A very important decision by the Supreme Court has just been rendered. A person in Alberta was advocating that her charter Rights under the Constitution were being violated by the Provincial Energy Regulator as it pertained to fracking activities which were claimed to damage her property. Interestingly, it was a close decision 5 to 4 , with the Chief Justice voting against the majority decision.
Here is part of the decision from the Court:
‘The Court ruled other judicial remedies were available and that provincial legislated immunity provisions applied.
Charter damages may vindicate Charter rights, provide compensation and deter future violations. But awarding damages may also inhibit effective government, and remedies other than damages may provide substantial redress without having a broader adverse impact. Section 24(1) of the Charter confers on the courts a broad remedial authority. But this does not mean that Charter breaches should always, or even routinely, be remedied by damages. The leading case about when Charter damages are an appropriate and just remedy is Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28. If damages would further one or more of the objectives of compensation, vindication and deterrence, it is open to the state to raise countervailing factors to establish that damages are not an appropriate and just remedy. In the present case, when such countervailing factors are considered collectively, they negate the appropriateness of an otherwise functionally justified award of Charter damages against the Board.
First, there is an alternative and more effective remedy for Charter breaches by the Board. Judicial review of the Board’s decisions has the potential to provide prompt vindication of E’s Charter rights, to provide effective relief in relation to the Board’s conduct in the future, to reduce the extent of any damage flowing from the breach, and to provide legal clarity to help prevent any future breach of a similar nature. Further, the statutory immunity clause here cannot bar access to judicial review.
Second, good governance concerns are also engaged, as granting damages would undermine the effectiveness of the Board and inhibit effective governance. Private law thresholds and defences may offer guidance about when Charter damages may be an appropriate remedy. The policy reasons considered capable of negating a prima facie duty of care under the private law of negligence have included (i) excessive demands on resources, (ii) the potential chilling effect on the behaviour of the state actor, and (iii) protection of quasi‑judicial decision making. The same policy considerations weigh heavily here. The Board has the public duty of balancing several potentially competing rights, interests and objectives, and balancing public and private interests in the execution of its quasi‑judicial duties. The jurisprudence cautions against attempting to segment the functions of a quasi‑judicial regulatory board such as this one into adjudicative and regulatory activity for the purposes of considering whether its actions should give rise to liability. And the policy reasons that have led legislatures across Canada to enact many statutory immunity clauses, like the one in this case, may also inform the analysis of countervailing considerations relating to good governance. Overall, opening the Board to damages claims could deplete the Board’s resources, distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions.
Finally, to determine the appropriateness of Charter damages against this type of board on a case‑by‑case basis in a highly factual and contextual manner would largely undermine the purposes served by an immunity. Not every bare allegation claiming Charter damages must proceed to an individualized, case‑by‑case consideration on its particular merits. Immunity is easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statement of claim can call into question a decision‑maker’s conduct. Even qualified immunity undermines the decision‑maker’s ability to act impartially and independently, as the mere threat of litigation, achieved by artful pleadings, will require the decision‑maker to engage with claims brought against him or her.’