Free speech suit de­nied

Woman can’t sue Al­berta reg­u­la­tor in frack­ing case: Supreme Court

The Daily Press (Timmins) - - NATIONAL NEWS - Jim Bronskill

OTTA WA — The Supreme Court of Canada says an Al­berta woman can­not sue the prov­ince’s en­ergy reg­u­la­tor as part of her claim that hy­draulic frac­tur­ing so badly con­tam­i­nated her well that the wa­ter can be set on fire.

In a 5-4 rul­ing Fri­day, the high court re­jected Jes­sica Ernst’s ar­gu­ment that a provin­cial pro­vi­sion shield­ing the reg­u­la­tor from le­gal ac­tion was un­con­sti­tu­tional.

Ernst be­gan le­gal ac­tion against the reg­u­la­tor, Cal­gary-based en­ergy com­pany En­cana (TSX:ECA) and Al­berta En­vi­ron­ment in 2007.

She al­leges that frack­ing on her land north­east of Cal­gary re­leased haz­ardous amounts of meth­ane and other chem­i­cals into her well and that her con­cerns were not prop­erly in­ves­ti­gated.

Ernst sought dam­ages of $50,000 in claim­ing the reg­u­la­tor breached her con­sti­tu­tional right to free speech.

She said that from Novem­ber 2005 to March 2007, the reg­u­la­tor’s com­pli­ance branch cut off con­tact with her, say­ing she would have to raise her con­cerns only with the reg­u­la­tor and not through the me­dia or other pub­lic means.

Ernst claimed that in­fringed her char­ter right to free speech — ef­fec­tively pun­ish­ing her for the pub­lic crit­i­cism and pre­vent­ing her from speak­ing out fur­ther.

The Al­berta courts cited the im­mu­nity pro­vi­sion in provin­cial law and ex­empted the Al­berta En­ergy Reg­u­la­tor from the law­suit.

Ernst ar­gued at the Supreme Court that the im­mu­nity clause in the En­ergy Re­sources Con­ser­va­tion Act was un­con­sti­tu­tional be­cause it barred her claim for char­ter dam­ages.

In the court’s rea­sons for judg­ment, Jus­tice Thomas Cromwell said Ernst could have asked a court for ju­di­cial re­view of the reg­u­la­tor’s pur­ported bar on com­mu­ni­ca­tion with her. If she had es­tab­lished a case, the court could have set aside the reg­u­la­tor’s di­rec­tive, he wrote.

“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.”

Cromwell also noted the reg­u­la­tor has the pub­lic duty of bal­anc­ing sev­eral po­ten­tially com­pet­ing rights, in­ter­ests and goals. Al­low­ing peo­ple to bring claims for dam­ages against the reg­u­la­tor has the po­ten­tial to de­plete its funds and time.

In ad­di­tion, Cromwell wrote, it could “chill” the reg­u­la­tor’s abil­ity to carry out its du­ties in the pub­lic in­ter­est.

In a dis­sent­ing opin­ion, four judges, in­clud­ing Chief Jus­tice Bev­er­ley Mclach­lin, said it was “not plain and ob­vi­ous” that Ernst’s claim was barred by the im­mu­nity pro­vi­sion. They said it was ar­guable that the reg­u­la­tor’s al­legedly puni­tive ac­tions fell out­side the scope of the pro­vi­sion.

The judges added it was pre­ma­ture to ad­dress the con­sti­tu­tion­al­ity of the im­mu­nity pro­vi­sion, and Ernst’s claim should be re­turned to the Al­berta courts to de­cide “the im­por­tant is­sues of free speech and char­ter reme­dies that her case raises.”

Ernst said she is “hor­ri­fied” by what the rul­ing will mean to other Cana­di­ans whose drink­ing wa­ter could be af­fected by frack­ing chem­i­cals.

“If they get con­tam­i­nated or harmed, or their chil­dren get cancer from the frack­ing chem­i­cals or get sick, and they present ev­i­dence to the reg­u­la­tor, and the reg­u­la­tor vi­o­lates their char­ter rights in re­sponse and en­gages in abuse of process as they did with me — it is re­ally ter­ri­ble,” she said.

Cory Wan­less, one of Ernst’s lawyers, said the rul­ing was ac­tu­ally a 4-4-1 split as one judge dis­missed the ap­peal on tech­ni­cal grounds.

Wan­less said the rul­ing does not re­solve some of the key is­sues, in­clud­ing whether a gov­ern­ment can pass a law that pre­vents peo­ple from go­ing to court to chal­lenge a reg­u­la­tor if they be­lieve their char­ter rights have been breached.

“This judg­ment is go­ing to cause some head-scratch­ing among the le­gal com­mu­nity,” he said.

Ernst said she plans to fo­cus her time and money on con­tin­u­ing her law­suit against En­cana and Al­berta En­vi­ron­ment.

She said she ex­pects oth­ers will file sim­i­lar law­suits over reg­u­la­tors and frack­ing. “I worked as hard as I could to get as far as I could and now it is some­body else’s turn. I throw the gaunt­let down.”

A spokesman for the Al­berta En­ergy Reg­u­la­tor said the agency was re­view­ing the de­ci­sion.

The Bri­tish Columbia Civil Lib­er­ties As­so­ci­a­tion, an in­ter­vener in the case, said it was dis­ap­pointed with the court rul­ing.

“This de­ci­sion has wor­ri­some im­pli­ca­tions for peo­ple across the coun­try seek­ing to hold gov­ern­ment-ap­pointed de­ci­sion-mak­ers ac­count­able for egre­gious un­con­sti­tu­tional ac­tions,” said Laura Track, the as­so­ci­a­tion’s lawyer. — With files from John Cot­ter in Ed­mon­ton

Jeff Mcintosh/ THE CANA­DIAN PRESS

Jes­sica Ernst burns off some of the meth­ane that is in her well wa­ter in Rose­bud, Alta. in 2011. The Supreme Court of Canada says an Al­berta woman can­not sue the prov­ince’s en­ergy reg­u­la­tor as part of her claim that hy­draulic frac­tur­ing so badly con­tam­i­nated her well that the wa­ter can be set on fire. In a 5-4 rul­ing Fri­day, the high court re­jected Jes­sica Ernst’s ar­gu­ment that a provin­cial pro­vi­sion shield­ing the reg­u­la­tor from le­gal ac­tion was un­con­sti­tu­tional.

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