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13th January 2017
EDITOR
Supreme Court rules fracking critic doesn't have charter right to sue

Alberta woman challenged provision that grants energy regulator immunity from lawsuits

By Kathleen Harris, CBC News Posted: Jan 13, 2017 9:59 AM ET Last Updated: Jan 13, 2017 10:35 AM ET

Canada's top court has ruled that an Alberta landowner does not have the right to sue the province's energy regulator for infringing her constitutional rights.

In a 5-4 split decision, Supreme Court of Canada justices rejected Jessica Ernst's challenge to sue the Alberta Energy Regulator for denying her right to freedom of expression.

The court said Ernst should have pursued a judicial review of how the regulator handled her complaints about fracking.

The ruling also defended the immunity clauses that protect many government bodies from lawsuits.

"When the board made the decision to stop communicating with Ernst, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enabling legislation," it reads. "Issues about the legality, reasonableness, or fairness of this discretionary decision are issues for judicial review. 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."

Provisions are in place to prevent an "end run" by litigants around the required process that can result in undue expense and delay for the regulator and the public, the decision says.

Ernst has claimed hydraulic fracking so severely contaminated her well and water supply with toxic chemicals that she could set it on fire. She has argued that the Alberta Energy Regulator violated her charter right 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 and her letters were returned unopened.

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

Alberta court rejected claim

Ernst began legal action in 2007 in a multimillion-dollar suit against the regulator, Alberta Environment and Calgary-based energy company Encana for negligent actions.

In an earlier ruling, an Alberta court rejected Ernst's claim against the regulator, citing immunity provisions in the province's Energy Resources Conservation Act.

Ernst said hundreds of other regulators across Canada have similar immunity clauses.

The B.C. Civil Liberties Association had intervened in the case, arguing government regulators shouldn't be allowed to block individuals from seeking compensation when their fundamental rights and freedoms have been violated.

Ernst's legal battle doesn't end today. She will continue to pursue the lawsuit, a fight she expects will be "most unpleasant and stressful."

Cassie Naas, spokeswoman for the Alberta Energy Regulator, said it would take time to carry out a "thorough review" of the decision before making a public statement.

http://www.cbc.ca/news/politics/supreme-court-fracking-charter-1.3934002