Ernst v. EnCana Corp. et al.,

• Judge: Wittmann
• Neutral Citation: 2014 ABQB 672
• Subject Matter: COURTS,PRACTICE,TORTS,CROWN
• Citation: (2014), 598 A.R. 331 (QB),2014 ABQB 672,598 AR 331,(2014), 598 AR 331 (QB),598 A.R. 331
• Date: 16 April 2014
• Court: Court of Queen's Bench of Alberta (Canada)

Ernst v. EnCana Corp. (2014), 598 A.R. 331 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.089

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

(0702 00120; 2014 ABQB 672)

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

Alberta Court of Queen's Bench

Judicial District of Drumheller

Wittmann, C.J.Q.B.

November 7, 2014.

Summary:

The plaintiff (Ernst), who lived near Rosebud, Alberta, sued EnCana Corp., the Energy Resources Conservation Board (ERCB), and Her Majesty the Queen in Right of Alberta (specifically Alberta Environment), claiming that EnCana contaminated her well water and the Rosebud aquifer, which was the source of fresh water for her home. Ernst claimed that EnCana caused this damage through contamination from hazardous and toxic chemicals used for hydraulic fracturing from 2001 to 2006. Her claim against EnCana included negligence, nuisance, the rule in Rylands v. Fletcher, and trespass. Ernst claimed that the ERCB and Alberta Environment failed to properly investigate and remediate the contamination. She claimed that Alberta Environment was negligent in its administration of the environmental regulatory regime, failed to properly monitor and regulate EnCana's activities, and conducted a negligent investigation into the contamination of her well water, even as land owners complained of suspected water contamination. Ernst claimed that the ERCB was negligent in administering its statutory regime, and failed to respond to her concerns about her well water. She also alleged a breach of her s. 2(b) Charter rights, because the ERCB barred her from communicating with them through the usual public communication channels. The ERCB applied to have the claims against it struck and Alberta applied to strike certain paragraphs in the statement of claim.

The Alberta Court of Queen's Bench, in a decision reported 570 A.R. 317, allowed the application and struck and dismissed the plaintiff's claims against the ERCB. The court dismissed Alberta's application. The plaintiff appealed.

The Alberta Court of Appeal, in a decision reported (2014), 580 A.R. 341; 620 W.A.C. 341, dismissed the appeal. Alberta then applied to strike all paragraphs of plaintiff's statement of claim containing allegations against it on the basis that it failed to disclose a reasonable cause of action. In the alternative, Alberta requested summary judgment dismissing the action as against it on the basis that there is no merit to the plaintiff's claim against it. Neither EnCana nor the ERCB participated in the application.

The Alberta Court of Queen's Bench dismissed both Alberta's application to strike and the request for summary judgment.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Practice - Topic 2205 ].

Crown - Topic 1561

Torts by and against Crown - Negligence by Crown - General - [See second Practice - Topic 2230 ].

Crown - Topic 1604

Torts by and against Crown - Actions against Crown - Public authority protection legislation - Persons or acts protected - [See Practice - Topic 2233 ].

Practice - Topic 2205

Pleadings - Striking out pleadings - Application for - How made - The defendant tried unsuccessfully to have portions of the plaintiff's statement of claim struck - The defendant then applied to strike different portions of the pleading and under a different subrule - The plaintiff alleged abuse of process - The Alberta Court of Queen's Bench held that the second application was not an abuse of process but would consider the failure to bring the applications together when deciding on costs - There was no absolute rule governing the order in which a party could attack the opposing party's pleadings, although it was usually most convenient to bring all attacks at once - Multiple attacks on the same pleading should be discouraged; however, there might be circumstances where there was an explanation for multiple attacks - A meritorious application to strike a pleading should not be rejected simply because of a prior application - See paragraphs 20 to 23.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Rule 3.68(2)(b) of the Alberta Rules of Court provided that a court could strike a claim where the pleading disclosed no reasonable claim or defence - The Alberta Court of Queen's Bench reviewed the test on an application to strike, noting that the test had evolved from a determination as to whether it was "plain and obvious" that the claim was "certain to fail because it contained a radical defect" to whether there was any reasonable prospect that the claim could succeed, erring on the side of generosity in permitting novel claims to proceed - The court noted that no evidence was admitted on such an application and the court was to take the alleged facts as true - See paragraphs 24 to 30.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff claimed that her well water was contaminated from a hydraulic fracturing operation - She sued the Province of Alberta, alleging that Alberta (specifically, Alberta Environment) negligently administered its environmental regulatory regime - Alberta applied to strike the claim, arguing that the plaintiff had no reasonable cause of action because Alberta did not owe a private duty of care to the plaintiff - The Alberta Court of Queen's Bench reviewed the approach for assessing whether to impose a duty of care on a public authority - Applying that approach, the court held that while the claim was novel, there was a reasonable prospect that the plaintiff could succeed in establishing that Alberta owed her a prima facie duty of care - Further, the court was not satisfied that there were residual policy concerns that would negate a duty of care - Alberta failed to satisfy the test for striking the allegations against it on the basis that it could not owe a private law duty to the plaintiff - See paragraphs 31 to 56.

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - The plaintiff claimed that her well water was contaminated from a hydraulic fracturing operation - She sued the Province of Alberta, alleging that Alberta (specifically, Alberta Environment) negligently administered its environmental regulatory regime - Alberta applied to strike the claim, arguing that Alberta had statutory immunity under the Water Act (s. 60) and the Environmental Protection and Enhancement Act (s. 220) - The Alberta Court of Queen's Bench held that the provisions in issue applied to individuals acting under the Acts, but did not extend to any actions or proceedings brought against Alberta - Alternatively, the plaintiff alleged bad faith, and the statutes only provided protection for actions taken in good faith - Therefore, the court was satisfied that there was a reasonable prospect that the plaintiff's claim could succeed on the issue of statutory immunity - See paragraphs 57 to 71.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Practice - Topic 5710 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - Alberta (defendant) applied for summary judgment dismissing the plaintiff's action for want of merit - However, Alberta did not file affidavit evidence as required by rule 7.3(2) of the Rules of Court, relying on the statement of claim and legislation to support its application - The plaintiff claimed that Alberta had to file affidavit evidence - The Alberta Court of Queen's Bench dismissed the summary judgment application - Rule 7.3(2) required affidavit or other evidence addressing the factual grounds - To succeed on a summary judgment application, the court had to have sufficient facts when taken with the record to determine if the test for summary judgment had been met - Alberta's failure to file an affidavit and the absence of "other evidence" as required under rule 7.3(2) was fatal to its application for summary judgment in the context of this application - Alternatively, the court opined that Alberta had not satisfied the court that the plaintiff's claim against it could be disposed of by way of summary judgment - See paragraphs 74 to 97.

Practice - Topic 7767

Costs - Special orders - Abuse of process - [See Practice - Topic 2205 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See second Practice - Topic 2230 ].

Torts - Topic 9165.2

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Environmental authorities - [See second Practice - Topic 2230 ].

Cases Noticed:

Alexander et al. v. Pacific Trans-Ocean Resources Ltd. et al. (1991), 120 A.R. 22; 8 W.A.C. 22 (C.A.), refd to. [para. 22].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 25].

Olson Lemons LLP et al. v. Kearl et al., [2012] A.R. Uned. 155; 2012 ABQB 95, refd to. [para. 26].

Alberta Adolescent Recovery Centre v. Canadian Broadcasting Corp. et al. (2012), 541 A.R. 1; 2012 ABQB 48, refd to. [para. 27].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 27].

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. 28].

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. 34].

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 All E.R. 118; [1977] UKHL 4, refd to. [para. 35].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 35].

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. 35].

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

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. 35].

Elder Advocates of Alberta Society et al. v. Alberta (2012), 539 A.R. 251; 561 W.A.C. 251; 2012 ABCA 355, refd to. [para. 44].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), refd to. [para. 46].

Holtslag v. Alberta (2006), 380 A.R. 133; 363 W.A.C. 133; 2006 ABCA 51, leave to appeal refused (2006), 359 N.R. 393; 412 A.R. 394; 404 W.A.C. 394 (S.C.C.), refd to. [para. 46].

Nette v. Stiles et al. (2010), 489 A.R. 347; 2010 ABQB 14, refd to. [para. 46].

Taylor v. Canada (Attorney General) (2012), 293 O.A.C. 312; 111 O.R.(3d) 161; 2012 ONCA 479, refd to. [para. 46].

Adams et al. v. Borrel et al. (2008), 336 N.B.R.(2d) 223; 862 A.P.R. 223; 2008 NBCA 62, refd to. [para. 46].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 46].

River Valley Poultry Farm Ltd. v. Canada (Attorney General) et al. (2009), 248 O.A.C. 222; 2009 ONCA 326, refd to. [para. 46].

Manolakos v. Vernon (City), [1989] 2 S.C.R. 1259; 102 N.R. 249, refd to. [para. 46].

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

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. 46].

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. 46].

Haskett v. Trans Union of Canada Inc. et al. (2003), 169 O.A.C. 201; 63 O.R.(3d) 577 (C.A.), refd to. [para. 55].

R. v. Dudley (K.L.) (2008), 425 A.R. 280; 418 W.A.C. 280; 2008 ABCA 73, affd. (2009), 396 N.R. 299; 469 A.R. 198; 470 W.A.C. 198; 2009 SCC 58, refd to. [para. 63].

Smorag v. Nadeau (2008), 461 A.R. 156; 2008 ABQB 714, refd to. [para. 64].

Minister of National Revenue v. Stanchfield (2009), 340 F.T.R. 150; 2009 FC 99, refd to. [para. 66].

Edwards et al. v. Law Society of Upper Canada et al. (2000), 133 O.A.C. 286; 48 O.R.(3d) 329 (C.A.), refd to. [para. 70].

Terrigno v. Kretschmer et al., [2012] A.R. Uned. 826; 2012 ABQB 750, refd to. [para. 75].

Environmental Metal Works Ltd. v. Murray, Faber & Associates Inc. et al. (2013), 568 A.R. 198; 2013 ABQB 479, refd to. [para. 76].

Gauchier v. Cunningham, [2013] A.R. Uned. 550; 2013 ABQB 493, refd to. [para. 77].

Jackson v. Canadian National Railway Co. et al. (2013), 566 A.R. 247; 597 W.A.C. 247; 2013 ABCA 440, dist. [para. 79].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 87].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 94 Alta. L.R.(5th) 301; 2014 ABCA 108, refd to. [para. 88].

Canadian Natural Resources Ltd. v. ShawCor Ltd. et al. (2014), 580 A.R. 265; 620 W.A.C. 265; 2014 ABCA 289, refd to. [para. 89].

O'Hanlon Paving Ltd. v. Serengetti Developments Ltd. et al. (2013), 567 A.R. 140; 2013 ABQB 428, refd to. [para. 90].

Orr v. Fort McKay First Nation (2014), 587 A.R. 16; 2014 ABQB 111, refd to. [para. 90].

Access Mortgage Corp. (2004) Ltd. v. Arres Capital Inc. (2014), 584 A.R. 68; 623 W.A.C. 68; 2014 ABCA 280, refd to. [para. 90].

Can v. Calgary Chief of Police et al. (2014), 584 A.R. 147; 623 W.A.C. 147; 2014 ABCA 322, refd to. [para. 91].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 81 (Q.B.), refd to. [para. 98].

Statutes Noticed:

Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, sect. 220 [para. 58].

Rules of Court (Alta.), rule 3.68(1)(a), rule 3.68(2)(b) [para. 24]; rule 7.3(2) [para. 74].

Water Act, R.S.A. 2000, c. W-3, sect. 157 [para. 60].

Counsel:

Murray Klippenstein and W. Cory Wanless (Klippensteins), for the respondent, Jessica Ernst;

Neil Boyle and Nancy McCurdy (Alberta Justice), for the applicant, Her Majesty the Queen in Right of Alberta.

This case was heard on April 16, 2014, before Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Drumheller, who delivered the following reasons for judgment on November 7, 2014.