January 17, 2017
In Ernst v. Alberta Energy Regulator,1 the Supreme Court of Canada was faced with the novel question of whether monetary damages could be awarded under section 24(1) of the Charter against an independent administrative tribunal for an alleged Charter breach. Ultimately, a plurality of the Supreme Court dismissed the appeal and found that the claim disclosed no reasonable cause of action. Interestingly, however, each of the three sets of reasons handed down by the Court offered a different view of whether and to what extent section 24(1) Charter damages are available as a remedy against administrative tribunals.
Below, after outlining the judicial history of the decision, we provide an overview of each of these three sets of reasons and discuss their divergent views on the larger question of the availability of Charter damages as a remedy for the actions of administrative decision makers.
Facts and Proceedings Below
In 2007, the appellant Jessica Ernst began proceedings against the energy producer EnCana, the province of Alberta, and the Alberta Energy Regulator (“the Board”). She alleged that her home’s water supply had been contaminated by EnCana’s drilling activities and that the province and the Board were indirectly responsible for the contamination.2
Ernst had been a vocal critic of the Board in 2004 and 2005. In November 2005, the Board’s Compliance Branch informed her that its staff had been instructed to avoid contact with her.3 As a result, in addition to claiming that the Board’s regulatory negligence contributed to the contamination of her home’s water supply, she alleged that the Board’s response to her criticisms violated her right to freedom of expression guaranteed by section 2(b) of the Charter. She sought $50,0000 in damages under section 24(1) of the Charter.
The Board applied to strike her negligence and Charter damages claims, relying on the immunity clause contained in section 43 of its enabling statute, the Energy Resources Conservation Act (“the ERCA”). Section 43 provided 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.
The case management judge struck both of Ernst’s claims against the Board, finding that section 43 of the ERCA barred these actions. The Alberta Court of Appeal unanimously dismissed Ernst’s appeal, agreeing with the case management judge that the claims for negligence and Charter damages were precluded by the Board’s immunity clause.4 The lower courts also agreed that judicial review was the available and appropriate remedy, not a claim for Charter damages. Ernst sought leave and appealed the Charter damages finding only to the Supreme Court of Canada, in effect conceding that section 43 was a bar to her claim unless the immunity clause was found to be constitutionally inapplicable or inoperable in this respect.
Issue at the Supreme Court of Canada
The issue at the Supreme Court was whether Ernst’s section 24(1) claim for Charter damages should be struck out because it disclosed no reasonable cause of action.
Resolving the issue required the Court to apply the modern test for striking pleadings set out in R v Imperial Tobacco Canada Limited. On this test, 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.”5
Three Sets of Reasons
The Court delivered three sets of reasons. Justice Cromwell, writing for himself and Justices Karakatsanis, Wagner, and Gascon, dismissed the appeal. Justice Abella, concurring in the result, offered her own reasons for dismissal. Taken together, this plurality of five members of the Court narrowly carried the day over the dissenting reasons written jointly by Chief Justice McLachlin and Justices Moldaver and Brown, with Justice Côté concurring. The latter four members would have allowed Ernst’s appeal and remitted the case back to the Alberta courts for trial.
Justice Cromwell found it plain and obvious that Ernst’s claim for Charter damages disclosed no reasonable cause of action because, in his view, damages were not a fitting remedy for the Board’s actions. He found that Ernst had failed to provide an adequate record on which to establish the unconstitutionality of the immunity clause. Considering the factors identified by the Court in Vancouver City v Ward,6 the leading case on the availability of Charter damages, Justice Cromwell held that the availability of an alternative remedy (namely, judicial review) and the more general policy reasons for limiting the liability of administrative decision makers meant that Charter damages would not be an “appropriate and just” remedy for the Board’s potential Charter violations. In fact, he appeared to go further and hold that such a remedy would never be an appropriate remedy against this particular Board7 and, as such, section 43 could not be unconstitutional in this circumstance (there being no available Charter remedy to bar).
Unlike Justice Cromwell, Justice Abella declined to consider the constitutionality of the immunity clause and would have dismissed the appeal largely for more technical reasons. In her view, Ernst’s section 24(1) claim for Charter damages was, in reality, a veiled section 52 claim requiring notice of a constitutional question to the federal and provincial Attorneys General. As Ernst did not provide such notice, the Attorney General of Alberta, among others, was prevented from offering any section 1 argument or justificatory evidence at both the Alberta Court of Appeal and the Supreme Court.8 As such, Justice Abella concluded that Ernst’s request that the Court assess the application of the statutory immunity clause was both inappropriate and unwise.9 She also agreed with the courts below that the immunity clause precluded Ernst’s section 24(1) claim.10
In contrast, the four dissenting judges did not find that it was “plain and obvious” that Ernst’s claim disclosed no reasonable cause of action. In their view, it was not plain and obvious that Charter damages could not be an appropriate and just remedy against the Board; nor was it plain and obvious that Ernst’s claim was barred by the language of ECRA’s immunity clause.11 They therefore declined to answer the constitutional question and would have allowed the appeal and remitted the matter back to the Alberta courts to consider the section 24(1) claim on the merits.
Three Positions on the Availability of Charter Damage Awards
The specific result in Ernst sets an arguably narrow precedent. Strictly speaking, it represents a single application of the modern “plain and obvious” test for striking pleadings set out in Imperial Tobacco. More generally, however, the decision provides us with three different answers to the more consequential question of whether and when Charter damages under section 24(1) are available as a remedy against the actions of administrative tribunals like the Board. This question, which, after Ward, should be answered by considering a short (but open) list of factors including the availability of alternative remedies and issues of institutional “good governance,” confronts a tension between two important values. On the one hand, claimants who have suffered Charter breaches should, as a rule, have access to meaningful remedies. On the other hand, administrative decision makers, not unlike judges, require a certain degree of immunity from civil liability to ensure their independence and impartiality.
Justice Cromwell’s decision represents the most limited view of when Charter damages should be available against administrative tribunals. It is at least arguable that his decision stands for the proposition that damages under section 24(1) are never available against the Alberta Energy Regulator in particular and against similarly structured boards more generally, with respect to both adjudicative and non-adjudicative decisions. He summarizes his view on this issue as follows:
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.12
The dissent departs from Justice Cromwell’s holding that Charter damages would never be an appropriate or just remedy for the Board’s Charter breaches. Although they acknowledge that the common law recognizes immunity from personal liability for judges (and likely, for administrative decision makers) when they are acting in their adjudicative capacities, the dissenting judges held that the immunity should not extend beyond those functions, particularly where a state actor’s actions could be considered “punitive”:
…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…13
The distinction between adjudicative and non-adjudicative actions creates a space within which, on the dissent’s view, Charter damages claims against administrative tribunals would be readily available. This view stands in stark contrast to Justice Cromwell’s strict view emphasizing adjudicative impartiality and independence.
Justice Abella falls between the positions staked out by Justice Cromwell and the dissent.
On the one hand, she appears to reject the dissent’s adjudicative/non-adjudicative distinction, noting that in Cooper v Hobart,14 the Court accepted that a regulatory board had immunity for negligence claims arising from its policy decisions, whether or not such decisions were made in the board’s adjudicative capacity. In her view, “artificial binary distinctions” between adjudicative and other administrative decisions should be avoided, since they are also subject to judicial review. She therefore favours a more limited view of the availability of Charter damages claims than the dissent.
On the other hand, she does not endorse Justice Cromwell’s more resolute conclusion that Charter damages are not, as a rule, available against the Board. Rather, she notes more generally that Charter damages may be available, but that such determinations will ultimately rest on the constitutionality of immunity clauses at issue:
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.15
Insofar as she recognizes that Charter damages against judicial or quasi-judicial decision-makers are not generally “beyond reach,” Justice Abella appears to stake out a less categorical position than Justice Cromwell on this issue.
Although many administrative tribunals will take comfort in the majority’s affirmation of statutory immunity clauses, from a practical perspective, this case should remind counsel to first consider judicial review as the more effective route to remedy. Seeking the personal remedy of Charter damages in respect of an administrative decision will invariably be a longer, more complex proceeding with a more uncertain outcome.
It is unlikely that the question of whether and to what extent Charter damages are available under the Ward analysis as a remedy available for the actions of administrative tribunals has been finally settled by a divided Court. While the reasons of Justice Cromwell and Justice Abella, read together, reflect a majority decision that Charter damages are (likely) not an appropriate and just remedy in these circumstances, the three sets of reasons delivered in Ernst form a kind of continuum between the opposing values of “good governance” (meaning the independence and impartiality of adjudicators/regulators) and the need to ensure that Charter breaches are meaningfully redressed. It remains to be seen where along that continuum the Court will next go.
One final point of interest to those who follow the Supreme Court’s practice and procedure – in this case the Chief Justice on motion stated a constitutional question for the appeal which in the end she herself declined to answer in dissent, as did Justice Abella for other reasons, leaving only 4 of 9 members of the Court providing an answer. Effective January 1, 2017, the Amended Rules have dispensed with the former Rule 60 motions to state constitutional questions. Instead, under new Rule 33, parties are expected to identify and frame their own constitutional question at the leave and appeal stages. This new procedure is bound to require more scrutiny by Attorneys General looking to decide whether to intervene in a constitutional question that the Court itself has not yet defined.
 2017 SCC 1 [“Ernst”].
 Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 at para 30.
 Ernst, supra note 1 at para 148, citing R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17 (emphasis added).
 2010 SCC 27 [“Ward”].
 See Justice Cromwell’s subtitle between paragraphs 23 and 24 of Ernst, supra note 1.
 Ernst, supra note 1 at para 111.
 Cooper v. Hobart,  3 SCR 537 at para 38.
 Ernst, supra note 1 at para 121.
Gowling WLG was Ottawa Agent for counsel for the Alberta Energy Regulator, Glenn Solomon, Q.C., of JSS Barristers at the Supreme Court of Canada.
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