Administrative law – Decisions of administrative tribunals – Subdivision and Development Appeal Board – Municipalities – By-laws – Judicial review – Hearings – Conduct of hearings – Procedural requirements and fairness – Reasonable apprehension of bias – Standard of review – Correctness
506221 Alberta Ltd. v. Parkland (County),  A.J. No. 261, Alberta Court of Appeal, March 17, 2008, P.T. Costigan, M.S. Paperny and F.F. Slatter JJ.A
The respondent County had issued a stop order to the appellant for unauthorized storage of pipe on the Appellant’s land. The Appellant appealed the stop order to the County’s Subdivision and Development Appeal Board. The County’s Manager of Planning and Development Services attended the appeal hearing. At the end of the hearing, the Appellant’s representative left the hearing room, but the Manager stayed in the room while the Board deliberated and decided the appeal. The Board upheld the stop order.
The Court first considered the Board’s interpretation of the applicable bylaw, to which the correctness standard applied. After reviewing the bylaw and the relevant facts in detail, the Court held that the Appellant’s development permit did not authorize the storage of pipe. Thus, the Board did not misinterpret the bylaw.
The Court moved on to consider whether the Manager’s presence during the Board’s deliberation and decision raised a reasonable apprehension of bias. The Court set out the principle that a “tribunal cannot seem to admit to its decision-making process one of the parties, or someone too closely connected with one of the parties”. In the Court’s view, the presence of the Manager during the decision-making process gave rise to a reasonable apprehension of bias.
The Respondent did not dispute that conclusion, but argued that as the Board was correct in its interpretation of the bylaw, it would undoubtedly reach the same conclusion if the matter was submitted for rehearing. Therefore, ordering a new hearing would only result in additional expense for the parties. The Appellant countered that the authority to issue a stop order is discretionary and the Board’s jurisdiction allows it to “confirm, revoke or vary” an order.
The Court held that, having found a breach of procedural fairness and given the scope for the exercise of discretion, it was bound to remit the matter for rehearing. In the result, the appeal was allowed and the matter remitted to the Board for rehearing, with the direction that such rehearing take place in the absence of the Manager, and with a new panel.
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