Administrative Law Assignment

1. Polygamy is illegal under Canada’s Criminal Code.

A woman who follows a religion that endorses polygamy applies to the clerk of her municipality
for a marriage licence to wed a man who already has a wife, both of whom follow the same
religion as the woman. When the clerk refuses to issue the marriage licence on the grounds
that doing so would constitute aiding the commission of a crime, the woman makes an
application for judicial review of the clerk’s decision.
The woman asks the court to declare the prohibition against polygamy in the Code inapplicable
to her and to order the clerk to issue a marriage licence. She argues that the prohibition offends
the Charter because it violates her freedoms of religion, expression, and association under
section 2 of the Charter.
The government concedes that the prohibition against polygamy in the Code and the clerk’s
refusal to issue a marriage licence violate section 2 of the Charter. However, it claims that the
infringement is justified in a free and democratic society under section 1 of the Charter.

a. What tests will the court apply in determining whether the violation of section 2 of the
Charter is “saved” by section 1? Apply these tests to the fact situation.

The above scenario is about a woman which her religion allows polygamy.
Independently of her religion allows to marry a man who already has a wife, she still
must comply with the laws in Canada, which does not allow polygamy.
Rights and freedoms are not absolute. Whenever someone feels that the
Government, through its laws, is going against her/his personal rights, and is also
going against what is stablished in the Charter of Rights and Freedoms, the
Government will have the onus to demonstrate that the act that is going against the
individual’s rights and freedom, is a justified act/law.
The Government will have to meet all the four-part test, Oakes test, to justify the
act/law which limits a Charter Right, these requirements are:

1. The Government must establish that the law in question is important and
necessary to our society, and in this case, polygamy is a “pressing and
substantial” problem;
2. Must be stablished that the provision of the law, which limits a Charter right, is
rationally connected to the law’s purpose. Can not be arbitrary, unfair or
serves no logical purpose or will not meet this requirement;
3. The law or action must minimally impair the Charter right to achieve the
objective, and
4. Finally, will be examined the law’s proportionate effects on the Charter right.

The Court after analysing all these requirements, will decide if the law is justifiable in
a free and democratic society, and if any Charter rights was violated.
2. Regulating travel agencies.
The provincial government proposes to establish a fund to compensate travellers who do not
get what they pay for after arranging a vacation through a travel agency. For example, if
construction of their hotel is incomplete, the hotel is infested with cockroaches, and the
chartered flight doesn’t arrive to take them home, travellers would apply to the fund to be
reimbursed for their losses.
The fund would be established by amending the Travel Agents Act, which regulates this
industry. The amendment would permit the government to make regulations determining who
must pay into the fund, how much they must pay, how and under what circumstances travellers
may make claims, and what criteria will be used in determining whether and how much to
compensate travellers.

a. Do the principles of procedural fairness require the government to provide any

individuals or groups with an opportunity to be heard before it amends the statute?

One of the most important pillars of procedures fairness is the right to be heard.
In this case, whenever an individual or group of travellers feel that the service
provided by the travel agency, was not the one that stablished in the contract, they
will have the right to be heard.

b. If so, who is entitled to procedural fairness and what kind of consultation or hearing
would satisfy the requirements of procedural fairness that apply in this case?
The Government before amending the Travel Agents Act, should hear what these
travelers has to say about how and when to use the funds, who can make a claim,
compensation, and all other details related to it, because they are the ones that will
be affected by the amendment(s).
Also, the Government will have to give the opportunity to hear the travel agencies.
All the parties involved in this matter and will suffer or benefit from the amendment
must have the right to be heard before the amendment is done.
In this case, amendment of an Act, it should occur a public hearing where all the
parties involved and whoever feels that will be affected by the amendment, should
have the right to be heard through oral evidence and representations.

3. Regulating Used Car Sales

The Ministry of Consumer Relations, headed by the minister, is responsible for regulating used
car dealers. The registrar, an employee of the Ministry, has the right to recommend that a
tribunal, the Licence Appeal Board, revoke the business licences of dishonest car dealers.
A customer of Active Auto Sales, managed by Mr. James, complained to the Ministry that the
company had turned back the odometer on a vehicle that it had sold to him. After investigating
this complaint, the Ministry determined that turning back odometers was standard practice for
this dealership. The company was charged and convicted of fraud, but no charges were laid
against Mr. James. Despite this, the registrar recommended to the Board that it revoke Mr.
James’s licence to sell cars, as well as the licence of his employer, on the grounds that Mr.
James had to be involved in the fraudulent activity given his position in the company.

The Board holds a hearing to decide whether to accept the registrar’s recommendation to
revoke the two licences. In addition to arguing that he was unaware of the illegal activities, Mr.
James argues that the Board is disqualified from deciding whether to revoke his licence because
it is not independent of the Ministry and therefore has an institutional bias.

The Consumer Protection Act establishes the Board. It states that the Board will report to the
minister of consumer relations; that the chair and members of the Board will not be civil
servants; that the premier will appoint the chair and members of the Board; and that the chair
will decide which members and how many members will be assigned to each appeal. The Board
is required by the statute to follow rules of natural justice, such as giving notice of hearings,
hearing evidence, allowing parties to be represented by counsel or agents, permitting cross-
examination, and giving written reasons for its decisions. The statute also provides for the
Board to summon witnesses, hold pre-hearing conferences, and conduct mediation. The statute
allows the Board to make rules of procedure that are approved by the Ministry. It may make
practice directions and issue guidelines for hearings without the Ministry’s approval. The
statute also states that the Board must have regard to any relevant ministry policies when
making its decisions.

Each year the chair of the Board proposes a budget for the following year. Because the Board
reports to the minister, the minister is responsible for approving the Board’s budget. The chair
hires the Board staff, but the practice is that a human resources officer from the Ministry is
involved in the interviews and takes part in making the decisions. The Ministry establishes the
salary range for each Board staff member, but the chair decides what salary to offer within that
range and whether employees receive a raise each year. The chair cannot terminate the
employment of a Board staff member without approval from the Ministry.

It is the government’s policy that each minister enters into a memorandum of understanding
(MOU) with the chair of the Board, governing the relationship between the Board and the
Ministry. Each time the minister or the chair changes, a new MOU is to be signed by both
parties. The current chair was appointed one year ago, but the minister has not signed a new
MOU.

Although the Act says that the premier appoints the members, in practice this is done on the
recommendation of the minister. The MOU between the minister and the previous Board chair
provides that the minister will consult with the chair before deciding which members to
recommend for appointment.

The members are appointed “at pleasure” for a fixed term of two years. Traditionally,
appointment at pleasure means that an employee may be terminated without any notice. The
MOU provides that the minister will seek the advice of the chair when deciding whether to
reappoint members at the end of their term. However, there is a government policy that
members may not be reappointed for more than one two-year term, regardless of the quality
of their performance. About 60 percent of the members are appointed on a part-time basis.
One of them is a former investigator of the Ministry.

The salary levels for the chair and members are established by the government.
The current chair was once the director of the legal branch of the Ministry. He left the Ministry
three years ago. Before being appointed chair, he was in private practice as a lawyer for one
year, then was the director of the Policy Branch of the Ministry of Finance in the provincial
government.

a. Is there an institutional bias that would prevent the Board from hearing this case?

The Board’s structure does not constitute an independent one. Is directly within
the executive power of the Ministry of Consumer Relations, the enabling statute
states that the board will report to it Minister, demonstrating its impartiality to
decide about the case.

b. Play the role of Mr. James’s lawyer and argue that the Board has no jurisdiction to
hear this case.

The board has no jurisdiction to hear the case.

The rules of procedure made by this Board must be approved by the Ministry.
The Ministry totally controls what must be done or not in this Board. The
members and its chair are appointed by the Premier. The chair will be the one
who will determine the members to each appeal. Demonstrating that in each
case, the government controls who will decide and how to proceed.
Whenever a decision is made, the Board must have regard to any relevant Ministry
policies. Demonstrating that this Board does not have independence in the
decisions.
The Minister controls everything in this Board, determines the annual budget,
part-time appointments, term of employment, salary, and termination of
employment. Creating with all these controls, members that are bias, they will
always decide in a favorable way to the Government.
The members can not be fair enough to go against their “employers”, the
Government, they are there just to follow the Government determinations
This board is only a dependent arm of the Government and does not have
impartiality in its decisions.
For these reasons and others mentioned about the relationship with the
Government, the Board will not proceed in a fair and unbiased way in my client’s
case.