Municipal Law – Real Property – Reasonable Apprehension of Bias
In this decision, the ABCA allowed an application for the admission for fresh evidence and allowed the appeal by Chloe Cartwright (the “Appellant”) from the Decision of The Rocky View County Subdivision and Development Appeal Board (“SDAB”) dated August 22, 2019 (2019-SDAB-037).
Statement of Facts
The Appellant was a rural landowner in Rocky View County (“the County”). In 2012, she filed an application to re-designate her land from Ranch and Farm to Business-Leisure and Recreation. The County re-designated the land and, in 2013, approved the Appellant’s development permit. The Appellant later allowed this development permit to expire.
In December 2018, the Appellant applied for a new development permit. A development permit was approved by the Development Authority on May 28, 2019. The application had been circulated to adjacent landowners and the issued development permit was appealed by three adjacent landowners.
The appeal of the Appellant’s development permit was the seventh matter on the SDAB’s June 26, 2019 hearing list. Chairperson Kochan participated in the first six appeals. Prior to the commencement of the seventh appeal, however, he announced his intended recusal and stated that a close relative was going to support the appeal. He further stated that he would speak on behalf of supporting the appeal.
Application to Adduce Fresh Evidence
At the commencement of the appeal, the Appellant made an application to adduce fresh evidence to strengthen her argument of reasonable apprehension of bias and in particular Chairperson Kochan’s conduct.
The ABCA noted that according to section 689(1) of the Municipal Government Act (“MGA”), upon hearing an appeal from the decision from a subdivision and development appeal board “no evidence other than the evidence submitted to the Municipal Government Board or the subdivision and development appeal board may be admitted…”. However, the ABCA found that a strict literal interpretation would insulate some important errors of law from the review on appeal. As this could not have been intended, the ABCA allowed the application to adduce fresh evidence.
The Appellant was given permission to appeal the Decision on the following two grounds:
(a) Did the conduct of the appeal give rise to a reasonable apprehension of bias?
(b) To what extent can the Respondent (SDAB) consider “agriculture” regarding decisions with respect to a parcel that by way of site-specific amendment to a Land Use Bylaw has been re-designated from “Agricultural Land” to another use such as “Business-Pleasure and Recreation”?
Reasonable Apprehension of Bias
The ABCA noted that the test to determine if apprehension of bias had been established was whether an informed person, viewing the matter realistically and practically, would have had a reasonable apprehension of bias. In the case of administrative tribunals, the context must be considered. It noted that the basis for a reasonable apprehension of bias must be substantial and the matter should not be decided by a particularly sensitive or scrupulous person.
The ABCA restated Stubicar v Calgary (Subdivision and Development Appeal Board), 2019 ABCA 336. There the ABCA had stated that SDABs are adjudicative tribunals and the conduct of their members must not create a reasonable apprehension of bias regarding their decisions. This was a contextual assessment and took into account the nature of the tribunal and the nature of the decision being made.
The ABCA considered Beaverford v Thorhild (County) No 7, 2013 ABCA 6 in finding that SDAB members were known to declare a position, even if it was outside the context of hearing a specific matter. The ABCA found that the creation of a reasonable apprehension of bias was not automatically created by the participation of a person who had previously expressed a relevant opinion. The Court found that the context of the decision had to be considered.
The ABCA found that, while Kochan did not participate in the hearing, he had made his position, concerning the appeal, clearly known while he was still in the position of chairperson and he then advocated for the appeal. Further, the ABCA noted that Kochan chose to advocate for himself and his family, while there were likely qualified people who could have represented him.
The Appellant argued that Kochan’s conduct tainted the entire proceeding before the SDAB.
The ABCA found that a plain and ordinary reading of the Code of Conduct indicated that Kochan should not have been permitted to advocate before the SDAB once he recused himself. Schedule B of the Code of Conduct addresses pecuniary interests. A Member has a pecuniary interest if the Member’s Family could be monetarily affected by a matter. Where a Member had a pecuniary interest, Section 5 of Schedule B of the Code of Conduct dictates specific requirements of the Member. These requirements include that the Members must be absent from the room in which the matter is being heard, except, as emphasized by the ABCA, to the extent that the Member is entitled to be heard before a Board or a Committee as Appellant or a person affected by the matter before the Board or Committee.
The ABCA found that, as Kochan had a daughter who stood to be monetarily impacted by the Appellant’s development permit, he had a pecuniary interest. He was therefore subject to the conditions of Section 5 of Schedule B of the Code of Conduct.
The respondent relied on s 687(1)(d) of the MGA in arguing that the board was required to hear from individuals in Kochan’s position. This section states that at a hearing under section 686, the SDAB must hear any person who claims to be affected by the permit and that the SDAB would agree to hear, or a person on behalf of that person.
The ABCA found the respondent’s argument to fail. First, it does not make logical sense that the Code of Conduct would attempt to protect against a reasonable apprehension of bias by requiring a board member to leave the room when a pecuniary interest exists (such as a familial connection), but that the Act would allow that same person to make representations to the board on behalf of a family member. Second, a logical reading of s 687(1)(d) of the MGA indicated that the board can exercise discretion in determining from whom it hears. Were this discretion non-existent, the words “and that the subdivision and development appeal board agrees to hear” would cease to have meaning. The presence of discretion thus tempers the use of the word “must” in MGA s 687(1).
Kochan’s conduct was contrary not only to the Rocky View County Code of Conduct and the 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.
The ABCA found that a reasonable apprehension of bias had arisen from Kochan’s conduct, as a chairperson, he was an individual in a position of power and influence. While there was no evidence of actual bias in the Decision, under the circumstances, it was only relevant that a reasonable apprehension of bias existed. The ABCA found that, as this reasonable apprehension of bias existed, the Decision could not stand.
To What Extent Can The SDAB Consider “Agriculture” With Respect To A Decision Regarding A Parcellate By Way Of Site-Specific Amendment To A Land Use Bylaw Which Has Been Re-designated From “Agriculture Land” To Another Use Such as “Business-Leisure and Recreation”?
The Appellant argued that since the Rocky View Council had passed a site-specific Bylaw amendment wherein the land was changed from “Agriculture Land” to “Business-Leisure and Recreation”, those who supported the appeal against the issuance of the development permit were focused on an inappropriate factor, namely agriculture.
The respondent argued that the Appellant’s proposed development was a discretionary use: section 683 of the MGA. As such, a discretionary use is a use for which an applicant has no automatic right to a permit. The SDAB may decline to issue a development permit for a discretionary use if, based on sound planning principles, the use is judged inappropriate in specific circumstances due to its adverse effect on new properties. According to the respondent, the Appellant remained obligated to apply for a development permit before commencing any development on her land.
In the ABCA’s opinion, merely referencing agricultural concerns as it impacts the property of others does not in and of itself represent a collateral attack upon the Bylaw amendment. The ABCA found the SDAB did not err in considering these submissions.
The ABCA dismissed this ground of appeal.
The ABCA quashed the decision from the SDAB, 2019-SDAB-037. The matter was remitted back to an entirely differently constituted panel of the SDAB for rehearing. Furthermore, none of the members of the SDAB that were present on June 16, 2019, or August 7, 2019, were to sit on the re-hearing.