DATE: Tuesday, December 10, 1996 TIME: 9:30 AM (2 HOURS)

NB: The time limit must be strictly observed, and booklets handed in after the expiration of the alloted time will not be accepted.

INSTRUCTIONS: You have two hours to write the examination. This is an open book examination. Answer all questions. All questions are equally weighted. This examination constitutes 100% of your final grade in the course. Be organized, be concise and be legible. Good luck.

QUESTION 1

50% - FIFTY PER CENT

The Regional Municipality of Ottawa-Carleton Act, Revised Statutes of Ontario C. R-1.0 provides:

Garbage disposal

53. (2) The Regional Corporation shall provide facilities for the receiving, dumping and disposing of garbage, and no such facilities shall be provided in the Regional Area by any person, area municipality or any local board thereof without the consent of the Regional Council, which consent may be granted on such conditions, including the payment of compensation, as may be agreed upon.

Existing landfill sites

2.1--(1) The Regional Council may by By-law impose conditions, including the payment of compensation, on any person operating a landfill site in the Regional Area on the day this section comes into force.

Powers of Regional Corporation

(3) For the purposes of subsections 2 and 2.1, the Regional Corporation may provide standards and regulations for vehicles, or any class or classes thereof, used for the haulage of garbage to a regional garbage disposal facility.

(3.1) For the purposes of subsections 2 and 2.1 the Regional Corporation may contract with a local or regional municipality in Ontario or Quebec, or a local board thereof.

(4) For the purposes of subsections 2 and 2.1 the Regional Corporation may provide standards, conditions and regulations for garbage disposed in a regional garbage disposal facility.

......

76. No person or legal entity shall sue the Regional Corporation for damages caused by, or civil remedy arising out of any garbage disposal obligation imposed upon or assumed by the Regional Corporation without the consent certified in writing of the Lieutenant Governor in Council.

77. Two Judges of the Ontario Court of Appeal, on motion by the Attorney General of Ontario, shall summarily annul any Statement of Claim or other originating process claiming damages or civil remedy against the Regional Corporation arising out of garbage disposal obligations imposed upon or assumed by the Regional Corporation unless the certified consent of the Lieutenant Governor in Council is annexed to such pleading.

78. Two Judges of the Ontario Court of Appeal, on motion by the Attorney General of Ontario, shall summarily annul any order of any Court granting damages or civil remedy against the Regional Corporation arising out of garbage disposal obligations imposed upon or assumed by the Regional Corporation unless the certified consent of the Lieutenant Governor in Council is annexed to such order.

The Regional Municipality of Ottawa Carleton ["the Region"] made an agreement with the Municipality of Gatineau ["Gatineau"] on January 1, 1995. Under this agreement, Gatineau agreed to pay the Region $1.5 million each year for five years for the right to ship a maximum of 10,000 tonnes of contaminated soils per year into the Region, to be disposed of in facilities operated by or on behalf of the Region.

Myron Mutton operates a landfill site in the Region on behalf of the Regional Government. The Region passes a By-law that requires Myron Mutton, as a condition of operating the landfill site, to receive 10,000 tonnes of contaminated soils from Gatineau each year for five years, to decontaminate all soils received from Gatineau by processing the soils at one of two decontamination facilities operated by the Region, and to use the materials resulting from the decontamination process as cover material at the landfill Myron Mutton operates. The preamble to the By-law reads, in part:

WHEREAS, the Regional Government deems it prudent to cooperate with local government entities in Quebec;

AND WHEREAS, the Regional Government deems it prudent to take measures to protect the environment of Ontario;

AND WHEREAS, the Regional Government deems it prudent to experiment with new ways of landfilling contaminated substances, ...

Under protest, Myron Mutton follows the conditions imposed upon him by the Region's By-Law.

Certain environmental problems follow. Contaminants remain into the soil after processing at the decontamination facility. The contaminants descend into the landfill's leachate system, leak into the water table surrounding Myron Mutton's landfill and cause minor diseases in significant numbers of livestock on neighbouring farms. The neighbouring farmers bring a class action against Myron Mutton for damages caused.

The Region unilaterally cancels its agreement with Gatineau. Gatineau sues the Region for specific performance of the agreement, claiming the Region has no power to cancel the agreement.

Myron Mutton sues the Region, claiming that it has no constitutional power to impose conditions on him relating to the receipt and processing of the Gatineau soils.

The Region consults you for your opinion respecting any constitutional issues that may arise in litigation against it, excluding the Charter of Rights. Advise the Region.

QUESTION 2

50% - FIFTY PER CENT

"Thus the pure case of express conflict is clear on the authorities -the federal statute prevails. At least the doctrine of Dominion paramountcy must go this far, but there has been some suggestion recently that it goes no further - that this is all it means ... unless the federal and provincial provisions in question conflict 'in the sense that compliance with one law involves breach of the other,' they can operate concurrently. If only such patent and positive conflict of comparable terms can invoke the doctrine of Dominion paramountcy, then that doctrine is indeed confined to the narrowest significance it could possibly be given. ... as we shall see, this does not seem to be the state of the authorities.

...there is another type of conflict or inconsistency to be examined. The federal legislation in a concurrent field may carry the express or tacit implication that there shall not be any other legislation on the concurrent subject by a province. If this negative implication is present, any supplemental provincial statute would be in conflict with it, though there is no conflict between comparable terms of the two statutes. ... It should be noted at this point that Mr. Justice Cartwright of the Supreme Court of Canada has carried this idea of conflict by negative implication to its ultimate limit. In O'Grady v. Sparling (1960), the Supreme Court was considering the relation of two different dangerous driving offences. The Criminal Code of Canada at this time made it an offence to drive a car with "wanton or reckless disregard for the lives or safety of other persons." The Highway Traffic Act of Manitoba made it an offence to drive a car on a highway "without due care and attention or without reasonable consideration for other persons using the highway." The provincial offence is much wider than the federal one, but overlaps and includes it. Mr. Justice Cartwright (dissenting) said:

In my opinion when Parliament has expressed in an Act its decision that a certain kind or degree of negligence in the operation of a motor vehicle shall be punishable as a crime against the state it follows that it has decided that no less culpable kind or degree of negligence in such operation shall be so punishable. By necessary implication the Act says not only what kinds or degrees of negligence shall be punishable but also what kinds or degrees shall not.

In other words, he is saying that if there is a federal statute of any kind in a concurrent field, this alone necessarily and invariably implies that there shall be no other legal regulation by a province of the concurrent subject. This ... represents the broadest sweep that could possibly be given the doctrine of Dominion paramountcy. Mr. Justice Cartwright's view is not the law, but, as stated, it does mark out one of the two extreme positions possible and so aids this attempt at analysis."

Situate this statement in the relevant law, explain what constitutional valued have powered the doctrine to this point and evaluate it critically. Explain first, the "true state of the authorities."