On January 12, 2016, the Supreme Court of Canada will hear oral arguments in Jessica Ernst v Alberta Energy Regulator, an appeal from Alberta that has considerable implications for administrative bodies and the remedies available against them. While ABLawg has published much on the case as it has weaved its way to the Supreme Court of Canada (see: "Revisiting Regulatory Negligence: The Ernst Fracking Litigation" by Martin Olszynski; "Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well" by Shaun Fluker; "The Charter Issue(s) in Ernst: Awaiting Another Day" by Jennifer Koshan; "Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment" by Shaun Fluker; "Regulatory Negligence Redux: Alberta Environment's Motion to Strike in Fracking Litigation Denied" by Martin Olszynski; and "Leave to Appeal granted in Ernst v Alberta Energy Regulator" by Jennifer Koshan), my aim here is to delve deeper into the question on appeal and highlight certain arguments that are either missing or understated in the factums filed by the parties in advance of the Supreme Court hearing.
Jessica Ernst v Alberta Energy Regulator is an action that was commenced by a landowner in Rosebud, Alberta against the administrative body charged with energy development and regulation in Alberta (initially the Energy Resources Conservation Board, which has now been reorganized and rebranded as the Alberta Energy Regulator — the “AER”). The landowner, Jessica Ernst, alleged a number of violations related to the approval and operation of hydraulic fracking and other incidental industrial activities near her residence, and the impact they were having on her health, property and quality of life.
Among the allegations found in Ernst’s claim, and the one that will be dealt with by the Supreme Court, is the alleged violation of her right to freedom of expression protected at s. 2(b) of the Charter of Rights and Freedoms. Ernst claims that between November 24, 2005 and March 20, 2007, the AER refused to accept communications from her due to her criticisms of the regulator and the decisions it had made. Ernst sought the remedy of monetary damages for the alleged violation, which can be granted under s. 24(1) of the Charter.
The AER brought an application to strike Ernst’s Charter claim on a number of grounds, including that it was barred by the statutory immunity clause found at s. 43 of the empowering statute of the regulator (at the time it was the Energy Resources Conservation Act, RSA 2000, c. E-10 – “ERCA”):
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.
Supreme Court of Canada
The Supreme Court of Canada granted Ernst leave to appeal the Alberta Court of Appeal decision on April 30, 2015, and the question on appeal to be:
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?
The factums of the parties are posted online, and are worthwhile reads, particularly those of Ryan D.W. Dalziel and Emily C. Lapper on behalf of the B.C. Civil Liberties Association, and Raj Anand on behalf of the David Asper Centre for Constitutional Rights. Rather than rehash the arguments found in them, I will focus on two concerns I have with the Alberta Court of Appeal decision that are partially but not fully addressed in the factums filed by the parties.
Types of Charter Remedies Available Under Section 24(1)
From my reading of the Alberta Court of Appeal decision, it is not entirely clear whether the Court recognized the differences between the two primary remedial provisions under the Charter: s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. A number of parties picked up on this and have made efforts to highlight the distinction between the two provisions. However, while most briefly touch on the distinction, I consider a foundational understanding of the Charter’s remedial framework to be critical to resolving this aspect of the question on appeal.
Section 24(1) states:
(1) 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.
Section 52(1) states:
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Remedial provisions under the Charter are differentiated on the basis of their application. Section 24(1) remedies apply to government conduct that has been found to violate the Charter. Section 52(1) on the other hand applies to Charter infringing laws, declaring them of no force or effect.
The AER is an administrative body that carries out functions delegated to it by the Legislature. The AER does not create law but rather implements it. For this reason, s. 52(1) has no application to Charter infringing conduct carried out by the AER. The only remedy available to Ernst is found under s. 24(1).
The discussion of s. 24(1) remedies in both the lower court decisions, as well as in some of the factums, is the most confounding aspect of this proceeding. As per the text of the provision, courts are able to fashion any remedy they consider appropriate and just in the circumstances. This ranges from damage awards to declarations of invalidity to literally anything conceivable by the court to be appropriate and just.
However, for some unexplained reason, the lower courts treat all s. 24(1) remedies available to the court to be the same. At least that is the impression left after the court examines the ‘good governance’ implications of awarding Charter damages against an administrative body, and then goes on to hold on the basis of that narrow examination that all remedies under s. 24(1) can act to undermine that principle.
Not all remedies are created equally. It is incorrect to assume that since a specific remedy under s. 24(1) may have a negative impact on the principle of good governance, that all remedies under the provision will have a similarly adverse impact. To fully understand the scope and impact of remedies available under s. 24(1), courts must engage in a contextual analysis of these features rather than simply assuming similitude between the vast array of remedies available under the provision.
Let’s assume that the lower courts are correct in their reasoning that awarding Charter damages against the AER will undermine good governance (the factum of the BCCLA disputes this claim), as the administrative body will not be able to fully exercise its role out of fear of being financially liable for conduct it has engaged in. Does the same apply to declarations of constitutional invalidity under s. 24(1)? Can Charter damages be held to have the same adverse impact on the principle of good governance as the court merely stating that an administrative actor’s conduct was unconstitutional?
This is not canvassed by the lower courts. In fact, the lower courts simply rely on the limits the Supreme Court of Canada has set down for when it is “appropriate and just” to award Charter damages to hold that all Charter remedies under s. 24(1) are barred. The courts have conflated Charter damages under s. 24(1) to represent all remedies available under the provision.
Although declaratory relief under s. 24(1) of the Charter is “personal” in nature, it is difficult to accept the premise that they are so disruptive to the operations of an administrative body that they undermine the principle of good governance. In fact, I would argue that declarations on the constitutional validity of government conduct can achieve the opposite result. Declarations can deepen dialogue between the courts and legislature to ensure that the vast and all encompassing ‘regulatory state’ that has emerged over the past half-century is engage in lawful conduct, and if not, what corrective measures must be carried out. Access to these remedies under the Charter provide individuals redress for fundamental violations of their rights and freedoms, and can act to ensure that these violations do not continue. In my view, the availability of declarations against administrative bodies for Charter infringing conduct strengthens the principle of good governance, rather than undermining it.
Alternative Avenues of Effective Redress
Integral to the Court of Appeal’s holding that s. 24(1) remedies are barred against the AER is the assumption that parties have alternative “effective avenues of redress.” The specific alternative avenue of redress identified by the Alberta Court of Appeal is described in four sentences at a para 30(c):
limits on remedies do not offend the rule of law, so long as there remain some effective avenues 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.
Like many empowering statutes of administrative bodies in Alberta, the ERCA provided the AER considerable discretion while at the same time significantly limited the type of conduct that could be judicially reviewed:
Board decision final
25 When any Act authorizes the Board to examine, inquire into, hear or determine any matter or question, subject to sections 40 and 41, every action, decision and order of the Board with respect to that matter or question is final and conclusive and is not open to question or review in any court.
41(1) Subject to subsection (2), on a question of jurisdiction or on a question of law, an appeal lies from the Board to the Court of Appeal.
(2) An application for leave to appeal must be filed and served within 30 days from the day that the order or direction sought to be appealed from was made, or within a further period of time granted by the judge where, in the opinion of the judge, the circumstances warrant it.
Read together, sections 25 and 41 indicate that only orders and decisions that raise a question of law or jurisdiction can be judicially reviewed by the Alberta Court of Appeal. All other actions, decisions or orders made by the AER are final and conclusive, and not open to review by any court.
The ERCA does not define what an “order” is, but some indication is provided as to what a “direction” is in the Energy Resources Conservation Board Rules of Practice, Alta Reg 98/2011 (ERCBRP):
4 The Board may, at any time before making a decision on a proceeding, issue any directions that it considers necessary for the fair determination of an issue.
From the text of the provision, and what orders and directions are understood to be in the judicial setting, it can be assumed that an AER order or direction is a formal pronouncement made in relation to a proceeding that the regulator is conducting.
I am not convinced that the decision taken by the AER to not accept communications from Ernst constitutes an order or direction pursuant to s. 41 of the ERCA. It is more akin to an action than an order or direction, and if that is the case, s. 25 of the ERCA bars any review of it by a higher court. From this reading of the ERCA, it’s likely that Ernst would not be able to judicially review the regulator’s conduct through the appeal provision found in the statute.
With respect to the claim that Ernst could apply to the Alberta Court of Appeal for the administrative remedy of mandamus or certiorari, I am equally sceptical if that would be possible given other provisions found in the ERCA. Mandamus is a writ that compels an administrative body to complete a certain action that it is clearly required or has discretion to perform under legislation. The remedy is granted in extraordinary cases, and rarely when the administrative body has discretion to perform the conduct in question. While the ERCA provided broad authority to the AER to make decisions necessary to carry out its function, there is no specific provision that requires it to accept communications made to the administrative body. Moreover, mandamus does not allow courts to create duties but is granted to ensure that existing statutory duties are fulfilled. I don’t suspect that a reviewing court could carve out the specific duty of accepting communications out of the broad powers conferred to the AER.
Certiorari is another administrative remedy granted in only exceptional circumstances. The remedy permits a reviewing court to quash the decision of an administrative body in the case of a jurisdictional error. If the AER made a decision that exceeded its jurisdiction and it adversely impacted the rights or interests of Ernst, than Ernst could seek a writ of certiorari to quash the decision.
While there appears to be no provision under the ERCA that requires the AER to accept or consider communications, it appears that it is within the AER’s jurisdiction to refuse communications:
Powers of Board
20 The Board, with the approval of the Lieutenant Governor in Council, may take any action and may make any orders and directions that the Board considers necessary to effect the purposes of this Act and that are not otherwise specifically authorized by this Act.
The AER could take any action it considered necessary to effect the purposes of the ERCA, including those not specifically authorized by the legislation.
An argument can be made that the provision is too vague to include within it the authority to refuse receipt of communications. However, it can also be argued, and perhaps more convincingly, that the broad powers of the AER also encompass the power to refuse communications from impacted parties such as Ernst. At the very least, it is not possible for the court to assume that the former is the case without first thoroughly examining the provisions of the ERCA to determine what administrative remedies are available, whether it is judicial review, mandamus, certiorari or none, as I submit to be the case.
Ernst v Alberta Energy Regulator could have significant ramifications for holding administrative bodies accountable not only here in Alberta but across the country. If the Alberta Court of Appeal decision is upheld, governments in Canada will effectively have a blueprint to insulate administrative bodies from Charter scrutiny. By including statutory immunity clauses in the empowering statutes of administrative bodies and delegating to them Charter infringing conduct, governments can shield themselves from liability. Government conduct that was once prohibited due to its Charter infringing nature would now be lawful because of the presence of statutory immunity clauses barring Charter remedies. In my view, upholding this approach will invariably lead to an erosion of Charter rights, rendering such constitutional protections meaningless — a significant concern given the emergence and continued growth of the ‘regulatory state’ in Canada.