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MUNICIPAL BOARDS AND TRIBUNALS - Practice and procedure - Hearing

Thursday, December 24, 2020 @ 6:06 AM  

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Appeal by Cartwright from a decision of the Subdivision and Development Appeal Board allowing an appeal from the Development Authority’s decision issuing a development permit to the appellant permitting her to redesignate her rural land to develop the land as a golf course. The daughter of the Appeal Board’s chairperson stood to be monetarily impacted by the appellant’s development permit and supported the appeal. The chairperson thus stepped down before hearing this appeal but not before indicating that he supported the appeal. He then stepped down and, despite having a familial and pecuniary interest in the matter, argued in favour of the appeal. The board found that the proposed development did not comply with the land use policies and would interfere with the amenities of the neighbourhood, as well as the use, enjoyment, or value of neighbouring parcels. The appellant argued that the chairperson’s conduct tainted the entire proceedings before the board and raised a reasonable apprehension of bias.

HELD: Appeal allowed. The conduct of the chairperson gave rise to a reasonable apprehension of bias. The board had representations from more than a dozen community members to aid in making the decision. There was no need for the chairperson to behave in the manner that he did and to call into question the impartiality of the board. The chairperson acted appropriately in deciding to recuse himself but tainted his recusal by stating his position and informing all those present that he would be advocating in favour of the appeal while still in his position as chairperson. The chairperson should also not have been permitted to advocate before the board once he recused himself. He was required to disclose the nature of his interest, abstain from participating, discussing and voting, and to leave the room, subject to being an appellant or a person affected. His conduct was contrary not only to the County Code of Conduct and the Municipal Government Act, which prohibited him from being involved in the matter under their pecuniary interest provisions, but also under the common law doctrine of reasonable apprehension of bias.

Cartwright v. Rocky View County Subdivision and Development Appeal Board, [2020] A.J. No. 1262, Alberta Court of Appeal, J.D.B. McDonald, B.L. Veldhuis and T.W. Wakeling JJ.A., November 23, 2020. Digest No. TLD-December212020008