What if the person staring back at you, the person who will be making a decision on something that will directly affect your future, has already publicly denounced your position?

Sounds like bias doesn’t it?

According to a recent decision from the Alberta Court of Appeal, it is.

In Beaverford v Thorhild (County No. 7), 2013 ABCA 6, Beaverford applied to the Subdivision and Development Appeal Board (“SDAB”) for a gravel extraction development permit.  A hearing was held before a panel of the SDAB and one of the members on that panel was Councillor Wayne Croswell.

Turned out that one did not need to attend the hearing to know Croswell’s feelings on the subject of gravel pit development … a quick trip to Croswell’s Facebook page revealed all.  Apparently, decision-maker Croswell was questioning “why the County of Thorhild was approving gravel pits and, effectively, giving away millions of dollars worth of gravel when the County may require use of that resource in the future”.  He was clearly opposed to the consulting company Beaverford had retained, and called the site Beaverford had selected for gravel extraction a “waste land for private profit”.

At the hearing, Beaverford claimed that Croswell was biased and that he should be excluded from the panel.  To support his claim, Beaverford produced various posts found on Croswell’s Facebook page.  Additionally, he produced a flyer and a letter to Croswell’s constituents, in which Croswell explained the grave concerns he had with gravel pit development.

Nonetheless, the SDAB dismissed Beaverford’s objection, allowed Croswell to remain on the panel, and ultimately rejected Beaverford’s permit application.

The Alberta Court of Appeal felt differently, granted Beaverford leave to appeal and then accepted his appeal:

This is a case where an elected county councillor, who had publicly advocated positions directly adverse to, or limiting of, developments of the precise sort which was proposed here, also took a key role in the SDAB panel which decided the specific proposed development in this case adversely to the development applicant.

The Court discussed the test for finding a reasonable apprehension of bias and concluded that because Croswell had expressed his adverse views publicly, he was unable to approach Beaverford’s hearing with an open mind.

What does this mean?

Decision-makers at all levels are, of course, human.  They have opinions and thoughts about current events just as the rest of us do and sometimes, they will wish to make those opinions public.  However, doing so may be to their detriment.  The quantity and/or quality of a decision-maker’s online remarks may very well lead to a sustained claim of bias, rendering the challenged decision void.  This means that, in the brave new world of online declarations of opinion you might not have to “like” it when someone has already put, on public display, opposition to your position.