January 25, 2017
Open Letter to Chief Justice Beverley McLachlin
C/O Canadian Judicial Council
Ottawa, Ontario K1A 0W8
Dear Chief Justice Beverley McLachlin,
Re: January 13, 2017 Ernst vs AER Supreme Court of Canada Judgement by Justice Rosalie Abella
I write to bring to your attention a concerning matter regarding Justice Abella’s reasons in the above decision.
I have followed Justice Abella’s remarkable career for a long time, watching her gently and caringly uphold our Charter; I have always had great respect and admiration for her and her work. So it stuns me that in her above decision in describing why I was banished by the Alberta Energy and Utilities Board (EUB, now AER), Justice Abella labels me a “vexatious litigant” and attributes it to the regulator:
“When the Board made the decision to stop communicating with E, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enabling legislation.” (para. 64)
I was no such thing. I was a landowner suffering endless sleepless nights because of Encana’s many unattenuated compressors near my home. I was the subject of lies and bullying by the company and regulator. I tried to get the EUB to engage honestly and respectfully with me and others impacted in my community, to enforce the regulations and appropriately address Encana’s non-compliances. I studied Encana’s noise assessments and the regulator’s deregulation; I documented their fraudulent and outright misrepresentations. Many in my community raised concerns. When we asked Encana if there was frac’ing in our community, we were told no (two years later, I found out Encana had already by that time repeatedly fractured into our drinking water aquifers).
I was not a “litigant” at that time, so it was impossible for me to be a “vexatious” one.
Later in her judgement, Justice Abella acknowledges in fact I was not a litigant:
“Rather than seeking judicial review of the Board’s decision to stop communicating with her when she was first informed of this in November 2005, Ms. Ernst waited two years and then filed a statement of claim on December 3, 2007….” (para. 84)
It is disheartening to me that Justice Abella believes I spent two years just waiting and “chose not to” (para. 129) seek judicial review. During that time, I ran my business, tried to find legal counsel willing to help, helped hundreds of impacted citizens, and researched the frac impacts that were besieging my home and community – including the water and energy regulators covering-up that Encana had broken the law and fractured our drinking water aquifers, keeping it secret from those of us living in explosive risk in our homes.
The day I received Mr. Jim Reid’s November 24, 2005 banishment letter, I immediately sought legal advice. An Alberta lawyer sent me a copy of ERCA Section 43 and told me he would not help me, except to apologize or take the issue public. I was shocked. I have lived much of my life with our Charter of Rights and Freedoms, which I love and respect deeply. I knew then, as I know now, that my Charter rights had been violated and I had the right to seek remedy, but it took me nearly two stress-filled years to find a law firm willing to help.
It is a serious finding when a court declares a claimant to be a “vexatious litigant,” resulting in the claimant being restricted or having no further access to the courts. In my understanding, Canadian energy regulators do not have the legal authority to find and declare citizens to be “vexatious litigants,” especially when those citizens are not litigants. The fact is, in 2005 the EUB judged me a criminal, not a “vexatious litigant,” and punished me without due process and without any evidence. To this day, the regulator has never filed a motion in any court accusing me of being a “vexatious litigant.” None of the defendants in my case have.
In Justice Abella’s ruling, I have now been labelled a “vexatious litigant” attributed to the regulator, also without due process and without any evidence. I find this exceedingly shocking and thoroughly unsettling.
I note that Justices Cromwell, Karakatsanis, Wagner and Gascon do not address Justice Abella’s “vexatious litigant” statement in the ruling, but you and Justices Côté, Brown and Moldaver do:
“Our colleague Abella J. suggests that the Board, in deciding to stop communicating with Ms. Ernst, ‘in essence f[ound] her to be a vexatious litigant’ (para. 64). We see no basis for our colleague’s characterization.” (para. 172)
Thank you for acknowledging this. I respectfully ask that Justice Abella’s statements be retracted or corrected (they appear in the summary and para. 64, and were published by various media). It is extremely distressing to me that false and seriously damaging statements are made and left to stand in my Supreme Court of Canada ruling. My main concerns are that:
1) The two defendants remaining in my lawsuit may attempt to use Justice Abella’s statements against me;
2) Justice Abella’s statements could prejudice future judges against me; and
3) I continue to live with escalating harmful energy industry impacts, where the regulator – with no public interest in their mandate since 2013 – has established they are punitive towards me, and may also attempt to use Justice Abella’s statements against me.
The EUB judged and punished me without due process and without any evidence, because they were admittedly humiliated. In my seeking remedy for that, the Supreme Court of Canada has done the same, but the reason is unclear. I cannot understand why Justice Abella made such statements and why the Court published them.
Our Charter, emulated the world over, is now fractured for civil Canadians because of my loss. I expect our energy regulators will take advantage of this to enable industry’s profits and harms. I will live with that burden for the rest of my life. Must I also suffer the repercussions of being defamed in a Supreme Court of Canada ruling?
I respectfully request answers and correction in whichever way you deem fair and just.
Thank you for your time and attention to this matter.
Note personnelle: Même une juge de la Cour suprême du Canada peut être à côté de la track, des fois. Ci-dessus est une reproduction de la lettre ouverte adressée à l`un des juges de la Cour suprême qui a rendu un jugement dans la cause de Jessica Ernst contre Alberta Energy Regulator de l`Alberta. Jessica a senti le besoin de faire quelques mises au point.