Jessica Ernst's claim against Alberta Environment and Sustainable Resource Development ("Alberta Environment") for negligently carrying out its regulatory regime will be allowed to proceed after the Alberta Court of Queen's Bench dismissed the public body's application to strike in a decision dated November 7, 2014.
Ernst is suing EnCana Corporation and Alberta Environment, claiming that EnCana's hydraulic fracturing activities and Alberta Environment's failure to properly monitor and regulate those activities led to the contamination of her water well and the Rosebud aquifer, which is the source of fresh water for her home. Additionally, she alleges that Alberta Environment conducted a negligent investigation into the contamination of her water well during a period in which she and other landowners complained of suspected water contamination.
Alberta Environment brought an application to strike the claim, arguing that it did not owe Ernst a private duty of care. It also applied for summary judgment. Both applications were dismissed.
The court found that Ernst had direct contact with Alberta Environment and that Alberta Environment made specific representations to her regarding her well water, and so the test for a sufficiently proximate relationship could be met. If Ernst's allegations regarding contamination by hydraulic fracturing were proven, she could establish foreseeable harm.
In its application, Alberta Environment argued that a private duty of care would conflict with the public interest inherent in its regulatory statutes and would expose it to indeterminate liability. The court rejected both these arguments, stating that "a finding that there is a duty of care does not necessarily lead to liability – there must be a breach of that duty and the breach must cause the damage complained of" (para. 54). As such, the door is open for claims based in a private duty of care against a public regulatory body.
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