Judicial review from Agricultural Land Commission reconsideration on basis of denial of procedural fairness

Administrative law – Decisions of administrative tribunals – Agricultural Land Commission – Notice requirements – Judicial review – Procedural requirements and fairness – Compliance with legislation

McCall v. Agricultural Land Commission, [2014] B.C.J. No. 2285, 2014 BCSC 1717, British Columbia Supreme Court, July 15, 2014, E.M. Burke J.

The petitioners were owners of eight separate parcels of land located in the Agricultural Land Reserve (“ALR”). The petitioners made a joint application to the Agricultural Land Commission (the “Commission”) to have their respective properties excluded from the ALR.

In the first instance, the Commission conducted an “on-site inspection” by driving by the properties and provided no notice in writing of the meeting to determine the petitioners’ application (as required under the applicable regulations). After the Commission denied the petitioners’ application, the petitioners objected to the lack of procedural fairness. The Commission convened a reconsideration meeting and further denied the exclusion of the properties from the ALR.

The petitioners filed a petition for judicial review of the original decision and the reconsideration. In response, the Commission consented to set aside the original decision and the reconsideration decision, and conceded there were procedural errors. The petitioners, however, proceeded with the judicial review, and obtained an order setting aside the Commission’s decisions and providing directions regarding reconsideration.

Following the successful judicial review, the Commission conducted a further meeting. Further procedural issues arose with respect to the Commission’s conduct of that meeting. In particular, the petitioners were not provided with a summary of the Commission’s site inspection report prior to the meeting. The Commission again refused to exclude the petitioners’ properties from the ALR.

The petitioners brought a further petition for judicial review. The petitioners argued the Commission breached the requirements of procedural fairness in the conduct of the further meeting. The Commission argued the legislative scheme distinguishes between “meetings” and “hearings”, which reinforces that different processes are indicated. The commission argued the nature of a “meeting” permits a process that is less formal.

The court held the Commission breached its duty of procedural fairness. The petitioners had a legitimate expectation that the Commission would not proceed to engage in a site inspection or decide their application without providing the petitioners with a meaningful opportunity to make further submissions or to submit further information to the Commission in respect of any observations and findings arising from the site inspection. The court held that these expectations arose from the statutory scheme, the reasons for judgment on the initial judicial review, and the conduct of the Commission.

The court set aside the Commission’s order on the basis that the Commission failed to comply with the requirements of procedural fairness and remitted the matter with directions regarding reconsideration.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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