Statutory Immunity from Charter Damages: Ernst v Alberta Energy Regulator by Julia Kindrachuk, August 2015, Saskatchewan Law Review, vol. 78:2 (2015)
The Supreme Court of Canada recently granted leave to appeal in Ernst v. AER. Jessica Ernst, an Alberta landowner and scientist, is claiming that the conduct of the Energy Resources Conservation Board (now Alberta Energy Regulator) breached section 2(b) of the Canadian Charter of Rights and Freedoms. Ernst alleges that her freedom of expression was infringed through a series of actions which prevented her from effectively communicating with the regulator. This paper argues that general statutory immunity provisions should not prevent plaintiffs from recovering public law damages for a regulator’s Charter breach when a Court “considers [it] appropriate and just in the circumstances.” The history and purpose of subs. 24(1), Canadian jurisprudence culminating in the Supreme Court of Canada’s decision in Vancouver (City) v. Ward, and approaches in other jurisdictions all support this interpretation. While the Supreme Court of Canada has held that limitation provisions do apply to bar claims for personal Charter remedies, statutory immunity is not analogous to a limitation period. The Court should not pre-empt claims for damages on the basis that policy considerations justify applying statutory immunity provisions to such claims. The framework developed by the Court in Ward allows sufficient scope for the consideration of countervailing factors such as good governance or the availability of alternative remedies, which might justify denying monetary redress. A court’s discretion to provide the appropriate and just remedy for a given Charter breach would be improperly fettered by the application of a general statutory immunity provision. The state cannot dictate the range of remedies provided by the Constitution.
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