Action No.: 0702-00120E-File No.: CVQ13ERNSTJ

Appeal No.: ____________________

IN THE COURT OF QUEENS BENCH OF ALBERTAJUDICIAL CENTRE OF CALGARY

BETWEEN:

JESSICA ERNST,611640 ALBERTA INC. and

ERNST ENVIRONMENTAL SERVICES

Plaintiffs

and

ENCANA CORPORATION,ALBERTA ENERGY AND UTILITIES BOARD,

NEIL MCCRANK,JIM REID,

ALBERTA ENVIRONMENT,KEVIN PILGER,

ALBERTA HEALTH AND WELLNESS andHER MAJESTY THE QUEEN, ALBERTA

Defendants

P R O C E E D I N G S

Calgary, AlbertaJanuary 18, 2013

Transcript Management Services, CalgarySuite 1901-N, 601-5th Street SW

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iTABLE OF CONTENTS

Description Page

January 18, 2012 Morning Session 11Discussion5Submissions by Mr. Solomon20Submissions by Mr. Klippenstein40Discussion

Certificate of Transcript 44

January 18, 2013 Afternoon Session 4545Submissions by Mr. Klippenstein48Submissions by Mr. Wanless69Submissions by Ms. McCurdy77Submissions by Mr. Solomon (Costs)78Judgment Reserved

Certificate of Record 80Certificate of Transcript 81

11 Proceedings taken in the Court of Queens Bench of Alberta, Courthouse, Calgary, Alberta23 January 18, 2012 Morning Session45 The Honourable6 Judge Veldhuis Court of Queens Bench of Alberta7 M. Klippenstein For the Plaintiff Jessica Ernst8 C. Wanless For the Plaintiff Jessica Ernst9 (No Appearance) For the Plaintiff Alberta Inc.

10 (No Appearance) For the Plaintiff Ernst Environmental Services11 P. M. Bychawski For the Defendant Ecana12 T. D. Gelbman For the Defendant Ecana13 G. S. Solomon, Q. C. For the Defendant Alberta Energy and Utilities14 Board15 C. J. Elliot For the Defendant Alberta Energy and Utilities16 Board17 (No Appearance) For the Defendant Neil McCrank18 (No Appearance) For the Defendant Jim Reid19 (No Appearance) For the Defendant Alberta Environment20 (No Appearance) For the Defendant Kevin Pilger21 (No Appearance) For the Defendant Alberta Health and Wellness22 N. A. McCurdy For the Defendant Her Majesty the Queen23 S. Hawkins Court Clerk242526 THE COURT: Good morning everybody. Please be seated.27 Thank you.2829 THE COURT CLERK: I didnt know where to put this, My Lady.3031 THE COURT: Thats fine. Thank you.3233 THE COURT CLERK: Thank you.3435 THE COURT: Im a few minutes late, I apologize. I have36 another case management so I just need a minute here to familiarize.3738 (OTHER MATTERS SPOKEN TO)3940 Discussion41

21 THE COURT: Good morning, counsel.23 MR. SOLOMON: Good morning, My Lady. My Lady, my name4 is Glenn Solomon, Im counsel for the ERCB --56 THE COURT: Yes, thank you.78 MR. SOLOMON: -- along with my colleague, Christy Elliot, who9 is to my right. Counsel for Ms. Ernst in this matter is Murray Klippenstein and his

10 colleague Cory Wanless.1112 THE COURT: Good morning, gentlemen.1314 MR. KlIPPENSTEIN: Good morning.1516 MR. SOLOMON: Behind me to my right, My Lady, is Nancy17 McCurdy, who is counsel for the Government of Alberta Environment.1819 THE COURT: Ms. McCurdy, thank you.2021 MR. SOLOMON: And then Piotr Bychawski of the Osler firm is22 here on behalf of Encana.2324 THE COURT: Thank you.2526 MR. SOLOMON: And he advises me that Tommy Gelbman, who27 you will have had appear bef --2829 THE COURT: Yes.3031 MR. SOLOMON: -- before you previously, will be here sometime32 this afternoon to address his part of the issue of costs that --3334 THE COURT: Okay. Can I just have the spelling of your35 name, sir, because youre -- youre new on the file to me.3637 MR. BYCHAWSKI: Yes, My Lady.3839 MR. SOLOMON: Give her your card.4041 MR. BYCHAWSKI: Yes, I can pass up my card if thatd be easier?

312 THE COURT: Okay. Thats be great. Thank you.34 THE COURT CLERK: Thank you.56 MR. SOLOMON: I warned my friend, My Lady, that I will7 mispronounce his name. Im sure that I did.89 THE COURT: Bychaw -- Bychawski? Is that -- no?

1011 MR. BYCHAWSKI: Thats close enough, My Lady.1213 THE COURT: Okay. Bychawski. Okay, thank you. Okay.1415 MR. SOLOMON: My Lady, for the purposes of my submissions16 today, if you have before you the ERCBs brief of argument, its reply brief, and the fresh17 statement of claim that will be most, if not all, of what we need to get through my18 submissions.1920 THE COURT: I do. I have that, I reviewed it all. Theres a21 lot of material, Mr. Solomon.2223 MR. SOLOMON: Theres a lot of material, My Lady, and what I24 propose to do today is not stand here and read it all --2526 THE COURT: Thank you.2728 MR. SOLOMON: -- to you in anticipation that Your Ladyship has29 taken the opportunity to review some if not all of it. And in anticipation that were not30 receiving a decision from the bench on anything today and that your decision will be31 reserved and you will in the fullness of time, review the materials.3233 THE COURT: Thats absolutely correct. And Ill just tell you,34 right at the outset, that this is -- and -- and I have to say I canvassed with some of my35 colleagues, just in terms of volume, to be sure that I wasnt having a misread on this but36 clearly from everyones view, this a very complex case. Theres a huge volume of37 material. And even though Ive reviewed a bit through the material two or three times,38 just in terms of this case management, it would be impossible for me to give any kind of39 decision today.4041 And theres eight of you, or eight counsel, I think, on this. Theres one of me. So Im

41 going to do my utmost to get back in as timely a manner as possible. But, yes, going into2 today, you know youre not going to get an answer today on this.34 MR. SOLOMON: And, My Lady, I -- I can advise you and maybe5 the source of some relief that Im not going to be going through every issue that weve6 raised in our briefs. That doesnt mean that weve abandoned issues; it simply means that7 theres nothing additional that I feel I need to say on those subject matters. And so Im8 going to try to do is get to some of the areas where I hope I can offer some assistance to9 the court.

1011 THE COURT: Can you -- I -- I -- just let me canvass with you12 this, Mr. Solomon, and Ill -- and Ill ask. And counsel can listen carefully, and Ill ask13 for input along the way too.1415 One of the struggles I have -- and this case management. For those of you that are in the16 courtroom, this a less formal proceeding of one we might typically have in a trial setting,17 if youre wondering why were having a back and forth discussion as people in the18 courtroom. Im just letting you know that situation.1920 Part of case management is to deal with the process of moving large, complex litigation21 along the way. So, Mr. Solomon, I -- there -- theres two issues here. There is22 procedural matters that involve everybody and I -- I lump the striking aspect in the23 statement of claim and moving that along and ultimately a statement of defence and so24 on. And thats what we talked about and made some progress on arising out of the last --25 the initial hearing in Drumheller. And then our second case management in Calgary. So,26 theres be huge progress made in -- in that regard.2728 But one of the little areas of concern in terms of my approach is, theres those processes29 but I need you to help me pinpoint or to give me your thoughts in terms of prioritizing.30 Like, what is the most important thing from the ERCB aspect? Are we talking about the31 immunity argument? We talking about the striking? Be -- because I -- and I appl -- I32 think the Crown immunity argument is much more substantive and I need to deal with33 that in that fashion.3435 But there is, you know, some cross over. So, talk to me a little bit, Mr. Solomon, how36 you see that unfolding and what -- what the priority there is.3738 MR. SOLOMON: My Lady, what youve asked for is entirely39 consistent with what my intention was through my submissions today. Thats going to40 be --41

51 THE COURT: Okay.23 MR. SOLOMON: -- the primary focus.45 THE COURT: Good.67 Submissions by Mr. Solomon89 MR. SOLOMON: In terms of whats important in the complexity,

10 let me address those in reverse order. This isnt really complex so much as voluminous.11 When you work through the briefs, My Lady, virtually every issue comes down to a12 binary question. Its either one thing or another, and thats going to determine what you13 do.1415 However, the volume is driven by the fact that there seems to be argument on every issue16 as opposed to simply selecting some and saying, Heres how well get to the end.1718 In terms of going through this exercise, as I point out in my reply brief, we have two19 primary applications. One is what we colloquially refer to as striking but under the20 rules, rule 3.68, its either striking or judgment. Thats kind of a distinction without a21 difference in this case except that we dont want to confuse the term judgment there22 with summary judgment under part 7, because they involve different tests.2324 So the plain and obvious test is the one that applies under rule 3.68. Im going to just the25 abbreviated term striking for whatever relief we may be seeking under rule 3.68.26 Whether its striking or judgment under rule 3.68, its just the striking application.2728 THE COURT: All right.2930 MR. SOLOMON: The other one is just the summary judgment31 application.3233 THE COURT: Under part 7?3435 MR. SOLOMON: Right. What weve done in terms of process36 and on reflection Im not sure whether its necessarily helpful or that it may be a better37 way to do it, is weve said, Well, look, in both cases, the exercise starts with looking at38 passage in the statement of claim. And Im going to refer to the fresh statement of claim39 just as the statement of claim.4041 And then we go and we apply the test under rule 3.68, striking test, and we apply the

61 summary judgment test. And if either one of those succeeds, that paragraph is out.23 THE COURT: So why are you suggesting to me the priority is4 looking under part -- 3.68 first then section 7?56 MR. SOLOMON: It doesnt matter which one you do first.7 Theres no magic, in terms of which one goes first or second. But in terms of process,8 its easier to do it paragraph by paragraph in the statement of claim, and what youll see9 when you go through that exercise is when we get to the substantive concepts in the

10 background, principally, public duty as opposed to private duty and the immunity clause.11 The issues in both applications are the same. How you deal with them from a procedural12 perspective differs.1314 And Im going to jump ahead of myself a little bit in order to assist with this. If it is the15 case that were looking at, rule 3.68, you look at the statement of claim and you see what16 words are used in it. You look then at the statute which I point to and I say, It creates17 only public duties.1819 You look at the immunity clause, I say, You cant sue for this. And you determine20 whether it is plain and obvious, assuming the content of the statement of claim to be true,21 that the claim can not succeed. So thats exercise one.2223 On that same passage in the statement of claim, we go to part 7, which is the summary24 judgment test. And we approach is somewhat differently. We start the same, we look at25 the passage in the statement of claim. Then we look at the statute in this case, because26 thats the primary thing Im pointing to, and I say, The statute creates a prima facie case27 to support the proposition that the ERCB has a public duty and that nothing within it28 creates a private duty.2930 Now, on that issue -- Ill call it the public duty issue. If you are satisfied that that creates31 a prima facie case from my proposition, then the onus shifts to the plaintiff, Ms. Ernst.32 And her onus is an evidentiary onus to show something to indicate that in this case, as a33 matter of evidence, theres no -- there -- there is a private duty.3435 So in the summary judgment, we do not take the pleadings as true or even as arguments.36 We take them only to frame the nature of the issue. So its a different process.3738 Then, under summary judgment, step 2 in this unique circumstance, we go to the39 immunity clause and you have to ask yourself, based on what the provision in the40 statement of claims says and what the immunity clause says, have I made out a prima41 facie case for the proposition that Ms. Ernst may not sue the ERCB for this thing.

712 And if I have, then the evidentiary onus on that issue shifts to Ms. Ernst. And she has to3 rely on something other than what she claims -- she has to rely on some evidence.4 Something that she can point to, other than her pleading, to satisfy you that my prima5 facie case has been defeated or can be defeated. So it cant be evidence from the floor6 and her statement of claim is not presumed to be true in that application. It simply7 frames the nature of the issue.89 Now, let me take a big, huge step back and see if I can frame the nature of the action and

10 the overall issue. In Alberta, a place where the rule of law prevails, and prevails in a11 respectable way, where a person has a dispute about what a public board has done, they12 have remedies. They have remedies that existed in the common law for centuries. They13 have remedies that now exist through our rules of court. And while those remedies have14 changed over the centuries, they are effective remedies sought in these honourable courts15 everyday.1617 There are hundreds of boards making thousands of decisions in Alberta routinely. If18 someone is unhappy with what a board has decided, their relief is to seek judicial review19 and they can then seek what we colloquially refer to as the prerogative writs, they are20 no longer prerogative writs in Alberta. They are now in the nature of those writs.2122 So if youre unhappy with a decision of the Board, you bring an application by way of23 originating application for judicial review, seeking certiorari. And that allows the court to24 quash the decision if it is unreasonable or incorrect, depending on which standard of25 review applies. You do not get to sue the board.2627 In this sense, while we shouldnt always confound appellate review and judicial review, in28 this sense though, its akin to appellate review. If, for example, Ms. Ernst doesnt like29 your decision, she doesnt get to sue you. She get]s to appeal you. Or in otherwise,30 nobody would want to be a judge of the Court of Queens Bench. They would be at risk31 of sued in every case.3233 So public policy kicks in and creates a mechanism for judicial review, with prerogative34 writs or appeals from Queens Bench judges. If it is the case that you feel that a board35 ought to act and it doesnt act, then the prerogative writ of mandamus is available to you.36 And it allows the court, if the proper test is met, to compel the board to fulfill its duties.37 You dont get to sue them for not fulfilling their duties.3839 And if its the case that a board is doing something that you say its not allowed to do,40 then one of the other prerogative writs kicks in and that is prohibition. And that allows41 the court to review the conduct of the board and to prohibit it if its appropriate to do so

81 from carrying on the activity complained of.23 There are short limitations for judicial review. The one in the rules is six months. Some4 statutes have shorter ones. Ms. Ernst has not pursued any of those remedies that are5 available to everyone in respect of decisions of boards.67 In creating a board like the ERCB, what the legislature does is it says, Well, look, if8 youre only reviewable by the court, youre not personally at risk, then we can give you9 public functions, public duties. And we will. We want you to take the publics interest

10 to heart and, in doing that, the legislature can -- and in this case did -- determine that the11 decision-makers on the board, the people implementing the statutory regime need to be12 protected from suit. So not only is it the case that remedies are available by way of13 judicial review as opposed to suing the board because their duties are public as opposed to14 private.1516 But the legislature went a step further and said, Are you going to be immune from17 lawsuits and so now, you can fill your public duty without having to concern yourself18 with the personal well-being of yourself and your family and your assets because people19 cant sue you for the things that you do.2021 Its all a highly sensible regime. The plaintiff made a limitation -- made a litigation22 choice, she chose to sue instead and thats what gets us to this application. Because I23 submit you cant. The Board has a public duty, no duty to Ms. Ernst. Ms. Ernsts24 interests can not prevail over the public duty. If it was the case that there was a private25 duty to Ms. Ernst, there would also be a private duty to Mr. Smith and Mr. Jones. And26 when those conflict, presumably anyone of them could sue the Board. It would create an27 impossible regime.2829 So for that reason, she cant bring this action. Theres no pri -- private duty of care, only30 a public one; and then the other reason she cant bring it is because there is immunity.31 Now, this is not a claim that is novel and since used in some striking cases. This is a32 claim that is wrong. And we cannot confuse wrong with novel. If that were the case,33 we wouldnt need a striking rule because everyone whos wrong would simply be novel34 and their claim would be saved.3536 And I submit -- and -- and I understand Im going out on a bit of limb in saying this, that37 when Your Ladyship considers this case, she should not consider Ms. Ernst wants, but38 rather her interests. If shes on this adventure, its better to stop her early. The39 foundational rules under the rules of court certainly suggest that that ought to be the40 priority. And while she may want something else, if shes going to fail, its better to fail41 early and focus on that part of her case that may have merit.

912 And I say this in a context of a case that has an action number that starts with 0702. So3 it was filed in 2007 and were at the pleadings stage. And had she focussed on the merits4 of her claim against Encana, shed be through trial by now. And she would have5 whatever relief is due to her.67 I want to take you to the immun -- immunity clause and if you go to my brief at page 22,8 its reproduced there.9

10 THE COURT: Can I just interrupt you a minute please,11 Mr. Solomon?1213 MR. SOLOMON: Sorry, page 23.1415 THE COURT: We have an overflow of people in the16 courtroom. And, Im sorry, we have to keep the doorway open so if people cant make17 room for seating, Im going to have to ask you to leave. Cant have you ahead of the bar.18 I think thats inappropriate. So either scrunch together, or Ill have to have you out.19 Sorry, Mr. Solomon.2021 MR. SOLOMON: My Lady, there is -- in my respectful view --22 and I say this as a officer of court -- no principle more important than the open court23 principle.2425 THE COURT: Yes.2627 MR. SOLOMON: And if people want to watch these proceedings,28 I certainly have no objection within them coming inside the bar if we line up some chairs.2930 THE COURT: Okay, counsel -- any counsel have any issue31 with respect to that?3233 MR. BYCHAWSKI: I would support that.3435 THE COURT: Okay. Everybody good? Madam clerk, I do36 have the consent of counsel that theres no issue with doing a row of chairs in front of the37 bar.3839 UNIDENTIFIED SPEAKER: Thank you very much, My Lady.4041 THE COURT: Thank you. Well try to accommodate you.

10

1 Mr. Solomon, just direct me again, Ill find the materials while madam clerk is getting2 people settled.34 MR. SOLOMON: And I wont be distracted by people settling5 behind me. If --67 THE COURT: Okay.89 MR. SOLOMON: -- youre not. Ill just carry on.

1011 THE COURT: All right.1213 MR. SOLOMON: Page 22, paragraph 85 is the immunity clause in14 section 43 of the ERCA. So page 22, paragraph 85.1516 THE COURT: Does it start, "Nothing," in section 10(2)?1718 MR. SOLOMON: No.1920 THE COURT: Okay.2122 MR. SOLOMON: Are you looking at the brief or the reply brief23 of the ERCB?2425 THE COURT: Oh, Ive got the wrong -- just a minute. Sorry.26 I have so much --2728 MR. SOLOMON: I know. Its a lot.2930 THE COURT: Ive got too much material here. Just bear with31 me. Ive got your other April stuff.3233 MR. SOLOMON: Both of mine, My Lady, will have -- one will34 have a yellow cover and one will have a --3536 THE COURT: Yeah, I --3738 MR. SOLOMON: -- buff colour.3940 THE COURT: All right. Sorry. I have it.41

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1 MR. SOLOMON: Okay. This is the immunity clause. And what2 I want to do is walk you through a part of it so we can frame the issue of what is3 covered, whats not covered, what may or may not be covered and what you need to4 decide about it. And, My Lady, in doing this, Im doing it in the context thats relevant5 to the statement of claim in this action. So not for all purposes.67 It starts with, "No action"; thats fairly clear terminology. And if we go a few words past8 that so we can put it in, dot, dot, dot, "No action may be brought." And who can it not9 be brought against? Well, effectively, the ERCB and anyone associated with the ERCB.

10 What can it not be brought in respect of? Well, no action may be brought against the11 Board in respect of any act or thing done. Now, my friend says, Well, that doesnt12 include omissions. I say, Well, act probably includes omissions because every act has an13 element of omission. You did this but not that.1415 And so even a decision not to act, in my respectful submission, is an act in and of itself.16 But that gets clarified further, because if you go down to the last ten words or so, its not17 only in respect of any act or thing done, or a decision, order or direction of the Board.18 So if it made a decision to do something or an order or a direction, then that too would19 fall within the immunity.2021 Now, Ill add this. It is not my argument that omissions are excluded. I dont accept that22 as correct. However, we can look at that issue and determine whether it applies to the23 statement of claim and to what extent. So if you decide that the plaintiff is right on her24 interpretation, that still doesnt mean that this fresh statement of claim continues as is.2526 Now, in the plaintiffs brief she says, Well, expressio unius exclusio alterius applies in27 this case. If they didnt say omissions here but theyve said it in other acts, then you28 should find that they meant to exclude omissions. I was in the Supreme Court of Canada29 on that issue a year and a half ago, in a case that we cite in my brief, the 18 News30 (phonetic) case. And I successfully argued that you cant compare statute to statute nor to31 make that determination. It doesnt work that way. You have to look at the statute and32 give it a robust, fulsome interpretation, bearing in mind the nature of the clause here33 requires some careful reading of it.3435 I want to turn to the fresh statement of claim now with that brief brack -- background.36 And not all of it is relevant to my client. But Ill take you to page 8, paragraph 25 of the37 fresh statement of claim as a starting point. There we have the list of regulations. Those38 are the regulations that we have put before you and that the plaintiff have taken some39 issue on. So when you get to the question of whether these items are evidence in this40 application, they are under the Evidence Act and we have in our reply brief set out the41 authority for that.

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12 If you go to page 11 of the statement of claim, we can start at paragraph 36. Theres3 nothing prior to that that alleges any act or failure to act on the ERCB. So this is where4 we get into the substance of the issue. In paragraph 36, the plaintiff says that the ERCB5 failed to respond reasonably. Thats not an omission. Thats an act. They failed to6 response to a level that she suggests is reasonable. Its not a failure to respond at all. Its7 not they did not respond.89 And they failed to respond in accordance with, what she says, is their required process.

10 Thats not a failure to respond, thats a failure to respond in a certain way. Its not an11 omission, its an act, but an act that she alleges lacks adequacy. She cant sue for that12 even on her own argument regarding the immunity clause, assuming that she is owed a13 private duty.1415 And they say that the ERCB completely ignored her or directed her to the ERCBs legal16 counsel, who in turn refused to deal with her. Well, those are acts and decisions. Those17 are things they opted to do. They refused to deal with her. If shes right -- we dont say18 that she is, but if she is, by her own argument, she cant get past the immunity clause.1920 Now, in paragraph 37 of the statement of claim she says, "The ERCB did not conduct any21 form of investigation." So, for now, that survives; as youll see, it falls apart22 momentarily.2324 If we go to paragraph 38, she says that the ERCB breached the duty that it owes to her.25 And of course, you will be determining whether she does or doesnt, but how did they do26 that? Well, if you go to the last line: (as read)2728 By failing to implement their own specific and published29 investigation enforcement scheme, failing to conduct any form of30 investigation and arbitrarily preventing the plaintiff from31 participating in the usual regulatory scheme.3233 Arbitrarily preventing is an act, not an omission; and its a decision, not an omission. So,34 again, even on her own argument, that parts out.3536 Take you back up to -- sorry, I was at 39 there; Ill take you back up to 38 for a moment.37 This is where she alleges a duty of care which we dispute, but then she defines that duty38 of care as requiring the ERCB to take reasonable and adequate steps. Now, we say thats39 owed to the public, not to Ms. Ernst. But in any event, if thats the duty, to take40 reasonable and adequate steps, we submit that that falls not within omissions necessarily,41 but within acts.

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12 It requires them to take steps would fall within omissions. Reasonable and adequate falls3 within acts. Its now qualitative regarding the acts as opposed to whether an act was done4 at all or not. And surely we can agree that an omission involves whether an act was done5 at all or not, but we cant gut the immunity clause (INDISCERNIBLE).67 And again, I dont accept their interpretation. But even on their interpretation, if were8 talking about this claim in its fourth iteration, where Ms. Ernst has had lots of9 opportunities to find a way to do this even by their own interpretation and not getting it.

1011 And then she says that they have a duty to conduct a reasonable investigation. Well,12 again, "reasonable" has to come out, because its qualitative. She cant sue for that.1314 Take you to paragraph 40. And here we have one case of what appears on its face for the15 moment to be an omission, and the rest appears to be qualitative. And the qualitative16 parts, I submit, even on the plaintiffs own interpretation have to go. 40(a) we have17 failing to take reasonable steps; thats qualitative. 40(b), failing to adequately inspect;18 thats qualitative. (c) failing to adequately inspect. Ill jump down to (f) for a moment,19 failing to conduct adequate testing, and (h), failing to promptly inform plaintiff. Shes not20 suggesting there was an omission; shes suggesting that the act that was done was21 qualitatively inadequate, by her own interpretation of the immunity clause22 (INDISCERNIBLE).2324 Ill go to (d) and (e) for a moment because there she actually talks about things that are25 just failures. That is failure to do X, failure Y. Sounds a bit like an omission till we26 get to paragraph 41. And this is where it all falls apart.2728 She says: (as read)2930 The ERCBs various omissions as listed above were taken in bad31 faith.3233 I cant fathom how you can have an omission in bad faith. You can have a decision not34 to do something in bad faith, but as soon as you bring in intent, youre no longer talking35 about they forgot to do it. You are talking about they decided where, deliberately or36 maliciously or whatever, that theyre not going to do it. And so now were into decisions,37 and those are immune. She cant sue on those.3839 And she characterizes the various omissions, all of them as having that level of intent and,40 therefore, as an act or a decision necessary.41

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1 We go on -- and Im going to pick it up at paragraph 47. Here, Ms. Ernest is dealing2 with what she calls, An off hand remark. And she says that in response to It -- so thats3 not an omission, the ERCB seized on it -- thats not an omission, and then they used it as4 an excuse, she says, to restrict her speech by prohibiting her from communicating. Those5 are acts. There can no doubt about it, if were talking about this statement of claim, the6 fact whether omissions are included in the immunity or not doesnt change the outcome of7 this application.89 Paragraph 48, here shes dealing with the events involving Mr. Reed (phonetic), who

10 informed Ms. Ernst that he had instructed all staff to do certain things. Okay. Those11 again would be acts, theyre not omissions. He did something, he decided something.1213 Paragraph 51, Mr. McKey (phonetic), she says in the middle of that paragraph, "continued14 to ignore, deflect, and dismiss." Again, those are acts. Not omissions. In paragraph 52,15 she says: (as read)1617 Mr. Mckey confirmed that the ERCB took a decision to18 discontinue further discussion.1920 Well, decisions are expressly subject to immunity. In paragraph 55 she says that21 Mr. Reeds letter was a restriction on communications and that it was meant to punish.22 So, again, she is bringing in intent and shes referring to an act, or what she describes23 elsewhere as a decision.2425 In paragraph 56, she refers to the decision to restrict her communication, the decision to26 continue such restriction. Again, those are decisions expressly covered by the immunity27 clause. And she says, in paragraph 57, that she was prevented from raising her concerns.28 Well, again, if she was prevented, its an act, not an omission.2930 Further in paragraph 57, she says that her exclusion from the ERCBs process prevented31 her from raising certain concerns and exclusion which she says was part of decision. And32 then she says, in paragraph 58, the ERCBs arbitrary decision regarding prohibiting her33 from communication. Again, decisions and acts. Not omissions.3435 So even on Ms. Ernst attempt to narrow the immunity clause, all -- or virtually all of her36 claims against the ERCB failed. Now, lets go back to how they failed.3738 I submit they fail on the striking application because you can look at the claim, you can39 look at the law, you can determine that she cant ever succeed. I further submit that if40 you go to the summary judgment test under part 7, you must, I submit, look at it and say,41 The ERCB has made a prima facie case even on Ms. Ernsts own interpretation of the

15

1 immunity clause, one that we say is too narrow. And she has put nothing forward to2 discharge her onus at that point. And therefore, her claim must fail.34 THE COURT: So, Mr. Solomon, youre arguing that -- or5 suggesting to the court in your submissions that she fails under both tests?67 MR. SOLOMON: Im suggesting that --89 THE COURT: If you do that analysis.

1011 MR. SOLOMON: If you -- well, sure. Let me -- I was just about12 to go back to this --1314 THE COURT: Okay. Okay.1516 MR. SOLOMON: -- and make sure that we get this, because the --17 the procedure that you go through is obviously important.1819 THE COURT: Yes.2021 MR. SOLOMON: Not that complicated, just slightly different22 things. So when we go through rule 3.68 now, you look at the provision in the statement23 of claim -- Ive taken you to it.2425 THE COURT: Yeah.2627 MR. SOLOMON: And Ive asked you to look at the act and to28 determine whether theres a public duty or a private duty. If you determine that the act29 creates only private duties on its face, then she is destined to fail unless theres something30 pleading in her claim that suggests otherwise. And in some cases, there is.3132 You then take that same provision and you look at the immunity clause in terms of33 striking and youd say, Is it plain and obvious in light of this immunity clause that what34 she has pleaded -- not what she hopes she has pleaded or what she can convince you35 contrary to the claim --3637 THE COURT: M-hm.3839 MR. SOLOMON: But what shes actually said is bound to fail.40 And in my respectful submission, she has a serious problem there on our interpretation.41 She has a roughly equal problem on her own interpretation of the immunity clause.

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12 So in my respectful submission under rule 3.68, you can decide on that basis that she3 cant ever succeed. You do not consider anything other than the pleading --45 THE COURT: Right.67 MR. SOLOMON: -- under rule 3.68.89 THE COURT: Right.

1011 MR. SOLOMON: The pleading and the law. Were now done12 3.68. Whether you find one way or another, you still have to do part 7 because theres13 obviously a reasonable opportunity that another court is going to look at this.1415 THE COURT: Yes.1617 MR. SOLOMON: So findings in the alternative would have to be18 made in any event. Under part 7, youre going through different exercise. Were starting19 in the same place.2021 THE COURT: M-hm.2223 MR. SOLOMON: Were looking at the provision of the pleading.24 Were saying is she admitted something here, or has she said something. So we look at25 what she said; we then look at what the impact of the same provisions of the act are.2627 Okay, now, has the ERCB dismissed its initial onus --2829 THE COURT: M-hm.3031 MR. SOLOMON: -- under the summary judgment test of32 demonstrating that it has a public duty, not a private duty, under its act. The pleading33 does not save the claim. The pleading frames the issue --3435 THE COURT: Right.3637 MR. SOLOMON: -- but it is not evidence and it is not presumed38 to be true. Unless we say, Well, for the purposes of this application well take that39 admission.4041 So you look at the act and you say, Okay, well, theres a public duty; theyve discharged

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1 their onus now the onus shifts to Ms. Ernst, the evidentiary onus, has she put forward2 anything that would shift that onus? And she cant say, Ive pleaded something. Thats3 not an answer.45 THE COURT: Right.67 MR. SOLOMON: And then we go to the second issue that weve8 raised, which is the immunity. And we say, Well, if you look at this immunity clause in9 light of what shes pleaded, she cant succeed on this. Weve therefore established -- just

10 looking at the statement of claim and the statute that theres a prima facie case with the11 ERCB (INDISCERNIBLE) And if she wants to fit into some exceptions she could create,12 she has to again do that with some evidence.1314 So she cant point to her pleading and say, That saves me. She has to actually point to15 something outside of her pleading that saves her. And when we get to the immunity, I16 say, Look, this is a complete immunity. She says, This is not an immunity that applies to17 omissions. And I say, I dont agree with you; but even if you are right, that doesnt18 actually change the outcome in this application because youre not suing based on the fact19 that there was no act; youre suing on the basis that there were acts undertaken in bad20 faith to do things that you didnt want done or to not do things that you did want done.2122 Youre saying that there are decisions. So in that context, you fail either way. And then23 Im adding that the foundational rules and the purpose of summary judgment and the24 purpose of striking is to not drag parties, not just the defendant parties through needless25 litigation. Through litigation that can determined early and fulsomely and correctly. And26 in this particular case, not only would you be dragging the ERCB through it; it would be27 dragging Ms. Ernst through litigations she doesnt need to have. She should focus on her28 issues.2930 And, My Lady, you did in the last time we appeared before you seeking to argue these31 issues, put them off and give Ms. Ernst an opportunity to try and get right. Shes drafted32 the fresh statement of claim knowing that we had these complaints because she saw our33 brief last time. So its either that she wont get it right; and I dont suggest that. Its that34 she cant get it right. And its not some comment on her, rather; its the state of the law,35 and it applies to her.3637 And, My Lady, I draw your attention to our brief, paragraph 38, which is at page 9. Im38 not asking you to be paternalistic. Im telling you what the Supreme Court of Canada has39 said: (as read)4041 It is essential to the proper operation of the justice system and

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1 beneficial to all parties that claims that have no chance of success2 be weeded out at an early stage.34 My Lady, I walked you through earlier the test for summary judgment, the process that5 you go through with the shifting evidentiary burden. And if you go to paragraph 40 of6 my brief, thats where the Court of Appeal of Alberta comments on that, or at least7 affirms the case, the Murphy Oil case. And thats one of the cases -- one of many that8 supports that interpretation.9

10 Lady, one of the issues in dispute in this application relates to whether you can rely on --11 or -- or whether you have to wait until theres a defence filed. You dont under the new12 rule. The old rule required that. It was after a defence has been filed you may apply, the13 new rule says at any time consistent with the early determination of cases that is now a14 priority in Alberta.1516 There are a series of cases, My Lady, dealing with public duty and private duty. And in17 our reply brief, we deal with this somewhat exhaustively because in our respectful18 submission, of some confusion in the argument. Where there is a mediated relationship,19 there is no private duty that can be read into a public one. Im going to explain and --20 and what I hope are clear terms, what a mediated relationship is.2122 Theres the case of the Medivac Helicopter (phonetic) that youll see in the materials.23 Thats a case where the Crown was a service provider in and of itself to people who are24 injured. Thats a direct relationship.2526 There are then cases of mine workers, and with the mine workers there were specific27 circumstances that gave rise to broader liability. And then theres cases like Cooper28 (phonetic) and Edwards (phonetic). Those are the mortgage broker and the Law Society.29 And those are most akin to this.3031 In those cases, what the court says is, Look, theres no private duty of care because32 theres a public duty of care. And theres nothing that creates a private duty of care in33 the circumstance because what we have is a party -- a person or an entity whos34 regulated. So in the case of the Law Society, the lawyer misusing his trust account was a35 regulated person.3637 And then we have a person who is not regulated, the person who put money into the trust38 account and what the court says there is, Theres no duty of care to the person who is not39 regulated. Theres duty of care to the public. So you govern the lawyer for the benefit of40 the public but not any person within the public because those would be conflicting41 priorities.

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12 The same with the mortgage broker. Where the court says, Well, look, its the mortgage3 broker that is governed; everyone else in this is not a regulated person. And that is4 referred to in the short hand as the mediated relationship. And so if you have two people5 who are regulated, it may result in something else. And I dont think it does.67 If you have a direct relationship with no intervening party who is regulated then you have8 may a private relationship - so if its the Crown providing a service. Its not the case9 here.

1011 The case here is that theres a regulated party. Its Encana. And theyre required to do12 things in accordance with the ERCBs rules, in accordance with Alberta law and Alberta13 regulations that could go beyond the ERCB. And if they dont do so and theyve acted14 contrary to law and Ms. Ernst has suffered damage as a result, then presumably she gets15 relief from them. But she doesnt get relief from the ERCB -- from the ERCB on the16 basis that they didnt adequately or at all regulate Encana, because the ERCB is not17 providing a direct service to Ms. Ernst in priority to its public duties. And it cannot.1819 So when you go through Cooper and Edwards and Fullowka Mines and all of those other20 ones, bear in mind that the distinguishing factor -- and that courts point this out in some21 of those cases -- is whether the relationship is a mediated one or not. And a mediated22 relationship simply means that the person who is alleged to have physically caused the23 damage is regulated by the Board. And if so, the duty becomes a public one only.2425 My Lady, as I said at the beginning, Im not going to go through everything I say in my26 brief. I wanted to hit on a few points to help guide the court. That does not mean that27 weve abandoned anything in our brief. It simply means that I believe weve said it well28 enough that we dont need to elaborate. If you have anything questions, Im happy to29 answer those. Failing that, those are my respectful submissions.3031 THE COURT: Thank you, Mr. Solomon. And have to say,32 your submissions and your overview have helped me a lot. Im not saying necessarily I33 agree or disagree. Im just saying how you set it out has been quite beneficial and34 hopefully to the other parties as well. Thank you. I have nothing arising at this -- at this35 moment.3637 MR. SOLOMON: My Lady, might I suggest that this would be a38 convenient time for the morning break as well?3940 THE COURT: Yeah, I think thats probably a good41 suggestion. Ill come back down at 11:20. Okay?

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12 MR. SOLOMON: Thatd be great. Thank you.34 THE COURT: Thank you.56 (ADJOURNMENT)78 THE COURT: Thank you, everyone. Please be seated. Thank9 you. Mr. Klippenstein . . . ?

1011 MR. KLIPPENSTEIN: Good morning, My Lady.1213 THE COURT: I just want to ask, did you -- Im assuming14 youve arranged a bit of an order among yourselves. But do you want to hear from15 Ms. McCurdy first and respond, or do you want to -- youre ready to talk now?1617 Submissions by Mr. Klippenstein1819 MR. KLIPPENSTEIN: Yes, Ive spoken with Ms. McCurdy, and it20 sounds like its okay if I proceed now and follow up --2122 THE COURT: Perfect. Thats good.2324 MR. KLIPPENSTEIN: -- with -- from my friend, Mr. Solomon. I will25 be addressing part of Ms. Ernsts submissions relating to the freedom of expression26 Charter case.2728 THE COURT: Okay.2930 MR. KLIPPENSTEIN: My colleague, Mr. Wanless, will be addressing31 the court with respect to the issue of a negligence claim.3233 THE COURT: Okay.3435 MR. KLIPPENSTEIN: And I will also be addressing a number of the36 more specific issues, such as the potential Limitations Act argument --3738 THE COURT: Okay.3940 MR. KLIPPENSTEIN: -- and a few others. My friend, Mr. Solomon,41 spends considerable time talking about the procedural issues of a -- of an application to

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1 strike versus a summary judgment application. I will postpone my comments on -- on2 those procedural issues, because I think Mr. Solomon was right in saying that it is useful3 for us to not get too hung up on that initially and to also focus on the substance. Not to4 say the procedural isnt important, but I am going to focus on the substance --56 THE COURT: Okay.78 MR. KLIPPENSTEIN: -- for a while and then, certainly, make some9 submissions about that --

1011 THE COURT: Okay.1213 MR. KLIPPENSTEIN: -- procedural issue, as well. Before I begin14 those submissions, I will, perhaps somewhat unusually -- and taking note of My Ladys15 comment that this is, in it -- in its nature today, not quite as formal as a -- as a normal16 trial day -- note that Ms. Ernst is not in the courtroom today.1718 And she was concerned that My Lady not interpret that as a sign of lack of -- of deep19 interest in the proceedings today or lack of respect for the court. And so she instructed me20 to convey the following to the court: (as read)2122 I wanted to attend todays hearing, but I decided not to attend,23 because I feel strongly that my lawsuit should be heard in the24 judicial district of Drumheller, as it is the courthouse with the25 closest connection to my dispute. This is where I live, this is26 where my water is, this is where my coal bed methane wells were27 drilled, and this is where my water is contaminated.2829 It seems to me that it is important to rural Albertans that disputes30 and harms that occur in our communities are also judged in our31 communities. Todays application is not a minor or a merely32 procedural step. It will determine a core issue of whether a33 landowner can sue the energy regulator for failing to protect rural34 Albertans from the harmful effects of the oil and gas industry.3536 I have a lot of respect for this court, and because of this respect I37 feel it is important to make my position known. I will continue to38 request that all major applications be heard in Drumheller, as it is39 the judicial district with the closest connection to my dispute.4041 So, with the greatest of respect, Ms. Ernst instructed me to convey that message to the

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1 court.23 THE COURT: Thank you for that. And I -- and Ill just4 simply, for the record, remind everyone that Im respectful of her position as well. And5 very careful consideration was given to the request to have the case management ask that6 of the -- this matter held in Drumheller. And, in fact, I took the unusual step of having7 further discussions with the Chief Justice, and -- and a lot of thought was put into it. And8 it -- it just seemed to be appropriate to have it in Calgary for these purposes.9

10 I agree that this -- the outcome of this will be a relatively major decision. I also want to11 note that the offer of Ms. Ernst viewing this by closed-circuit TV in Drumheller as a live12 proceeding, that option was certainly extended to her following the decision to have the13 case management in Calgary. And that option remains open to her at any time we do14 have a proceeding of this nature in Calgary. So thank you.1516 MR. KLIPPENSTEIN: Thank you, My Lady. What I would like to do17 initially is to discuss the claim by Ms. Ernst that her freedom of expression as guaranteed18 by the Charter of Rights was infringed by the ERCB.1920 That aspect of her claim is described in the statement of claim beginning at page 12,21 paragraph 42 -- and I apologize, Im having a little trouble with my voice; but I find the22 more I talk, the better it get -- and is dealt with in the legal brief at page 24, beginning23 with paragraph 83, for convenience of the courts reference.2425 Im going to outline in broad strokes what Ms. Ernsts claim in that regard is. Basically,26 she attempted to communicate with the ERCB as the regulator and enforcer of oil and gas27 issues relating to safety and land protection and the environment. She was somewhat28 critical of the way the ERCB handled it, in -- in particular in relation to her views that her29 land -- her land and water was being contaminated by fracking.3031 And she expressed her views to the Board, but also publicly in -- and to -- to the public32 media; had her concerns raised in the legislature; spoke about her concerns publicly to33 many individuals in many communities; and had an ongoing communication with the34 ERCB at a detailed level about her concerns that her land and water were being35 contaminated by fracking.3637 At some point, however, the Board made a decision to stop the communications between38 Ms. Ernst and the Board. In fact, the -- the -- the Board returned a letter that she sent to39 the Board, returned it unopened. And for a period of in excess of a year, Ms. Ernst was40 left in the position of total silence from the government agency that has the extensive41 responsibilities under the statute to regulate all aspects, essentially, of the oil and gas

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1 industry. So she was left in a void.23 What Ms. Ernst says in this claim, is that she has a right of freedom of expression, that4 she was exercising it, that that right was breached by the ERCB by essentially blocking5 her expression. She says that freedom of expression is essential in a democratic society.6 Its one of the core underlying values; that that includes the right to criticize, and it also7 includes the -- the right, in a democratic situation, to have your communications received8 by the government.9

10 And those are important words, in terms of the legal claim, that your -- the right to have11 the communications received by the government. In this case, broad -- the government,12 broadly speaking, includes the ERCB, in my submissions, for this purpose, because it is13 an agency created by the government with very large powers and ron -- responsibilities14 over oil and gas sector and the -- the safety and -- and management of land and water and15 environmental issues.1617 I am not going so far, and Ms. Ernst is not going so far, as to say that the Charter right18 of freedom of expression gives her the right to demand of government, or of the ERCB, a19 hearing, a formal hearing or that they do what she wants. That would take things much20 too far.2122 And I will go through shortly some of the decisions of various courts saying, Just because23 you have a right of freedom of expression that is constitutionally guaranteed doesnt mean24 that the government or an agency of the government has to give you a platform to speak25 on. You dont -- you dont automatically have a right to a megaphone. You dont have a26 right to an audience. So those cases are mentioned by my friend, and I will go through27 some of those.2829 What Ms. Ernst is saying, is that the Board has to at least receive her expressions as a30 basic, minimal threshold level of her right of expression. They cannot simply slam the31 door in her face and walk away because they feel like it. And -- and thats whats32 happened.3334 I -- again -- and Ill come to this again; I use the example of the letter from Ms. Ernst to35 the Board that was returned unopened. And there are several other specific examples that36 are used to -- to highlight. The general idea is that she couldnt -- she -- she was not37 being heard at all by the Board, as far as she could tell.3839 And, again, I dont want to push this too far. Thats not what were saying here. Were40 not -- because then many people will say, Wait a minute, you have a right of freedom of41 expression. But if everybody says that, I can automatically require the government to sit

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1 and have a meeting with me or read everything that I write, most people could see, in a2 moments reflection, that -- that that can go too far. It can be too much.34 But Ms. Ernst -- Ms. Ernst would have liked, would have liked some of those things. But5 thats not as far as this legal right goes, in my submission. But the right -- and -- and my6 friend, Mr. Solomon, in his le -- in his legal brief, I think, fails to -- to recognize that7 there is a step that is important, of recognizing the right of freedom of expression without8 having to go all the way down the road.9

10 And my friend, Mr. Solomon, seems to suggest that Ms. Ernst is saying she has a11 constitutional right to be listened to. And in a way, thats partially true, but its a little12 ambiguous to say, a right to be listened to. Because what does that mean? Does that13 mean they have to convey a -- have a meeting with somebody to listen to the whole thing14 for a whole afternoon? I mean, that can get unworkable.1516 And this -- this isnt being pushed that far. This is -- this is saying, at a minimum, a right17 to have the communications, her free expression, received. Now, that is a -- a sort of18 basic threshold level of right that is asserted for freedom of expression. And then that19 links, fundamentally, to the fact that we live in a democracy and that the government, in20 some way, has to listen to everybody, to ordinary people.2122 That doesnt mean it has to always do what anybody wants, obviously. But the point that23 Ms. Ernst is saying, There has to -- communications that her freedom of expression are a24 part of, have to be received by the government. And here they werent. There was a25 deliberate, arbitrary, punitive decision and set of actions that said: We will not receive26 your commu -- communications any more. In fact, were going to send them back27 without even looking at them.2829 And if, in a democracy where the government says, We do have to listen to people,30 ultimately, at the end of the day -- because that is fundamental. You cant just say, We31 just happen to not like you and youve been criticizing me too much, so I am returning32 your letter unopened, so there. And thats what they did to Ms. Ernst.3334 Now, I understand, I think we all understand, that it could be un -- unworkable and35 extreme if the -- the right of freedom of expression allowed anybody to write long, long36 letters and require government officials to read them from beginning to end or to -- to37 say, Here are my 15 points of complaint; I want a two-hour meeting so that I can explain38 them to you, and then you tell me why youre not listening to me.3940 That can go too far, and I want to recognize that. But thats not what happened here.41 And so the -- the -- the freedom of expression doesnt have to go that far. And it is

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1 helpful for everyone if that step of a right to be -- have your communication received is2 recognized. Its good for the government. If we all know that the government has to3 receive it, whether they have to read the letter from beginning to end, you know,4 sometimes you just cant read everything.56 And sometimes you get stuff, you know, when its the tenth letter from somebody and --7 you know, and you say, Okay, Ive seen this before and I know Ive handled it8 responsibly and I can only do so much. That -- you know, that is sometimes necessary.9 But not saying, I am -- we are not communicating with you anymore, were not opening

10 your letters, were sending them back.1112 Now, just to be more specific from the pleadings on that point, if I could ask My Lady to13 turn to -- and -- and I might add, this is particularly the case when an agency such as the14 ERCB has the exclusive jurisdiction to deal with these sorts of issues in the -- in the oil15 and gas sector.1617 The legislature has said, Everything now goes to you; from a -- a mandate to -- to18 develop the industry, to a mandate to protect the environment, to protect the water, its all19 yours, basically, ERCB. And then the ERCB creates an extensive policy and plan for20 enforcement and compl -- compliance, opens offices all over the province, publicly sends21 out all -- or publishes all kinds of assurances to the citizens that the safety rules and22 environmental rules are being enforced.2324 So in that context, it is especially important from the point of freedom of expression, that25 a citizen can say they have received my communications, and I understand that they know26 that.2728 So in the statement of claim, paragraph 42 notes that: (as read)2930 The ERCB is authorized by the legislature as the agency31 responsible for regulating all aspects of the oil and gas industry32 and that the ERCB has established a specific forum and process33 for communicating with the public and hearing public complaints34 and concerns.3536 Paragraph 43: (as read)3738 The ERCB has invited and encouraged public participation,39 including through the compliance and operations band -- branch40 and its field surveillance branch, and emphasizes the importance of41 public involvement in the regulation of oil and gas development in

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1 Alberta.23 Paragraph 45: (as read)45 Throughout 2004 and 2005, Ms. Ernst frequently voiced her6 concerns regarding negative impacts caused by oil and gas7 development near her home through contact with ERCBs8 compliance investigation and enforcement offices and through9 other modes of public expression.

1011 Paragraph 46:1213 Ms. Ernst was a vocal and effective critic of the ERCB. Her14 public criticisms brought public attention to the ERCB in a way15 that was unwanted by the ERCB and caused embarrassment within16 the organization.1718 Paragraph 47:1920 Ms. Ernst pleads that as a result of and in response to her public21 criticisms, the ERCB seized on an offhand reference to22 (INDISCERNIBLE) made by Ms. Ernst, and used it as an excuse23 to restrict her speech by prohibiting her from communicating with24 the ERCB through the usual channels. These serious restrictions25 greatly limited her ability to lodge complaints, register concerns,26 and to participate in the ERCB compliance and enforcement27 provis -- process.2829 Then to particular examples, paragraph 48: (as read)3031 In particular, in a letter dated November 24th, 2005, Mr. Jim Reid,32 the manager of the compliance branch of the ERCB, informed33 Ms. Ernst that he had instructed all staff at the compliance branch34 of the ERCB to avoid any further contact with her.3536 So that is slamming the door to her communications. And, again, I am not suggesting37 that the -- the right of freedom of expression, the Charter right, the constitutional right,38 goes so far as to say that Mr. Reid has to have a meeting with her. I mean, it would be39 good, probably good for everybody, for her to be listened to more. But the constitutional40 right of freedom of expression does not require that. But what it -- what it prohibits, in41 my view, is what happened here. He -- the -- Mr. Reid took the positive step of

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1 instructing all staff to avoid any further contact.23 Then, paragraph 49: (as read)45 On December 6th, 2005, Ms. Ernst wrote to the ERCB. This6 letter was returned unopened.78 It wasnt even, you know, heard at that point. It wasnt received. Paragraph 53: (as read)9

10 On October 22, 2006, Ms. Ernst again wrote to Mr. McCrank to11 request that she be permitted to communicate unhindered with the12 ERCB like any other member of the public.1314 So although Ms. Ernst is saying, This is a constitutional right of freedom of expression15 that we have here, that she is relying on, shes not seeking, as in some cases, that she get16 government funding to broad -- to create broadcasts. Shes not seeking that she has17 access to some, you know, special way of getting an audience. So it is a basic threshold18 level that she is seeking.1920 Now, again, she hopes that if she does get listened to, her communications are received,21 that it will make a difference in the long run; that she has good ideas; that she -- her22 concerns are legitimate; that it is good for the environment and for the public interest if23 her concerns are taken seriously.2425 She -- she wants all that. But in -- in this particular claim, it doesnt go so far as to ask26 for some kind of special treatment for her. This is -- what shes asking is, is for27 protection for the basic freedom of expression right.2829 THE COURT: So let me ask you this, Mr. Klippenstein. The30 ERCB has given -- has parameters set out in the legislation. And if you -- youve31 indicated that that was her opportunity and course of action to take. Now, theres also a32 protocol and procedure set out, in terms of when a decision is made by that entity, there33 are steps to be taken through administrative law procedures.3435 So explain to me, so I understand, how -- how that ties in. As I understand it, from all of36 the material before me, she did not take steps to have that particular decision of no37 communication reviewed by anyone, as I understand it. And this course of action, in38 terms of a litigation, has been chosen. Am I -- do I understand that correctly?3940 MR. KLIPPENSTEIN: Its partly correct and -- and partly, I may41 suggest, a -- a little differently. And I know my friend, Mr. Solomon, emphasized that

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1 point this morning.23 THE COURT: No, and -- and I -- the reason I raise this, or4 direct your attention, I understand the argument that you make under section 2 of the5 Charter. I understand that and her position where she comes from.67 But we -- weve got, in terms of the case management and how this moves forward and8 the considerations I need to make, not in terms of the finality of that argument, but how9 we -- how we process it and what the correct approach to this is. Whats the link? How

10 do we tie this together to litigation versus the administrative law process?1112 MR. KLIPPENSTEIN: Thats a very important point that I was going13 to get to.1415 THE COURT: Okay.1617 MR. KLIPPENSTEIN: And that raises the question of: What is the18 procedure for implementing a claim under the Charter? That is probably explained by two19 things. And if I -- with your permission, if I may hand up several pieces of paper, one of20 which is a decision of the Court of Appeal in Prete in Ontario, and one is some excerpts21 from the Charter for convenience.2223 THE COURT: Okay. Do counsel have a copy as well,24 Mr. Klippenstein?2526 MR. KLIPPENSTEIN: Yes, I provided --2728 THE COURT: Okay, thank you.2930 MR. KLIPPENSTEIN: -- copies of the decision. I havent provided31 copies of the excerpts from the Charter, although Im sure my friends can recite that in32 their sleep anyway.3334 First of all, in the one-page excerpt from the Canadian Charter of Rights and Freedoms,35 paragraph 24(1) says: (as read)3637 Anyone whose rights or freedoms as guaranteed by this Charter38 have been infringed or denied may apply to a court of competent39 jurisdiction to obtain such remedy as the court considers40 appropriate and just in the circumstances.41

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1 That is the foundation step 1, an application to the court. In the decision of Prete, which2 Ive provided to My Lady, again, this is from 1993, a decision of the Court of Appeal, as3 the courts were beginning to figure out how to use this -- this Charter.45 At paragraph 7, theres an indented, long paragraph and --67 THE COURT: Yes.89 MR. KLIPPENSTEIN: -- and halfway through that, near the right-hand

10 side, theres a sentence that begins, "The question arises then."1112 THE COURT: Yes.1314 MR. KLIPPENSTEIN: (as read)1516 The question arises then, whether section 24(1) of the Charter17 confers a right to an individual to seek a remedy from a competent18 court. In my view it does. When a person can demonstrate that19 one of his Charter rights has been infringed, access to a court of20 competent jurisdiction to seek a remedy is essential for the21 vindication of a constitutional wrong.2223 The eff -- the effect of that is that this -- the Charter claim is a -- is a lawsuit for24 remedies, in this case financial compensation, in the same way as a tort, for example, or a25 contractual claim. Theres no contractual claim in this action, but there is a tort claim26 for -- for negligence.2728 The two, in my respectful submission, should be handled exactly the same from a29 procedural point. They can go side by side in the same proceeding, treated not differently30 at all. Theres some legal arguments that apply here and there and so forth, but they are31 the same. They are legal claims to the court for compensation as a remedy.3233 And so going forward they, in my submission, would be handled essentially the same.34 That -- that, for example, is different from the possibility that this was an application for35 judicial review, you know, as an exercise in administrative law. This is not that, in my36 submission.3738 THE COURT: (INDISCERNIBLE).3940 MR. KLIPPENSTEIN: So this is one of those cases where I can41 happily offer a simple solution.

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12 THE COURT: Thank you.34 MR. KLIPPENSTEIN: Now, since I have My Ladys attention directed5 to the Prete case, I will actually refer to the case for something else, which is also a6 significant point. And that is the question of whether the statutory immunity section7 passed by the Alberta legislature has an effect on this freedom of expression Charter of8 Rights claim.9

10 And in my submission, the common sense position has been borne out by the courts,11 which is that a provincial legislature cannot pass a law that infringes upon a constitutional12 Charter right. Its an exercise of the basic idea that the Constitution overrides an ordinary13 act of the legislation.1415 That is dealt with by this Ontario Court of Appeal decision in paragraph 8 that says: (as16 read)1718 The reasons of Lamer J., standing alone, are strongly persuasive19 that a statutory enactment cannot stand in the way of a20 constitutional entitlement. Section 32(1)(b) of the Charter21 provides that the Charter applies to the legislature and government22 of each province. The remedy section of the Charter would be23 emasculated if the provincial government, as one of the very24 powers the Charter seeks to control, could declare itself immune.252627 Now that, in my submission, is a very succinct and important sussing out of some key28 concepts here. Now, again, for convenience in the one page collation of the Charter29 sections which I handed to My Lady a moment ago, we have section 32(1) quoted, which30 the court refers to. The exact wording is: (as read)3132 This Charter applies (b) to the legislature and government of each33 province in respect of all matters within the authority of the34 legislature of each province.3536 So my friend, Mr. Solomon, this morning went to considerable lengths to talk about37 aspects of the claim here which he said were actions rather than omissions and that,38 therefore, the statutory immunity section barred a claim based on that.3940 This is what I think that fails to take into account. If Im correct in saying that Ms. Ernst41 has a Charter of Right freedom of expression right that was breached here, and can sue on

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1 that in a court for compensation and remedies, then that statutory immunity clause cannot2 stop it.34 That takes us beyond acts, omissions, interpretations of the wording of the statutory5 immunity clause. It is a simple, bare fact of constitutional law that if this Charter right,6 the constitutional right of freedom of expression, exists the provincial legislature cannot,7 through a statutory immunity clause, block it.89 THE COURT: Well, thats, as I understand you, vis-a-vis her

10 position, in terms of communicating with the ERCB. But if a court were to find -- were11 to accept Mr. Solomons position, if that were the case -- and Im not saying which12 way -- I -- I dont know which is the right way. But if one accepted that, then youre13 saying that, if I understand your argument, that there would be the exception with respect14 to the decision on prohibiting her from communicating any further with the ERCB.1516 MR. KLIPPENSTEIN: Yes.1718 THE COURT: But are you arguing that it goes further than19 that, if one found immunity?2021 MR. KLIPPENSTEIN: My colleague, Mr. Wanless, who will be22 dealing with those issues in the real -- in -- in the context of the neg -- negligence claim.2324 THE COURT: Okay.2526 MR. KLIPPENSTEIN: Now, a negligence claim is not a -- a27 constitutional Charter right.2829 THE COURT: Of course.3031 MR. KLIPPENSTEIN: So the two can be handled differently by --3233 THE COURT: Okay. Okay.3435 MR. KLIPPENSTEIN: -- a statutory immunity clause.3637 THE COURT: Okay.3839 MR. KLIPPENSTEIN: It -- it -- there -- my friend could argue that the40 statutory immunity clause bars a negligence claim but does not bar a constitutional41 Charter freedom of expression claim.

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12 THE COURT: Okay.34 MR. KLIPPENSTEIN: And that is the position, succinctly, that I am --5 am putting forward for Ms. Ernst.67 THE COURT: Okay, thank you.89 MR. KLIPPENSTEIN: Yeah. So, unfortunately, that does complicate

10 your -- your work.1112 THE COURT: Theres -- theres nothing simple about this13 case, Mr. Klippenstein.1415 MR. KLIPPENSTEIN: But -- but that is -- that is a fundamental point16 and that does -- again, the -- the two claims, the freedom of expression claim and the17 negligence claim, are both claims for breaches of rights seeking remedies that can go --18 going back to what My Lady said before, can go in parallel. They dont have to be19 treated that ones in administrative law, or -- or this --2021 THE COURT: Right.2223 MR. KLIPPENSTEIN: -- this is an appeal.2425 THE COURT: Okay.2627 MR. KLIPPENSTEIN: They are structurally the same for procedural28 purposes.2930 THE COURT: Right.3132 MR. KLIPPENSTEIN: But My Lady has identified one difference,33 which is the statutory immunity clause I say, you know, might apply to one. My34 colleague hopefully will demonstrate that, in fact, it does not.3536 THE COURT: Okay.3738 MR. KLIPPENSTEIN: But regardless of that, in my submission, the39 freedom of expression claim stands.4041 THE COURT: Okay.

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12 MR. KLIPPENSTEIN: Now --34 THE COURT: I -- I understand your position.56 MR. KLIPPENSTEIN: Yeah. Yeah.78 THE COURT: Okay.9

10 MR. KLIPPENSTEIN: Now, I mean, and thats interesting because11 some of the court decisions take pains not to take the freedom of expression right too far,12 which is why many of the cases say, Youre not entitled to demand that a government13 provide you a platform or a megaphone. You know, because we all can imagine, like, the14 funding requirements. Theres cases saying, You cant -- you cant -- the government can15 say, Were funding this group to consult on a -- on an issue --1617 THE COURT: M-hm.1819 MR. KLIPPENSTEIN: -- but were not funding you. And that they20 can do. You dont have a right to say, I want funds to speak.2122 You know, theres a case on the Quebec referendum that says the Quebec government can23 set the rules for the referendum and exclude people from other provinces who move to24 Quebec. And thats not -- your right of freedom of expression doesnt go that far.2526 And -- and so -- because you -- precisely because it is constitutional, it is so protected and27 so forceful, and overrides a provincial statutory legislation, you know, immunity clause, or28 other things. It is -- it -- it would -- it would overload the wagon if --2930 THE COURT: M-hm.3132 MR. KLIPPENSTEIN: -- the freedom of expression went that far and33 overruled everything. And I -- I have to beg -- it feels like Im arguing against myself34 here, but I -- I dont think so. No, the point is simply that the freedom of expression35 right that Ms. Ernst claimed, as Ive said, you know, repeatedly, is -- is the right to be --36 to -- to have your communications received.3738 And the thing about what happened here is, that it -- it went -- the Board, in my39 submission, went so far that its actually a bit of an unusual case. You dont have many40 situations where an agency of the government says to somebody, We are not41 communicating with you anymore, period. And were returning your letters. Im -- I --

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1 Im not sure Ive ever heard of a case like that before. And that -- well, Ill come back to2 part of that shortly.34 The -- the legal argument, the legal brief, goes through some points which I wont repeat,5 because in -- in a way, theyre kind of simple. Like, the court -- the courts have said,6 What -- what -- what is considered expression? Thats in the fact, I mean, I -- I am7 submitting its kind of easy, I think, to have Ms. Ernsts letters and complaints and -- are8 expression.9

10 I will specifically address the issue that this, today, is a preliminary application, whether11 you consider it under rule 3 or rule 7. And because what I am suggesting right now is a12 constitutional Charter right, the courts have said, be extra careful in dismissing a Charter13 right claim at a preliminary stage.1415 Now, again, that is one of those ways in which, I think, My Lady may -- may be required16 to treat the Charter claim just a little bit differently.1718 THE COURT: M-hm.1920 MR. KLIPPENSTEIN: And Ill read some of the cases in a moment.21 But the result might be that -- that this court might say that the test I have to apply at a22 motion to strike or a summary judgment, works a little differently for a Charter claim.2324 And -- and I might, you know, and I -- I am suggesting that the court should be more25 reluctant to strike out a Charter claim at a preliminary stage than -- than other causes of26 action. And theres considerable authority for that, which I will -- I will note.2728 At tab 29 of the plaintiffs book of authorities, in a case of Public Service Alliance of29 Canada, if the court could turn up that volume II of the plaintiffs book of authorities.3031 THE COURT: Okay.3233 MR. KLIPPENSTEIN: At the tab 29.3435 THE COURT: Go ahead, Mr. Klippenstein. Ive got so much36 material, Im not going to hold you up here.3738 MR. KLIPPENSTEIN: That is the case of the Public Ser -- Service39 Alliance of Canada, and at page -- page 10 of that decision, which is the last page, in40 paragraph 40, the prothonotary of the federal court says in the underlined portion: (as41 read)

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12 I reiterate the point already made. A motion to strike for want of3 a reasonable cause of action is an unlikely vehicle in cases which4 com -- comprise substantive Charter claims that raise issues of5 general importance and call for a contextual approach in the6 assessment of fact.78 So that is in fact, in my submission, a different test to apply under rule 3 and rule 7, to9 claims based on the Charter, which this is. Similarly, at tab 30, in the decision of Pacific

10 Press, a decision of the British Columbia Supreme Court, that is a Charter claim, a11 Charter rights claim, such as the freedom of expression claim here.1213 And the court says, in paragraph 12: (as read)1415 The nature of the balancing of interests required by this test16 [which is the section 1 of the Charter] in -- requires, in my17 respectful view, a careful analysis of the circumstances within the18 context of the factual matrix from which they arise. Such a19 process does not easily lend itself to the type of summary20 determination sought here.2122 Then the court quotes, in paragraph 15, a decision of the Supreme Court of Canada,23 Justice Cory, where the court says: (as read)2425 Charter decisions should not and must not be made in a factual26 vacuum. To attempt to do so would trivialize the Charter and27 inevitably result in ill-considered opinions.2829 So, in my respectful submission, again, whether the court considers this as a rule 3 or a30 rule 7 application, motion to strike, or summary judgment, the freedom of expression31 Charter part of the case, which can be identified separately --3233 THE COURT: Yes.3435 MR. KLIPPENSTEIN: -- has a different test.3637 THE COURT: Okay.3839 MR. KLIPPENSTEIN: Let me for a moment, as I mentioned before40 that I would, refer My Lady to a number of authorities commenting about the importance41 of freedom of expression. In -- in a sense, its perfectly obvious to us all, but the courts

36

1 have reiterized -- reiterated in, you know, the -- the fundamental nature of this.23 Beginning at tab 31, of volume II, in the case Committee for the Commonwealth of4 Canada, which was a decision of the Supreme Court of Canada. Once again, thats at tab5 31, page 25 of that decision, paragraph 69. The court says: (as read)67 The libert -- liberty to comment on and criticize existing8 institutions and structures is an indispensable component of a free9 and democratic society. It is imperative for such societies to

10 benefit from a multiplicity of viewpoints, which can find fertile11 sustenance through various media of communication.1213 So the court emphasizes the -- the -- using the word, "indispensable component of a free14 and democratic society." The court also talks about criticizing institutions and how that --15 that -- thats important, and also talks about having "various media" of communication.1617 And -- and, in a sense, I think this is almost so obvious to all of us that it doesnt need to18 be repeated, but the -- the courts have -- have said that. And in this case, again, the -- the19 right of freedom of expression that Ms. Ernst is asking for is simply the right to have her20 communications received. And I keep saying that, because its easy to mischaracterize21 this as saying, I want some special platform.2223 And I -- in my submission, even granting Ms. Ernst the right that Ive just expressed,24 helps the -- helps, perhaps in a small way, the values and principles that Ive just referred25 to from the Supreme Court. Because instead of having a door slammed in your face,26 someone in the government agency at least has to receive your communication. The door27 is open a little bit.2829 Its better to -- to -- to have a requirement to -- to listen a little bit, at least look at the30 letter. You know, maybe theres something there. Dont just automatically say, Because31 it comes from Jessica, Im throwing it in the garbage; Im sending it back.3233 THE COURT: Okay.3435 MR. KLIPPENSTEIN: You know, just look at it. You dont have to36 read the whole thing, maybe. You know, so its not a -- it -- it is on the one hand not37 a -- a huge demand on resources, but its also not nothing.3839 THE COURT: Okay.4041 MR. KLIPPENSTEIN: You know, you could say -- you could say, Oh,

37

1 well, what do you want them to just open the letter and throw it in the file? You know,2 thats trivial. Youre making a Charter case for a trivial -- but Im saying that -- that is a3 healthy step. Its good that we recognize we cant slam the door arbitrarily on somebody4 just because we dont like something they said. And some good can come out of that.56 THE COURT: So I understand the -- the argument that youre7 making, Mr. Klippenstein, and the position that youve taken, in terms of this courts8 consideration of the test that I ought to apply with respect to this aspect.9

10 MR. KLIPPENSTEIN: Okay. I will try and move on then.1112 THE COURT: Okay.1314 MR. KLIPPENSTEIN: Very -- very quickly, at the next tab, tab 30 --15 well, still on the same tab, paragraph 94, theres a quote from, I think, Mr. Justice Cory16 when we -- when he was -- when -- when -- when he was a member of the Court of17 Appeal, at the bottom of the page, very quickly: (as read)1819 Its difficult to imagine a more important guarantee of freedom to20 a demo -- democratic society than that of freedom of expression.21 A democracy cannot exist without the freedom to express new22 ideas and to put forward opinions about the functioning of public23 institutions.2425 And -- and so forth. And he says: (as read)2627 The concept of free and uninhibited speech permeates all truly28 democratic societies.2930 And the court uses the word permeates. And this may be an example, in -- in this case,31 of -- of permeating as, you know, is -- this is a -- the ERCB is a separate agency. Its32 not a newspaper. Its a regulatory agency, but it is still a good thing if it at least has to33 receive the communications from Albertans, and cant just say, I dont like you, Im34 shutting the door.3536 The -- the factum of Ms. Ernsts points out two ways in which the ERCBs decision to --37 to not communicate, to not even receive communications, breaches the Charter principles38 of freedom of expression.3940 One is that it punishes her. She was a vocal critic, and they punished her. They -- by41 saying, Were not going to even receive anything from you anymore. I exaggerated a

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1 little bit in that last comment. I exaggerate, but a -- a little bit. But, you know, sending2 under -- sending letters back unopened and so forth.34 There are several cases that talk about how punitive actions are not a sufficient reason to5 breach a -- a -- to breach a Charter right. At tab 32, the case of Haydon v. Canada, a6 federal court decision, paragraph 62: (as read)78 In the present case -- case, both karties -- parties concede . . .9

10 And I guess that by the time it got to this case the government conceded, I guess.1112 . . . both parties concede that the governments conduct, namely13 that of issu -- imposing a reprimand and instruction upon the14 applicants, constitutes a limit of the applicants freedom of15 expression within the meaning of subsection 2(b) of the Charter.1617 In other words, a reprimand, a punitive action based on what theyd said, was a breach of18 their Charter freedom of expression. Similarly, the next tab, paragraph 33, Pridgen v.19 University of Calgary is another punishment case. And in that case, several -- and I20 believe it was students who had some restrictions imposed on them by the university for21 something theyd done. Paragraph 75: (as read)2223 The effect of the review committee was to sanction the applicants24 and prohibit them from publicly espousing their critical views25 regarding Professor Mitra while studying at the University of26 Calgary. The purpose of the order is to restrict the applicants27 freedom of expression.2829 So that can be seen as both a -- a punitive action and a restriction action. In my30 submission, both of those would apply to what -- to the -- to the position the ERCB took31 against Ms. Ernst, both punitive and restrictive; punitive in the sense that we are32 restricting your freedom of expression, and restrictive in the sense were just not going33 to -- were not -- were not going to even look at your mail any more. Now, those again34 are set out in the -- in the legal brief and at -- with some more -- more detail.3536 Now, in -- in my friend, Mr. Solomons, submissions, he quite rightly makes much of a37 distinction that the courts have identified between a positive right and a negative right.3839 And in the case of Charter rights, the general position the courts have -- have developed40 is that you cant ask as a -- based on one of your Charter rights, that the government do41 something positive. Instead, youre asking that the courts not do -- sorry, the government

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1 not do something negative.23 And the -- the metaphor that is sometimes used in the cases is that a Charter right of4 freedom of expression, for example, does not give you a right to a megaphone from the5 government. It just means they cant gag you. So -- and those -- those ca -- theres a6 series of cases that are very important, and my friend has very -- very competently set out7 those.89 And the key point that I would make is that Ms. Ernst, in seeking from this court a

10 remedy for the freedom of expression right as Ive outlined it, is not saying that this is a11 positive right which demands something from the government. And that is a big12 distinction.1314 She is saying that the right to simply receive communications is not a positive demand. It15 is -- especially when this occurs in a board that has a big process for receiving complaints16 and says, We will ensure that all complaints are acted on and so forth. So it is -- it is not17 a -- a demand upon the government, it is just saying, Dont block me; dont slam the18 door.1920 THE COURT: M-hm.2122 MR. KLIPPENSTEIN: Now, the reason -- or -- or -- or what the courts23 have recognized is that -- that if there is a sort of pre-existing fundamental right that is24 not making the -- the -- that is not making an additional new demand on the government.25 Its -- so, therefore, its not a -- a positive claim.2627 An example is the case of Cunningham at tab 38. And in paragraph 55, this was a28 decision of the Alberta Court of Appeal, the court makes an important distinction between29 that positive right and negative right claim. And does so by referring to the case of Baier.30 And Baier is a very important case, setting out the limitations of a Charter rights claim.3132 In paragraph 55, in the -- the last paragraph, the court says: (as read)3334 The chambers judge then relied on Baier v. Alberta and concluded35 that under the first of the three factors, the appellants claim was36 not founded in a fundamental freedom but rather was one seeking37 access to a statutory regime.3839 Thats a key distinction in the -- in the various cases on -- on freedom of expression.40 And just as in the sentence that Ive just highlighted, Ms. Ernst is relying on a41 fundamental freedom. And its not based on a particular statutory regime. It -- it could

40

1 look that way, but accurately understood, its not.23 Paragraph 56 continues that point. And the Court of Appeals says: (as read)45 The Baier analysis applies when legislation itself gives rise to a6 right sought to be protected. If, however, that right existed before7 the legislation came into force, then its incorporation into a8 statutory regime only crystallizes the pre-existing right and sets9 standards for acc -- accessing it -- for accessing it.

1011 And that is what characterizes the situation in the claim of Ms. Ernst. Shes saying, I12 have a pre-existing right of freedom of expression. And in a democracy, the government13 or government agencies cant slam the door. They at least have to receive it. And so that14 right is separate from the foundation of the ERCBs legislation. Its pre-existing, its15 fundamental, its -- its so primal that its a legitimate recognized Charter right.1617 Discussion1819 THE COURT: Okay. Mr. Klippenstein, I need to be mindful20 of the time. I dont -- I dont want to cut anyones submissions short, but I -- Im just21 going to interject. And do you anticipate being longer this -- a lot longer? Because I22 think what I should do is consider a -- a break and find out where -- where were going to23 go, in terms of the balance of the submissions today.2425 MR. KLIPPENSTEIN: Yeah, thank you, My Lady. I was also looking26 at the clock. And if -- if the court wishes to take a -- a normal lunch now, this is a good27 break. I may be very close to my Charter -- the end of my Charter submissions. And if28 I have a break, I can shorten them to the -- and then I would hope and anticipate29 Mr. Wanless can make some points about the --3031 THE COURT: Just so you know, for purposes of case32 management, I -- I understand clearly your position on behalf of Ms. Ernst, where youre33 coming from and -- and the consideration I need to -- to give with respect to the -- the34 section 2 argument.3536 So, you know, there will be -- depending on -- on the outcome, youll have an37 opportunity for further submissions, whether it be at trial or whatever. So I -- I -- just to38 be clear, for your purposes, I -- I know where youre going and what you want me to39 consider. So Im good on that.4041 So and, Mr. Wanless, I take it then youre -- youre going to ultimately make some

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1 further submissions with respect to the second stream and in terms of the negligence?23 MR. WANLESS: Yes. Yes, thats correct.45 THE COURT: Okay. Well, how much time do you expect?6 An hour?78 MR. WANLESS: Slightly over an hour.9

10 THE COURT: Okay. All right. And then, Ms. McCurdy? I11 dont want you to feel that youve been left out.1213 MS. MCCURDY: Thank you, My Lady. We dont have many14 submissions. We believe that our briefs are very straightforward.1516 THE COURT: They are indeed.1718 MS. MCCURDY: And unless Your Ladyship has questions or --19 or concerns with respect to them, I -- I dont anticipate being very long at all.2021 THE COURT: All right. Okay. And, Mr. Solomon, youll, I22 take it, want some opportunity to respond, maybe?2324 MR. SOLOMON: So far, my reply will be under three minutes.2526 THE COURT: Okay.2728 MR. SOLOMON: Well see how that progresses. I -- I do note,29 however, that my friends for the plaintiff will obviously want to respond to Alberta30 Justice too --3132 THE COURT: Of course.3334 MR. SOLOMON: -- much like theyre doing to me. And so that35 has to factor into the time.3637 THE COURT: Yes, and who is going to, in terms of that38 response, in terms of any submissions that Ms. McCurdy makes, does -- or, do you have a39 reply that you anticipate?4041 MR. KLIPPENSTEIN: Yes, we do.

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12 THE COURT: Okay.34 MR. KLIPPENSTEIN: Its -- its a -- it wont be --56 THE COURT: Because youll receive the briefs and7 everything --89 MR. KLIPPENSTEIN: Yes.

1011 THE COURT: -- and that --1213 MR. KLIPPENSTEIN: Yes, yes.1415 THE COURT: Right.1617 MR. KLIPPENSTEIN: So I think -- and I understand youre all18 looking at the clock at the end of the afternoon, so we will -- we will try and find a way19 to make those as short as possible.2021 THE COURT: Okay. And -- and the reason I say that, I mean,22 you -- you gentlemen in particular have travelled a long way to come here. I want to23 make sure --2425 MR. KLIPPENSTEIN: Thank you.2627 THE COURT: -- that you get your opportunity to at least28 highlight the areas for my consideration, and -- and allow counsel to give a -- a29 favourable response. S