Appeal to the Newfoundland and Labrador Supreme Court from a decision of the Eastern Newfoundland Regional Appeal Board upholding the grant of a conditional development permit by the City of Mount Pearl

Administrative law – Decisions of administrative tribunals – Municipal boards – Municipalities – Planning and zoning – Building permits – Judicial review – Jurisdiction – Conflict of interest – Bias – Failure to provide reasons

Faulkner v. Newfoundland and Labrador (Eastern Newfoundland Regional Appeal Board), [2015] N.J. No. 301, 2015 NLTD(G) 118, Newfoundland and Labrador Supreme Court Trial Division – General Division, September 10, 2015, R. P. Stack J.

Mr. Faulkner appealed a decision made by the City of Mount Pearl (the “City”) issuing a development permit for the construction of “affordable seniors housing” on property within the City. His appeal was dismissed by the Eastern Newfoundland Regional Appeal Board (the “Board”). Mr. Faulkner then sought to appeal the decision of the Board, arguing the Board had erred in law or exceeded its jurisdiction in failing to find two municipal councilors were in a conflict of interest and in failing to find the development contravened a section of the City’s municipal plan. He also alleged the Board had failed to afford him a fair opportunity to be heard and failed to provide adequate reasons for its decision.

Mr. Justice Stack refused to allow the appellant to adduce fresh evidence on his appeal to the Supreme Court of Newfoundland and Labrador, and ultimately found the Board had not failed to provide the appellant with a fair hearing or erred in dismissing the appeal with respect to the alleged contravention of the municipal plan.

As to the issue of the alleged conflicts of interest, Stack J. found he did not need to decide which standard governed his review of the Board’s decision, as his decision would be the same under either. He then helpfully reviewed the distinction between a conflict of interest and a reasonable apprehension of bias. While the former was, in this case, a statutory concept allowing for the removal of a councilor, the latter is a common law concept permitting an appellate body to vacate a decision. The allegations raised by the appellant were more properly characterized as involving a reasonable apprehension of bias.

Stack J. found the reasons provided by the Board failed to adequately address the allegations of bias. The Board failed to discuss the allegations made against one councilor, aside from naming them as a ground of appeal, and provided only a cursory analysis of one of several alleged indications of bias on the part of the other councilor. The reasons therefore failed to inform the appellant why the Board had rejected his arguments and failed to allow for effective judicial review.

On that basis, Stack J. referred the issue of bias back to the Board for reconsideration; however, his referral allowed the Board to “choose its own course of action” in reconsidering the matter. The Board was expressly permitted to reconsider the matter on the existing record and provide a supplementary decision giving its reasons on that issue, or to allow supplemental submissions as it saw fit.

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