Business Law in Canada, 6e

1
Business Law in Canada, 6/e

• Chapter 3
• Government Regulation
• and the Environment

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Regulatory Role of Government

• Executive branch of government is responsible for
  regulatory bodies created by legislation.
• Complaints against the actions of regulatory
  agencies are usually heard by administrative
  tribunals.
• Administrative tribunals must function by the
  rules of natural justice

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Administrative Law

• Administrative tribunals include government
  regulatory bodies or their agents that make
  decisions affecting the rights of others
• The rights of people facing an administrative
  tribunal are covered by administrative law

4
Authority of Decision Maker

• Rule of law - government officials must rely on
  legislation to authorize their acts. They cannot
  interfere with a persons rights by virtue of
  their position.
• Authority of decision maker may be challenged
• validity of statute or regulation can be
  determined by the courts

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Statutory Interpretation

• Determination of whether a rule has been properly
  imposed is based on judicial interpretation of
  the statute.

Continued ...
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Statutory Interpretation/2

• Rules of interpretation include
• golden rule - reasonable interpretation
• mischief rule - specific purpose of rule
  identified
• strict interpretation - must be clear and
  unambiguous

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Rules of Natural Justice

• Fair hearing - complainant must have notice and
  opportunity to be heard
• Heard by decision maker - the people making the
  decision must be the same ones hearing the
  evidence
• Impartiality - no bias on part of decision makers

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Judicial Review

• Courts review - not the decision but the process
  by which it was made.
• All other remedies must be exhausted before
  courts will hear the case

Continued ...
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Judicial Review/2

• hears challenges to authority of decision maker
• questions of procedural fairness
• decision and remedy goes beyond power set out in
  legislation
• decisions that involve errors of law

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Methods of Judicial Review

• Prerogative Writs - available when a duty to act
  fairly has not been met
• certiorari - nullifies administrators decision
• prohibition - prevents a decision being made
• mandamus - forces a decision

Continued ...
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Methods of Judicial Review/2

• Declaratory Judgment - declaration of the law
• after decision has beenmade, court may assess
  damages, grant compensation

Continued ...
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Methods of Judicial Review/3

• Injunction - a court order to stop breaking the
  law
• inappropriate when damage has already occurred
• government officers may be immune from
  injunctions
• Specific statute may modify rights
• Judicial review process may be streamlined by
  statute

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Privative Clauses

• Statutes contain provisions that make it
  difficult for courts to conduct reviews
• courts deem them not to apply when the board has
  gone beyond its jurisdiction or authority
• court retains right to interpret statutory
  provisions
• subject also to the Charter
• Court will only interfere where serious problem

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Question for Discussion

• Administrators who make decisions affecting
  individuals must follow minimum standards of
  procedural fairness.
• Is this appropriate or should administrators
  remain unfettered by these rules and procedures
  that are more akin to the courts?

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Protection of the Environment

• Environmental law is an example of the role and
  purpose of government regulatory bodies
• Environmental protections provided by common law
• riparian rights
• nuisance
• strict liability

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Environmental Statutes

• Federal
• international and interprovincial concerns
• federal lands
• coastal waters
• Provincial
• forests
• minerals
• fresh water

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Provincial Statutes

• Creates government departments
• create regulations
• grant permits
• establish standards and assessment policies
• inspect and enforce regulations
• develop prevention programs
• research and development

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Federal Legislation

• By helping to finance provincial programs
• controls how funding is used and extent of
  provincial programs
• controls hazardous materials
• handling and disposal of hazardous wastes
• discharge of dangerous substances into waterways

Continued ...
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Federal Legislation/2

• Federal and provincial legislation overlap and
  reinforce each other

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Enforcement Provisions

• Statutes give considerable powers to enforce
  stopping just short of force
• enter premises
• inspect
• seize documents
• require site and compliance audits
• set penalties

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Environmental Assessment

• Environmental Assessment Act
• requires new business proposals to include
  environmental risk assessment
• such reports increase cost of setting up a
  business
• requires hearings before an environmental
  assessment board

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Question for Discussion

• Government regulations help to control abuses
  that diminish the quality of our environment. In
  the process they increase the cost of doing
  business, perhaps discouraging industries from
  setting up here.
• Is there any way to accomplish the first goal
  without the disadvantages associated with it?

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Question for Discussion/2
16-11

• Is there any way to accomplish the first goal
  without the disadvantages associated with it?