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12th January 2017
Supreme Court to rule Friday on anti-fracking freedom of expression case

Alberta woman challenges rule that grants energy regulator immunity from lawsuits

By Kathleen Harris, Briar Stewart, CBC News Posted: Jan 12, 2017 7:18 PM ET Last Updated: Jan 12, 2017 7:18 PM ET

The Supreme Court of Canada will rule Friday on the case of Alberta resident Jessica Ernst's case, which challenges a law that prevents her from suing the province's energy regulator. (CBC)

The country's highest court is set to rule on whether Canadians have the right to sue energy regulators.

The case stems from Alberta landowner Jessica Ernst, who says hydraulic fracking severely contaminated her well and water supply with toxic chemicals.

She claims the Alberta Energy Regulator violated her charter rights to freedom of expression by refusing to accept her complaints and pressuring her to stop making criticisms publicly and through the media.

Ernst said efforts to engage with the regulator were ignored; her letters returned unopened.

"I think they were trying to scare me into silence," she told CBC News.

Ernst began legal action in 2007 in a multimillion-dollar suit against the regulator and Calgary-based energy company Encana for negligent actions. She later amended her statement of claim in 2011 to include Alberta Environment.

The Alberta Energy Resources Conservation Act contains a "protection from action" clause, which an early court ruling found provides immunity from lawsuits. Ernst said hundreds of other regulators across Canada have similar immunity clauses.

The B.C. Civil Liberties Association intervened in the case, arguing that governments can't block individuals from seeking compensation when their fundamental rights and freedoms have been violated.

Immune from scrutiny?

"We don't think these arms of government should be immune from scrutiny if they violate people's constitutional rights," BCCLA executive director Josh Paterson told CBC News.

Conceding this is an unusual case, Paterson said a ruling in Ernst's favour could send a signal to other regulators that they can't shut down people speaking out on matters of public concern.

The Supreme Court ruling could have broader implications on the powers of other regulators across the country.

For Ernst, a victory will mean a gruelling legal battle ahead with the lawsuit, which she expects will be "most unpleasant and stressful." But she said she wants to win to hold "abusive regulators to account on behalf of all Canadians.

"There's going to be a big bonus for me if I lose, because the nastiest part of the lawsuit would be gone," she said.

"But if I lose, that would be terrible for all Canadians because the regulators across the country can do to Canadians what they did to me. And it was nasty what they did to me."

Kassie Naas, spokeswoman for the Alberta Energy Regulator, said it would not comment on the case before the ruling. The regulator would take time to "carefully review" the decision before responding, she said