The Court of Appeal allowed an appeal by a residents’ association of a decision by an assessment and planning appeal board which found that the association had waived its right to claim that members on the preservation review board were biased. Whether a reasonable apprehension of bias existed was a question of law and the board should not be afforded due deference. The standard of review was thus correctness. The bias concerns raised by the residents’ association were effective and timely, and it did not matter that there was no formal request that certain board members recuse themselves from the decision-making process.

Administrative law – Municipalities – Planning and zoning – Decisions of administrative tribunals – Assessment Appeal Board – Judicial review – Bias – Procedural requirements and fairness – Standard of review – Correctness

Rothesay Residents Assn. Inc. v. Rothesay Heritage Preservation & Review Board, [2006] N.B.J. No. 227, New Brunswick Court of Appeal, June 1, 2006, Daigle, Robertson and Richard JJ.A.

The Preservation Review Board, established under the Municipal Heritage Preservation Act, S.N.C. 1978, c. M-21.1, issued a “certificate of appropriateness” to Abbeyfield House with respect to construction of a proposed senior citizens residence on lands designated a heritage area. The appellant residents’ association had opposed the issuance of the certificate and appealed the Preservation Review Board’s decision to the Assessment and Planning Appeal Board on the grounds that the board had misapplied the provisions of the heritage by-law and two of the board members who voted in favour of issuing the certificate should not have participated based on the close relationship with the project. One of the two members was the solicitor who incorporated Abbeyfield House and, until recently, was a provisional director of the company. Both board members were also active members of the Anglican parish who owned the lands in question. The Assessment and Planning Appeal Board found that there had been no misapplication of the bylaw. Moreover, while the two board members were in a position of conflict, the Residents’ Association had “waived” its right to challenge the Preservation Review Board’s decision on the ground of potential bias as its counsel (1) had full knowledge of all pertinent facts surrounding the relationship between the two board members and the applicant for the certificate; and (2) had failed to make an effective and timely objection based on an appearance of bias. The Residents’ Association appealed this decision.

The appeal was allowed. No deference is owed to the Appeal Board’s ruling of whether there had been a breach of the fairness duty and the standard of review is correctness.

The Appeal Board correctly found that the participation of the two Preservation Review Board members in the decision gave rise to a reasonable apprehension of bias. In brief, an informed person viewing the matter realistically would conclude it was more likely than not that these decision-makers would not be able to remain impartial when adjudicating on the issuance of the certificate. However, the Appeal Board erred in concluding that waiver had been established.

A biased decision is voidable and not void, and the waiver defence is available although carefully circumscribed. Those who allege waiver must prove it and waiver will only be inferred if the party alleging bias was aware of the pertinent facts that would support a bias allegation and raise the objection in a timely fashion. In the present case, there was no evidence that the residents’ association was aware of all pertinent facts prior to the meeting before the Preservation Review Board. Alternatively, the bias concerns raised by counsel for the residents’ association was effective and timely and it did not matter that counsel did not make a formal request that certain board members recuse themselves from the decision making process.

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