Go to Site Index See "Articles" main page
4th February 2017
On Jessica Ernst, and the Vagaries of Justice in Canada

Landowner’s ruling shows our legal system can easily lose sight of its mission.

By Andrew Nikiforuk 2 Feb 2017

The recent Supreme Court ruling on Jessica Ernst in her case against the Alberta Energy Regulator demonstrates once again that Canada’s myopic legal system can easily lose sight of justice.

Recent commentary on the court’s deeply split decision by Lorne Sossin, dean of Osgoode Law School, and a new public letter by Ernst to Chief Justice Beverley McLachlin add weight to the seriousness of the miscarriage.

The matter is not as complicated as the legal jargon that surrounds the ruling like some overgrown bush.

Once you prune away the mumbo jumbo (the legal system has yet to adopt English as its preferred language), the Supreme Court of Canada decided that a statutory immunity clause protected an allegedly abusive regulator from a Charter claim.

As a result, any quasi-judicial regulator in the country could trample any citizen armed with damaging information about its performance, and abrogate their freedom of expression. Or worse.

All they need do to get away with such democracy-killing behaviour is pull out an immunity clause that says, in essence, the Supreme Court says we’re above the law, and we can behave badly.

Writing in one of the nation’s top legal blogs, Sossin found that the Supreme Court not only missed the whole point of the case, but probably damaged the Charter of Rights and Freedoms to boot.

“In my view, the premise the Court accepts in Ernst, that a statutory immunity clause can bar a Charter claim, is flawed,” he wrote. “The availability of Charter damages... cannot be precluded by an act either of a provincial legislature or of Parliament...”

Sossin, a lawyer and political scientist, knows what he is talking about: he has worked as litigation lawyer with Borden & Elliot, served as a law clerk to the Chief Justice of the Supreme Court of Canada, and is now the dean of Osgoode Law School.

He wasn’t alone. The national magazine of the Canadian Bar Association also noted that the decision had “raised a lot of eyebrows.”

But there’s much more wrong with the decision as an open public letter by Ernst herself explains.

In the split ruling, one of the Supreme Court judges, Rosalie Abella, said the regulator found Ernst a “vexatious litigant,” though no regulator in Alberta has ever described Ernst as such.

The term has dark legal implications. “It is a serious finding when a court declares a claimant to be a ‘vexatious litigant,’ resulting in the claimant being restricted or having no further access to the courts,” writes Ernst.

Alberta Chief Justice Neil Wittmann, who serves as case management judge for Ernst’s ongoing lawsuit, recently described vexatious litigants as “those who persistently exploit and abuse the processes of the court in order to achieve some improper purpose or obtain some advantage.”

Wittmann adds that vexatious litigants typically want “to punish or wear the other side down through the expense of responding to persistent, fruitless applications.”

Donald Trump, for example, has a history of behaving like “a vexatious litigant.”

But that’s not a fair description of Ernst, who had never filed a lawsuit until an alleged combination of corporate and government negligence filled her well water with explosive levels of methane.