In Ernst v. Alberta Energy Regulator, the Supreme Court of Canada considered whether a statutory immunity provision could bar a plaintiff from bringing a claim for Charter damages against an administrative tribunal, and, if so, whether the provision was itself unconstitutional. On these issues, the Court deeply divided. Four justices, led by Cromwell J., held that the statutory immunity provision in Alberta’s Energy Resources Conservation Act barred Ms. Ernst’s claim for Charter damages, and that the provision itself was not unconstitutional. Four other justices, led by McLachlin C.J.C. and Moldaver and Brown JJ., held that it was not plain and obvious that the statutory immunity provision barred the claim for Charter damages and in so determining, deemed it unnecessary to consider the constitutional issue. The remaining judge, Abella J., wrote a separate decision that agreed with Cromwell J. on the issue of whether the provision barred Ms. Ernst’s claim, but held that it was inappropriate to consider the constitutional question, as this issue was being raised de novo before the Supreme Court of Canada.
Cheng, Joseph and Law, Andrew.
"Ernst v. Alberta Energy Regulator: A “Frack-tious” Divide on Statutory Immunities and Charter Damages."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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