Category: Environmental Page 38 of 59

By: Shaun Fluker

PDF Version: Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672

This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.

Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).

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

By Martin Olszynski

On November 14, 2014

In Environmental, Torts

By: Martin Olszynski

PDF Version: Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Case Commented On: Ernst v EnCana Corporation, 2014 ABQB 672

This post follows up on a previous one regarding Ms. Ernst’s lawsuit against EnCana, the Energy Resources Conservation Board (ERCB, now the AER) and Alberta Environment for the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing activity (fracking) near Rosebud, Alberta. My first post considered the ERCB’s application to have the action against it struck, with respect to which it was successful (see 2013 ABQB 537 (Ernst I), affirmed 2014 ABCA 285 (Ernst II)). On November 7, 2014, Chief Justice Wittmann released the most recent decision (Ernst III) in what is shaping up to be the legal saga of the decade. Like the ERCB before it, Alberta Environment sought to have the regulatory negligence action against it struck on the basis that it owed Ms. Ernst no private law “duty of care” and that, in any event, it enjoyed statutory immunity. In the alternative, Alberta sought summary judgment in its favor. In contrast to his earlier decision agreeing to strike the action against the ERCB, the Chief Justice dismissed both applications.

In my previous post, I noted some inconsistencies between Ernst I and II with respect to the duty of care analysis and suggested that courts should strive to apply the applicable test (the Anns test) in a predictable and sequential manner, the Supreme Court of Canada’s decision in Cooper v Hobbart, 2001 SCC 79 (still the authority for the content of that test in Canada) being valued first and foremost for bringing some much needed transparency to the exercise. In this respect, the Chief Justice’s most recent decision is exemplary. In this post, I highlight those aspects of the decision that help to explain the different result in this case, as well as those that in my view address some of the concerns I expressed in my previous post.

Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

By Shaun Fluker

On October 20, 2014

In Civil Procedure, Environmental

By: Shaun Fluker

PDF Version: Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Case Commented On: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

This comment adds to the earlier post by Martin Olszynski (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator/Energy Resources Conservation Board (AER/ERCB) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on whether the Alberta Court of Appeal has correctly applied the law on a motion to strike under Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). I argue the Court of Appeal has erred by applying the test too restrictively.

Simply put, Ernst alleges that Alberta Environment and the AER/ERCB owe her a duty of care and are negligent by failing to meet that duty. This is a question of regulatory negligence, and the parameters of the law on this question have been summarized by Professor Olszynski. The AER/ERCB applied to the Court to strike Ernst’s claim for failing to disclose a reasonable cause of action, and for summary judgment. In the first instance, Chief Justice Wittman granted the request to strike back in September 2013 (Ernst v Encana Corporation, 2013 ABQB 537).

Revisiting Regulatory Negligence: The Ernst Fracking Litigation

By Martin Olszynski

On October 15, 2014

In Environmental, Torts

By: Martin Olszynski

PDF Version: Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Case Commented On: Ernst v. Alberta (Energy Resources Conservation Board), 2014 ABCA 285

On September 15, 2014, the Alberta Court of Appeal released its decision in Ernst v. Alberta (Energy Resources Conservation Board). Ms. Ernst owns land near Rosebud, Alberta, and is suing EnCana Corporation, the ERCB (now the Alberta Energy Regulator) and Alberta Environment (now Alberta Environment and Sustainable Resources Development) for negligence in relation to the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing (fracking) activities in the area. The ERCB (but not Alberta Environment – a point further discussed below) applied to have the action against it struck. The case management judge, Chief Justice Wittmann, agreed that this particular negligence claim was not supported in law: he found that the ERCB owed no private law duty of care to Ms. Ernst and that, in any event, any claim was barred by s 43 of the ERCB’s enabling legislation (see Ernst v. EnCana Corporation, 2013 ABQB 537). The Alberta Court of Appeal (Justices Côté, Watson and Slatter, writing as “The Court”) dismissed Ms. Ernst’s appeal. This post considers the regulatory negligence aspects of both the Queen’s Bench and Court of Appeal decisions.

Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

By Martin Olszynski

On September 19, 2014

In Administrative Law, Environmental

By: Martin Olszynski

PDF Version: Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

Case Commented On: Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189

At least three times in the course of the past year, an environmental assessment (EA) panel convened under the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012) has concluded that a project is likely to result in significant adverse environmental effects: Shell’s Jackpine Mine Expansion, Taseko’s New Prosperity Mine, and Enbridge’s Northern Gateway Pipeline. In the case of both Jackpine and Northern Gateway, the federal Cabinet determined that these effects were “justified in the circumstances,” but not so for New Prosperity. In none of these instances, however, did the relevant “Decision Statement” pursuant to section 54 of CEAA, 2012 contain any explanation or reasons for Cabinet’s decision. The Federal Court of Appeal’s recent decision in Council of the Innu suggests that this approach is wrong. This litigation involved the Lower Churchill Hydroelectric Project proposed by Nalcor in Newfoundland. This project was reviewed under the previous CEAA regime but the relevant provisions are virtually unchanged. Like the three EAs referred to above, the panel concluded that the project was likely to result in significant adverse environmental effects. Unlike the three projects referred to above, however, the government did provide a detailed explanation for its determination that the significant adverse environmental effects were justified in the circumstances. The Council challenged this determination (the Council also challenged the sufficiency of Aboriginal consultation; this post focuses only on the justification issue).