Ernst v. EnCana Corp. et al.,

• Judge: Wittmann
• Neutral Citation: 2013 ABQB 537
• Subject Matter: PRACTICE,ADMINISTRATIVE LAW,TORTS,CIVIL RIGHTS
• Citation: 2013 ABQB 537,(2013), 570 A.R. 317 (QB),570 AR 317,(2013), 570 AR 317 (QB),570 A.R. 317
• Date: 18 January 2013
• Court: Court of Queen's Bench of Alberta (Canada)

Ernst v. EnCana Corp. (2013), 570 A.R. 317 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.019

Jessica Ernst (plaintiff) v. EnCana Corporation, Energy Resources Conservation Board and Her Majesty the Queen in Right of Alberta (defendants)

(0702 00120; 2013 ABQB 537)

Indexed As: Ernst v. EnCana Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Hanna/Drumheller

Wittmann, C.J.Q.B.

September 16, 2013.

Summary:

Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta. The claims against EnCana were for damaging the Ernst water well and the Rosebud aquifer, the source of fresh water supplied to the Ernst home. The claim against the Board was that it was negligent in its administration of its statutory regulatory regime, that it failed to respond to Ernst's concerns about water contamination from the EnCana drilling activity, that the Board knew that EnCana had perforated and fractured directly into the Rosebud aquifer, and that it failed to respond. Further, it was alleged that the Board owed a duty to Ernst to take reasonable steps to protect her well water from foreseeable contamination. It was also alleged that, by its conduct, the Board breached s. 2(b) of the Charter by barring Ernst from communicating with the Board through the usual public communication channels, and thereafter ignored her for a period of time until she agreed to communicate with the Board directly only, and not publically through the media or through communications with other citizens. The claim against Alberta alleged that she relied on Alberta to protect underground water supplies and to responsibly and reasonably respond to any of her complaints; that by October 2004, Alberta knew that EnCana was diverting water from underground aquifers without the required permits from Alberta; and that a number of land owners had made complaints regarding suspected contamination of the Rosebud aquifer by mid-2005. It is alleged that, in late 2005, Ernst contacted Alberta to report her concerns about EnCana's activities. Further, it was alleged that Alberta Environment failed to take any action until March 2006, when it tested the Ernst well and other water wells in the region. The tests allegedly indicated high concentrations of methane, hazardous chemicals and petroleum pollutants. Ernst claimed that Alberta's investigation into the contamination of the Ernst water well was conducted negligently and in bad faith and prevented the Alberta Research Council from conducting an adequate review on the information provided by Alberta. It was alleged that Alberta Environment owed a duty to Ernst to protect her water well from foreseeable contamination caused by drilling for shallow methane gas, that it failed to conduct a reasonable investigation and to take remedial steps to correct damage, and that Alberta breached its duty to Ernst. The Board applied to strike out certain paragraphs of the statement of claim. Alternatively, the Board applied for summary judgment in its favour. In the further alternative, the Board sought better particulars with respect to the impugned paragraphs. It also sought costs of a 2012 application and this application on a full indemnity basis. Alberta applied to strike certain paragraphs, or portions thereof, from the statement of claim. Alternatively, Alberta sought particulars and costs.

The Alberta Court of Queen's Bench allowed the Board's application and dismissed Alberta's application.

Administrative Law - Topic 8852

Boards and tribunals - Capacity or status - Capacity to be sued (incl. immunity) - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - The claim against the Board was that it was negligent in its administration of its statutory regulatory regime, that it failed to respond to Ernst's concerns about water contamination from the EnCana drilling activity, that the Board knew that EnCana had perforated and fractured directly into the Rosebud aquifer, and that it failed to respond - Further, it was alleged that the Board owed a duty to Ernst to take reasonable steps to protect her well water from foreseeable contamination - The Board applied to strike out paragraphs 24 to 41 (allegations of negligence) of the statement of claim, and alternatively, for summary judgment dismissing the negligence claim, on the basis that it was barred by s. 43 of the Energy Resources Conservation Act (ERCA) - Section 43 stated that "[n]o action or proceeding may be brought against the Board or a member of the Board or a person referred to in section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board" - The Alberta Court of Queen's Bench held that s. 43 barred any action or proceeding against the Board, in terms of both its decisions to act and the acts done pursuant to those decisions, and its decision not to act - Therefore, Ernst's negligence claim was barred by s. 43 - The claim was struck and, in the alternative, dismissed - See paragraphs 50 to 58.

Administrative Law - Topic 8852

Boards and tribunals - Capacity or status - Capacity to be sued (incl. immunity) - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - In addition to a negligence claim respecting water contamination, Ernst alleged that, by its conduct, the Board breached s. 2(b) of the Charter by barring Ernst from communicating with the Board through the usual public communication channels, and thereafter ignored her for a period of time until she agreed to communicate with the Board directly only, and not publically through the media or through communications with other citizens - The Board applied to strike out paragraphs 42 to 58 (Charter argument) of the statement of claim, and alternatively, for summary judgment dismissing the Charter claim, on the basis that it was barred by s. 43 of the Energy Resources Conservation Act (ERCA) - Section 43 stated that "[n]o action or proceeding may be brought against the Board or a member of the Board or a person referred to in section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board" - The Alberta Court of Queen's Bench allowed the application - Statutory immunity clauses applied to claims for personal remedies pursuant to the Charter for two reasons - Firstly, the reasons why limitation periods applied to claims for personal remedies under the Charter also applied to statutory immunity clauses because statutory immunity clauses and limitation periods were both legislated bars to what might otherwise be a meritorious claim - Secondly, there were strong policy reasons for the application of immunity clauses to claims for personal remedies under the Charter - Policy considerations were given effect when the merits of a claim for a Charter breach were examined - These policy considerations also applied when determining whether a statutory immunity clause applied - Ernst sought a personal remedy (i.e., damages) for a Charter breach against the Board - Section 43 of the ERCA was an absolute bar to the Ernst claims against the Board - The claim was struck and, in the alternative, dismissed - See paragraphs 59 to 89.

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - In addition to a negligence claim respecting water contamination, Ernst alleged that, by its conduct, the Board breached s. 2(b) of the Charter by barring Ernst from communicating with the Board through the usual public communication channels, and thereafter ignored her for a period of time until she agreed to communicate with the Board directly only, and not publically through the media or through communications with other citizens - The Board applied to strike out paragraphs 42 to 58 (Charter argument) of the statement of claim on the basis that they did not disclose a cause of action - Ernst argued the Charter issues by alleging two forms of breach: first, that the Board violated Ernst's s. 2(b) Charter right by punishing her for criticizing the Board in public and to the media, and second, that Ernst's right to freedom of expression was infringed because she was prohibited and restrained in her communication with the Board - The Alberta Court of Queen's Bench stated that because a cause of action might be novel, it was not necessarily "doomed to fail" by reason of novelty alone - A claim for a Charter breach was based upon the establishment of a right and an infringement of it by the action of a government or government agency - That was what was alleged here and, however novel the claim might be, the court could not say that it was doomed to fail or that the claim did not disclose a cause of action - See paragraphs 31 to 43.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See both Administrative Law - Topic 8852 , Civil Rights - Topic 1863 and Torts - Topic 77 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - The claim against Alberta alleged that she relied on Alberta to protect underground water supplies and to responsibly and reasonably respond to any of her complaints; that by October 2004, Alberta knew that EnCana was diverting water from underground aquifers without the required permits from Alberta; and that a number of land owners had made complaints regarding suspected contamination of the Rosebud aquifer by mid-2005 - It was alleged that, in late 2005, Ernst contacted Alberta to report her concerns about EnCana's activities - Further, it was alleged that Alberta Environment failed to take any action until March 2006, when it tested the Ernst well and other water wells in the region - The tests allegedly indicated high concentrations of methane, hazardous chemicals and petroleum pollutants - Ernst claimed that Alberta's investigation into the contamination of the Ernst water well was conducted negligently and in bad faith and prevented the Alberta Research Council from conducting an adequate review on the information provided by Alberta - It was alleged that Alberta Environment owed a duty to Ernst to protect her water well from foreseeable contamination caused by drilling for shallow methane gas, that it failed to conduct a reasonable investigation and to take remedial steps to correct damage, and that Alberta breached its duty to Ernst - Alberta applied to strike certain paragraphs (64 to 85), or portions thereof, from the statement of claim on the grounds that they were "frivolous, irrelevant and improper", in that they contained flaws falling into five distinct categories - Alberta submitted that Ernst "pleads evidence, pleads argument, asserts irrelevant facts, statements or theories, involves non-parties, and is redundant and unnecessarily prolix" - The Alberta Court of Queen's Bench dismissed the application, stating that "[t]his Court agrees with the substance of most of Ernst's opposition to Alberta's motion. Were this a course on drafting a perfect pleading, it might be said that some of the impugned words or phrases ought to be excised or substituted. In my view, that is not the function of a Case Management Judge. Nothing of substance would turn on such a substitution at this point in the development of the action. Tinkering with pleadings by a Court is not, in this case, useful to the advancement of the action, in accordance with the foundational rules. Therefore, Alberta's application is dismissed. As Alberta itself points out, some of its concerns about the allegations of Ernst may be cured by a request for particulars and the answers given or ordered accordingly. This is a method by which the scope or breadth of disclosure can be properly controlled." - See paragraphs 99 to 130.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - In addition to a negligence claim respecting water contamination, Ernst alleged that, by its conduct, the Board breached s. 2(b) of the Charter by barring Ernst from communicating with the Board through the usual public communication channels, and thereafter ignored her for a period of time until she agreed to communicate with the Board directly only, and not publically through the media or through communications with other citizens - The Board applied for summary judgment dismissing the Charter claim on the grounds that it was filed outside the limitation period - The original statement of claim was filed on December 3, 2007 - The Board asserted that its alleged actions that purported to exclude Ernst from the complaint process took place on or before November 24, 2005 (in a letter sent on that date) - The Alberta Court of Queen's Bench rejected the assertion - Asserting in a pleading as a matter of fact that a letter dated November 24, 2005, crystallized a Charter claim, if any, in favour of Ernst was not the same as alleging that any event occurred with the knowledge of the plaintiff, so as to constitute an admission of fact - There was no admission of fact that Ernst received the letter prior to December 3, 2005, only that the letter was dated prior to then - That was not sufficient proof upon which to ground an order granting summary judgment, assuming that it was an admission of fact constituting a ground for dismissal - See paragraphs 44 to 49.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See both Administrative Law - Topic 8852 and Practice - Topic 5702 ].

Practice - Topic 7027.8

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Where relief unopposed - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - Ernst had filed the original statement of claim on December 3, 2007 and an amended statement of claim on April 21, 2011 - A second amended statement of claim was filed February 7, 2012 - Applications were made by EnCana, the Board and Alberta to strike paragraphs from the second amended statement of claim - In addition, the Board sought summary judgment against Ernst - The applications were returnable April 26 and 27, 2012 and were heard by the case management judge - At the hearing, the judge suggested that Ernst consider redrafting the statement of claim in a manner that complied with the Alberta Rules of Court - Counsel agreed, with the result that a fresh statement of claim was drafted - Thus, the applications returnable April 26 and 27, 2012 did not proceed, and were moot insofar as the second amended statement of claim was concerned - The fresh claim was filed June 25, 2012 - The Board sought costs against Ernst for the April 26, 2012, application on the basis that it was a successful party - The judge "expressed highly negative views regarding the then-existing Statement of Claim and ultimately directed a new Statement of Claim be filed" - Further the Board alleged that the judge directed that Ernst file a new statement of claim "in order to rectify the fundamental flaws and improper context contained" in the previous statement of claim, resulting in the then applications to strike never being heard - The Alberta Court of Queen's Bench dismissed the application for costs - The resolution of the issues on that day were initiated by the judge on her own motion, and were seemingly applauded by all counsel - See paragraphs 91 to 98.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - Ernst sued EnCana Corporation, the Energy Resources Conservation Board and Alberta - The claim against the Board was that it was negligent in its administration of its statutory regulatory regime, that it failed to respond to Ernst's concerns about water contamination from the EnCana drilling activity, that the Board knew that EnCana had perforated and fractured directly into the Rosebud aquifer, and that it failed to respond - Further, it was alleged that the Board owed a duty to Ernst to take reasonable steps to protect her well water from foreseeable contamination - The Board applied to strike out paragraphs 24 to 41 (allegations of negligence) of the statement of claim on the basis that they did not disclose a cause of action - The Alberta Court of Queen's Bench allowed the Board's application - The duties owed by the Board were not private duties - They were public duties - The necessary relationship of proximity between Ernst and the Board was absent - The duties of the Board owed to the public were derived from the Energy Resources Conservation Act (ERCA) - None of the paragraphs elevated the Board's public duties to a private duty owed to Ernst - Whether a private duty arose did not turn on whether an individual did or did not communicate directly with the regulator - Regardless, there was no sufficient proximity to ground a private duty - Nor was there a relationship established between Ernst and the Board outside the statutory regime which created a private duty - Having found no private duty owed and no sufficient proximity to ground a public duty, it was unnecessary to determine whether the harm to Ernst was foreseeable - It was also unnecessary to consider the second part of the Anns test, that is, whether there would be any policy reason, assuming proximity, to impose a private duty - In the result, the court struck the allegations of negligence against the Board contained in paragraphs 24 to 41 - See paragraphs 13 to 30.

Cases Noticed:

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 13].

Roasting v. Lee et al. (1998), 222 A.R. 234; 63 Alta. L.R.(3d) 260 (Q.B. Master), refd to. [para. 13].

First Calgary Savings & Credit Union Ltd. v. Perera Shawnee Ltd. et al., [2011] A.R. Uned. 60; 2011 ABQB 26, refd to. [para. 13].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 13].

B.R.A. et al. v. M.S. et al. (2005), 383 A.R. 264; 2005 ABQB 549, refd to. [para. 13].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 13].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hughes Estate et al. v. Hughes et al. (2006), 396 A.R. 250; 2006 ABQB 159, varied (2007), 417 A.R. 52; 410 W.A.C. 52; 2007 ABCA 277, refd to. [para. 13].

Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corp. et al. (2012), 541 A.R. 1; 2012 ABQB 48, refd to. [para. 13].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 19].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 118; [1977] UKHL 4, refd to. [para. 19].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 19].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 19].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 19].

Nette v. Stiles et al. (2010), 489 A.R. 347; 2010 ABQB 14, refd to. [para. 19].

Burgess v. Canadian National Railway Co. et al., [2005] O.T.C. 947; 78 O.R.(3d) 209 (Sup. Ct.), affd. [2006] O.A.C. Uned. 411; 85 O.R.(3d) 798 (C.A.), leave to appeal refused (2007), 364 N.R. 400; 229 O.A.C. 400 (S.C.C.), refd to. [para. 19].

Smorag v. Nadeau (2008), 461 A.R. 156; 2008 ABQB 714, refd to. [para. 19].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 19].

Condominium Corp. No. 9813678 et al. v. Statesman Corp. et al. (2009), 472 A.R. 33; 2009 ABQB 493, refd to. [para. 19].

Adams et al. v. Borrel et al. (2008), 336 N.B.R.(2d) 223; 862 A.P.R. 223; 297 D.L.R.(4th) 400; 2008 NBCA 62, leave to appeal refused (2009), 395 N.R. 392; 355 N.B.R.(2d) 401; 917 A.P.R. 401 (S.C.C.), refd to. [para. 19].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 19].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201; 2000 SCC 12, refd to. [para. 19].

Manolakos v. Vernon (City) et al., [1989] 2 S.C.R. 1259; 102 N.R. 249, refd to. [para. 19].

Rothfield v. Manolakos - see Manolakos v. Vernon (City) et al.

Heaslip Estate v. Mansfield Ski Club Inc. et al. (2009), 252 O.A.C. 1; 96 O.R.(3d) 401; 2009 ONCA 594, refd to. [para. 19].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 19].

Sauer v. Canada (Attorney General) et al. (2007), 225 O.A.C. 143; 31 B.L.R.(4th) 20; 2007 ONCA 454, refd to. [para. 19].

Winnipeg (City) v. Morguard Properties Ltd. et al., [1983] 2 S.C.R. 493; 50 N.R. 264; 25 Man.R.(2d) 302, refd to. [para. 19].

Tardif Estate et al. v. Wong et al. (2002), 303 A.R. 103; 273 W.A.C. 103; 2002 ABCA 121, refd to. [para. 19].

Marquette (A.) & Fils Inc. v. Mercure, [1977] 1 S.C.R. 547; 10 N.R. 239, refd to. [para. 19].

Encampment Creek Logging Ltd. et al. v. Alberta et al. (2005), 402 A.R. 55; 2005 ABQB 787, refd to. [para. 19].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 19].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 34].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 34].

Ontario (Attorney General) v. Dieleman (1994), 20 O.R.(3d) 229 (Gen. Div.), refd to. [para. 34].

R. v. Breeden (J.L.) (2009), 277 B.C.A.C. 164; 469 W.A.C. 164; 2009 BCCA 463, leave to appeal refused (2010), 407 N.R. 386; 294 B.C.A.C. 320; 498 W.A.C. 320 (S.C.C.), refd to. [para. 34].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 34].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Public Service Alliance of Canada et al. v. Canada (2001), 209 F.T.R. 306; 2001 FCT 890, refd to. [para. 34].

Pacific Press v. British Columbia (Attorney General) et al., [1998] B.C.T.C. Uned. 63; 52 B.C.L.R.(3d) 197 (S.C.), affd. (1998), 118 B.C.A.C. 150; 192 W.A.C. 150; 61 B.C.L.R.(3d) 377 (C.A.), leave to appeal refused (1999), 242 N.R. 200; 131 B.C.A.C. 5; 214 W.A.C. 5 (S.C.C.), refd to. [para. 34].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 34].

Haydon v. Canada et al., [2001] 2 F.C. 82; 192 F.T.R. 161 (T.D.), refd to. [para. 34].

Pridgen v. University of Calgary (2010), 497 A.R. 219; 2010 ABQB 644, affd. (2012), 524 A.R. 251; 545 W.A.C. 251; 2012 ABCA 139, refd to. [para. 34].

R. v. Watson (G.S.) et al. (2008), 258 B.C.A.C. 297; 434 W.A.C. 297; 83 B.C.L.R.(4th) 243; 2008 BCCA 340, leave to appeal refused (2009), 399 N.R. 394; 285 B.C.A.C. 320; 482 W.A.C. 320 (S.C.C.), refd to. [para. 34].

Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al. (2009), 457 A.R. 297; 457 W.A.C. 297; 2009 ABCA 239, revd. [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 34].

Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development) - see Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 34].

Borchers v. Kulak et al. (2009), 479 A.R. 136; 2009 ABQB 457, refd to. [para. 45].

Ravndahl v. Saskatchewan et al., [2009] 1 S.C.R. 181; 383 N.R. 247; 320 Sask.R. 305; 444 W.A.C. 305; 2009 SCC 7, refd to. [para. 45].

Prete v. Ontario et al. (1993), 68 O.A.C. 1; 16 O.R.(3d) 161 (C.A.), leave to appeal dismissed [1994] 1 S.C.R. x; 175 N.R. 322; 72 O.A.C. 160, dist. [para. 60].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 62].

Alexis v. Darnley et al. (2009), 259 O.A.C. 148; 100 O.R.(3d) 232; 2009 ONCA 847, leave to appeal refused (2010), 407 N.R. 397; 271 O.A.C. 399 (S.C.C.), refd to. [para. 66].

Garry et al. v. Canada (Minister of Justice) et al. (2007), 429 A.R. 292; 421 W.A.C. 292; 2007 ABCA 234, leave to appeal denied [2008] 1 S.C.R. viii, refd to. [para. 67].

Manitoba Métis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 355 D.L.R.(4th) 577; 2013 SCC 14, refd to. [para. 70].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 75].

British Columbia Power Corp. v. British Columbia Electric Co., [1962] S.C.R. 642, refd to. [para. 76].

Alberta v. Kingsway General Insurance Co. (2005), 53 Alta. L.R.(4th) 147; 2005 ABQB 662, refd to. [para. 77].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 84].

Mikisew Cree First Nation v. Canada et al. (1997), 214 A.R. 194 (Q.B.), refd to. [para. 104].

K. v. E.K. (2004), 362 A.R. 195; 2004 ABQB 159, refd to. [para. 104].

A.J.G. v. Alberta et al. (2006), 402 A.R. 340; 2006 ABQB 446, refd to. [para. 104].

Touche Ross Ltd. et al. v. McCardle et al. (1987), 66 Nfld. & P.E.I.R. 257; 204 A.P.R. 257 (P.E.I. Gen. Div.), refd to. [para. 106].

Guccione v. Bell et al. (1999), 239 A.R. 277; 1999 ABQB 219, affd. (2001), 299 A.R. 192; 266 W.A.C. 192; 2001 ABCA 265, refd to. [para. 106].

Murphy v. Kenting Drilling Co. (1996), 190 A.R. 77 (Q.B. Master), refd to. [para. 106].

Statutes Noticed:

Energy Resources Conservation Act, R.S.A. 2000, c. E-10, sect. 43 [para. 50].

Authors and Works Noticed:

Hogg, Peter W., Monahan, Patrick J., and Wright, Wade K., Liability of the Crown (4th Ed. 2011), generally [para. 19]; pp. 242, 243 [para. 22].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2010), vol. 1, pp. 3-100, 3-101 [paras. 128, 129].

Counsel:

M. Klippenstein and C. Wanless, for the plaintiff, Jessica Ernst;

P.M. Bychawski and T.D. Gelbman, for the defendant, EnCana Corporation;

G.S. Solomon, Q.C., and C.J. Elliot, for the defendant, Energy Resources Conservation Board;

N.A. McCurdy, for the defendant, Her Majesty the Queen in Right of Alberta.

These applications were heard on January 18, 2013, by Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Hanna/Drumheller, who delivered the following reasons for judgment on September 16, 2013.