With the intent of countering pollution and global warming, the government has created the Ontario Environmental Watchdog Commission. The Commission’s role is to track corporate polluters in
Assignment Part One: Procedural Fairness
FACTS
(note – both the situation and the legislation referred to are fictional.)
With the intent of countering pollution and global warming, the government has created the Ontario Environmental Watchdog Commission. The Commission’s role is to track corporate polluters in the province and record their carbon consumption usage. Carbon consumption will be evaluated against targets set by the government. Businesses failing to meet these fixed targets will be subject to a new yearly environmental surcharge fee that will require them to pay a proportional charge based on their excessive carbon consumption. Pollution assessments and fee impositions will be managed by the Commission. All monies collected will be invested in research and development of renewable energy sources and green technologies.
When deciding whether or not to impose a pollution fee, the Commission has been given discretionary powers to waive certain fees or delay the imposition of fees in light of existing efforts made by the polluter to clean-up its act and reduce pollution. At the discretion of the Commission, payment of fees can also be delayed if such fees would create severe economic hardship on the polluter.
The government has also created the Ontario Environmental Watchdog Tribunal. All businesses subject to a carbon fee can file an application to the OEWT to challenge the Commission’s decision.
Mega Corp. is a large manufacturer in Ontario that consumes a lot of energy. The Commission has determined that Mega Corp.’s carbon consumption exceeds provincial consumption targets and has slapped the company with a large environmental surcharge fee. Mega Corp. feels the Commission’s decision is unjust and does not take into account the nature of Mega Corp.’s business nor its substantial efforts to reduce carbon consumption. Mega Corp. has filed an application with the Tribunal to challenge the Commission’s decision.
Mega Corp has just retained a law firm to handle this matter on their behalf. You have been assigned to assist on the file.
QUESTIONS
1. What process would the Ontario government have used to create the Ontario Environmental Watchdog Commission and the Ontario Environmental Watchdog Tribunal?
2. Would this process attract procedural fairness? Why or why not?
3. Pursuant to its enabling legislation, the Tribunal has been given the power to enact its own rules of practice and procedure. When the Tribunal adopts rules of practice and procedure, does this action attract procedural fairness? Why or why not?
4. The Tribunal has sent the parties a notice of written hearing. (a) Assuming that the Tribunal is subject to the Statutory Powers and Procedures Act (SPPA), what must this notice contain and when it must be sent to the parties? (b) Assuming the Tribunal is NOT subject to the SPPA, what does the common law require regarding notice?
5. The Tribunal has advised the parties (Mega Corp. and the Commission) that the hearing will proceed by written submissions and that an oral hearing will not be held. Mega Corp. is shocked and believes credibility will be a key issue in this case. Assuming that the Tribunal is subject to the SPPA, can Mega Corp. invoke the SPPA in order to get an oral hearing? Why or why not?
6. Mega Corp. wants to call former employees as witnesses, but is concerned that they might not attend the hearing. Assume that the Tribunal is subject to the SPPA, does the SPPA allow a party to request the Tribunal to force attendance using a summons?
7. Prior to the hearing, the parties participated in mediation to resolve their dispute. The mediation was unsuccessful. Mega Corp. feels the mediator sympathized with its position. Assuming that the Tribunal is subject to the SPPA, is there any way to force the mediator to appear as a witness before the Tribunal or to obtain production of the mediator’s notes for purposes of the hearing? Why or why not?
8. During the first day of the hearing, the Commission seeks an adjournment to have time to replace its lawyer because the lawyer has suffered a heart attack. Assuming that the Tribunal is subject to the SPPA, does the SPPA deal with adjournments? How?
9. During the third day of the hearing, Pavel Chekov, a former Mega Corp. employee, is called as a witness. Mr. Chekov is worried and has hired a lawyer to advise him about his rights. Assuming that the Tribunal is subject to the SPPA, will Mr. Chekov’s lawyer have the right to participate in the hearing? If so, to what degree?
10. The hearing took place and the Tribunal’s decision was released soon after. You discover that the decision was made by the Chair’s personal assistant, who made the decision based on her evaluation of the hearing notes taken by the Chair. Does the decision-making process raise any concerns? Why or why not? What kind of concerns? Tribunal is subject to the SPPA, can Mega Corp. invoke the SPPA in order to get an oral hearing? Why or why not?
Assignment Part Two: Charter s. 1
FACTS: R. v LePage
(note – the situation and the legislation referred to are fictional.)
In an effort to combat gang activity, the government has passed a law called the Stop Gangs in Ontario Act (SGOA). The purpose of this law is to help discourage people from joining gangs, and also to make it easier for police to identify gang members. The legislation was debated for one week in the Ontario legislature before it was passed by a vote of 61-46. The law took effect immediately.
A provision of this law, s. 49, prohibits all people from wearing bandanas in schools. The penalty under the SGOA is 30 days in a provincial penitentiary.
Jackie Lepage, a seventeen-year old high school student, was wearing a green bandana while walking to school. The principal noticed Jackie’s bandana and called the police. Jackie told the police that she didn’t know why she was being arrested because she wears her green bandana to raise awareness about the environment.
Jackie’s parents hired a lawyer to defend her against the charges laid pursuant to the SGOA. Jackie is also bringing a Charter claim, arguing that the law unfairly infringes freedom of expression under s. 2(b) of the Charter and should be struck down.
A number of advocacy groups have also become involved in the case. And organization known as the Defenders of the Under 20, (DU-20) has been protesting the new law and argue that in addition to limiting expression, it treats young people differently than adults by only applying in schools.
Another lobby group called Take Back Our Schools (TBOS) has been advocating for this legislation because they feel that combating youth participation in gangs is a crucial step toward building safer communities.
Jackie was convicted at trial and has appealed the conviction to the Court of Appeal for Ontario.
SECTION 1 ANALYSIS
You are a judge of the Court of Appeal for Ontario. You and your colleagues have just heard this case and ruled that s. 49 of the SGOA violates s. 2(b) of the Charter. You must now determine if this infringement is justified under s. 1 of the Charter. Organize your ruling, listing each step in the s. 1 analysis and how you would rule on that question. Provide justifications for your decisions. Once you have completed all of the steps in the s. 1 analysis, give a final judgment (your opinion!) on whether or not the Charter infringement is justified under s. 1.
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