When breaches of procedural fairness can be cured by a de novo appeal, there is no sound reason for a judicial review to consider issues arising from the procedural fairness of the decision at first instance

20. October 2023 0

BC Court of Appeal overturns Supreme Court decision to judicially review a Property Assessment Review Panel (“PARP”) Decision because the de novo appeal process set out in the legislation would cure PARP’s breaches of procedural fairness complained about on judicial review.

Administrative law – Decisions reviewed – Property Assessment Appeal Board – Hearing de novo – Judicial review – Procedural requirements and fairness – Remedies – Alternative remedies

992704 Ontario Ltd v British Columbia (Assessor of Area #8 – Vancouver Sea to Sky), [2023] B.C.J. No. 1721, 2023 BCCA 346, British Columbia Court of Appeal, August 31, 2023, S.D. Frankel, G. Dickson and S.A. Griffin JJ.A.

The Appellant, the Attorney General of British Columbia, sought to appeal a decision from the BC Supreme Court which allowed a judicial review of a Property Assessment Review Panel (“PARP”) Decision and found that PARP had breached the principles of procedural fairness in its hearing of the appeal of the Respondent, 992704 Ontario Ltd (“992”).

The lower court determined it was appropriate to exercise its discretion to grant judicial review of PARP’s decision because a de novo appeal to the Property Assessment Appeal Board (“PAAB”), as provided by the Assessment Act, R.S.B.C. 1996, c. 20 (the “Act”), was not an adequate alternative remedy since PAAB does not have jurisdiction under the Act to address concerns regarding procedural fairness for which 992 had many issues.

The Court of Appeal found the lower court was entitled to deference on the adequate alternative remedy issue; however, the judge erred by finding an appeal to PAAB was not an adequate alternative remedy to cure any procedural defects in PARP’s adjudication of 992’s property assessment complaint.

The Court of Appeal held that the judge was lured into this error by asking the wrong question. In analysing whether an appeal to PAAB would constitute an adequate alternative to judicial review, the judge asked whether 992 could raise its complaints about PARP’s alleged breaches of procedural fairness as a ground of appeal before PAAB. As it could not, she found the internal appeal mechanism established by the Act did not provide an adequate alternative remedy to address 992’s “actual concern”. However, the Court of Appeal held that the judge ought to have asked whether a de novo hearing before PAAB could cure PARP’s alleged breaches of procedural fairness.

Quoting from I.U.O.E., Local 882 v. Burnaby Hospital Society, [1997] 46 B.C.L.R. (3d) 97, 1997 CanLII 3614 (C.A.), the Court of Appeal recognized that a breach of procedural fairness by an original tribunal in reaching a decision may be cured on appeal regardless of whether the appellate body directly recognizes, considers or opines on the breach of procedural fairness alleged. Further, the Court of Appeal noted that it is well-established that a full and fair hearing de novo before an appellate body will generally cure breaches of procedural fairness by an original administrative tribunal where, as here, its prejudicial effects will not permeate the rehearing.

Finding that there was no sound reason for the lower court to judicially review PARP’s decision as the hearing de novo would cure PARP’s alleged breaches of procedural fairness, the Court of Appeal allowed the appeal, and set aside the lower court’s decision.

This case was digested by Renee Gagnon, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Renee Gagnon at rgagnon@harpergrey.com.

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