The Plaintiff, Ernst, brought an Action against EnCana Corporation (“EnCana”), the Energy Resources Conservation Board (the “ERCB”) and Her Majesty the Queen in Right of Alberta (“Alberta”) in respect of alleged damage to the water well and aquifer that supplied fresh water to her home near Rosebud, Alberta. Ernst claimed that the ERCB was negligent in its administration of its statutory regime with respect to EnCana’s drilling activity, and that the ERCB owed her a private duty to take reasonable steps to protect her well water from contamination. Ernst further alleged that the ERCB breached s. 2(b) of the Canadian Charter of Rights and Freedoms by barring her from communicating with the ERCB through the usual public channels. The claim against Alberta related to Alberta Environment & Sustainable Resource Development (“Alberta Environment”). Ernst claimed that she relied on Alberta Environment to protect underground water supplies and to reasonably respond to complaints. Ernst alleged that Alberta Environment responded to her complaints negligently and in bad faith. Ernst further alleged that Alberta Environment owed her a duty to protect her water well from foreseeable contamination caused by the EnCana drilling.

Ernst filed a Statement of Claim in December 2007, and an Amended Statement of Claim on April 21, 2011. A Second Amended Statement of Claim was filed on February 7, 2012. Applications were made by all of the Defendants to strike certain paragraphs from the Second Amended Statement of Claim. The ERCB also sought Summary Judgment against Ernst. When the Applications were heard in April 2012, the Case Management Judge suggested that Ernst redraft the Second Amended Statement of Claim in a manner that complied with the Rules of Court. A fresh Statement of Claim was drafted.

The fresh Statement of Claim was filed on June 25, 2012. The ERCB and Alberta brought Applications in respect of the fresh Claim. The ERCB requested an Order striking certain paragraphs of the Claim or, in the alternative, granting Summary Judgment in favour of the ERCB. In the further alternative, the ERCB requested better particulars with respect to certain paragraphs in the fresh Claim, Costs of the April 2012 Application, and Costs of the present Application. Alberta sought an Order striking certain paragraphs or portions thereof from the Claim or, in the alternative, for Particulars and Costs.

The paragraphs the ERCB sought to have struck from the fresh Claim related to negligence claims against the ERCB and to the Charter. Pursuant to Rule 3.68, a Claim may be struck if it is plain and obvious that the pleading does not disclose a reasonable cause of action. With respect to Ernst’s negligence Claims, the ERCB argued that it, as a statutory body, did not owe Ernst a private duty of care. In the absence of a duty of care, there could be no action in negligence. The ERCB also relied on s. 43 of the Energy Resources Conversation Act (ERCA), a statutory immunity clause in favour of the ERCB. Ernst argued that the ERCB owed her a private duty of care, and that the statutory immunity clause in the ERCA, properly interpreted, did not provide immunity to the ERCB in respect of her Claim.

Wittmann C.J. held that the duties owed by the ERCB were not private duties, but duties owed to the public at large. None of the paragraphs in the fresh Claim elevated the ERCB’s public duties to a private duty owed to Ernst in particular. As such, Wittmann C.J. held that there was no sufficient proximity to ground a private duty of care. Wittmann C.J. held that the allegations of negligence against the ERCB in the fresh Statement of Claim should be struck.

The arguments respecting s. 2(b) of the Charter related to a reference Ernst had made about Wiebo Ludwig. The ERCB argued that Charter protection of free expression did not extend to situations involving threats or acts of violence. The ERCB argued that the Wiebo Ludwig comment was significant in the context of numerous violent acts of eco-terrorism against oil and gas development in Alberta and, as such, it was required to take such threats seriously. The ERCB further argued that Ernst continued to contact the ERCB after it ceased communications with her and, as such, her Claim related to the ERCB’s failure to respond to her communications. The ERCB argued that s. 2(b) of the Charter only guarantees a right to free expression, and not a right to be listened to. Ernst alleged that the ERCB used the Wiebo Ludwig comment as an excuse to prohibit her from communicating with the ERCB through the ordinary channels for public communication. Ernst argued that her Charter rights were breached in that the ERCB punished her for criticizing the ERCB, and in that she was restrained in her communication with the ERCB. Wittmann C.J. held that a Claim is not doomed to fail simply because it is novel. Wittmann C.J. held that the ERCB led no evidence with respect to the Wiebo Ludwig eco-terrorism Claim, and therefore could not rely on this argument. As such, it could not be said that the Charter Claim was doomed to fail or that it did not disclose a cause of action.

The ERCB also made a limitations argument with respect to Ernst’s Charter Claim. The ERCB argued that Summary Judgment could be granted if a Claim was filed outside the limitation period. While there was no Affidavit evidence in support of this Application, the ERCB argued that the fresh Claim itself demonstrated that the Charter Claim was brought out of time. The ERCB further argued that the Summary Judgment Rule provides that Judgment may be given at any time in an Action when admissions of fact are made in a pleading. Further, while Rule 7.3(2) provides that an Application for Summary Judgment must be supported by Affidavit evidence, the Rule also provides that an Application for Summary Judgment may be supported by other evidence to the effect that the grounds have been met. The other evidence referenced in Rule 7.3(2) included admissions of fact in the pleadings. Ernst argued that the ERCB had not proven the test for demonstrating that a limitation period had expired, on the facts, as provided under the Limitations Act. Wittmann C.J. agreed, and held that there was insufficient proof upon which to ground Summary Judgment.

The ERCB further argued that the statutory immunity clause in s. 43 of the ERCA was an absolute bar to the Ernst Claims against it. Ernst argued that s. 43 could not bar her Claim on the basis that it did not cover omissions. Wittmann C.J. held that s. 43 bars any actions or proceedings against the ERCB both in terms of its decisions to act and its decisions not to act. As such, even if it was found that the ERCB owed a private duty of care to Ernst sufficient to establish a tort claim, that claim would have been barred by s. 43 of the ERCA. With respect to Ernst’s constitutional arguments, Wittmann C.J. held that the statutory immunity clause applied to claims for personal remedies pursuant to the Charter. As such, s. 43 of the ERCA was an absolute bar to Ernst’s claims against the ERCB, and the claims were struck or, in the alternative, dismissed.

With respect to Costs, the ERCB argued that it was a successful Party at the Application returnable April 2012. The Case Management Judge expressed negative views regarding the Second Amended Statement of Claim and ultimately directed that a new Statement of Claim be filed. Wittmann C.J. held that, at the April 2012 Application, the Case Management Judge found that she had the authority to order amendments pursuant to Rule 3.68, and it was on that basis that she recommended that the Statement of Claim be redrafted. Wittmann C.J. declined to award any Costs for the April 2012 Applications on the basis that the issues determined that day were initiated by the Case Management Judge on her own motion and were approved of by all Counsel.

Alberta sought an Order striking certain paragraphs of the fresh Claim or, in the alternative, Particulars and Costs. Alberta argued that a number of paragraphs in the fresh Statement of Claim were frivolous, irrelevant or improper. Rules 13.6(1)(a) and 13.6(2)(a) require that only relevant matters of fact upon which a Party relies, but not the evidence to prove those facts, should be pleaded. Further, a pleading must be succinct. Rule 13.6(3) requires a Party to state any matter relied upon which may take another Party by surprise. Pursuant to Rule 3.68, the Court may strike out all or any part of a Claim on the ground that a commencement document is frivolous, irrelevant, or improper. Alberta argued that pleadings are not intended to be prolix and must not go beyond a summary of the facts or be argumentative. Ernst argued that the essence of a properly drawn pleading is clarity and disclosure, and that the burden with respect to striking out pleadings is extremely onerous and high. It must be plain and obvious that the facts as pleaded, which must be assumed to be true, do not disclose a reasonable cause of action. Wittmann C.J. held that while some of the impugned words or phrases ought to be excised or substituted, that was not the function of the Case Management Judge. Tinkering with the pleadings by the Court would not be useful to the advancement of the Action, and therefore would be contradictory to the Foundational Rules. As such, Alberta’s Application was dismissed.