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Supreme Court Rejects Argument to Dismiss Landmark Fracking Case

Supreme Court Rejects Argument to Dismiss Landmark Fracking Case

Jessica Ernst’s charter claim hearing slated for 2016.

The Supreme Court of Canada has rejected a motion by the country’s most powerful energy regulator that Jessica Ernst’s case involving fracking and groundwater contamination raises no significant constitutional claim and should be dismissed.

Chief Justice Beverley McLachlin ruled that the case raised a significant constitutional question on whether or not an “immunity clause” in the regulator’s legislation placed it above the Charter of Rights and Freedoms.

Is the regulator’s immunity clause, asked McLachlin in her June 25th ruling “constitutionally inapplicable or inoperable to the extent that it bars a claim against the regulator for a breach of” the Charter of Rights and Freedoms?

But Glenn Solomon, counsel for the Alberta Energy Regulator, argued in submissions to the court that “no constitutional question should be stated in the present matter.”

After the Supreme Court agreed to hear the charter case last April, it required lawyers representing Jessica Ernst to clearly state the question and Solomon to agree on the wording.

But Solomon told Ernst’s lawyers that “We will not be able to agree on a constitutional question.”


The Alberta Energy Regulator’s obstruction cost Ernst more time and money, but she is satisfied with McLachlin’s ruling and definition of the final constitutional question.

“If energy regulators can violate our charter rights, there will be no protection for citizens living in areas where industry is fracking for hydrocarbons,” Ernst told The Tyee.

Fracking damage alleged

Hydraulic fracturing, a technology described by industry as a combination of “brute force and ignorance,” injects highly pressurized fluids into shallow and deep formations with the goal of splitting open rock as dense as concrete to release small amounts of oil and gas over vast distances.

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