Administrative law – Municipalities – Planning and zoning – Decisions of administrative tribunals – Subdivision and Development Appeal Board – Hearings – Judicial review – Bias – Natural justice
Mountain Creeks Ranch Inc. v. Yellowhead (County) Subdivision and Development Appeal Board,  A.J. No. 398, Alberta Court of Appeal, April 12, 2006, Conrad, Berger and Ritter JJ.A.
The Yellowhead Development Authority had granted the Appellant a permit to develop a campground near Hinton, Alberta. The Appellant was later granted an additional development permit to expand the existing campground. In 2002, this additional permit was appealed to the Respondent Appeal Board who allowed the appeal and denied the campground expansion. The Appeal Board consented to an appeal of its decision being granted, on the basis of one of its Board members being reasonably apprehended to be biased. A new panel of the Appeal Board re-heard the matter in 2003 and allowed the appeal and overturned the development permit. The Appellant brought this appeal, questioning the objectivity of a different Appeal Board member, who was a councillor for Yellowhead County and who had previously participated in matters involving the Appellant and campground in issue.
The Appellant claimed that there was a reasonable apprehension of bias attributable to the Board member as she (1) previously opposed development permits by the Appellant relating to the campground in issue, and (2) greatly understated her history of opposition.
A reasonable apprehension of bias arises where a reasonable person, knowledgeable of the facts of the situation would conclude that it was likely that the decision maker would not decide fairly. If a single member of an administrative body is disqualified on the basis of bias or reasonable apprehension of bias, the whole proceeding is affected. Generally, the decision will be quashed.
The Board member did not participate merely in a supervisory or administrative function, as her participation consisted of voting on whether or not the Appellant’s development application should be heard or tabled. She also voted against several specific components of the development and she was an active participant in a decision making process that affected numerous parties. Moreover, only four years had elapsed between the Board member’s first involvement in this matter to her latest.
A review of the Board member’s voting at council objectively demonstrated that she voted on one side of the campground issue. She consistently voted against the interests of the Appellant or in favour of the interests of a residents’ association which was opposed to the campground. She had not voted just once, as she had stated, but 11 times, and the votes related to at least six issues regarding the campground development. A reasonable person aware of the member’s earlier votes would conclude that she would not decide the issue fairly.
As a result, the appeal was allowed and the matter remitted to the Board for re-hearing.
To stay current with the new case law and emerging legal issues in this area, subscribe here.