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  • Alberta Court of Appeal Hearing Ernst Vs ERCB (Now AER) - Klippensteins Request To File Reply Factum Re ERCB Argues Ernst Has No Valid Charter Claim Without Filing Cross Appeal

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    yaheria
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    The ERCB (now Alberta Energy Regulator) chose not to file a Notice of Cross Appeal in the Ernst vs ERCB Appeal (to be heard in Calgary Court of Appeal on May 8, 2104). But the ERCB's filed Factum raises an additional and novel issue: Ernst argues, in direct opposition to the finding of Wittmann, that Ernst's Charter claim is not valid because, it is argued, the ERCB did not limit the Appellant’s right to free expression. This issue was not raised in the Notice of Appeal, the Appellant’s Factum or any Notice of Cross Appeal.

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    Alberta Court of Appeal Hearing Ernst vs ERCB (now AER) - Klippensteins Request to File Reply Factum re ERCB argues Ernst has no valid Charter claim without filing cross appeal

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    The ERCB (now Alberta Energy Regulator) chose not to file a Notice of Cross Appeal in the Ernst vs ERCB Appeal (to be heard in Calgary Court of Appeal on May 8, 2104). But the ERCB's filed Factum raises an additional and novel issue: Ernst argues, in direct opposition to the finding of Wittmann, that Ernst's Charter claim is not valid because, it is argued, the ERCB did not limit the Appellant’s right to free expression. This issue was not raised in the Notice of Appeal, the Appellant’s Factum or any Notice of Cross Appeal.

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    © All Rights Reserved
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    30K views2 pages

    Alberta Court of Appeal Hearing Ernst Vs ERCB (Now AER) - Klippensteins Request To File Reply Factum Re ERCB Argues Ernst Has No Valid Charter Claim Without Filing Cross Appeal

    Uploaded by

    yaheria
    The ERCB (now Alberta Energy Regulator) chose not to file a Notice of Cross Appeal in the Ernst vs ERCB Appeal (to be heard in Calgary Court of Appeal on May 8, 2104). But the ERCB's filed Factum raises an additional and novel issue: Ernst argues, in direct opposition to the finding of Wittmann, that Ernst's Charter claim is not valid because, it is argued, the ERCB did not limit the Appellant’s right to free expression. This issue was not raised in the Notice of Appeal, the Appellant’s Factum or any Notice of Cross Appeal.

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    of 2

    KLIPPENSTEINS

    BARRISTERS & SOLICITORS


    160 JoHN STREET. SUITE 300,
    T0RON1O, ONTARIO M5V 2E5
    March 24, 2014
    TEL: (416) 598-0288
    FAX: (416) 598-9520
    SENT BY FAX
    Court of Appeal of Alberta
    Panel in Appeal No. 130 l-0346AC
    c/o Cara Schienker, Case Management Officer
    TransCanada Pipelines Tower
    2600, 45 1 St. S.W.
    Calgary, AB T2P 5H1
    Fax: (403) 297-5294
    Your Honours,
    Re: Jessica Ernst v. Energy Resources Conservation Board
    Appeal No. 1301-0346AC
    I am writing to respectfully request leave to submit a short reply factum (no more than five
    pages), in the matter of Ernst v Energy Resources Conservation Board (Appeal No. 1301-
    0346AC), returnable on May 8, 2014. My client, Jessica Ernst (Ernst or the Appellant)
    makes this request because the factum of the Energy Resources Conservation Board (ERCB
    or the Respondent) recently filed with this Honourable Court raises a new issue that is
    outside of the grounds of appeal contained within the Notice of Appeal and the Appellants
    Factum.
    The Appellant is appealing the order of Wittmann CJQB pronounced on November 18, 2013.
    The Notice of Appeal sets out three issues/grounds of appeal. Importantly, however, the
    Appellant is specifically not appealing Wittmann CJQBs finding that the Charter claim of
    Ernst against the ERCB is valid. 2
    I
    The Notice of Appeal and Appellants Factutn set out the following issues/grounds of appeal:
    1) Did the Court err in finding that the statutory immunity clause contained within s. 43 of the Energy
    Resources Conservation Act bars an otherwise valid claim for breach of the right to freedom of expression
    made pursuant to the Canadian Charter of Rights and Freedoms?
    2) Did the Court err in finding that the ERCB does not owe a private duty of care to Ms. Ernst?
    3) Did the Court err in finding that the statutory immunity clause contained within section 43 of the Energy
    Resources Conservation Act bars Ms. Ernsts claim against the ERCB for negligent omissions?
    Appellants Factum at para 20; Notice of Appeal [Appeal Record at F44J
    2
    Reasons of Wittmann Ci at paras l8 & 130 [Appeal Record at F29 & F39].
    The Respondent has chosen not to file a Notice of Cross Appeal. Nonetheless, the
    Respondents Facturn raises an additional and novel issue: the Respondent argues, in direct
    opposition to the finding of Wittirianti CJQB, that the Appellants Charter claim is not valid
    because, it is argued, the ERCB did not limit the Appellants right to free expression. This
    issue was not raised in the Notice of Appeal, the Appellants Factum or any Notice of Cross
    Appeal.
    As a matter of procedural fairness, the Appellant requests leave to file a brief reply factum of
    no more than five pages, together with supporting authorities, to be filed no later than April 11,
    2014 in order to address this new issue raised by the Respondent.
    Q.C., counsel for the Respondent ERCB, by fax: 403-571-1528
    Yours very truly,
    Mi
    cc: G.
    Factum of the Respondent, at paras 57 63.

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