A municipal councillor who previously expressed a definitive opinion on the topic of appeal ought to have been recused from hearing the appeal. Failure to recuse the councillor resulted in the Alberta Court of Appeal granting leave to the applicant on the basis that there was a reasonable apprehension of bias.

[2012] A.J. No. 288

2012 ABCA 99

Alberta Court of Appeal

R.L. Berger J.A.

March 28, 2012

The applicant sought a development permit for gravel extraction. The County’s Municipal Planning Commission refused the application. The issue was appealed to the Subdivision and Development Appeal Board (the “SDAB”). At the commencement of the appeal hearing, the applicant objected to the participation of one of members on the SDAB panel, Councillor Croswell (“Councillor”), on the basis that the Councillor expressed a definitive opinion on the topic of gravel extraction one year previously and thus a reasonable person would conclude that the Councillor would not decide the appeal fairly. The objection was overruled; the SDAB found that the Councillor had only raised a number of questions in relation to another proposed gravel pit in the area but there was no evidence that he made any comments or had taken a position with respect to the proposed gravel pit.

After hearing the applicant's appeal, he SDAB ultimately dismissed the appeal.

The applicant appealed the SDAB decision on a number of grounds. The applicant argued that due to the Councillor sitting as a panel member, a reasonable apprehension of bias was made out. The Alberta Court of Appeal outlined the test for reasonable apprehension of bias (whether an informed person viewing the matter realistically and practically would have a reasonable apprehension of bias) and granted leave on the issue. The proposed appeal in this matter involved a question of law of sufficient importance and had a reasonable chance of success. The SDAB was quasi-judicial in nature and, given its role, it was required to exhibit a high degree of impartiality.

The remaining contentions were found not to satisfy the test for leave to appeal.