Exam Season

Teaching term is over and exam season is upon us. Here is this year’s exam for Administrative Law. You have six hours…

In the fictional Canadian province of Lower Canada, there occurred in 2020 an outbreak of a highly contagious and extremely dangerous flu-like disease known as VICOD.

In Lower Canada, the Public Health Act provides as follows:

1. The Lieutenant Governor in Council may declare a public health emergency where there is, in the Lieutenant Governor in Council’s opinion, a contagious and transmissible virus which is a threat to the health of the community or to a large group of individuals within the community.

2. A declaration of public health emergency can be made for a duration of 10 days and can be renewed by the Lieutenant Governor in Council.

3. The Lieutenant Governor in Council may make regulations to address the public health emergency in respect of the following matters:

            a. Restrictions on individual movement;

            b. Restrictions on business activities;

            c. Compensation for losses suffered because of the restrictions; and

            d. Vaccination against disease.

4. Regulations made under s. 3 of this Act prevail over any contrary provision of this Act any other Act or regulations.

5. The Legislative Assembly of Lower Canada may revoke a declaration of public health emergency at any time.

6. In declaring a public health emergency or renewing a declaration of public health emergency, the Lieutenant Governor in Council is not under any obligation to give reasons but may append a report from the Minister for Public Health to any declaration or renewal made under this Act.

7. The Minister for Public Health shall make a monthly report to the Legislative Assembly of Lower Canada on contagion and transmissibility of a virus which is a threat to the health of the community or to a large group of individuals within the community.

Please answer the following questions:

1. The first regulation made by the Lieutenant Governor in Council is to amend section 2 of the Act to permit it to make declarations which last for a duration of 30 days, rather than 10. Are the Public Health Act and the first regulation constitutional? (10 points)

2. The second regulation made by the Lieutenant Governor in Council is to create a VICOD Compensation Tribunal. Members of the Tribunal serve “at the pleasure of the Lieutenant Governor in Council” and are to be appointed by the Lieutenant Governor in Council “after consultation with the federal government”: there are no other provisions relating to membership. The regulation provides that the “sole and exclusive” function of the Tribunal is to assess compensation “in its absolute discretion” for wage loss and losses to the value of property caused by restrictions on individual movement and business activities. Assuming that assessing “wage loss” and “property damage” was a function of the superior courts in 1867, assess whether the regulation is consistent with the Constitution Act, 1867. (10 points)

3. The Tribunal adopts a set of “interpretive guidelines” to assist it in distributing compensation. The guidelines provide as follows: (i) applications for compensation must be made in a prescribed form through the Tribunal’s online portal, which consists of an attestation that an identified individual or business claiming compensation was subject to restrictions made under the Act;(ii) compensation will be awarded at a rate of $50 per day for individuals and $5000 per day for businesses of restrictions imposed regardless of the strictness of the restriction; and (iii) that in “exceptional cases” the Tribunal will award a higher rate of compensation for businesses. Are these “interpretive guidelines” an unlawful fettering of the Tribunal’s discretion?   (10 points)

4. Agnes is an individual who makes an application to the Tribunal. As a high-flying lawyer, her time away from the office due to restrictions made under the Act caused significant losses as she was not able to meet clients and represent them in court. Agnes retained an economist who estimated that she has suffered $5000 per day of losses. The prescribed form does not allow her to specify the losses she suffered. Nor does the online portal made available by the Tribunal permit her to upload the report prepared by her economist. The Tribunal awards Agnes $50 for each day she was unable to work due to the restrictions. Agnes requests an in-person hearing before the Tribunal to argue that hers is an exceptional case or alternatively that the Tribunal should modify its guidelines, but the Tribunal refuses her request. Having regard to the degree of procedural fairness owed to Agnes, did the Tribunal act lawfully? (10 points)

5. TWO QUESTIONS One member of the Tribunal is a former Minister, who was appointed because of his close personal ties to the government of Lower Canada. He has consistently taken the position that the VICOD crisis is “an invention of the mainstream media” and loudly protests that it is “no worse than the flu”, brandishing his own recovery (after a course of steroid treatment) as proof of the “great vaccine hoax”. In making decisions, the former Minister consistently refuses to grant compensation requests. In a newspaper interview, he explains that he is engaged in “civil disobedience against the pandemic machine”. Consider (a) whether someone denied compensation by the former Minister would have good grounds to challenge the denial of compensation (10 points); and (b) whether the former Minister could successfully argue that his “independence” would prevent the Lieutenant Governor in Council from removing him from the Tribunal (10 points).

6. TWO QUESTIONS As time goes by, collective immunity to the virus (which, strangely, does not mutate) increases, in no small part due to requirements of mandatory vaccination imposed under the Act. In March 2020, the virus was deadly to the population as a whole. By March 2022, however, only those over the age of 70 were vulnerable to severe disease and death from the virus, with other groups of the population suffering no more than cold-like symptoms. Moreover, the success of the vaccination campaign has greatly reduced the contagiousness of VICOD, though it continues to be transmitted from person to person in Lower Canada. The dangers from VICOD and issues of contagion and transmissibility are accurately recorded in the monthly reports made by the Minister for Public Health.

Nonetheless, the Lieutenant Governor in Council has continued to make declarations of emergency every 30 days. Under s. 3(d) of the Act, the Lieutenant Governor in Council has made a variety of regulations, including mandatory vaccination for everyone in Lower Canada who is over the age of 18. A group of teenagers who are concerned about mandatory vaccination wish to bring a challenge to the Lieutenant Governor in Council’s declaration of a state of emergency. The initial declaration of a state of emergency – and every other subsequent declaration – simply states, “Having regard to the medical evidence put before the Lieutenant Governor in Council by the Minister for Public Health in the most recent monthly report, which is attached as Appendix 1, there is a transmissible and dangerous disease circulating in Lower Canada which requires rigorous public health measures to be put in place”. Making sure to describe the relevant contextual considerations, give your view on the reasonableness of (a) the initial declaration (10 points) and (b) the most recent declaration (10 points).

7. TWO QUESTIONS If Agnes challenged the constitutionality of the regulation creating the Tribunal on the basis that it breaches s. 96 of the Constitution Act, 1867, (a) could the Tribunal hear the challenge, or should Agnes immediately seek a declaration of unconstitutionality from a competent court and, if so what would the standard of review be if a competent court were asked to review the Tribunal’s decision on the constitutional challenge? (10 points) And (b) which would be the competent court for Agnes’ purposes: the Superior Court of Lower Canada or the Federal Court? (10 points)

This content has been updated on April 28, 2022 at 13:51.