Reference no: EM133438995

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.

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.

Question 1. What process would the Ontario government have used to create the Ontario Environmental Watchdog Commission and the Ontario Environmental Watchdog Tribunal?

Question 2. Would this process attract procedural fairness? Why or why not?

Question 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?

Question 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?

Question 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?

Question 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?

Question 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?

Question 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?

Question 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?

Question 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?