In McLaren v. Castlegar (City), 2011 BCCA 134, the British Columbia Court of Appeal has confirmed that a stricter standard for reasonable apprehension of bias exists when a municipal Council is engaged in an adjudicative function.
The case involved a Council resolution under the remedial action sections of the Community Charter. After holding a hearing, the Council required a building owner to remove buildings from her land because they were hazardous, unsafe, and a nuisance.
Prior to Council considering the resolution, the local newspaper quoted the Mayor as saying “[i]t’s just a pretty dilapidated building that we’d really like to see removed.” The newspaper also quoted several statements from the Mayor that indicated the City would abide by the correct procedures when determining whether to have the buildings removed.
After Council approved the resolution, the building owner applied to quash the resolution on several grounds including that the Mayor’s comments gave rise to a reasonable apprehension of bias.
The Court of Appeal upheld the decision of the Chambers Judge that the Mayor’s statements did not give rise to a reasonable apprehension of bias. However, in doing so the Court distinguished between Council’s duty when making adjudicative decisions, such as determining whether to require remedial action, and its duty when making policy decisions, such as determining whether to adopt a zoning bylaw.
Prior decisions such as the Supreme Court of Canada decisions in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), and Save Richmond Farmland Society v. Richmond (Township) have held that a reasonable apprehension of bias will not arise if Council members have not irrevocably made up their minds before considering a matter. However, those cases involved Council decisions on matters of policy.
In McLaren v. Castlegar, where Council was exercising an adjudicative function, the Court found that Council was required to comply with stricter standards of fairness. Council had a duty to be impartial. However, the Court qualified the meaning of “impartiality” by recognizing that it would be unreasonable to expect Council members to have no knowledge of a particular situation prior to its consideration, especially since municipal councils determine their own agenda. The Court stated that a Council member can have an “inkling” as to the appropriate disposition before considering a matter, as long as they remain completely open to a fresh evaluation of the evidence and submissions presented to them.
The Court found that the Mayor’s comments in this situation did not violate the duty of impartiality because the comments did not indicate that he had already determined how he would vote on the resolution. His remarks did not indicate that he was unwilling to reassess the matter.
McLaren v. Castlegar (City) sets a stricter test for bias in relation to adjudicative decisions such as those made by local governments when exercising the authority to take remedial action. Even though the Council’s decision was upheld, the case also illustrates that great care should be taken by local government elected officials when making public statements prior to considering a matter that is adjudicative in nature.