Administrative Law Exam

CML 2212 / 2008

Forcese
General Instructions
This is an 8 hour take-home exam. Exam papers must be submitted to
the Common Law Secretariat by no later than 4:30 pm. E-mailed or electronic
copies of exam papers will not be accepted. Please use full sentences in
responding to all of these questions. Please ensure that your exam paper is fully
legible. You are strongly encouraged to type your exam paper. Exam papers
written or typed on loose sheets must have student numbers in the top right hand
corner of each page. The pages that comprise the exam must be stapled (and
not paper clipped) together.
Exam papers MUST be each students individual work product.
Consultation between students or other third parties on anything related to the
exam during the exam period is prohibited. The rules barring plagiarism apply
fully in this exam, as they do to all other student work product. Under no
circumstance may the exam be longer than 10 pages, double-spaced, typed
pages (8.5 X 11), with 1 inch margins and times roman 12 point font. Pages that
exceed this length will not be graded.
This exam has 2 sections, each with several parts. The questionnaire
totals 6 pages. Good luck and best wishes for the summer!
***
SECTION A: This question has 2 parts. Read the facts associated with each
part and respond to the accompanying question. If you find duplication between
your discussion of the law in the different parts, you may incorporate your earlier
discussion of law by reference rather than by repeating material. If you
incorporate by reference, be sure to indicate expressly where you discussed the
relevant law and to include any fact-specific analysis, conclusions and
recommendations. Marks are assigned not only for spotting issues, applying the
appropriate law and arriving at reasonable outcomes, but also for briefly defining
terms and concepts, where appropriate.
In answering these questions, be sure to consult (and raise in your
answer) any applicable provisions found in the relevant statute and/or regulations
included in the case study sections of the Casebook.
Part 1 (19%)
Facts:
Since 2003, EarthForce has been opposing the expansion of Ontarios largest
landfill at Belching Gap Mine, Ontario.
The existing landfill site occupies a 17.3-hectare area within a larger 149.8hectare property, and is a discontinued hard rock mine. It is licensed to receive 105,000
tonnes of non-hazardous waste per year. The facility opened in 1954 and was designed on
what was then good science that the resulting pollution would be controlled by natural

attenuation. That 1954 phase, however, produced and continues to produce leachate,
which the Ontario Ministry of Environment says is contained within the site. EarthForce
is concerned about the impact of that first-phase leachate on both ground and surface
water.
Expansions of the site since 1954 have been fully lined, although EarthForce
remains concerned about potential contamination. Residents living around the site allege
that the landfill adversely affects their agricultural operations and causes reproductive
anomalies in their animals. The landfill owner Ontario Environmental Design (OED)
denies that there is any environmental impact outside the landfill site, and blames any
problems on the farmers own agricultural practices.
OED, a subsidiary of Acme Waste Management (AWM) of the United States,
acquired the landfill in 1997. In 2003, it decided to seek expansion of the landfill to a
total capacity of 750,000 tonnes per year, up to a capacity of 23.5 million cubic metres of
waste over 30 years. That expansion project is subject to environmental assessment
under the Ontario Environmental Assessment Act (EAA).
By April 2008, proponent OED had completed the environmental assessment,
which was then reviewed by the Ontario Ministry of the Environment. EarthForce is
extremely concerned that this assessment is inadequate. While the analysis focused on
the impact of leachate on ground water, it is almost entirely silent on the effect of the
landfill expansion on surface waters. EarthForce asked the Minister to refer the
proponents assessment to the Environmental Review Tribunal (Tribunal).
In May 2008, the Minister responded as follows:
I decline to refer the application to the Tribunal because EarthForce lacks standing to so
request and because to do so would be an unacceptable expense to the taxpayers of
Ontario.

Question:
EarthForce is very unhappy with this decision. The senior partner at Best & Hope
wants a brief memorandum on the legal issues at stake, your recommendations on how
EarthForce should proceed, and what remedies EarthForce should seek and might hope
for. Write the memo.
Part 2 (15%)
Facts:
The dispute discussed in question 1 is resolved in EarthForces favour and OEDs
application was referred by the Minister to the Tribunal in July 2008. During oral
hearings, the Tribunal was pressed by counsel for EarthForce to deny OEDs application.
Hoping to expedite matters during cross-examination of an expert witness on ground
water by OEDs lawyer, the chair for the Tribunal asserted: Look counsel, we all know
that landfills taint water and we also know all about the disastrous impact these projects
can have on a governments political reputation. Lets move on with arguments.
Subsequently, the Tribunal rendered the following decision:
Based on a careful and thorough assessment of the application, the environmental
assessment, the Ministrys review of that assessment and comments received during our
hearings, we refuse to give approval to proceed with the undertaking.

Question:
EarthForce is thrilled with this outcome, but is concerned that it might be
vulnerable to challenge by OED. Advise EarthForce.
SECTION B: This question has 2 parts. Read the facts associated with each
part and respond to the accompanying question. If you find duplication between
your discussion of the law in the different parts, you may incorporate your earlier
discussion of law by reference rather than by repeating material. If you
incorporate by reference, be sure to indicate expressly where you discussed the
relevant law and to include any fact-specific analysis, conclusions and
recommendations. Marks are assigned not only for spotting issues, applying the
appropriate law and arriving at reasonable outcomes, but also for briefly defining
terms and concepts, where appropriate.
In answering these questions, be sure to consult (and raise in your
answer) any applicable provisions found in the relevant statute and/or regulations
included in the case study sections of the Casebook.
Part 1 (28%)
Facts:
In April 2007, Sean Kelly was named by the federal Cabinet to serve as Canadas
counsel-general in Chicago. This appointment was made conditional on Kelly receiving
proper security clearance, after an assessment by the Canadian Security and Intelligence
Service (CSIS). In November 2007, CSIS concluded that Kelly had ties to the
Provisional IRA dating to the 1970s, at a time when that group was resisting the British
presence in Northern Ireland using terrorist tactics. CSIS therefore recommended that
Kelly not be given security clearance. The Cabinet withdrew its appointment of Kelly as
counsel-general.
Kelly was shocked by this conclusion; he has had no contact with Ireland or Irish
political issues, and concluded that this was a case of mistaken identity. He appealed the
CSIS finding to the Security Intelligence Review Committee (SIRC), the review body
that hears complaints concerning CSIS. This appeal is permitted by s.42 of the CSIS Act.
In support of his application, Kelly submitted certified photocopies of all the
passports he had ever possessed, none of which bear the entry stamp of Ireland or the
United Kingdom. He received a response that read, in part, as follows:
Dear Mr. Kelly,
Pursuant to s.46, please find attached below the information we have on
your complaint [not included for the purposes of this exam question].
We will be sure to have a full and exhaustive investigation and then
hearing into this matter. At that hearing, we will hear everything you
wish to present. I would not worry too much about this situation. In
many instances in the past, we have found that CSIS performed a
perfunctory assessment and was wrong in recommending denial of a
security clearance. They can really be careless. And Im sure well
find that same thing in your case.

A month later, without having had any further communication or contact with
SIRC, Kelly received the following letter from the Chair of SIRC:
Dear Mr. Kelly,
We have concluded that you in fact have had no affiliation with the
IRA. Instead, you were a member of Sinn Fein, the political wing of
the anti-British movement, and that you regularly visited both Ireland
and Northern Ireland. While we have concerns about this affiliation,
we see no reason why past affiliation with Sinn Fein should preclude
security clearance for a posting in the United States. Under these
circumstances, we think it was unreasonable for CSIS to recommend
against security clearance and recommend that this clearance be given.

Question:
Both the government and Mr. Kelly are unhappy with this decision (Mr. Kelly
continues to urge that he has had no contact with Irish political movements and is
concerned about the impact of this finding on his future prospects). Explain the
administrative law grounds available to a) Mr. Kelly and b) the government to challenge
this decision. Briefly explain c) the procedure they would follow and the remedy they
would seek.
Part 2 (38%)
Facts:
On January 15, 2008, Kelly arrived at Pearson International airport to board an
Air Canada flight to Winnipeg. He was told at that time by the Air Canada check-in
agent, upon consultation with Transport Canada, that he would not be permitted to board
the flight under Canadas Passenger Protect program that is, he would be denied
boarding permission by Transport Canada pursuant to an emergency direction issued by
the Minister of Transport under section 4.76 of the Aeronautics Act.
On February 1, 2008, the following regulation was made, pursuant to sections
4.71 and 4.9 of the Aeronautics Act:
SOR/2008-12 February 1, 2008
AERONAUTICS ACT
Office of Reconsideration Regulations
P.C. 2008-12 February 1, 2008
Her Excellency the Governor General in Council, on the recommendation of the Minister
of Transport, Infrastructure and Communities, pursuant to sections 4.71 and 4.9 of the
Aeronautics Act, hereby makes the annexed Office of Reconsideration Regulations.
1. The definitions in this section apply in these Regulations.

emergency direction means a direction issued by the Minister pursuant to section 4.76
of the Aeronautics Act.

3. The Minister shall appoint twelve persons to a Reconsideration Tribunal as follows:

a) three members of the Royal Canadian Mounted Police;
b) three members of the Canadian Security Intelligence Service;
b) three officials of the Department of Transport; and,
c) three lay persons.
4. The Reconsideration Tribunal sits in panels of three, composed as directed by the
Minister.
5.(1) The Reconsideration Tribunal shall hear requests from persons subject to an
emergency direction that the emergency direction be reconsidered.
(2) Where the Reconsideration Tribunal determines that an emergency direction should
be reversed, it shall so advise the requestor and the Minister.
(3) The Minister may at any time instruct the Reconsideration Tribunal to dismiss a
request referred to in this section, if, in the Ministers opinion, this dismissal is in the
interest of national security or foreign affairs.
6. Where the Minister considers that the reversal of the emergency direction is in the
interest of aviation security, the Minister may cancel the emergency direction.
7. By directive, the Minister may prescribe criteria to be applied by the Reconsideration
Tribunal in the exercise of its powers under section 5.

On February 15, Sean Kelly filled a request under section 5. On March 1,

the Minister issued the following directive:
Pursuant to my powers under section 6, I prescribe that in deciding requests for
reconsideration, the Reconsideration Tribunal shall take into account commitments made
to the United Kingdom to cooperate fully in the suppression of terrorism by bringing to
justice members of the provisional IRA.

Kellys case was heard by the Reconsideration Tribunal, constituted as

directed by the Minister, on March 15. To expedite matters, the Tribunal agreed
to receive only written submissions and no vive voce evidence.
On March 30, the three members of the panel charged with Kellys case
met with the other nine members of the Reconsideration Tribunal. The minutes of
that meeting read as follows:
Present: [names of the twelve members]. Subject: Application of Ministers March 1
directive to Tribunal Proceedings. Decided: March 1 directive implicates the Sean Kelly
case and must be applied.

On March 31, the Minister issued the following instruction to the

Tribunal:
Pursuant to my powers under section 5(3), I instruct the Tribunal to dismiss the request of
Sean Kelly in light of the formal protest filed by the United Kingdom government about
Mr. Kellys past activities with the provisional IRA and our promise to bring these
individuals to justice.

On April 1, the Tribunal issued the following decision:

In the Matter of a Request for Reconsideration by Sean Kelly: Request dismissed.

Question:
Explain the administrative law grounds available to Mr. Kelly to challenge the
Tribunal process and proceedings described above and the outcome of these proceedings
in Kellys case.
-- END OF EXAMINATION --