Alberta’s Court of Queen’s Bench has ruled that the Energy Resources Conservation Board (ERCB) has statutory immunity to a claim by a landowner that it was negligent in protecting the landowner’s water supply from hydraulic fracturing. The ERCB, or the Alberta Energy Regulator as it is now known, is responsible for regulating Alberta’s oil and gas industry.

Jessica Ernst, an activist well known in Canada for opposing hydraulic fracturing, alleged that between 2001 and 2006 oil and gas company undertook shallow drilling to extract coal bed methane and, in doing so, used hydraulic fracturing, which included the use of toxic chemicals resulting in contamination of a local aquifer and Ernst’s water well. Ernst brought her suit against the ERCB, the Province of Alberta and the company.

The claim against the ERCB alleges that the ERCB was negligent in that it failed to respond to Ernst’s concern about water contamination from the drilling, that it knew that the oil and gas company had drilled into and fractured the aquifer from which she withdrew her drinking water and that it failed to take reasonable steps to protect her water supply.

The claim also alleged that, by its conduct, the ERCB breached the Canadian Charter of Rights and Freedoms by barring Ernst from communicating with the ERCB through the usual public channels, and thereafter ignored her for a period of time until she agreed to communicate with the ERCB directly only, and not publically through the media or through communications with other citizens.

The ERCB applied for Summary Judgment dismissing the case against it. 

The Court found that the ERCB did not owe Ernst a private duty of care in the circumstances of this case but did owe her a public duty derived from the Energy Resources Conservation Act (ERC Act).

However, as section 43 of the ERC Act expressly provides that no proceedings may be brought against the ERCB in respect of any act or thing done by it under the ERC Act, the Court ordered the allegations of negligence against the ERCB in the Statement of Claim struck out.

Although the Court found Ernst’s Charter claim as “novel” and “not necessarily doomed to failure”, it felt that the ERC Act also provided immunity to the ERCB from personal claims for damages under the Charter. It felt that otherwise, aggrieved parties would come to the litigation process dressed in their Charter clothes whenever possible.

This post was written by Alan Harvie ( or +1 403.267.9411) from Norton Rose Fulbright’s Calgary Energy Practice Group.