Application for Extension of Time to Appeal – Application Denied – AER Does not Owe Private Duty of Care
In Goodhart v Alberta Energy Regulator, the ABCA considered Mr. Goodhart’s application seeking an extension of time to file his appeal of an ABQB decision striking his claim against the AER.
ABQB Decision
Goodhart claimed the AER was responsible for exposing his late wife and adult children to toxic chemicals. The ABQB struck the claim on the basis that it failed to disclose a cause of action, namely that the AER owed a private duty of care to the Goodharts. The ABQB decision relied on the ABCA reasoning in Ernst v. Encana Corp. (recently affirmed by the SCC) that the AER does not have of private duty of care to individuals.
The ABQB also held the claim was barred by the immunity clause contained in section 27 of the Responsible Energy and Development Act (“REDA”) (equivalent to the previous ERCA section 43, discussed above).
REDA section 27 provides:
27 No action or proceeding may be brought against the Regulator, a director, a hearing commissioner, an officer or an employee of the Regulator, or a person engaged by the Regulator, in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment.
ABCA Decision
The ABCA denied the extension request on the basis that the appeal had no prospect of success if allowed. Paperny J.A. held that the ABCA decision Ernst v. Encana Corp. makes clear that the AER does not owe of private duty of care to individuals. Justice Paperny ruled that the principles articulated by the ABCA in the Ernst decision applied directly to this case to similarly bar Goodhart’s claim. Therefore the appeal had no prospect of success.
Test for Extending Time to Appeal
In denying the requested extension, the ABCA considered the relevant test and whether it was expected to settle an important point of law. The ABCA laid out the applicable test set out in Cairns v Cairns, [1931] 4 D.L.R. 819 (ABCA), which requires the court to consider the whether:
1. there was there a bona fide intention to appeal while the right to appeal existed;
2. there is an explanation for the delay;
3. the appellant has taken the benefits of the judgment; and
4. the appeal has a reasonable chance of success if allowed to proceed.
A court may also consider whether the proposed appeal is likely to settle an important point of law or where there are unique and special circumstances and it is in the interest of justice to grant an extension.
With respect to the first Cairns factor, the ABCA held that it was not clear whether there was a bona fide intention to appeal. However, the ABCA denied the requested extension on the grounds the appeal had not prospect of success if allowed, as discussed above.
