Category: Constitutional Page 25 of 71

Lost and Found? – The Captive Audience Doctrine Returns in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City)

On January 19, 2017

By: Ola Malik

PDF Version: Lost and Found? – The Captive Audience Doctrine Returns in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City)

Case Commented On: Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII)

Does your freedom to express yourself include forcing me to listen? This question invokes the captive audience doctrine, a concept previously discussed at some length here. The doctrine lies at the heart of a decision in which the Canadian Centre for Bio-Ethical Reform (CCBR) argued that the City of Grande Prairie’s refusal to post CCBR’s pro-life advertisement on the sides of the City’s buses infringed upon its freedom of expression. The Alberta Court of Queen’s Bench decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII) (CCBR) follows on the heels of American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (CanLII ) (AFDI), blogged about here, which similarly dealt with the limits of advertising on city buses. Taken together, the CCBR and AFDI decisions are most helpful to municipalities seeking to limit the placement of controversial advocacy messaging in public places.

The Alberta Energy Regulator in the Post-Information World: Best-in-Class?

By Shaun Fluker

On January 18, 2017

In Administrative Law, Constitutional, Energy, Supreme Court of Canada

By: Shaun Fluker and Sharon Mascher

PDF Version: The Alberta Energy Regulator in the Post-Information World: Best-in-Class?

Statement Commented On: Alberta Energy Regulator Public Statement 2017-01-13

As readers will know, on Friday January 13, 2017 the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII) and our colleague Jennifer Koshan set out what the Court actually decided in her Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages comment posted to ABlawg on Monday January 16. Our comment here critically reflects on the Public Statement issued by the Alberta Energy Regulator (AER) on Friday the 13^th on the Ernst decision. This statement reads like the work of a spin doctor and harms the credibility of the AER as a ‘best-in class regulator’. In our view the Public Statement is inappropriate, contains inaccuracies, and should be rescinded by the AER.

Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

By Jennifer Koshan

On January 16, 2017

In Constitutional, Energy, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

Case Commented On: Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII)

On January 13, 2017, the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII), an appeal it heard in January 2016. As noted in a previous ABlawg post, the appeal arose from the decisions of Alberta courts to strike Jessica Ernst’s claim for damages against the Energy Resources Conservation Board (now the Alberta Energy Regulator) for allegedly violating her freedom of expression under s 2(b) of the Charter. At issue before the Supreme Court was whether the decisions to strike her claim should be upheld, which turned on whether the statutory immunity clause in s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) could constitutionally bar a claim for damages under s 24(1) of the Charter against the Board. The length of time the Court took to deliver its decision might be explained by the Court’s 4:4:1 split. Justice Abella serves as the swing judge by siding with Justice Cromwell (with Justices Karakatsanis, Wagner, and Gascon) in upholding the decision that Ernst’s claim for Charter damages should be struck, basing her decision primarily on Ernst’s failure to provide notice of the constitutional challenge in earlier proceedings. I had predicted that the Supreme Court would deny leave to appeal based on that lack of notice, yet had to eat my words when a three-member panel of the Court – including Justice Abella – granted leave despite the lack of notice. The other two judges who granted the leave application, Karakatsanis and Côté JJ, are split between the Cromwell faction and the dissent (written by Chief Justice McLachlin and Justices Moldaver and Brown, with Justice Côté concurring), which would have allowed the appeal and permitted Ernst’s claim for Charter damages against the Board to proceed.

This post will parse the three judgments to determine what the Court actually decided on the viability of the Charter damages claim and for what reasons. There may be subsequent posts by my colleagues on other aspects of the decision. It is important to note that Ernst’s underlying tort claims against Encana and the provincial government for contamination of her groundwater are ongoing; the Supreme Court only ruled on whether Ernst’s claim for Charter damages against the Board for violating her freedom of expression could proceed.

Supreme Court to Render Judgment in Ernst on Friday

By Admin

On January 11, 2017

In Constitutional, Supreme Court of Canada

PDF Version: Supreme Court to Render Judgment in Ernst on Friday

Case Commented On: Ernst v Alberta Energy Regulator, 2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

On Friday, January 13, 2017, the Supreme Court of Canada will deliver its long-awaited judgment in Jessica Ernst v. Alberta Energy Regulator. As Jessica Ernst notes on her blog, the appeal was heard on January 12, 2016, making it the only case from the 2016 spring session in which the Court has not yet rendered judgment.

The case involves the issue of whether a statutory immunity clause (in this case, s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10) can bar a Charter claim for a remedy under s 24(1) of the Charter (in this case, a claim for damages for an alleged violation of Ernst’s freedom of expression by the respondent regulator). Earlier decisions in the case involved broader issues related to administrative law and negligence as against the regulator, the provincial government, and Encana for the contamination of Ms. Ernst’s groundwater allegedly caused by Encana’s hydraulic fracturing operations in the Rosebud area. ABlawg has posted several comments on this litigation, which are available here (from most recent to oldest):

Jennifer Koshan, Leave to Appeal granted in Ernst v Alberta Energy Regulator

Shaun Fluker, Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Martin Olszynski, Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Jennifer Koshan, The Charter Issue(s) in Ernst: Awaiting Another Day

Shaun Fluker, Ernst v Alberta (Energy Resources Conservation Board): The Gatekeeper is Alive and Well

Martin Olszynski, Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Watch for commentary on the forthcoming SCC decision on ABlawg.

The Duty to Consult and the Legislative Process: But What About Reconciliation?

By Nigel Bankes

On December 21, 2016

In Aboriginal, Constitutional

By: Nigel Bankes

PDF Version: The Duty to Consult and the Legislative Process: But What About Reconciliation?

Case Commented On: Canada v Courtoreille, 2016 FCA 311 (Can LII)

In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010 SCC 43 (CanLII) at para 44), the Supreme Court declined to answer the question of whether legislative action might trigger the duty to consult and, where appropriate, accommodate Aboriginal groups. This question was front and centre in Canada v Courtoreille, 2016 FCA 311 (Can LII), which involved the omnibus budget bills of the Harper administration (2012). The majority (Justices de Montigny and Webb) answered (at para 3) that “legislative action is not a proper subject for an application for judicial review … and that importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege.” Justice Pelletier offered concurring reasons which are somewhat more nuanced as to the possibility of intervention in the legislative process. He would give effect to the duty to consult in a particular, and narrow set of cases, but still concludes that, in most cases, the duty to consult has no place in the legislative process.