Canadian Administrative Law – Application of Charter of Rights and Freedoms to case

| February 7, 2016

Canadian Administrative Law – Application of Charter of Rights and Freedoms to case

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This is a single essay take-home final exam based on the hypothetical fact situation below. Please read the question carefully. Your answer should be 8 pages double-spaced. Please ensure that you not only state but explain your viewpoint and consider the strength of any opposing viewpoint. Also, state any assumptions of fact that you are making.

Sylvia’s Corners is a growing community in northern Ontario with a population of about 15,000. It was a bustling one-industry paper mill town in the 20th century but is now a popular place to retire, fish and play golf, and there are rumours that the once-thriving paper mill will close down later this year.

Ausma is a long-time resident and activist in the community. Last year she was appointed to a two-year term, renewable for a further two years, as environmental commissioner for the town of Sylvia’s Corners. It was an “at pleasure” appointment and paid her an annual salary of $5,000. It wasn’t a lot of money, but she loved being an environmental watchdog monitoring the Sylvia’s Corners council. As well, Ausma had a full-time job with the town as a planning officer that she also enjoyed and that helped her support her three children as a single mother.

Last week Ausma’s world fell apart. She happened to pick up a document from the floor that was a letter addressed to Wallace Crooked, the town Mayor, from his brother Waldo Crooked, who was CEO of Crooked Forest Products, the one and only paper mill and major employer in Sylvia’s Corners. In the letter, Waldo promised Wallace payment of $250,000 in return for voting at City Council that evening for a massive condominium development and golf course on the site of the paper mill that, if Waldo had his way, would close its doors and lay off all its workers. It was clear to Ausma that the development plans, the large payment to the Mayor and the intention to influence the Mayor’s vote in the City Council meeting were not meant to be public and were part of a scheme known only to the Crooked family. She was convinced that the City Council vote that had approved Waldo’s development plans must be overturned by whatever means possible.

Outraged about the impact of this development on her community and the local environment, Ausma secretly sent the letter to the local newspaper. However, someone saw her pick up the letter and deduced who had made the letter public. Ausma received a handwritten note from the Mayor saying she was “fired effective immediately” from her “at pleasure” appointment as environmental commissioner and also fired without notice from her planning officer position (she had no union protection). Then she received another handwritten note from the Mayor saying the town council had just passed a by-law banning the wearing of a niqab (which Ausma happened to wear to work) – there had been no notice of a niqab by-law and Ausma coincidentally was the only town employee who wore a niqab, and no other head coverings associated with any other religion were affected.

Finally, Waldo Crooked told the newspaper that the “scandal” was baseless, would have a harmful effect on the major town employer Crooked Forest Products, and the company would sue Ausma for $5 million unless Ausma immediately apologized for making the letter public and admitted to having written the letter herself.

Ausma wants to challenge the decision of the Ontario Municipal Board. She hears you are an expert in administrative law and the duty of fairness and might be able to help point her in the right direction. In addition to the facts above, Ausma asks you about two additional issues:

You are worried about the impact of a golf course and development on the environment and want to claim that the Mayor’s plans would infringe the community’s right to a clean environment under the Charter of Rights.

Ausma learns from her research that the land on which the golf course and condominium are to be built actually is the subject of an Indigenous land claim. The Nishnawbe First Nation claims this traditional land contains valuable silver deposits belonging to the Indigenous people and they had never been consulted by Mayor Crooked, the paper mill or Sylvia’s Corners town council before council voted on the condominium development.

Assume that relevant legislation allows you to appeal the Council decision to the Ontario Municipal Board.

What advice would you give Ausma? What are the likely remedies that Ausma or the Nishnawbe First Nation might hope for in an application to the Ontario Municipal Board? Consider the strength of the arguments that will be made by the other side Wallace (Town Council) or Waldo Crooked (Crooked Forest Products) as well as your own. Identify administrative law and democratic principles we have discussed in this course. Your analysis should relate the scenario to the broader political, social and economic landscape, in addition to the principles of administrative law.

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