Alberta’s Municipal Government Act mandates that municipal councils hold public hearings before making decisions on certain matters.
Amongst other things, these include the disposition of certain types of land and amending or passing planning bylaws, such as zoning bylaws. The aim of these public hearings is to assure members of the public a fair opportunity to be heard and make their views known.
Public statements and campaign positions
A core part of a councillor’s role is communicating with citizens on issues of public interest. Candidates for council positions frequently stake out positions during their campaigns. This raises an important question: What happens when an issue that a councillor has previously commented on comes before the council in a public hearing?
Concerns may arise about whether the councillor’s participation in the hearing, and subsequent decision-making process, is fair. Some may argue that the councillor should recuse themselves to avoid any appearance of bias.
What the Courts have said
The Supreme Court of Canada has addressed the issue of bias in public hearings conducted by municipal councillors. The Court has established that the test for bias is different for municipal councillors compared to other types of hearing processes that resemble a Court. The Court recognized the political realty of a councillor’s role grants them more freedom than other types of decision-makers in public hearings.
For example, previous statements made by councillors at earlier meetings, to the media or during an election campaign are generally not sufficient to disqualify them from participating in a public hearing on a related topic. The Court explained in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) that “statements by individual members of Council, while they may give rise to an appearance of bias, will not satisfy the test unless the Court concludes that they are the expression of a final opinion on the matter.”
Similarly, in Save Richmond Farmland Society v. Richmond (Township), it said a councillor is not disqualified by reason of bias unless they have prejudged the matter to the extent that they are no longer capable of persuasion. Alberta Courts have generally followed this guidance and said that the “closed mind” test applies to public hearings before council, particularly where council is exercising a legislative or policy function. A closed mind exists when a councillor refuses to consider what they are supposed to consider. For example, if the councillor refuses to consider relevant planning considerations during a public hearing concerning an amendment to a Land Use Bylaw [Hosford v Strathcona. See also, Waste Management of Canada Corporation v. Thorhild (County), 2008 ABQB 762].
Keeping an open mind
While the threshold for disqualification for bias may be high for municipal councillors, is crucial that municipal councillors do not appear to have a completely closed mind during a hearing. They must be open to persuasion based on the submissions made by participants. Members of the public who present at a public hearing must be heard by councillors who are capable of being persuaded.
Key takeaways
Overall, it is challenging to meet the test to disqualify a councillor from a public hearing on the basis of bias, absent personal conflicting financial interests [Atkins v. Calgary (City)]. This ensures that councillors can fulfill their political roles effectively while maintaining public trust in the decision-making process.
For more on what this issue could mean for you and your municipality, please contact our municipal team.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.