The holder of expropriated placer mining interests (“Eckervogt”) appealed the decision of the Expropriation Compensation Board (the “Board”) on the grounds of lack of independence or a reasonable apprehension of bias where one of the Board members (“Greenwood”) accepted a position as prosecutor with the Ministry of the Attorney General while the expropriation decision was under consideration. The court dismissed the appeal holding that the suggestion that Greenwood’s duties of confidentiality and fidelity to the Crown as prosecutor would place him in conflict with his duties as adjudicator was remote and speculative and should not lead to disqualification.

28. September 2004 0

Administrative law – Decisions of administrative tribunals – Expropriation Compensation Board – Conflict of interest – Independence vs. impartiality – Judicial review – Reasonable apprehension of bias – test

Eckervogt v. British Columbia (Minister of Employment and Investment), [2004] B.C.J. No. 1492, British Columbia Court of Appeal, July 20, 2004, Finch C.J.B.C., Ryan, Donald, Saunders and Low JJ.A.

In 1994, the provincial Crown declared the land on which Eckervogt held placer mining interests part of the Tatshenshini-Alsek National Park. The Crown expropriated the mining claims. The issue of compensation was submitted to arbitration and an award was made. This award was set aside on judicial review. The dispute then moved to the processes for a determination by the Board under the Expropriation Act, R.S.B.C. 1996, c. 125 (the “Act”). The Board was comprised of a chair, vice-chair and a number of part-time members, one of whom was Greenwood, a lawyer then in private practice. While the expropriation decision was still under consideration, Greenwood applied to the Ministry of Attorney General for a position as Crown counsel with the Criminal Justice Branch of the Ministry. Greenwood was hired by the Crown on May 7, 2001 but continued to participate in all meetings discussing the expropriation decision until such time as the British Columbia Court of Appeal came down with the decision in Golden Valley Golf Course Ltd. v. British Columbia (Minister of Transportation and Highways) (2001), 89 B.C.L.R. (3d) 287. In Golden Valley, the Court of Appeal had set aside a decision of the Board where a Board member had accepted a position with the Legal Services Branch of the Ministry on the basis of a reasonable apprehension of bias. After the decision in Golden Valley came down, the chairman of the Board wrote to the parties and disclosed Greenwood’s employment with the Crown as prosecutor and sought their position. It was ultimately agreed that the Board would proceed to render a decision without Greenwood’s participation. Eckervogt was dissatisfied with the result and appealed the decision.

The court reviewed the test for a reasonable apprehension of bias as set out in the decision of the Supreme Court of Canada in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 where the court said, at para. 60:

In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [[1978] 1 S.C.R. 369], at p. 394, is the reasonable apprehension of bias:

 … the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly’.

Counsel for Eckervogt argued that the Board lost its independence and/or the appearance of impartiality by reason of Greenwood’s participation. The court noted that independence and impartiality both derive from the rule against bias but they are not the same. Independence refers to a status or a relationship to others whereas impartiality refers to the decision-maker’s state of mind. Essentially, Eckervogt was arguing that the Panel lacked independence because of Greenwood’s relationship with the Crown and that it lacked impartiality because of pressure on Greenwood, reasonably apprehended but not argued as actual bias, to ingratiate himself with the Crown, initially to get the job and later to serve the employer’s interests.

The court expressly rejected that there are certain situations, employment with one of the parties being one of them, which would automatically disqualify an adjudicator. The court found that the Supreme Court of Canada in Wewaykum had firmly laid down the Canadian position that there was no rule of automatic disqualification in Canada.

The court contrasted the situation that existed in Golden Valley with that of the case at bar. In Golden Valley, the former vice-chair who joined the Crown went to work for the very branch of the Ministry of the Attorney General that advised and often represented the expropriating authorities. In that case, it was found that a reasonable well-informed person might fairly harbour the suspicion that the ex-Board member could be influenced by associating with colleagues who advocated the government’s side in expropriation disputes. In the case at bar, Greenwood’s position was much different. His duties as Crown counsel in the Commercial Crime section had no relation to expropriation and it was accepted as fact that there was little interchange between the lawyers in the two branches of the Ministry. The court found that the suggestion that Greenwood’s duties of confidentiality and fidelity to the Crown as prosecutor would place him in a conflict with his duties as an adjudicator was remote and speculative. The court found that Greenwood’s track record in expropriation cases would be irrelevant to the Criminal Justice Branch in deciding whether to hire Greenwood. In the court’s opinion, a reasonable well-informed person would not have entertained a reasonable apprehension of bias in this case.

In the result, the court dismissed the appeal.

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