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Government agent immunity issue one of challenges for SCC

Winter session will also look at penalties, admissibility, infanticide
By Cristin Schmitz
January 15 2016 issue

Raj Anand of Toronto’s WeirFoulds, right, and co-counsel University of Toronto law professor Cheryl Milne, represented the David Asper Centre for Constitutional Freedoms, one of seven interveners in a Supreme Court constitutional test case concerning free speech violations scheduled to be argued in January.
[Photo by Tim Fraser for The Lawyers Weekly]

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The Supreme Court kicks off its winter session with a far-reaching constitutional case that will decide whether general statutory immunities enjoyed by government agents — including justice officials such as judges, masters and administrative decision-makers — shield them from claims for damages, or other personal remedies, under the Charter.

The 21 appeals to be argued at the high court from Jan. 11 to April 1, 2016 cover questions such as: what is the proper approach to determining the standard of review when there is a statutory appeal from a tribunal (City of Edmonton v. Edmonton East (Capilano) Shopping Centres Ltd. March 23); what is the proper test to distinguish between the key concepts of “faulty workmanship” and “resulting damage” in comprehensive builders’ risk insurance policies (Ledcor Construction Ltd. v. Northbridge Insurance Indemnity Insurance Co. March 30); and what test should a sentencing judge apply to decide whether to accept a joint sentencing submission (Anthony-Cook v. R., March 31).

At press time, scheduled for Jan. 11, however, was the constitutional test case of Jessica Ernst v. Alberta Energy Regulator which asks whether the general immunity in s. 43 of the Energy Resources Conservation Act (ERCA) is constitutionally inapplicable, or inoperative, to the extent that it bars claims for personal damages for free speech violations of the Charter.

Appellant Ernst became an outspoken water activist after fracking for gas near her rural property so contaminated the groundwater with methane that the well water coming out of her faucet became explosive. She sued the Alberta Energy Regulator (AER) for negligence, and for allegedly trying to shut her up by refusing to accept further complaints and communications from her unless she stopped raising her concerns with the media and public. She claims damages for alleged violation of her s. 2(b) Charter right to freedom of expression, and damages under s. 24(1) of the Charter which permits “such remedy as the court considers appropriate and just in the circumstances.”

The regulator contends that s. 43 is a constitutionally valid limit on personal claims for damages under the Charter.

The Alberta courts below agreed, and struck out Ernst’s negligence and Charter claims. They ruled that although the Charter claims did disclose a cause of action and were not doomed to fail, the courts were precluded from considering them by the ERCA’s general immunity which says “no action or proceeding” may be brought against the regulator or its officials in respect of “any act or thing done purportedly” in pursuance of the ERCA.

The Supreme Court’s decision is expected to affect the scores of statutory immunities at the federal, provincial and municipal levels protecting all kinds of state actors, including justice system players and law society benchers.

“I think the import of the case is extraordinary because it basically asks whether a legislature is entitled to shield the public service from the Charter,” says Raj Anand of Toronto’s WeirFoulds. “Can an ordinary statute…make the public service a Charter-free zone?”

Anand, counsel for the David Asper Centre for Constitutional Freedoms, one of seven interveners, said if the decision below is upheld “it would certainly provide an end-run around the Charter. It basically permits a legislature, which by definition is subject to the Charter, to exempt its executive from the Charter…Our view is it’s contrary to rule of law, and our system of government, for a legislature to do what even the common law has not been interpreted to do.”

Anand’s co-counsel, University of Toronto law professor Cheryl Milne, said “pre-emptive strikes” against Charter remedies by governments at the pleading stage too often bar potentially viable claims from trial. “I’d like to see [the court] interpret, and view, this legislation in light of a significant access to justice issue,” Milne said.

“Despite this being a rather foundational Charter issue, the Supreme Court has yet to consider it,” notes Ernst’s counsel, Murray Klippenstein of Toronto’s Klippensteins Barristers and Solicitors. “Ultimately, this appeal is about restoring the constitutional order, and re-establishing the supremacy of the Charter,” he said by email. “It is about establishing that it is the judiciary, not the government, that has ultimate control over which Charter remedies are available and appropriate to remedy a Charter breach.”

However the respondent regulator argues that allowing Ernst’s Charter claim to proceed would be a major departure from existing law. Four attorneys general are intervening in support.

“Tribunals such as the AER, which owe only public duties, must not be inhibited by the fear of being held to account through private law remedies,” the regulator’s factum argues. (Counsel declined comment.)

“Subsection 24(1) operates concurrently with, and does not replace, the general law,” maintains the regulator. “As such, an award of damages under s. 24(1) must be considered in the context of the traditional limits and liability principles associated with personal remedies. Section 43 of the ERCA is one of many constitutionally valid limits on access to personal remedies under s. 24(1), which include judicial and quasi-judicial immunity, the determination of what constitutes a court of competent jurisdiction, Crown immunity from execution, various preconditions and procedural requirements, and limitation provisions.”

Other interesting questions raised by cases on the winter docket include:

Mandatory minimum penalties: Is the recently enacted one-year MMP for drug trafficking in s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act grossly disproportionate such that it violates the Charter’s s. 12 guarantee against cruel and unusual punishment; and does the B.C. Provincial Court have jurisdiction to strike down legislation if it breaches the Charter? Lloyd v. The Queen (Jan. 13).

Judicial Review: The appellant lab technicians at Mission Memorial Hospital in B.C. were denied workers’ compensation for breast cancer, which they contend was caused, or contributed to, by on-the-job exposure to chemicals. Among the administrative law issues: Is the appropriate approach of the courts on judicial review of findings of fact by an administrative tribunal to determine whether there was evidence capable of supporting the findings, or to go further and determine also whether such evidence was sufficient? Does the common law power of an administrative tribunal to reopen an appeal to cure a jurisdictional error or defect include the power to cure an unreasonable, or patently unreasonable, error? Workers’ Compensation Appeal Tribunal v. Fraser Health Authority et al. (Jan. 14).

Text messages as evidence: Were text messages that confirmed the testimony of an unsavoury witness at a manslaughter trial inadmissible as hearsay? Seruhungo v. The Queen (Jan. 15).

Judicial independence: Are 2004 legislative changes to the pay, working conditions and pensions of some justices of the peace in Quebec an unconstitutional violation of judicial independence? Conférence des juges de paix magistrats du Québec v. Attorney General of Québec (Jan. 18).

Unjust dismissal: In a case affecting the job security of hundreds of thousands of federal workers, a fired Atomic Energy of Canada employee is appealing the Federal Courts’ ruling that federal employers may lawfully dismiss employees without cause under ss. 240 to 246 of the Canada Labour Code, provided the severance required by the Code is paid: Wilson v. Atomic Energy of Canada Ltd. (Jan. 19).

Infanticide: Under the Criminal Code, a mother who has intentionally killed her child within a year of its birth can escape a murder conviction and instead be convicted of infanticide — if there is some evidence that her mind was disturbed due to giving birth or lactation. The appellant Alberta Crown asks the court define what “disturbed mind” means in the context of a case where the accused, after giving birth, wrapped the baby in a towel, put it in a plastic garbage bag, and disposed of it in her apartment’s dumpster. Over three years, she did this to three babies — only one of whom survived: R. v. M.K.B. (Jan. 20).

Right to a fair hearing: What is the test for incompetent legal representation? The dissenting Alberta Court of Appeal judge found that the accused got a “woefully incompetent” defence from a lawyer who was restricted by the law society from practising real estate law, but not criminal law. However the Court of Appeal’s majority disagreed the defence was incompetent, and upheld several Criminal Code convictions: Meer v. The Queen (Jan 21).

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