide vindication in a much more timely manner than an action for
damages. Again, the facts of this case provide a good example of how this could
be so. Ms. Ernst did not start her action for damages until some two years
after the alleged breach, and several months after the Board had
rescinded the directive which she challenged. A prompt application for judicial
review had the potential to achieve practical relief much sooner. While an
application for judicial review would not have led to an award of damages, it
might well have addressed the breach much sooner and thereby significantly
reduced the extent of its impact as well as vindicated Ms. Ernst’s Charter right
to freedom of expression. Finally, judicial review would have provided a convenient
process to clarify what the Charter required of the Board. That sort of
clarification plays an important role in preventing similar future rights
infringements.
[37]
Thus, judicial review of the Board’s decisions
and directives has the potential to provide prompt vindication of 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.
While the remedies available under judicial review do not include Charter damages,
Ward directs us to consider the existence of alternative remedies, not
identical ones: para. 33.
[38]
The availability of judicial review is important
for a second reason: it distinguishes this case from others in which the Court
has crafted an elevated liability threshold in preference to a complete
immunity. For example, the rationale for denying absolute immunity to
prosecutors in Nelles v. Ontario, [1989] 2 S.C.R. 170, does not
apply to claims against quasi-judicial regulatory boards. Lamer J. (as he then
was) in Nelles found that none of the alternative remedies to a civil
suit for malicious prosecution adequately redressed that wrong: p. 198.
However, unlike in Nelles, a claimant who alleges the decision or action
of a quasi-judicial regulatory body has infringed his or her Charter rights
or freedoms is not without a remedy, given the availability of judicial review.
Similarly, in Henry, which established an elevated liability threshold
for Charter damages for failure of the prosecutor’s duty to disclose,
the majority of the Court noted that such conduct is, for practical purposes,
largely untouchable by way of judicial review: para. 49. In contrast to the
claims arising out of alleged misconduct by prosecutors as in Nelles and
Henry, there is a wide range of remedies available through judicial
review for Charter breaches by quasi-judicial and regulatory boards such
as this one. The availability and utility of the remedy of judicial
review in this context supports a different remedial balance than was struck in
Nelles and Henry.
[39]
The Court’s decision in Hinse v. Canada (Attorney General),
2015 SCC 35, [2015] 2 S.C.R. 621, like the decision in Henry, underlines
the importance of the entire context in establishing this remedial balance.
And, of course, the availability of judicial review is only one of these
considerations. The issue in Hinse was whether the general Quebec rules
of extracontractual civil liability apply to the federal Crown in relation to
the exercise of the royal prerogative of mercy: para. 45. In deciding on the
proper scope of immunity, the Court considered the context: the nature of the
Minister’s functions in exercising the royal prerogative of mercy; the relevant
law in relation to the liability threshold applying to Crown prosecutors; the
availability of judicial review; and the general principles of civil law. As
the Court noted, significant differences in the content of the duties under
consideration mean that the duties must be analyzed from a different
perspective: para. 44. Both Hinse and Henry demonstrate that the
contours of liability must be considered in the context of, among other things,
the particular state actor, having regard to the nature of the duties, the
potential availability of other remedies and general principles of liability.
That is the analysis that I have conducted in this case.
[40]
Ms. Ernst submits that the potential to be
granted a remedy through judicial review cannot be used to bar a Charter
claim under s. 24(1) . Citing Manuge v. Canada, 2010 SCC 67, [2010] 3
S.C.R. 672, Ms. Ernst argues that if a plaintiff has pleaded a valid cause of
action for Charter damages, the provincial superior court should not
decline jurisdiction on the basis that the claim could be pursued by judicial
review. This submission, however, overstates the holding in Manuge and
the other TeleZone line of cases: 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. The issue in those cases was whether a successful application for
judicial review was a prerequisite to seeking damages. The Court held it was
not. The Court did not comment on the appropriateness of a Charter
damages award against a quasi-judicial board.
[41]
In sum, judicial review is an alternative, and
more effective, remedy for Charter breaches by the Board. And, as I will
discuss, the availability of judicial review is only one of the countervailing
factors that weigh heavily against the appropriateness of Charter
damages awards against the Board.
(2)
Good Governance Concerns
(a)
The “Practical Wisdom” of Private Law
[42]
“[C]oncern for effective governance” was the
second category of factors identified in Ward as militating against
damages being an appropriate and just remedy: para. 38. The Court in Ward
noted that “the state must be afforded some immunity from liability in damages
resulting from the conduct of certain functions that only the state can
perform. . . . [I]mmunity is justified because the law does not wish to chill
the exercise of policy-making discretion”: para. 40. Quintessentially, the
Board is a state actor whose responsibilities are of a policy-making and
adjudicative nature.
[43]
Charter damages
are, of course, a distinct and autonomous remedy. But that does not mean that
the development of that remedy should ignore the accumulated insights of the
general law. Ward noted that private law thresholds and defences may
offer guidance about when Charter damages may be an appropriate remedy
because “the existing causes of action against state actors embody a certain
amount of ‘practical wisdom’ concerning the type of situation in which it is or
is not appropriate to make an award of damages against the state”: para. 43.
Considering private law is not, of course, simply transposing private law rules
into the Charter context. The majority of the Court in Henry, for
example, considered the policy factors outlined in the malicious prosecution
context in Nelles and found it appropriate to rely on them heavily in
establishing the liability threshold for Charter damages: Henry,
at paras. 66-74. It is therefore helpful to consider the law governing Ms.
Ernst’s private law claim in negligence against the Board.
[44]
No one contests that the Board owes Ms. Ernst no
duty of care under the private law of negligence. In negligence law, whether
there is a duty of care depends on the existence of foreseeability and
proximity, and the absence of countervailing policy considerations: Cooper
v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 30; Hill v.
Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3
S.C.R. 129. In the case of public regulators, for reasons of insufficient
proximity or countervailing policy considerations, or both, courts have
generally held that these state actors do not owe claimants a duty of care: Cooper;
Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R.
562.
[45]
The policy reasons considered capable of
negating a prima facie duty of care 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: see, e.g.,
A. M. Linden and B. Feldthusen, Canadian Tort Law (10th ed. 2015), at s.
9.65, citing S. Sugarman, “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, at p. 388.
[46]
The reasons of the Court of Appeal called on
these sorts of policy considerations to uphold the Court of Queen’s Bench’s
finding that the Board did not owe a duty of care to Ms. Ernst:
Forcing the
Board to consider the extent to which it must balance the interests of specific
individuals while attempting to regulate in the overall public interest would
be unworkable in fact and bad policy in law. Recognizing any such private duty
would distract the Board from its general duty to protect the public, as well
as its duty to deal fairly with participants in the regulated industry. Any
such individualized duty of care would plainly involve indeterminate liability,
and would undermine the Board’s ability to effectively address the general
public obligations placed on it under its controlling legislative scheme.
[para. 18]
[47]
Brief reference to the Board’s mandate
underlines the wisdom of these comments. Section 3 of the Energy Resources
Conservation Act required the Board to undertake its duties respecting
proposed energy resource projects in light of the public interest and with
regard to the social, economic, and environmental effects of the project. The
Board had the public duty of balancing several potentially competing rights,
interests and objectives. Allowing claimants to bring claims for damages
against the Board has the potential to deplete the Board’s resources, with
respect to both funds and time. Allowing a claimant to bring a damages claim
against the Board may also result in defensive actions by the Board, which
would “chill” its ability to otherwise carry out its statutory duties
effectively and in the public interest. Likewise, the Board is required to
balance public and private interests in the execution of its quasi-judicial
duties, and this responsibility is inconsistent with being liable to an
individual claimant for damages.
[48]
This jurisprudence also 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. For example in Edwards,
this Court endorsed the Ontario Court of Appeal’s refusal to distinguish
between the Law Society’s adjudicative and investigatory functions for the
purpose of the duty of care analysis: see para. 11, citing (2000), 48 O.R. (3d)
329 (C.A.), at para. 30. The Board has a broad mandate to, among other things,
conduct inquiries and investigations, make inspections and conduct hearings,
making it impractical and artificial to try to distinguish among its various
roles for the purposes of liability.
[49]
While, as noted, Charter damages are an
autonomous remedy, and every state actor has an obligation to be Charter -compliant,
the same policy considerations as are present in the law of negligence
nonetheless weigh heavily here, particularly in light of the availability of
judicial review to uphold constitutional rights.
(b)
Statutory and Common Law Immunities
[50]
The strong common law immunity of judges from
civil suits has been extended by common law and statute to many quasi-judicial
bodies and agencies including administrative bodies such as the Board, as aptly
articulated by my colleague Justice Abella in her reasons; and see also, e.g., Morier
v. Rivard, [1985] 2 S.C.R. 716; Crispin v. Registrar of the District
Court, [1986] 2 N.Z.L.R. 246 (H.C.), at p. 252; Sirros v. Moore,
[1975] 1 Q.B. 118 (C.A.), at p. 136, cited by Morier, at pp.
739-40; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180, 69 C.H.R.R.
D/155, at para. 84; Agnew v. Ontario Assn. of Architects (1987), 64 O.R.
(2d) 8 (Div. Ct.); Ermina v. Canada (Minister of Citizenship and
Immigration) (1998), 167 D.L.R. (4th) 764 (F.C.T.D.); Cartier v. Nairn,
2009 HRTO 2208, 8 Admin. L.R. (5th) 150; Courts of Justice Act, R.S.O.
1990, c. C.43; Provincial Court Act, R.S.A. 2000, c. P-31; Court of
Queen’s Bench Act, R.S.A. 2000, c. C-31; A. A. Olowofoyeku, Suing
Judges: A Study of Judicial Immunity (1993), at pp. 1-32; P. W. Hogg, P. J.
Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at p.
289. This immunity is broad and has been applied even in the face of alleged
human rights infringements: Hazel; Cartier; 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 (C.A.), leave to appeal refused, [2000] 2 S.C.R. xiv. The common law
is a source of “practical wisdom” about exposing quasi-judicial and regulatory
decision-makers such as the Board to damages claims. And the policy reasons
that have led legislatures across Canada to enact many statutory immunity
clauses, like the one that protects this Board, may also inform the analysis of
countervailing considerations relating to good governance. Of course, these
sorts of statutory provisions cannot override constitutional rights, but the
policy reasons on which they are based can and should be taken into account by
a reviewing court.
[51]
The rationales underlying the common law and
statutory immunity for quasi-judicial and regulatory decision-makers fall into
two main interrelated categories. First, immunity from civil claims permits
decision-makers to fairly and effectively make decisions by ensuring freedom from
interference, which is necessary for their independence and impartiality: Morier,
at pp. 737-38, citing Garnett v. Ferrand (1827), 6 B. & C.
611, 108 E.R. 576, at pp. 581-82, and Fray v. Blackburn (1863), 3 B.
& S. 576, 122 E.R. 217. Second, immunity protects the capacity of these
decision-making institutions to fulfill their functions without the distraction
of time-consuming litigation.
[52]
These grounds for immunity resonate in the
context of claims for Charter damages.
[53]
If actions for Charter damages were
brought against the Board, it would inevitably be involved in defending those
suits and thereby distracted from its statutory responsibilities. As Hogg,
Monahan and Wright observe in relation to judicial immunity, the public relies
on judges and the courts to resolve difficult problems, and “a judge would be
placed in an intolerably vulnerable position, and there would be no end to
litigation, if a disappointed litigant could turn around and bring fresh
proceedings against the judge”: p. 283. The same may be said of quasi-judicial
decision-makers: Ontario Law Reform Commission, Report on the Liability of
the Crown (1989), at p. 29.
[54]
Furthermore, allowing Charter damages
claims to be brought for the Board’s actions and decisions has the potential to
distort the appeal and review process. The corollary of immunity is that a
judicial or quasi-judicial decision can be challenged only through judicial
review or the appeals process: Royer v. Mignault, [1988] R.J.Q. 670
(C.A.), at pp. 673-74. This prevents judicial and quasi-judicial
decision-makers from having to justify their decisions beyond the justification
disclosed by the record which will be available for appeal or judicial review:
Canada (Attorney General) v. Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81, at
para. 136, per Mainville J.A., concurring. It is worth remembering that in
order not to compromise the decision-maker’s impartiality or the finality of
his or her decision, the decision-maker has a limited role in an appeal or
judicial review proceeding: see, e.g., Ontario (Energy Board) v. Ontario
Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147. However, no such
limit can apply to the scope of a quasi-judicial regulatory board’s defence
against damages claims. Moreover, damages claims against such bodies, whether
under the Charter or otherwise, open up new avenues of collateral
attack. By protecting judicial and quasi-judicial decision-makers from having
to defend their decisions against damages suits, the immunity simultaneously
strengthens public confidence in the legal system, preserves impartiality, both
in fact and in perception, and closes off routes of collateral attack. See MacKeigan
v. Hickman, [1989] 2 S.C.R. 796, at pp. 828-30.
[55]
To conclude on this point, the policy reasons
that underlie the common law and statutory immunities for regulatory and
quasi-judicial boards like this one relate directly to the types of good
governance concerns identified in Ward. 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 attack on its decisions.
(3)
Case-by-Case Consideration Undermines the
Purposes of the Immunity
[56]
Ms. Ernst argues that claims for Charter
damages must be assessed on a case-by-case basis to determine whether damages
would be an appropriate and just remedy. However, as has been pointed out many
times, requiring a case-by-case examination of particular claims largely
undermines the purpose of conferring immunity in the first place: Gonzalez,
at para. 49.
[57]
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: Gonzalez, at para.
53. 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. As Lord Denning M.R. held, to be truly free in thought,
judges should not be “plagued with allegations of malice or ill-will or bias or
anything of the kind”: Sirros, at p. 136, cited by Morier, at pp.
739-40.
C.
To sum up
[58]
As Ms. Ernst accepts, the immunity clause
purports to bar her claim for Charter damages. That being the case, her
damages claim must be struck and the appeal dismissed unless she succeeds in
challenging the constitutionality of the immunity provision. She has failed to
do so. It follows that her claim for Charter damages should be struck
out and the appeal dismissed.
[59]
I would answer the constitutional question as
follows:
Is s. 43 of the Energy
Resources Conservation Act,
R.S.A. 2000, c. E-10, constitutionally inapplicable or inoperable to the extent
that it bars a claim against the regulator for a breach of s. 2 (b) of the Canadian Charter of Rights and Freedoms and an application for a remedy under s. 24(1) of
the Canadian Charter of Rights and Freedoms ?
Answer:
To the extent that s. 43 purports to bar a claim for Charter damages,
the answer is no.
IV.
Disposition
[60]
I would dismiss the appeal with costs.
The following are the reasons delivered by
Abella J. —
[61]
Two statutory provisions are at stake. The first
is Alberta’s requirement that before a constitutional challenge can be brought,
the government must be given notice so that the law is given a thorough airing,
with all parties having a chance to bring and test the evidence. This protects
the public interest by ensuring that laws are not casually or cavalierly either
set aside or upheld. It also ensures the existence of a full and proper record
on appeal.
[62]
The second provision is an immunity clause
protecting an administrative tribunal (like almost all quasi-judicial and
judicial bodies in Alberta and the rest of Canada) from being sued for damages.
This protects the public interest by ensuring that adjudicative bodies
responsible for making independent decisions are not casually or cavalierly
dragged into litigation that drains their attention and public resources.
[63]
Jessica Ernst is asking this Court to decide
whether an immunity clause insulating a quasi-judicial tribunal from lawsuits,
bars her from bringing a claim for Charter damages against that
tribunal.
[64]
Ms. Ernst’s claim is for damages under s.
24(1) of the Canadian Charter of Rights and Freedoms from a
quasi-judicial administrative body, the Energy Resources Conservation Board.[2] She claims that Charter damages are warranted because
of the Board’s decision to stop communicating with her, in essence finding her
to be a vexatious litigant. Bypassing judicial review, she chose instead to
designate the Board’s decision as unconstitutional, claiming it breached her
right to freedom of expression under s. 2 (b) of the Charter . The
Alberta Court of Queen’s Bench and the Alberta Court of Appeal had no
difficulty finding that s. 43 of the Energy Resources Conservation Act,
R.S.A. 2000, c. E-10, an immunity clause in the Board’s enabling statute,
bars any and all claims against the Board, including claims for Charter
damages.
[65]
Ms. Ernst at no stage gave the required formal
notice of a constitutional challenge to s. 43. In fact, in both prior
proceedings, she expressly denied that she was challenging the
constitutionality of the immunity clause. Instead, she was challenging the applicability
of the clause to her Charter claim. She claimed to be entitled to a
remedy for a Charter breach under s. 24(1) , regardless of whether s. 43
entitled her to get a remedy.
[66]
Ms. Ernst’s argument that she was not seeking to
challenge the validity of s. 43, only its applicability to a Charter damages
claim, is unsustainable. The immunity clause either complies with the Charter
or it does not. But either way, there must be a judicial determination of the
constitutional validity, and therefore the constitutional applicability, of the
provision. Ms. Ernst’s argument that the immunity clause does not apply
when a Charter remedy is being sought, is an argument that there is no
need to go through the necessary steps to determine whether a provision is Charter -compliant
in order to disregard it. This invokes Alice in Wonderland.
[67]
Since Ms. Ernst 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, which means that the Board’s
immunity is intact, which means that Ms. Ernst cannot, under these
circumstances, legally sustain a claim that the Board is vulnerable to a
damages claim, either under the Charter or otherwise. As a result, I
agree with the Alberta courts that Ms. Ernst’s claim ought to be struck.
[68]
R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, sets out the accepted test for striking
out a claim:
A claim will only be struck if
it is plain and obvious, assuming the facts pleaded to be true, that the
pleading discloses no reasonable cause of action: Odhavji Estate v.
Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey
Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another way of putting the
test is that the claim has no reasonable prospect of success. Where a
reasonable prospect of success exists, the matter should be allowed to proceed
to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007
SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
. . .
. . . The history of our law
reveals that often new developments in the law first surface on motions to
strike or similar preliminary motions, like the one at issue in Donoghue v.
Stevenson [, [1932] A.C. 562 (H.L.)] Therefore, on a motion to strike, it
is not determinative that the law has not yet recognized the particular claim.
The court must rather ask whether, assuming the facts pleaded are true, there
is a reasonable prospect that the claim will succeed. The approach must be
generous and err on the side of permitting a novel but arguable claim to
proceed to trial. (at paras. 17-21)
[69]
This is not a cascading, multi-factored test, it
is a simple one: Is it plain and obvious that s. 43 bars Ms. Ernst’s claim?
[70]
The immunity clause in this case is absolute and
unqualified:
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.
[71]
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. That is
precisely why determining the constitutionality of the clause based on a full
evidentiary record is so important. It may be that the clause could be amended
to permit suits for punitive conduct, but that is not what the clause
now says. Moreover, creating a novel distinction between adjudicative and
non-adjudicative conduct for purposes of limiting the scope of the immunity
clause, strikes me as being an unhelpful unravelling of established
jurisprudence.
[72]
As a result, it is plain and obvious, based on
the plain and obvious language of s. 43, that Ms. Ernst’s claim is barred. The
fact that her claim alleges “punitive” conduct cannot change the unqualified
language in s. 43.
[73]
Without a proper determination of the
constitutionality of the immunity clause, there can be no assessment of its
inapplicability or inoperability. It follows that Ms. Ernst’s claim for Charter
damages should be struck, and the appeal dismissed.
Background
[74]
The Board is an independent quasi-judicial body
responsible for regulating the development of Alberta’s energy resources. It
licenses gas wells and enforces legislative and regulatory provisions that are
intended to protect the groundwater supply from interference or contamination
due to oil and gas development. The Board has detailed procedures for receiving
and investigating public complaints, conducting compliance inspections, and
taking appropriate enforcement and remedial action when necessary. As set out
in its enabling legislation, the Board is authorized to conduct hearings,
inquiries and investigations, award costs and receive witnesses.
[75]
Ms. Ernst owns land near Rosebud, Alberta. She
opposed the activities of EnCana Corporation, which engaged in hydraulic
fracturing and drilling close to her property. Throughout 2004 and 2005, Ms.
Ernst frequently voiced her concerns about the negative impacts caused by oil
and gas development near her home. She did this through contact with the Board’s
compliance, investigation and enforcement offices. She also voiced her concerns
publicly.
[76]
EnCana’s activities resulted in Ms. Ernst
bringing claims against EnCana, the Board, and the government of Alberta in
December of 2007.
[77]
The claim against EnCana was based on damage to
Ms. Ernst’s water supply. Alberta was sued because it had failed to respond to
her complaints about EnCana’s activities notwithstanding that it owed Ms. Ernst
a duty to protect her water supply. Ms. Ernst’s claims against EnCana and against
the province were not before this Court.
[78]
The claim against the Board was binary. One
claim was in negligence, alleging that the Board, which has regulatory
jurisdiction over the activities of EnCana, had negligently administered the
regulatory regime under the Energy Resources Conservation Act.
[79]
The second claim against the Board was that it
had breached Ms. Ernst’s s. 2 (b) right to freedom of expression by
“arbitrarily, and without legal authority” restricting her communications with
the Board.
[80]
Ms. Ernst claimed that because of her public
criticisms, and because of a reference she made to Weibo Ludwig (who was
convicted for carrying out bombings and other destructive acts against oil
industry installations in Alberta), the Board prohibited her from communicating
with it. As a result, Ms. Ernst claimed she was unable to properly register her
concerns that EnCana was adversely impacting the Rosebud Aquifer and her
groundwater supply.
[81]
The Manager of the Board’s Compliance Branch
wrote to Ms. Ernst and told her that all staff were instructed to avoid further
contact with her, and that he had reported her to the Attorney General of
Alberta, the RCMP and the Board’s Field Surveillance Branch.
[82]
When Ms. Ernst sought clarification of the
restrictions she faced, she was directed to the Board’s Legal Branch, which
informed her that the Board “took a decision in 2005 to discontinue further
discussion with” her, and would not re-open communications through the regular
channels unless she agreed to raise her concerns only through the Board.
[83]
In March 2007, Ms. Ernst was informed that she
was again free to communicate with any staff at the Board.
[84]
Rather than seeking judicial review of the
Board’s decision to stop communicating with her when she was first informed of
this in November 2005, Ms. Ernst waited two years and then filed a statement of
claim on December 3, 2007, an amended statement of claim on April 21, 2011, and
a second amended statement of claim on February 7, 2012.
[85]
The remedy Ms. Ernst sought for this second
breach was “damages in the amount of $50,000.00 under section 24(1) of the Canadian
Charter of Rights and Freedoms ”.
[86]
The Board applied to strike out portions of Ms.
Ernst’s pleadings for failing to disclose a reasonable cause of action. It
relied on its immunity clause, s. 43 of the Energy Resources Conservation
Act, arguing that it provided a complete bar to both the negligence and Charter
damage claims against the Board. The Board also argued that the appropriate way
for Ms. Ernst to challenge the Board’s discretionary decision was through
judicial review.
[87]
The case management judge at the Queen’s Bench,
Wittmann C.J., found that the proposed negligence claim was unsupportable at
law since there was no private law duty of care owed to Ms. Ernst by the
Board based on this Court’s decisions in Cooper v. Hobart, [2001]
3 S.C.R. 537, and Edwards v. Law Society of Upper Canada, [2001]
3 S.C.R. 562 ((2013), 85 Alta. L.R. (5th) 333 (Q.B.), at paras. 28-29).
[88]
Wittmann C.J. also held that s. 43 barred Ms.
Ernst’s claim for Charter damages. He stated that in order to properly
challenge the constitutionality of s. 43, Ms. Ernst was required to give the necessary
notice to the Attorneys General of Alberta and Canada but had failed to do so:
. . . if Ernst seeks as a remedy a
declaration striking down section 43 of the [Energy Resources Conservation
Act], a Notice of Constitutional Question should be given to the Attorney
General of Alberta and Canada, pursuant to section 24 of the Judicature Act,
RSA 2000, c J-2. The ensuing constitutional litigation could be pursued in a
procedural matrix, which would consider the constitutional validity of the
legislation, including whether a section 1 Charter defence might be
available to the Legislature in the event a Charter breach is found. The
procedural requirement to provide a Notice of Constitutional Question
facilitates full argument of any constitutional issues and is a matter of
procedural fairness necessary to ensure the Attorneys General of Alberta and
Canada have an opportunity to be heard. (at para. 89)
[89]
In Wittmann C.J.’s view, to allow personal Charter
damage claims to circumvent statutory immunity clauses would cause the
“[p]arties [to] come to the litigation process dressed in their Charter clothes
whenever possible”, and to allege “such a breach . . . in litigation against
the government wherever possible”.
[90]
In any event, Wittmann C.J. noted that Ms. Ernst
was not without a remedy since he agreed with the Board that she could have
brought judicial review proceedings, the “time-tested and conventional
challenge to an administrative tribunal’s decision”.
[91]
Ms. Ernst set out three issues in her formal
Notice of Appeal:
Did the Court err in finding
that the statutory immunity clause contained within section 43 of the Energy
Resources Conservation Act bars an otherwise valid claim for breach of the
right to freedom of expression made pursuant to the Canadian Charter of
Rights and Freedoms ?
Did the Court err in finding
that the [Board] does not owe a private duty of care to Ms. Ernst?
Did the Court err in finding
that the statutory immunity clause contained within section 43 of the Energy
Resources Conservation Act bars Ms. Ernst’s claim against the [Board] for
negligent omissions?
[92]
Of particular significance, is Ms. Ernst’s
answer to question 7 in the Notice of Appeal. The question on the form was: “Is
the constitutional validity of an Act or Regulation being challenged as a
result of this appeal?” Ms. Ernst’s response was: “No. The appeal, however,
does relate to a claim made under s. 24 of the Canadian Charter of Rights
and Freedoms .”
[93]
In other words, once again, she denied that she
was seeking to challenge the constitutionality of s. 43.
[94]
Nonetheless, she sent a letter to the Attorneys
General of Alberta and Canada, paradoxically confirming that she was not
challenging the constitutionality of s. 43 under the Charter , but was
challenging whether it applied to Charter claims:
Please note that it is the
Appellant’s position that she is not challenging the constitutional validity
of any enactment (i.e. she is not seeking as a remedy a declaration striking
down the section) but rather is challenging the constitutional applicability
of s. 43 of the Energy Resources Conservation Act (“ERCA”) to
claims made pursuant to the Canadian Charter of Rights and Freedoms .
Specifically, her position is that the statutory immunity contained within s.
43 of the ERCA cannot apply to claims made pursuant to the Charter .
In the alternative the Appellant is seeking a declaration that to the extent
that s. 43 of the ERCA is inconsistent with s. 24(1) of the Charter ,
it is of no force and effect. Because the Appellant is not challenging the
constitutional validity of any enactment, the Appellant’s position is that
notice is not required under s. 24(1) the Judicature Act. Nevertheless,
the Appellant is providing this notice out of an abundance of caution.
. . .
The Appellant has brought a
claim against the Energy Resources Conservation Board alleging that the ERCB
infringed her right to freedom of expression as guaranteed by s. 2 (b) of the Canadian
Charter of Rights and Freedoms . The Appellant seeks a remedy, namely Charter
damages, under s. 24(1) of the Charter .
. . .
The Appellant will argue that
a statutory immunity clause cannot provide immunity from valid Charter
claims. The Charter guarantees not only fundamental freedoms, but
crucially, also guarantees the right of Canadians to seek a remedy when these
fundamental Charter rights and freedoms are violated. Section 24(1) of
the Charter specifically provides remedies for unconstitutional
government acts. These constitutional rights cannot be taken away by a
statutory enactment purporting to grant immunity to the ERCB.
. . .
In sum, the Appellant is
challenging the applicability of s. 43 of the Energy Resources
Conservation Act to claims made pursuant to the Canadian Charter of
Rights and Freedoms . To the extent that s. 43 of the ERCA is inconsistent
with s. 24(1) of the Charter , it is of no force and effect. (Underlining
added; footnotes omitted.)
[95]
The Attorney General of Alberta intervened,
arguing that because proper notice had not been given under s. 24 of Alberta’s Judicature
Act, R.S.A. 2000, c. J-2, he had been precluded from adducing evidence
under s. 1 . The Court of Appeal summarized his argument as follows:
The Minister of Justice and Solicitor
General of Alberta intervened on the appeal arguing that proper notice had not
been given (under s. 24 of the Judicature Act, RSA 2000, c. J-2) of the
constitutional challenge to s. 43 of the Energy Resources Conservation Act.
The Minister of Justice took the position that the appellant was attempting to
raise a new argument on appeal, and that Alberta had been denied the
opportunity to call evidence on the topic.
[96]
The Court of Appeal dismissed the appeal.
[97]
On appeal to this Court, Ms. Ernst reformulated
her claim to add a challenge to the constitutional validity of s. 43.
Analysis
[98]
All the provinces have statutes that require
notice to be given to the Attorney General of that province in any proceeding
where the constitutionality of a statute is in issue. Most provinces require
that notice be given to the Attorney General of Canada as well. In Alberta,
this requirement is found in s. 24 of Alberta’s Judicature Act:
24(1) If in a proceeding the constitutional validity of an enactment of
the Parliament of Canada or of the Legislature of Alberta is brought into
question, the enactment shall not be held to be invalid unless 14 days’ written
notice has been given to the Attorney General of Canada and the Minister of
Justice and Solicitor General of Alberta.
(2) When in a proceeding a question arises as to whether an enactment
of the Parliament of Canada or of the Legislature of Alberta is the appropriate
legislation applying to or governing any matter or issue, no decision may be
made on it unless 14 days’ written notice has been given to the Attorney
General of Canada and the Minister of Justice and Solicitor General of Alberta.
(3) The notice shall include what enactment or part of an enactment is
in question and give reasonable particulars of the proposed argument.
(4) The Attorney General of Canada and the Minister of Justice and
Solicitor General of Alberta are entitled as of right to be heard, either in
person or by counsel, notwithstanding that the Crown is not a party to the
proceeding.
[99]
Notice requirements serve a “vital purpose” when
constitutional questions arise in litigation. 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” (Guindon
v. Canada, [2015] 3 S.C.R. 3, at para. 19; see also Bell
ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, at paras.
58-59; R. v. Aberdeen (2006), 384 A.R. 395 (C.A.); TransCanada
Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (Ont.
C.A.), at paras. 160-62; R. v. Lilgert (2014), 16 C.R. (7th) 346
(B.C.C.A.), at paras. 7-22).
[100]
In Alberta, the Court of Appeal has emphasized
that it requires strict adherence to the notice provisions regarding constitutional
questions found in the Judicature Act (Aberdeen; Broddy v.
Alberta (Director of Vital Statistics) (1982), 142 D.L.R. (3d) 151 (Alta.
C.A.), at para. 41; Seweryn v. Alberta (Appeals Commission for Alberta
Workers’ Compensation), 2016 ABCA 239, at paras. 3-5 (CanLII); R.
v. Redhead (2006), 384 A.R. 206 (C.A.), at paras. 46-47). In Aberdeen,
the Crown appealed a determination made as to the constitutionality of the
retrospective application of the Sex Offender Information Registration Act,
S.C. 2004, c. 10 , on the ground that proper notice under the Judicature
Act was not given to the Attorneys General of Alberta and Canada. The Court
of Appeal allowed the appeal in language of relevance to our case:
The requirement of notice
is to ensure that governments have a full opportunity to support the
constitutional validity of their legislation, or to defend their action or
inaction, and to ensure that courts have an adequate evidentiary record in
constitutional cases. The notice requirements depend on whether a
constitutional remedy is sought and whether the remedy falls under s. 52(1) of
the Constitution Act, 1982 or ss. 24(1) or 24(2) of the Charter .
That raises the
question, what is the nature of the constitutional remedy sought here? The
respondents submit that the remedy being sought is under s. 24(1) of the Charter
and therefore the notice is not required. We disagree. The nature of the relief
sought is essentially a s. 52(1) remedy. We find the reasoning adopted by the
court in R. v. Murrins (D.) (2002), 201 N.S.R. (2d) 288 [C.A.],
persuasive. In Murrins, supra, the court considered the retrospective
application of a DNA order in the face of the same s. 11 (i) Charter
argument as is made before us. The court held that if the retrospective
application of a DNA order resulted in a Charter infringement of
Murrins’ rights, it would violate the s. 11 (i) Charter right of every
offender who is subject to such an application and who committed the designated
offence prior to its enactment. Thus, the issue was not simply whether Murrins’
right under s. 11 (i) Charter was infringed, but whether the provision
was constitutionally valid.
That logic applies with
equal force to the appeals before us. Despite the attempt by defence counsel to
characterize the issue as a s. 24(1) Charter remedy, it is in effect a
s. 52(1) Charter remedy that challenges the constitutional validity of
the retrospective application of [the Sex Offender Information Registration
Act, S.C. 2004, c. 10 ].
The argument that de
facto notice was received is not supported by the evidence. The practical
effect of the absence of notice was addressed in Eaton v. Board of Education
of Brant County, [1997] 1 S.C.R. 241, where the court favoured the view
that in the absence of notice, the decision is ipso facto invalid. Were we in
error on the approach to be taken, the record itself establishes prejudice to
the Crown: no one appeared for the federal Crown and hence it had no
opportunity to make submissions or to supplement the record. Secondly, there
was no opportunity to put forward an evidentiary record in support of a s. 1 Charter
argument on the part of either Attorney General.
(Aberdeen, at paras.
12-15, per Paperny J.A.)
[101]
This approach is precisely the route Ms. Ernst
took almost a decade after the Alberta Court of Appeal impugned it, arguing
that her claim was a s. 24(1) Charter remedy and that notice was
therefore not required. As in Aberdeen, hers is a veiled s. 52 Charter
claim.
[102]
The Alberta Court of Appeal’s censure was echoed
by this Court in Guindon. In Guindon, this Court concluded that a
new constitutional question ought not be answered at this level unless the
state of the record, the fairness to all parties, the importance of having the
issue resolved by this Court, the question’s suitability for decision, and the
broader interests of the administration of justice demand it. Guindon
emphasized that 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 the challenger shows that doing so causes no
prejudice to the parties”.
[103]
The threshold for the exceptional exercise of
this Court’s discretion to answer a new constitutional question, articulated
most recently in Guindon but also in full view in this Court’s prior
decision in Eaton v. Brant County Board of Education, [1997] 1
S.C.R. 241, is nowhere in sight in this case.
[104]
As the prior jurisprudence confirms, the fact
that, at the request of a party, the Chief Justice has framed a constitutional
question, does not obligate the Court to answer it if it would be inappropriate
to do so (Bell ExpressVu Limited Partnership, at para. 59; Eaton,
at para. 47).
[105]
The Attorney General of Alberta and the Board
both explicitly articulated their concerns objecting to the improper notice and
the raising of new constitutional questions on appeal. The Board raised the
matter before this Court in its response to Ms. Ernst’s motion to state a
constitutional question. The Attorney General of Alberta raised the notice
issue at the Alberta Court of Appeal, and his materials were attached in the
Board’s response materials as well.
[106]
While those concerns were raised before Guindon
was released, they were nevertheless based on Alberta’s and this Court’s
analogous jurisprudence. The Board’s response to Ms. Ernst’s motion to state a
constitutional question, for example, stated:
This Court generally, and
save in exceptional circumstances, will not state a constitutional question
where, as here, that issue has not been raised in the courts below. The
Appellant did not challenge the constitutional validity or applicability of s.
43 of the ERCA in the Court of Queen’s Bench. At the Court of Appeal,
the Appellant did not raise a proper constitutional question in respect of s.
43 of the ERCA. The Court did not address the constitutional
applicability or validity of that section.
The distinction between
the issue raised by the Appellant in the Courts below and a proper
constitutional question is not a mere technicality, of no import to the
parties. It is a question of procedural fairness. If the Appellant seeks to
challenge the constitutional applicability or validity of a legislative
provision, she is required to do so expressly, properly and precisely. If the
Appellant wishes to raise a constitutional question, the parties are entitled
to know what that question is. Indeed, the ERCB should not be made the primary
defender of the constitutionality of legislation. That is the primary function
of the Attorney General.
[107]
This brings us to the factors set out in Guindon,
which gave structure to this Court’s prior jurisprudence. Beginning with
the “state of the record”, Ms. Ernst is asking this Court to pronounce on the
constitutional applicability and operability of s. 43 in the absence of any
submissions or evidence from the Attorney General of Alberta. This is troubling
for several reasons.
[108]
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 was explained by Sopinka J. in Eaton
where he said:
In our constitutional democracy, it is
the elected representatives of the people who enact legislation. While the
courts have been given the power to declare invalid laws that contravene the Charter
and are not saved under s. 1 , this is a power not to be exercised except
after the fullest opportunity has been accorded to the government to support
its validity. To strike down by default a law passed by and pursuant to the act
of Parliament or the legislature would work a serious injustice not only to the
elected representatives who enacted it but to the people. Moreover, in this
Court, which has the ultimate responsibility of determining whether an impugned
law is constitutionally infirm, it is important that in making that decision, we
have the benefit of a record that is the result of thorough examination of the
constitutional issues in the courts or tribunal from which the appeals arise.
(Emphasis added; para. 48)
[109]
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
about the constitutionality of s. 43 because until she came to this Court, Ms.
Ernst denied that she was even challenging the constitutionality of s. 43.
[110]
In Guindon, the Court was also concerned
about the waste of judicial resources that would result from the Court not
considering the case on its merits by “[i]nsisting on the notice provision in
the lower courts, where . . . it would serve no purpose to do so” because this
Court had “the benefit of fully developed reasons for judgment on the
constitutional point in both of the courts below”, and several Attorneys
General had “addressed the merits of the constitutional argument” before this
Court (at paras. 35-36).
[111]
In the case before us, the constitutionality of
s. 43 was never fully or properly addressed, again because of Ms. Ernst’s
express denial that she was challenging it. This meant that the Attorney
General of Alberta, among others, was prevented from offering justificatory
evidence for the Court of Appeal’s — and this Court’s — consideration.
[112]
The “fairness to the parties” factor also weighs
heavily against this Court exercising its discretion to decide the
constitutionality of s. 43. In Guindon, in finding that the
constitutionality of the provision at issue should be decided, the Court
observed that “[n]o one has suggested that any additional evidence is required,
let alone requested permission to supplement the record” (para. 35). In this
case, the opposite is true. The Board, as already stated, 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 Alberta 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. He stated that the government was
“depriv[ed] . . . of an opportunity to adduce any relevant evidence”, and that
it was “precluded from considering whether to call evidence of justification
under s. 1 ” essentially because of the indirect and unclear nature of
how the issue was raised there.
[113]
The failure to provide notice about the
intention to challenge the constitutionality of s. 43 has therefore resulted in
no record and in the Attorney General of Alberta having lost the opportunity to
properly meet the case against it. This makes Ms. Ernst’s request that this Court
assess the application of the statutory immunity clause inappropriate —
and unwise.
[114]
Ms. Ernst’s approach represents not only an
improper collateral attack on s. 43’s constitutionality, it is a dramatic
jurisprudential development with profound implications for judicial and
quasi-judicial decision-makers across Canada. It is crucial to note that
immunity clauses protecting judicial and quasi-judicial bodies are found in,
among other Canadian statutes, the Courts of Justice Act, R.S.O.
1990, c. C.43, ss. 33.1(21), 49(27), 82, and 86.2(19), providing immunity for
Judges, Masters, Case Management Masters, and Judicial Council; the Provincial
Court Act, R.S.A. 2000, c. P-31, s. 68, providing immunity for
Mediators; the Court of Queen’s Bench Act, R.S.A. 2000, c. C-31,
s. 14, providing immunity for Masters; the Provincial Court Act, R.S.B.C.
1996, c. 379, ss. 27.3 and 42, providing immunity for tribunals, any person
acting on their behalf, and Provincial Court Judges; the Federal Courts Act,
R.S.C. 1985, c. F-7, s. 12(6) , providing immunity for Prothonotaries; the Justices
of the Peace Act, R.S.N.W.T. 1988, c. J-3, s. 4(5), providing
immunity for the Justices of the Peace Review Council; The Justices
of the Peace Act, 1988, S.S. 1988-89, c. J-5.1, s. 12.9, providing
immunity for the Chief Judge, the Justices of the Peace Review Council, the
investigation committee and any member or officer of the Council or committee; The
Human Rights Code, C.C.S.M., c. H175, s. 62, providing immunity for
the Manitoba Human Rights Commission, any of its members, officers, employees
and adjudicators; the Administrative Tribunals Act, S.B.C. 2004,
c. 45, Part 8, providing immunity to tribunal members, adjudicators and
registrars; the Law Society Act, R.S.O. 1990, c. L.8, s. 9, providing
immunity for benchers, officers and employees; the Labour Board Act, S.N.S.
2010, c. 37, s. 11, providing immunity for the Labour Board and its members;
the Labour Relations Code, R.S.B.C. 1996, c. 244, s. 145.4,
providing immunity for mediators and the industrial inquiry commission; the Workplace
Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 179(1),
providing immunity for members, officers and employees of the Workplace Safety
and Insurance Board or a person engaged by the Board to conduct examinations;
the Environmental Review Tribunal Act, 2000, S.O. 2000, c. 26,
Sch. F, s. 8.1(1), providing immunity for any member or employee of the
Tribunal; and the Public Inquiry Act, S.B.C. 2007, c. 9, s. 32,
providing immunity for a commission, commissioners, and persons acting on
behalf of or under the direction of a commissioner.
[115]
The jurisprudence also confirms that judicial
and quasi-judicial decision-makers are protected by common law immunities. This
includes law society benchers and investigators acting on their behalf (Edwards);
public inquiry officials (Alkasabi v. Ontario, 1994 CarswellOnt 3639, 48
A.C.W.S. (3d) 1306, at paras. 15-17; Morier v. Rivard, [1985] 2 S.C.R.
716, at pp. 737-45); and judges (MacKeigan v. Hickman, [1989] 2
S.C.R. 796, at pp. 830-31; Taylor v. Canada (Attorney General) (2000),
184 D.L.R. (4th) 706 (F.C.A.), at paras. 25-29); see also discussions in
Peter W. Hogg, Patrick J. Monahan, and Wade K. Wright, Liability of the
Crown, (4th ed. 2011), at pp. 283-91; and Robert D. Kligman,
“Judicial Immunity” (2011), 38 Adv. Q. 251, at pp. 251-61.
[116]
Immunizing these judicial and quasi-judicial
adjudicators from personal damages claims is grounded in attempts to protect
their independence and impartiality, and to facilitate the proper and efficient
administration of justice. In Canada (Attorney General) v. Slansky, [2015]
1 F.C.R. 81 (C.A.), at paras. 134-37, Mainville J.A. summarized
the role that immunity plays for the judiciary:
The principle of judicial
independence has resulted in concomitant immunities, most notably (a) the
immunity of a judge from suit and prosecution, and (b) the immunity of a judge
from testifying about or otherwise justifying the reasons for a particular
decision beyond those given in open court: MacKeigan v.
Hickman, [1989] 2 S.C.R. 796 (MacKeigan), at page 830.
The immunity of a judge
from suit and prosecution has long been recognized as necessary to maintain
public confidence in the judicial system: Garnett v. Ferrand
(1827), 6 B. & C. 611, at pages 625-626, quoted approvingly in Morier
et al. v. Rivard, [1985] 2 S.C.R. 716 (Morier), at
page 737. The immunity serves to ensure that the judge is free in thought
and independent in judgment: Morier, at pages 737-745. As
noted by Lord Denning in Sirros v. Moore [1975] 1 Q.B. 118 (C.A.),
quoted approvingly in Morier, at page 739 and in R. v.
Lippé, (C.A.), [1991] 2 S.C.R. 114, at pages 155-156:
If
the reason underlying this immunity is to ensure “that they may be free in
thought and independent in judgment,” it applies to every judge, whatever his
rank. Each should be protected from liability to damages when he is acting
judicially. Each should be able to do his work in complete independence and
free from fear. He should not have to turn the pages of his books with
trembling fingers, asking himself: “If I do this, shall I be liable to
damages?”
The additional immunity
from accounting for or justifying judicial decisions beyond those reasons
provided in open court also serves to ensure the independence of judges and to
instil public confidence in the judicial process: MacKeigan, at
pages 828-830. As noted by McLachlin J. (as she then was), at page 831 of that
decision, “To entertain the demand that a judge testify before a civil body, an
emanation of the legislature or executive, on how and why he or she made his or
her decision would be to strike at the most sacrosanct core of judicial
independence.”
It is important to bear in
mind that these immunities are there not for the benefit of individual judges;
rather they exist for the benefit of the community as a whole. Indeed, an
independent judiciary free from improper influence is an essential component of
a free and democratic society.
[117]
The same analysis applies to quasi-judicial decision-makers,
which is why legislatures and Parliament have extended statutory immunity to
administrative boards and tribunals: see Hogg, Monahan and Wright, at p.
289, and Kligman, at pp. 259-61.
[118]
Further, this Court has already accepted an
immunity that protects regulatory boards from negligence claims that arise from
the policy decisions they make, whether or not they are made in their
adjudicative capacity: Cooper, at para. 38, and Edwards.
In Edwards, for example, the Law Society of Upper Canada was sued in
negligence for failing to properly investigate and remedy a situation where a
lawyer’s trust fund had been compromised, despite the Law Society being advised
of the suspicious use of the fund by the lawyer himself. The Law Society Act
has an immunity clause in s. 9 which states:
9. No
action or other proceedings for damages shall be instituted against the
Treasurer or any bencher, official of the Society or person appointed in
Convocation for any act done in good faith in the performance or intended
performance of any duty or in the exercise or in the intended exercise of any
power under this Act, a regulation, a by-law or a rule of practice and
procedure or for any neglect or default in the performance or exercise in good
faith of any such duty or power.
[119]
The claim was struck as disclosing no cause of
action by Sharpe J., who found that the Law Society’s quasi-judicial function
immunized it from liability in negligence. Finlayson J.A. at the Court of
Appeal agreed with Sharpe J., and concluded that the jurisprudence “clearly
establishes a judicial immunity from negligence for the Law Society’s
discipline process” ((2000), 48 O.R. (3d) 329 (C.A.), at p. 343). On appeal to
this Court, no issue was taken with Finlayson J.A.’s finding that the quasi-judicial
immunity provided by s. 9 of the Law Society Act also extended to the
Law Society’s employees who investigate complaints. Applying the same logic,
the immunity in s. 43 of the Energy Resources Conservation Act would
apply to the Compliance Branch’s decision to cease communicating with Ms.
Ernst. That means that artificial binary distinctions between
adjudicative and other administrative decisions should be avoided, since these
decisions too are subject to judicial review.
[120]
The analogous functions between courts and
quasi-judicial decision-makers mean that extra caution should be exercised
before this Court nibbles away at 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.
[121]
This Court said in Vancouver (City) v. Ward,
[2010] 2 S.C.R. 28, that “granting damages under the Charter is a new
endeavour, and an approach to when damages are appropriate and just should
develop incrementally” (para. 21). It is worth noting that this Court has found
Charter damages to be available on only two occasions: in response to a Charter
breach resulting from abusive police conduct towards a detained suspect (Ward),
and in response to a Charter breach resulting from a prosecutor’s
inadequate evidentiary disclosure to a criminal accused (Henry v. British
Columbia (Attorney General), [2015] 2 S.C.R. 214). In both cases,
the conduct justifying damages was committed by individuals who were under the
direction of the state. Charter damages have never been awarded against
independent judicial or quasi-judicial decision-makers. This does not mean that
such damages are beyond reach, but they are tied to the question of the
constitutionality of immunity clauses and the extent to which they should be
read down.
[122]
Moreover, it is important to note that in Ward
and Henry, this Court had the benefit of significant
contributions from various Attorneys General when deciding the s. 24(1) damages
claims. In Ward, the Attorney General of British Columbia
was directly involved in the litigation from the trial stage onwards, and
before this Court, the Attorneys General of Canada, Ontario and Quebec
intervened. Similarly in Henry, the Attorneys General of British
Columbia and Canada were involved from the trial stage onwards, and before this
Court, eight other provincial Attorneys General intervened.
[123]
I agree that an analysis pursuant to Ward
likely leads to the conclusion that Charter damages are not an “appropriate
and just” remedy in the circumstances, but in my respectful view 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, on the other hand, it
is found to be unconstitutional, only then does a Ward analysis become
relevant.
[124]
A final comment about the questionable nature in
which the new constitutional question has arisen before this Court. Ms. Ernst
acknowledged in the hearing before us that she was aware that s. 43 was
being used to bar her claim at the Court of Queen’s Bench and that she
did not give the proper notice there. She must also be taken to be aware
of the requirement of constitutional notice confirmed by Alberta’s Court of
Appeal, which expressly rejected the approach taken by Ms. Ernst of
arguing that she was seeking a finding of constitutional inapplicability under
s. 24(1) rather than unconstitutionality under s. 52 . Yet at the Court of
Appeal, Ms. Ernst’s Notice of Appeal stated that she was not challenging
the constitutional validity of s. 43, and that, as a result, no notice was
required. She also stated, confusingly, that she would be arguing that s. 43
was “of no force and effect”. This is hardly the kind of notice required by s.
24 of the Judicature Act. It was not until she was before this Court
that she first expressed a clear intention to challenge the constitutionality
of s. 43, essentially depriving both the Alberta Attorney General and others
from the opportunity of meaningfully participating in prior proceedings.
[125]
This is not conduct that should be rewarded in
this Court with redemptive forgiveness. Ms. Ernst’s conduct was procedurally in
breach of her province’s jurisprudence and statutory requirements, and of the
public interest that jurisprudence and legislation was designed to protect.
[126]
I therefore agree with both Wittmann C.J. and
the Alberta Court of Appeal that Ms. Ernst’s Charter claim should be
dismissed for not disclosing a reasonable cause of action pursuant to the Alberta
Rules of Court, Alta. Reg. 124/2010, r. 3.68, in light of the immunity
clause.
[127]
I also agree with them that judicial
review was the appropriate means of addressing her concerns. As Wittmann C.J.
concluded, “the time-tested and conventional challenge to an administrative
tribunal’s decision is judicial review, not an action against the
administrative tribunal”. The Court of Appeal agreed, and held that
. . . limits on remedies do not offend
the rule of law, so long as there remains some effective avenue of redress: Ward
at paras. 34-5, 43. The long standing remedy for improper administrative action
has been judicial review. There is nothing in s. 43 that would have prevented
the appellant from seeking an order in the nature of mandamus or certiorari
to compel the Board to receive communications from her. Further, she could have
appealed any decisions of the Board to this Court, with leave . . . . (at para.
30)
[128]
When the Board made the decision to stop communicating
with Ms. Ernst through the normal complaints process, it was exercising its
discretionary authority under its enabling legislation (s. 16 of the Energy
Resources Conservation Act). Issues about the legality, reasonableness, or
fairness of this discretionary decision are issues for judicial review (Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, at para. 28). Even the
language used by Ms. Ernst in her statement of claim — that the Board’s
decision “was made arbitrarily, and without legal authority” — evokes
the terminology of a claim for judicial review.
[129]
Ms. Ernst 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 (Hryniak v. Mauldin, [2014] 1 S.C.R. 87).
[130]
I would dismiss the appeal with costs.
The reasons of McLachlin C.J. and
Moldaver, Côté and Brown JJ. were delivered by
The Chief Justice and
Moldaver and Brown JJ. —
[131]
Section 24(1) of the Canadian Charter of
Rights and Freedoms ensures that those whose rights or freedoms have been
violated have access to “appropriate and just” remedies. But s. 24(1) was not
enacted in a vacuum. It was born into a legal system with limits which, in some
cases, prevent claims from being brought, including claims against the state.
This appeal concerns the operation of one such limit — a statutory immunity
clause — on an application to strike a claim for a remedy under s. 24(1) .
[132]
The appellant, Jessica Ernst, brought a claim
against the respondent, the Alberta Energy Regulator (the “Board”), seeking,
among other things, Charter damages under s. 24(1) for breaching her
right to freedom of expression under s. 2 (b) of the Charter . In
moving to strike Ms. Ernst’s claim, the Board relied in part on s. 43 of its
enabling statute[3] which essentially bars all claims against the Board. The case
management judge found that, although Ms. Ernst’s pleadings raised an arguable Charter
claim, s. 43 immunized the Board. He accordingly struck her claim for Charter
damages, and his decision was upheld by the Court of Appeal of Alberta.
[133]
We would allow the appeal. Just as it is not
plain and obvious that Charter damages could in no circumstances be an
appropriate and just remedy in a claim against the Board or any quasi-judicial
decision-maker like it, it is not plain and obvious that Ms. Ernst’s claim is
barred by s. 43. Ms. Ernst seeks Charter damages as a remedy for actions
by the Board that Ms. Ernst says were intended to punish her. It is arguable
that such punitive acts fall outside the scope of the immunity that s. 43
confers. Accordingly, we would hold that Ms. Ernst’s claim cannot be struck on
the basis of s. 43.
[134]
On appeal to this Court, Ms. Ernst argued that
it is not plain and obvious that s. 43 bars her claim for Charter damages
because, in her submission, s. 43 is unconstitutional. Since we would conclude
that it is not plain and obvious that s. 43 bars her claim at all, 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 Ms.
Ernst’s claim for Charter damages, then she may challenge its
constitutionality at that juncture.
[135]
We add this. This is a difficult case raising
novel and difficult issues. It is not surprising that counsel and judges at all
levels have struggled to find the appropriate template through which to view
Ms. Ernst’s claim. In the end, and with great respect for contrary views, we
have concluded that the test for striking out Ms. Ernst’s claim at the outset
has not been satisfied, and that the matter should be returned to the Alberta
courts to decide the important issues of free speech and Charter remedies
that her case raises.
I.
Factual Background
[136]
In 2007, Ms. Ernst claimed against the Board,
EnCana Corporation, and the Province of Alberta, alleging that EnCana
contaminated her water while shallow drilling for the extraction of methane
gas, and that Alberta and the Board were indirectly responsible for this
contamination. Only the claim against the Board is raised here.
[137]
Ms. Ernst’s claim against the Board is twofold.
First, she says the Board was negligent in administering its statutory regime,
and that its failure to comply with certain statutory duties resulted in the
contamination of her well. Secondly, she says that the Board breached her right
to freedom of expression under s. 2 (b) of the Charter , and that
she is entitled to Charter damages under s. 24(1) . Only this second
aspect of her claim is before us.
[138]
Because this matter arises from an application
to strike, Ms. Ernst’s allegations must be taken as true. Those allegations are
straightforward.
[139]
Ms. Ernst lives near Rosebud, Alberta. A well
draws water for her home from geological formations that comprise an aquifer,
or a series of aquifers.
[140]
The Board is a statutory government agency
established to regulate the oil and gas industry in Alberta. It conducts
inspections and investigations in respect of legislative and regulatory
provisions intended to protect groundwater from contamination due to oil and
gas development, and takes enforcement action when warranted. To these ends, it
has a specific process for communicating with the public and hearing public
complaints.
[141]
In 2004 and 2005, Ms. Ernst was a critic of the
Board. She frequently expressed her concerns to the Board about the oil and gas
development near her home. She also spoke to the media and to the public.
[142]
Ms. Ernst alleges that her public criticism was
a source of embarrassment to the Board, prompting it to take steps to silence
her. In November 2005, the manager of the Board’s Compliance Branch informed
her by letter that all of its staff had been instructed to avoid contact with
her. When Ms. Ernst wrote several letters asking why she was being excluded
from the Board’s public complaints process, the Board directed her to its legal
branch, which initially ignored and later refused her request for an
explanation. Eventually, the Board informed Ms. Ernst that it would communicate
with her only if she agreed to raise her concerns directly with the Board, and
not through the media or members of the public.
[143]
In October 2006, Ms. Ernst wrote to the Board,
asking that she be free to communicate unconditionally with the Board, like
other members of the public. This letter went unanswered. It was not until
March 2007 that the Board informed Ms. Ernst that she was free to communicate
unconditionally with it.
[144]
In her statement of claim, Ms. Ernst alleges
that the Board breached her right to freedom of expression under s. 2 (b)
of the Charter , in that the Board’s actions “were a means to punish Ms.
Ernst for past public criticisms” and “to prevent her from making future public
criticisms” of the Board (A.R., at p. 72). In particular, Ms. Ernst alleges
that the Board “punitively” excluded her from its own complaints,
investigation and enforcement process “in retaliation for her vocal criticism”
and “arbitrarily” removed her “from a public forum of communication with
a government agency that had been established to accept public concerns and
complaints” (A.R., at p. 72 (emphasis added)). Ms. Ernst claims damages of
$50,000 and relies on s. 24(1) of the Charter , which provides:
Anyone whose rights or freedoms,
as guaranteed by this Charter , have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
[145]
The Board applied to strike Ms. Ernst’s claim in
negligence and her Charter damages claim, arguing that s. 43 of the ERCA
plainly and obviously bars both claims. Section 43 reads as follows:
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) [technical specialists or
personnel] 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.
II.
Decisions Below
[146]
The case management judge struck both of Ms.
Ernst’s claims (2013 ABQB 537, 570 A.R. 317). He disposed of the negligence
claim as barred by s. 43 and, though he rejected the Board’s argument that Ms.
Ernst’s pleadings did not disclose a violation of s. 2 (b) of the Charter ,
he struck her claim for Charter damages as barred by the same provision.
[147]
The Court of Appeal unanimously dismissed Ms.
Ernst’s appeal (2014 ABCA 285, 580 A.R. 341). In doing so, it did not consider
whether Ms. Ernst’s pleadings made out a s. 2 (b) claim, as the Board did
not raise this issue on appeal. The Court of Appeal agreed with the case
management judge that s. 43 of the ERCA barred Ms. Ernst’s claim for Charter
damages.
III.
Analysis
[148]
A claim “will only be struck if it is plain and
obvious, assuming the facts pleaded to be true, that the pleading discloses no
reasonable cause of action” (R. v. Imperial Tobacco Canada Ltd., 2011
SCC 42, [2011] 3 S.C.R.
45, at para. 17; see also
Rule 3.68 of the Alberta Rules of Court, Alta. Reg. 124/2010). The issue on this appeal is thus
whether Ms. Ernst’s claim should be struck out because it discloses no cause of
action, either because it is plain and obvious that Charter damages
could not be an appropriate and just remedy in Ms. Ernst’s action against the
Board, or else because it is plain and obvious that the immunity clause in s.
43 of the ERCA bars her claim.
[149]
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 for Charter damages. 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.
[150]
In this case, then, the first issue is whether
it is plain and obvious that Charter damages could not be an appropriate
and just remedy in the circumstances of Ms. Ernst’s claim. If it is, the appeal
may be dismissed and the claim struck without any reliance on the immunity
clause. Our colleague Cromwell J. goes further; he would hold not only that Charter
damages are not appropriate and just in the circumstances of Ms. Ernst’s claim,
but also that Charter damages could never be appropriate and just
in the circumstances of any claim against the Board — or, indeed,
against any quasi-judicial decision-maker like it. He therefore concludes that
s. 43 is not unconstitutional to the extent that it bars a claim against the
Board for Charter damages.
[151]
If, by contrast, it is not plain and obvious
that Charter damages could not be an appropriate and just remedy, the
Court must consider the second issue — whether it is plain and obvious that s.
43 of the ERCA applies to Ms. Ernst’s claim. If it is, the appeal must
be dismissed and the claim struck on the basis of the immunity clause, unless
the immunity clause is unconstitutional and therefore of no force and effect.
[152]
If, however, it is not plain and obvious that s.
43 applies to Ms. Ernst’s claim, the appeal must be allowed and it will not be
necessary to consider s. 43’s constitutionality at this stage. We would dispose
of the appeal on this basis.
A.
It Is Not Plain and Obvious That Charter Damages
Could Not Be an Appropriate and Just Remedy
[153]
In Vancouver (City) v. Ward, 2010 SCC 27,
[2010] 2 S.C.R. 28, this Court set out a framework for assessing whether
damages are an appropriate and just remedy in the circumstances. We turn now to
consider how that framework can be applied here, at the application to strike
stage.
[154]
To survive an application to strike, the
claimant must first plead facts which, if true, could prove a Charter breach
(see Ward, at para. 23).
Ms. Ernst has met this threshold.
[155]
The Board submits that Ms. Ernst’s s. 2 (b)
claim must be struck because s. 2 (b) does not guarantee a right to be
heard. We do not agree that Ms. Ernst’s claim necessarily depends on her
establishing that s. 2 (b) guarantees the positive right she asserts.
[156]
A s. 2 (b) infringement may result where
state action, in purpose or effect, “restrict[s] attempts to convey a
meaning” (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R.
927, at p. 973). If an individual’s expression promotes one of the principles
underpinning s. 2 (b) of the Charter and state action has the
effect of limiting that expression, a s. 2 (b) infringement may result (Irwin
Toy, at p. 976). These principles were summarized in Irwin Toy as
follows:
. . . (1) seeking and
attaining the truth is an inherently good activity; (2) participation in social
and political decision-making is to be fostered and encouraged; and (3) the
diversity in forms of individual self-fulfillment and human flourishing ought
to be cultivated in an essentially tolerant, indeed welcoming, environment not
only for the sake of those who convey a meaning, but also for the sake of those
to whom it is conveyed. [p. 976]
[157]
Ms. Ernst has pleaded that the Board is a
government agency and a public body that encouraged public participation and
communication in its regulatory process. She has pleaded that she was a “vocal
and effective” critic of the Board, but that the Board took steps to restrict
her speech by refusing to communicate with her or allow her to participate in
its compliance and enforcement process until she “agreed to raise her concerns
only with the [Board] and not publicly through the media or through
communications with other citizens” (A.R., at pp. 70-71). The effect of the
Board’s action was to “greatly limi[t] her ability to lodge complaints,
register concerns and to participate in the [Board’s] compliance and
enforcement process” (A.R., at p. 70).
[158]
Ms. Ernst’s pleadings raise two possible sources
of limits on her freedom of expression: (1) the Board told her she had to stop
expressing herself to the media and the public or else it would not hear
her complaints; and (2) Ms. Ernst was prohibited from participating in the
Board’s public complaints and enforcement process. The first amounts to an
allegation that the Board acted with the purpose of limiting Ms. Ernst’s
expressive activity in the public sphere. The second amounts to an allegation
that the Board’s action had the effect of limiting Ms. Ernst’s
expression in the Board’s complaints and enforcement process, where that
expression was consistent with her participation in social and political
decision making relating to oil and gas development in southern Alberta.
[159]
On either front, these pleadings establish the
elements of an admittedly novel s. 2 (b) claim. The test for granting an
application to strike is stringent: it is “only if the statement of claim is
certain to fail because it contains a ‘radical defect’ that the plaintiff
should be driven from the judgment” (Odhavji Estate v. Woodhouse, 2003
SCC 69, [2003] 3 S.C.R. 263, at para. 15). A court must “err on the side
of permitting a novel but arguable claim to proceed” (Imperial Tobacco,
at para. 21). We cannot say, on the basis of Ms. Ernst’s pleadings, that it is
plain and obvious that she cannot establish a breach of s. 2 (b) of the Charter .
[160]
Ms. Ernst has therefore pleaded a viable
s. 2 (b) claim against the Board for the purposes of the first step of
the Ward analysis on an application to strike. The second step, on an
application to strike, requires the claimant to demonstrate that damages could
fulfill one or more of the functions of compensation, vindication, or
deterrence (Ward, at paras. 24-31). Ms. Ernst has met this threshold, as
well. She has not pleaded any injury caused by the Board that could give rise
to compensatory Charter damages. But the fact that the claimant has not
suffered compensable loss “does not preclude damages where the objectives of
vindication or deterrence” are served by an award of Charter damages (Ward,
at para. 30). Ms. Ernst’s pleadings allege that the Board’s actions were
punitive, arbitrary, and retaliatory. These allegations are sufficient to
establish that the functions of vindication and deterrence could be supported
by an award of Charter damages.
[161]
We note the case management judge’s
concern that, absent the automatic application of statutory immunity clauses,
“[p]arties would come to the litigation process dressed in their Charter
clothes whenever possible” (trial reasons, at para. 81). However, parties can
only come to court “in their Charter clothes” if they have pleaded all
the elements of a Charter breach, and facts upon which an award of Charter
damages could be functionally justified. Charter claims are not easy
to make out; they require specific factual allegations. Where the state shows
that a claimant has merely affixed a Charter label on what is in
substance a private law claim, that claim should be struck at one of the first
two steps of the Ward analysis.
[162]
At
the third step of Ward, as applied on an application to strike, the
state may show that countervailing considerations make it plain and obvious
that Charter damages could not be appropriate and just (see Ward,
at paras. 32-45). We will return to this step shortly. The fourth step of the Ward analysis concerns the quantum of
damages that would be appropriate and just in the circumstances. Since this is
a matter best left for summary procedure or trial, the claimant need not plead
facts which show that the quantum of damages sought is appropriate and just.
[163]
To be clear, claims that proceed beyond the
application to strike stage need not advance to a full trial on the merits.
Other summary procedures — in Alberta, for example, summary judgment or summary
trial — can be employed on a more fully developed record.
[164]
Cromwell J. accepts that Ms. Ernst has pleaded
facts which satisfy the first two steps of the Ward analysis for the
purposes of an application to strike. At the third step, however, he holds that
countervailing factors make it plain and obvious that Charter damages
cannot be an appropriate and just remedy in the circumstances of Ms. Ernst’s
claim against the Board — or, indeed, in any claim against the Board, or
against any quasi-judicial decision-maker like it. We respectfully disagree.
[165]
Charter damages
will not be available where countervailing factors render s. 24(1) damages
inappropriate or unjust. In Ward, this Court identified such countervailing
factors as including the availability of alternative remedies and good
governance concerns. We propose to elaborate briefly on these two factors.
(1)
Alternative Remedies
[166]
Charter damages,
to be recoverable, must meet at least one of the following objectives:
compensating the loss caused by the breach, vindicating or affirming the right
with respect to the harm done to the claimant and society, and deterring future
breaches of the right by regulating state behaviour. Where a plaintiff has
pleaded facts on the basis of which an award of Charter damages could be
justified under one or more of these objectives, the burden shifts to the state
to show that it is plain and obvious that the same objective or objectives can
be met through other remedies.
[167]
The Board submits, and our colleagues Abella and
Cromwell JJ. agree, that Ms. Ernst had an alternative and effective remedy
because she could have pursued judicial review of the Board’s conduct. We
cannot agree. In our view, 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 Ms. Ernst’s Charter right and deterring future
breaches. At the very least, it would be premature to conclude, based on the
pleadings alone, that judicial review would provide an effective alternative
remedy to Charter damages in this case, let alone in all cases,
against the Board. We note that, under the Alberta Rules of Court,
damages are not available through judicial review.[4]
(2)
Good Governance Concerns
[168]
In Ward, this Court recognized
that good governance concerns may render an award of Charter damages
unjust or inappropriate. Such concerns were understood in Henry v. British
Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, as “policy
factors that will justify restricting the state’s exposure to civil liability”
(para. 39).
[169]
A court must keep two interrelated principles in
mind when considering such concerns. First, as Ward makes clear, Charter
compliance is itself a foundational principle of good governance (para.
38). Second, courts must consider good governance concerns 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.
[170]
Bearing those principles in mind, if the state
can establish, without relying on an immunity clause, that good governance
concerns make it plain and obvious that Charter damages cannot be
appropriate and just in the circumstances, then the plaintiff’s claim will be
struck. This, in substance, is the conclusion reached by Cromwell J. He points
to common law and statutory immunities enjoyed by judges and various quasi-judicial
decision-makers, as well as good governance concerns rooted in the “practical
wisdom” of the common law, to support his conclusion that Charter
damages can never be an appropriate and just remedy in an action against the
Board.
[171]
We acknowledge that our common law recognizes
absolute immunity from personal liability for judges in the exercise of their
adjudicative function. This is necessary to maintain judicial independence and
impartiality (Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.); 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
(C.A.), leave to appeal refused, [2000] 2 S.C.R. xiv). Such immunity is not
inconsistent with the Charter , as judicial immunity itself is a
fundamental constitutional principle (Taylor, at para. 57).
Similarly, we anticipate that compelling good governance concerns rendering Charter
damages inappropriate or unjust will exist where the state actor has
breached a Charter right while performing an adjudicative function.
[172]
But that is not the case before us. There is
nothing in the record which indicates that the Board was acting in an
adjudicative capacity when it informed Ms. Ernst that she could no longer write
to the Board until she stopped publically criticizing it. We see no compelling
policy rationale to immunize state actors in all cases, including where,
as here, the impugned conduct is said to have been “punitive” in nature. To be
precise, what Ms. Ernst alleges is that the Board, far from exercising an
adjudicative function, effectively sought to punish her by barring access to
those functions so long as she continued to criticize the Board in public. Our
colleague Abella J. suggests that the Board, in deciding to stop communicating
with Ms. Ernst, “in essence f[ound] her to be a vexatious litigant” (para. 64).
We see no basis for our colleague’s characterization.
[173]
Further, we disagree with our colleague Cromwell
J. that the policy concerns which underlie the negation of any negligence law
duty of care owed by the Board to Ms. Ernst support an absolute immunity from Charter
damages claims for the Board. In his view, certain policy considerations
which negate a duty of care should also render an award of Charter damages
inappropriate or unjust, namely: (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. However, immunity in negligence
law does not necessarily translate into immunity under the Charter .
Though public regulators such as the Board will rarely be found to owe a duty
of care in negligence law (Edwards v. Law Society of Upper Canada, 2001
SCC 80, [2001] 3 S.C.R. 562, at para. 18; Cooper v. Hobart, 2001 SCC 79,
[2001] 3 S.C.R. 537), this Court has rejected the argument that “the balancing
of policy factors . . . which led this Court to establish a qualified
immunity shielding prosecutors from tort liability absent a showing of malice
. . . is also dispositive” in the context of Charter damages (Henry,
at paras. 52 and 56). 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.
[174]
Because good governance concerns should limit
the availability of Charter damages only so far as necessary, this Court
has recognized qualified immunities from claims for Charter damages,
preconditioning an award upon the claimant establishing a threshold of
misconduct or fault. In Mackin v. New Brunswick (Minister of Finance),
2002 SCC 13, [2002] 1 S.C.R. 405, the Court recognized that state actors should
be afforded some immunity from claims for Charter damages, so as not to
unduly constrain the effectiveness of state action under statutes that are
subsequently declared invalid. This was said to furnish “a means of creating a
balance between the protection of constitutional rights and the need for
effective government” (para. 79). Mackin cautions, however, that
immunity — even in this qualified form — would not cover conduct that is
“clearly wrong, in bad faith or an abuse of power” (ibid.). The state
and its representatives are required to exercise their powers in good faith and
to respect constitutional rights. This makes sense because, as noted in Henry,
Charter breaches “cover a spectrum of blameworthiness, ranging from the
good faith error, quickly rectified, to the rare cases of egregious failures”
(para. 91). In Henry, the Court held that a heightened liability
threshold must be met in cases of wrongful non-disclosure, which addressed
concerns about the “risk of undue interference with the ability of prosecutors
to freely carry out their duties” (para. 76).
[175]
In the private law context, the Court recognized
in Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2
S.C.R. 621, that the Minister of Justice’s exercise of the power of mercy is
entitled to only a qualified immunity from claims for damages. In that
case, the Court held that damages in a civil case could still be awarded
where the Minister of Justice acts in “bad faith” or with “serious
recklessness” when reviewing an application for mercy (para. 69). Likewise, in Nelles
v. Ontario, [1989] 2 S.C.R. 170, Lamer J. (as he then was) noted that an
action for malicious prosecution against the Attorney General or a Crown
Attorney will lie only where the prosecutor has “perpetrated a fraud on the
process of criminal justice and in doing so has perverted or abused his office
and the process of criminal justice” (p. 194).
[176]
These cases demonstrate that certain state
actors are subject to qualified immunities. A judge, though absolutely
immune in respect of his or her adjudicative role, is not necessarily immune in
respect of acts or omissions outside his or her adjudicative role. A prosecutor
is not immune where he or she perverts or abuses his or her office or
intentionally withholds material evidence that he or she knows or should know
is material to an accused’s ability to make full answer and defence. The
Minister of Justice is not immune when he or she acts in bad faith or with
serious recklessness in reviewing an application for mercy. Never has this
Court held, simply because a governmental decision-maker has an
adjudicative role — or a prosecutorial role, or a ministerial role — that Charter
damages can never be an appropriate and just remedy, regardless of the
circumstances.
[177]
Cromwell J. asserts that when the countervailing
factors he identifies are considered cumulatively, rather than individually or
in isolation, they justify complete immunity from Charter damages claims
for the Board and decision-makers like it. He would therefore hold, for the
first time, that Charter damages can never be an appropriate and just
remedy in any action against any quasi-judicial decision-maker
like the Board. In our view, whether the countervailing factors are examined
individually or collectively, the record at this juncture does not support
recognizing such a broad, sweeping immunity for the Board in this case, let
alone in every case.
[178]
In the final analysis, it is not plain and
obvious to us that Charter damages could not be an appropriate and just
remedy in the circumstances of Ms. Ernst’s claim against the Board. That being
so, the remaining question is whether it is plain and obvious that s. 43 of the
ERCA bars that claim. In our view, it does not.
B.
It Is Not Plain and Obvious That the Immunity
Clause Bars the Plaintiff’s Claim
[179]
Recall that s. 43 of the ERCA provides
that “[n]o action or proceeding may be brought against 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 issue is thus
whether it is plain and obvious that the wrong pleaded — i.e., acts intended to
punish Ms. Ernst — would always and inevitably fall within the s. 43 bar to
litigation. More precisely, the question is whether punitive conduct is clearly
caught by the phrase, “any act or thing done purportedly in pursuance
of” the ERCA or other legislation administered by the Board, or any
regulation, or any “decision, order or direction”.
[180]
We cannot conclude that it is plain and obvious
that actions taken by the Board purely to punish a member of the public would
necessarily fall within the phrase “done purportedly in pursuance” of the ERCA
or any other instrument. It is arguable that the ERCA does not authorize
punitive conduct, either expressly or impliedly. Nor does it plainly and
obviously give persons acting under it or any other instrument the power to punish
anyone as it allegedly punished Ms. Ernst. If, as Ms. Ernst asserts, “the
decision to restrict her communication with the [Board], and the decision to
continue such restriction, was made arbitrarily, and without legal authority”
(A.R., at p. 72 (emphasis added)), the immunity clause may not apply to her
claims in respect of these particular allegations.
[181]
The courts below assumed that, by its terms, s.
43 of the ERCA plainly and obviously bars Ms. Ernst’s entire claim. In
his submissions to this Court, Ms. Ernst’s counsel did the same. That
assumption may ultimately prove correct, but it is not plainly and obviously so
at this stage. If it is ultimately established that the actions of which Ms.
Ernst complains were, in fact, “purportedly in pursuance” of the ERCA,
other legislation or regulation, or a Board decision, order or direction, the
immunity clause will bar her claim unless s. 43 is unconstitutional. In our
view, those issues remain to be determined on a fuller record.
[182]
Our colleague Cromwell J. takes issue with our
approach to the immunity clause. He stresses that this argument was not made by
Ms. Ernst before this Court. We accept that this is so. However, as he
correctly notes, the Court is not bound by the positions taken by the parties
on questions of law. Ms. Ernst’s assumption that s. 43 of the ERCA bars
all actions or proceedings against the Board, “regardless of the nature of the
claim” (A.F., at para. 63), is not binding on us. The interpretation of s. 43
and particularly the phrase “in respect of any act or thing done purportedly in
pursuant of this Act” raises a question of law, involving as it does a matter
of statutory interpretation.
[183]
Apart from our not being bound by the positions
of the parties on questions of law, as we shall explain, the circumstances of
this case are exceptional and, in our view, compel the Court to consider an
issue not raised by the parties.
[184]
First, Ms. Ernst raises a novel and
difficult legal problem involving the interplay between legislative immunity
clauses and s. 24(1) of the Charter . The significance of this issue
cannot be overstated and it has proved challenging to counsel and the courts
below. The complexity of this matter has understandably resulted in submissions
which have not comprehensively addressed the issues in this case. In these
circumstances, the Court may go beyond the parties’ submissions to make a
proper determination of the matter according to law.
[185]
Second, the issues raised by Ms. Ernst’s claim
are of significant public importance. The allegations against the Board are
serious. She says that the Board abused its powers to punish a citizen and to
curtail her freedom of expression, thereby breaching her s. 2 (b) Charter
right. Whether Ms. Ernst may advance a claim for Charter damages
against the Board in the face of a statutory immunity clause which may bar such
claims will have consequences which extend far beyond the facts of this case.
In our view, the fact that Ms. Ernst did not argue that s. 43 does not
apply to her claim should not impede the just determination of a legal issue
which has such broad ramifications for the public.
[186]
Since it is not plain or obvious that Charter
damages could never be appropriate and just or that s. 43 of the ERCA
bars Ms. Ernst’s claim, the application to strike must fail and the appeal must
be allowed. It is therefore unnecessary to determine s. 43’s constitutionality,
and we would decline to do so.
C.
We Decline to Answer the Constitutional Question
[187]
The constitutional question at issue on this
appeal was stated by the Chief Justice as follows:
Is s. 43 of the Energy Resources
Conservation Act, R.S.A. 2000, c. E-10, constitutionally inapplicable or
inoperable to the extent that it bars a claim against the regulator for a
breach of s. 2 (b) of the Canadian Charter of Rights and Freedoms and
an application for a remedy under s. 24(1) of the Canadian Charter of Rights
and Freedoms ?
[188]
Where the state applies to strike a claim for Charter
damages on the basis of a statutory immunity clause and it is not plain and
obvious that Charter damages could not be an appropriate and just remedy
but it is plain and obvious that the immunity clause would bar the
plaintiff’s claim, the plaintiff may defeat the application to strike by
successfully challenging the clause’s constitutionality. That is what Ms. Ernst
sought to do in her appeal to this Court.
[189]
We would decline her invitation to strike down
s. 43 as unconstitutional, for two reasons. First, it is not necessary to do so
to dispose of this appeal; as discussed above, it is not plain and obvious
that, on its face, s. 43 bars Ms. Ernst’s claim for Charter damages.
Second, even if it were necessary to consider s. 43’s constitutionality, the
record before us does not provide an adequate basis on which to do so; we have
received neither submissions nor evidence on the application, if any, of s. 1
of the Charter to s. 43, for example.
[190]
We would therefore leave for another day the
question of whether s. 43 or a similar immunity clause can constitutionally bar
a claim for Charter damages. All we have determined on this appeal is
that, for the purposes of the application to strike, it is not plain and
obvious that s. 43 applies to Ms. Ernst’s claim. If a court ultimately finds
that s. 43 does bar Ms. Ernst’s claim, Ms. Ernst would still have the
opportunity to seek a declaration that s. 43 of the ERCA is
unconstitutional and to provide proper notice of her constitutional challenge
to the Attorney General of Canada and the Minister of Justice and Solicitor
General of Alberta in accordance with s. 24 of Alberta’s Judicature Act,
R.S.A. 2000, c. J-2.
[191]
The constitutionality of s. 43 could then be
dealt with at first instance. It would be open to the state to adduce evidence
of countervailing considerations which may render Charter damages
inappropriate or unjust, to make submissions on the extent, if any, to which s.
1 applies to Ms. Ernst’s s. 24(1) claim and to provide any other evidence in
support of the clause’s constitutionality. Of course, it would be similarly
open to Ms. Ernst to answer such evidence or submissions with evidence and
submissions of her own.
IV.
Conclusion
[192]
We would allow the appeal, and set aside the
order striking the claim, with costs to Ms. Ernst throughout. Ms. Ernst may
proceed with her claim for Charter damages unless and until it is
established that it is barred by s. 43.
Appeal
dismissed with costs, McLachlin C.J.
and Moldaver, Côté and Brown JJ. dissenting.
Solicitors for the
appellant: Klippensteins, Toronto.
Solicitors for the
respondent: Jensen Shawa Solomon Duguid Hawkes, Calgary.
Solicitor for the
intervener the Attorney General of Quebec: Attorney General of Quebec,
Québec.
Solicitors for the
intervener the Canadian Civil Liberties Association: Chernos Flaherty
Svonkin, Toronto.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Bull, Housser
& Tupper, Vancouver.
Solicitors for the
intervener the David Asper Centre for Constitutional Rights: WeirFoulds,
Toronto; University of Toronto Faculty of Law, Toronto.