The Supreme Court Of Canada Provides Limited Guidance On The Constitutionality Of Immunity Clauses For Tribunals

In Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court split 4-4-1 over the constitutionality of an immunity clause in favour of the Alberta Energy Regulator (the "Board"). The case was resolved largely on procedural grounds. For example, Justice Abella—the "1" in the 4-4-1 split—held that Ms. Ernst's failure to provide notice of her constitutional challenge to the immunity clause was fatal to her claim. Meanwhile, the remaining eight judges divided over the issue of whether to accept Ms. Ernst's concession that the immunity clause actually barred her claim against the Board. As a result, the Court largely left the constitutionality of immunity clauses to another day and Ernst has questionable precedential value.

Background

The Board is a quasi-judicial tribunal that regulates the oil and gas industry in Alberta and has a specific process for communicating with the public and hearing public complaints. Ms. Ernst frequently criticized the Board. In response, the Board excluded Ms. Ernst from its public complaints process and instructed its staff not to communicate with her.

Ms. Ernst alleged that the Board thereby breached her Charter s. 2(b) right to freedom of expression and sought Charter damages. However, the Board is protected by an immunity clause: Energy Resources Conversation Act, R.S.A. 2000, c. E-10, s. 43.

...