3.68: Court options to deal with significant deficiencies

Case Summary

The Alberta Energy Regulator (“AER”) and Energy Resources Conservation Board (“ERCB”) applied to strike the Plaintiffs’ Claim on the basis that it did not disclose a private duty of care owed by the regulators to the Plaintiffs, and that the Claim was barred by section 27 of the Responsible Energy Development Act, SA 2012 c R-17.3 (“REDA”).

MacLeod J. held that the pleadings did not disclose a private duty of care. His Lordship explained that the test for striking pleadings for setting out no cause of action under Rule 3.68(2)(b) is “whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed”. MacLeod J. noted that Alberta Courts have previously found that both the AER and ERCB do not owe a private duty of care to individuals, that there was no proximity between the Plaintiffs and the Respondent Regulators, and that REDA contemplates the public interest, rather than the individual interests of the Plaintiffs. MacLeod J. therefore held that there was no reasonable prospect that the Claim could succeed.

Alternatively, His Lordship found that the Claim was bound to fail due to section 27 of the REDA, which bars proceedings against the AER and its affiliates “in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment”. The Application to strike the Claim was therefore allowed.

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