Brendan Miller, Special Counsel at Foster LLP was successful at the Alberta Court of Appeal in the decision of Cartwright v. Rocky View County Subdivision and Development Appeal Board, 2020 ABCA 408 released on November 23, 2020. There, Brendan represented the Appellant landowner and developer against the Rocky View County Subdivision and Development Appeal Board (“SDAB”). The appellant was granted a permit by the Rocky View Development Authority to develop a resort with a campground, a tourist building including accommodation, and relaxed the area’s building height requirement. Some the appellant’s neighbours appealed the issuance of the permit to the SDAB.
The Chair of the SDAB recused himself from hearing the matter as he had a relative who was supporting the appeal. The SDAB Chair, stepped down, and then proceeded to argue on behalf of his relative, in support of the appeal.
The SDAB Chair then represented his relative before the SDAB, opposing the Appellant Landowner’s development permit granted to her by the Development Authority of Rocky View. The SDAB over turned the the development permit granted to the Appellant Landowner, thereby siding with the Chair who advocated against it.
The Appellant Landowner appealed the decision on the ground of bias. The Appellant Landowner made an application to adduce fresh evidence on Appeal, which was a transcript of a cross-examination of the Chair.
Notwithstanding, the fact that section s.689(1) of the Municipal Government Act holds: “no evidence other than the evidence submitted to the Municipal Government Board or the subdivision and development appeal board may be admitted” the Alberta Court of Appeal allowed the application for fresh evidence.
The Alberta Court of Appeal unanimously ruled that fresh evidence in support of allegations of a Reasonable Apprehension of Bias, discovered outside the hearing, and which are not mentioned on the record, can be introduced on an Application for fresh evidence. This is the first time the Alberta Court of Appeal has granted an application for fresh evidence on an SDAB Appeal and bypassed s.689(1) of the Municipal Government Act.
Further, the Court ruled that the conduct of the Chair, and the other members of the SDAB, created a Reasonable Apprehension of Bias, thereby requiring the decision be quashed.
The Alberta Court of Appeal also ruled that an SDAB can prohibit a person from being heard in its discretion. In this case, the SDAB should not have allowed the Chair to participate as an advocate for a relative before the board on which he sits.