Save Richmond Farmland Society v. Richmond (Township), 1990 CanLII 1132 (SCC), [1990] 3 SCR 1213
Save Richmond Farmland Society, Marion Linda Smith and George Alexander Taylor Appellants
v.
The Corporation of the Township of Richmond, The Council of the Corporation of the Township of Richmond, Hugh Mawby, Progressive Construction Ltd., Tempo Construction Ltd., Conway Richmond Ltd., Fraserview Construction Ltd., L. Horii Const. Ltd., First City Development Corp. Ltd. and Olga Ilich Respondents
indexed as: save richmond farmland society v. richmond (township)
1990: May 1; 1990: August 16*.
Present: Dickson C.J.** and Lamer C.J.*** and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for british columbia
Municipal law ‑‑ Municipal corporations ‑‑ Public hearing on rezoning by-law ‑‑ Bias or apprehended bias ‑‑ Alderman favouring rezoning by‑law stating publicly that he would attend public hearings but that he would not change his mind ‑‑ Whether alderman's conduct raises a reasonable apprehension of bias ‑‑ Whether alderman disqualified from voting on final reading of by‑law ‑‑ Validity of by-law -- Municipal Act, R.S.B.C. 1979, c. 290, s. 956.
An alderman who campaigned for office on a platform favouring residential development of certain agricultural lands within the Township voted in favour of two zoning by‑laws enacted by the Council and subsequently declared invalid by the court on technical grounds. When a new by‑law was introduced to achieve the same purpose, the alderman was reported to have stated publicly that he would not change his mind regardless of what was said at the public hearings required to be held under s. 956 of the Municipal Act. There was other evidence to the effect that he had also stated that he would listen attentively to the proceedings. In a subsequent interview he is stated to have said that he favoured the rezoning of the land and that it would take something significant to change his mind. During the hearing, objections were raised to the alderman's continued participation on the ground that he had predetermined the issue but he did not reply to the objections. Following the hearing and second reading of the proposed by‑law, the appellants petitioned, unsuccessfully, under the Judicial Review Procedure Act to prohibit the alderman from voting on the by‑law or participating in the process of its consideration. The alderman participated in the vote, which passed by a five‑to‑four margin. The appellants' appeal to the British Columbia Court of Appeal was dismissed.
Held: The appeal should be dismissed.
Per Dickson C.J. and Wilson, Sopinka, Gonthier, Cory and McLachlin JJ.: A member of a municipal council is not disqualified by reason of his bias unless he has prejudged the matter to be decided to the extent that he is no longer capable of being persuaded: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 000. The relevant test, therefore, is whether the alderman in fact had a closed mind. The alderman had not reached a final opinion which could not have been dislodged, and, accordingly, he was not disqualified by bias.
Per Lamer C.J. and La Forest and L'Heureux-Dubé JJ.: A closed mind, provided that it is not corrupt, should not disentitle an alderman from participating in the decision-making process in circumstances like the present. Section 956 of the Municipal Act should not be interpreted as meant to apply in exactly the same way to all matters it covers but, rather, should be viewed as sufficiently flexible to allow the appropriate standards of fairness to be applied to the particular circumstances. In this case, the rezoning was initiated by Council and driven by policy. The standard of fairness mandated by s. 956 placed on Council members little more than the obligation of ensuring that due notice was given to those who stood to be affected, as well as a reasonable opportunity to express their views. A community plan, or a comprehensive zoning by-law, represents a general statement of the broad objectives and policies of the local government respecting the form and character of existing and proposed land use, and the adoption of such a measure is less a judicial process than a legislative one. The aldermen who participate in such a process should be viewed not as judges but as elected representatives who are answerable to the concerns of their constituents.
Cases Cited
By Sopinka J.
Applied: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 000; referred to: Wiswell v. Metropolitan Corporation of Greater Winnipeg, 1965 SCC 106, [1965] S.C.R. 512; Committee for Justice and Liberty v. National Energy Board, 1976 SCC 2, [1978] 1 S.C.R. 369.
By La Forest J.
Referred to: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 000; Karamanian v. Richmond (1982), 1982 BCSC 287, 38 B.C.L.R. 106; Re McGill and City of Brantford (1980), 1980 ONSC 1741, 111 D.L.R. (3d) 405; Lower Hutt City Council v. Bank, [1974] 1 N.Z.L.R. 545; Wollen v. Borough of Fort Lee, 142 A.2d 881 (1958); Regina v. Amber Valley District Council, Ex parte Jackson, [1985] 1 W.L.R. 298; Martineau v. Matsqui Disciplinary Board, 1979 SCC 184, [1980] 1 S.C.R. 602; Knight v. Indian Head School Division No. 19, 1990 SCC 138, [1990] 1 S.C.R. 653.
Statutes and Regulations Cited
Judicial Review Procedure Act, R.S.B.C. 1979, c. 209.
Municipal Act, R.S.B.C. 1979, c. 290, ss. 945(1) [en. 1985, c. 79, s. 8; am. 1987, c. 14, s. 11], 949(2) [en. 1985, c. 79, s. 8; am. 1987, c. 14, s. 14], 956(1), (2), (3) [en. 1985, c. 79, s. 8], 959(2) [en. 1985, c. 79, s. 8].
Township of Richmond By‑laws 4700, 5110, 5115, 5300.
APPEAL from a judgment of the British Columbia Court of Appeal (1989), 1989 BCCA 2718, 36 B.C.L.R. (2d) 49, 43 M.P.L.R. 88, 57 D.L.R. (4th) 278, 36 Admin. L.R. 155, affirming a judgment of Prowse J. dismissing a petition for prohibition. Appeal dismissed.
Thomas R. Berger and Marcus Bartley, for the appellants.
Raymond E. Young and F. T. Williamson, for the respondents The Corporation of the Township of Richmond, The Council of the Corporation of the Township of Richmond and Hugh Mawby.
Cecil O. D. Branson, Q.C., and F. E. Verhoeven, for the respondents Progressive Construction Ltd., Tempo Construction Ltd., Conway Richmond Ltd., Fraserview Construction Ltd., L. Horii Construction Ltd., First City Development Corp. Ltd. and Olga Ilich.
//Sopinka J.//
The judgment of Dickson C.J. and Wilson, Sopinka, Gonthier, Cory and McLachlin JJ. was delivered by
SOPINKA J. -- This appeal raises the issue as to whether a municipal alderman is disqualified by reason of a reasonable apprehension of bias. It was heard along with Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 000. This appeal was dismissed by judgment released August 16, 1990, reasons to follow. These reasons are released concurrently with judgment in Old St. Boniface Residents Assn.
Facts
The dispute in this case is over the fate of certain lands, known as Terra Nova, within the Township of Richmond. The appellants challenge the validity of By-law 5300, which purports to convert part of Terra Nova from agricultural to predominantly residential zoning. As suggested by its name, the appellant Save Richmond Farmland Society, along with the individual appellants, seeks to maintain Terra Nova as farmland, and is opposed to residential development of the land. The acts with which this appeal is most concerned are those of the respondent Alderman Hugh Mawby.
It is clear from the evidence that the development of Terra Nova is a contentious and divisive issue in Richmond politics. It has been for many years zoned for agricultural use. In December 1986, the Richmond Official Community Plan, By-law 4700, was adopted. Pursuant to s. 945(1) of the Municipal Act, R.S.B.C. 1979, c. 290, "[a] community plan is a general statement of the broad objectives and policies of the local government respecting the form and character of existing and proposed land use and servicing requirements in the area covered by the plan". By-law 4700 designated the Terra Nova as "residential reserve". A community plan does not alter zoning. A plan's legal effect is that, pursuant to s. 949(2), by-laws enacted after the adoption of an official community plan "shall be consistent with the relevant plan". Alderman Mawby was a Council member at the time and voted in favour of By-law 4700.
The fate of Terra Nova was the main issue in the most recent municipal election in 1987. That election left the composition on the Municipal Council at a five-to-four split in favour of development. All Council votes relevant to this case have followed this division.
On September 26, 1988, the Municipal Council adopted By-laws 5110 and 5115 which had the purported effect of converting approximately 220 acres of Terra Nova from agricultural to predominantly residential zoning. Alderman Mawby chaired the public hearings on the by-laws, which occupied some 40 hours over 11 days. He voted in favour of the two proposed by-laws. The by-laws were subsequently set aside by the Supreme Court of British Columbia because of a failure to comply with notice provisions of the Municipal Act.
On November 22, 1988, shortly before By-laws 5110 and 5115 were declared void, the Council introduced By-law 5300, which is the focus of this appeal. It is a comprehensive zoning by-law for the entire municipality of Richmond. It was initiated by Council on the recommendation of municipal planning staff to consolidate all previous zoning regulations. It repeals all zoning by-laws previously in force. Among other things, By-law 5300 maintains the residential zoning of Terra Nova. Since By-laws 5110 and 5115 were set aside, if it is valid By-law 5300 has the effect of rezoning Terra Nova.
Alderman Mawby did not chair the hearing held on By-law 5300. He attended all sessions, which amounted to some 57 hours over 12 days. It is relevant to note that under s. 959(2) a member of Council need not be present at the hearing to vote on the by-law, so long as an oral or written report of the hearing is given to the member by an officer or employee of the Council. The public hearing on By-law 5300 began on December 19, 1988 after first reading of the by-law. Shortly after, an article appeared in the Richmond News which read as follows.
MAWBY WON'T CHANGE MIND
The public hearing on Richmond's proposed new comprehensive zoning bylaw opened Monday night and is expected to extend over many nights into the New Year.
Rezoning of the Terra Nova area in the northwest corner of Lulu Island is expected to dominate proceedings, but one municipal council member, Alderman Hugh Mawby, says he won't change his mind regardless of what is said at the hearing. He was chairman of the public hearing on Terra Nova that stretched over eleven nights earlier this year and eventually resulted in two Terra Nova bylaws that were ruled invalid by B.C. Supreme Court.
The article was based on a telephone interview conducted on or close to December 16, 1988. The editor who wrote the article made an affidavit filed in these proceedings which stated that the article truly reports what Alderman Mawby told him. It also includes the following:
- THAT Alderman Mawby further stated to me that although he would not change his mind on the Terra Nova project, he would listen attentively to the public hearing proceedings.
On January 2, 1989, Alderman Mawby participated on the Dave Abbott television show, together with the host, Don Cummings (President of the Save Richmond Farmland Society) and four telephone callers. He advocated the residential rezoning of Terra Nova. He was asked whether the rezoning of Terra Nova was a fait accompli. He made the following response.
David, I can't make that comment, and I think I made that very clear to you. We are in a public hearing. We are still listening. And I have several things which I think would help. And I made a note of them, because I thought in fairness, because we're in public hearings and we don't want in any way to jeopardize those public hearings and if somebody, and I put it down to this, I said the sort of things that would make -‑ help people change their minds, and maybe, maybe there is -‑ one of the other aldermen from the Civic New Democrats might change his mind if the evidence was conclusive enough for them, the same as it may be conclusive enough for me. First of all, I made a decision back in June, and I'm prepared to live with the political ramifications of that, to support development on Terra Nova. Now by some small, and I say very small, piece in the advertising, technicality, we have got to review it again. So what is needed, there is already decision made of Council. Five people have said we favour development. Four have said no. So what the four or the five need to change their mind is something significant. And I would suggest that that new evidence would have to come from -‑
On January 6, 1989, an article appeared in another local newspaper, the Richmond Times. It read in part:
Unlike the first three nights of the hearing back in December, opposing aldermen did not quarrel among themselves, but Ald. Hugh Mawby found himself the target of several attacks by the anti-developers.
Robert Bedluk, quoting a local newspaper, said Mawby had publicly stated his stand on Terra Nova before the conclusion of the hearing.
Saying Mawby had no choice but to disqualify himself from the rest of the hearing, Bedluk said, "any judge in any court of law would disqualify a jurist" under the same circumstances.
Doubts were also raised about Mawby's ability to remain impartial after he appeared on a television talk show to discuss Terra Nova January 2.
In an interview with The Times, the alderman said both incidents had been misconstrued. The newspaper, he said, had "misquoted me and taken what I said completely out of context."
Mawby explained the newspaper interviewed him prior to the hearing, before the council members were required to sit as impartial judges.
"At that point, I told him I had heard nothing new that would make me change my mind," Mawby remarked, adding his television appearance did not compromise his position because the discussion was a "philosophical debate."
The respondents point out that two aldermen opposed to residential development of Terra Nova wrote a number of articles in local newspapers, setting out their views. One of them displayed a sign on the front lawn of his home which said "Save Terra Nova" and bore the telephone number of the Save Richmond Farmland Society.
On three occasions during the public hearing, Richmond residents raised the matter of the Richmond News article and objected to Alderman Mawby's continued participation in the hearing on the ground that he had predetermined the issue. Alderman Mawby did not reply to the objections. According to Alderman Mawby's affidavit, the practice of the Council at the hearings was to listen to the views of the public and ask questions, but not actively to debate the merits of By-law 5300 with members of the public.
Following the hearing and second reading, the appellants launched a petition under the Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, to prohibit Alderman Mawby from voting on By‑law 5300 or participating in the process of its consideration. The petition was heard and dismissed by Prowse J. on February 13, 1989. The third reading took place shortly thereafter. Alderman Mawby participated in the vote, and the by-law again passed by a five-to-four margin. The appellants appealed to the Court of Appeal. The fourth reading of the by-law, the reconsideration stage, was deferred pending the appeal. The Court of Appeal dismissed the appeal March 23, 1989: 1989 BCCA 2718, 36 B.C.L.R. (2d) 49.
Fourth reading was scheduled for April 3, 1989. By letter dated March 28, 1989, the appellants requested that this Court convene on April 3, 1989, to consider an application for leave to appeal and interim relief to restrain the Council from proceeding with fourth reading. The Court declined to convene and no further request for interim relief was made. The Council adopted By-law 5300 on April 3, by a five-to-four margin. Since then, development permits and building permits have been issued, and some construction is in progress. On May 1, 1989, a new petition was filed with the Supreme Court of British Columbia seeking a declaration that By-law 5300 or the parts of it relevant to Terra Nova were without legal effect, on the same facts as the within appeal. These proceedings were dismissed by the Supreme Court and the Court of Appeal. Any appeal to this Court is now out of time.
Legislation
The Council is under a statutory obligation to hold hearings on a proposed zoning by-law, pursuant to the Municipal Act, R.S.B.C. 1979, c. 290, s. 956:
- (1) Subject to subsection (4), a local government shall not adopt a community plan bylaw, rural land use bylaw or zoning bylaw without holding a public hearing on the bylaw for the purpose of allowing the public to make representations to the local government respecting matters contained in the proposed bylaw.
(2) The public hearing shall be held after first reading of the bylaw and before third reading.
(3) At a public hearing all persons who believe that their interest in property is affected by the proposed bylaw shall be afforded a reasonable opportunity to be heard or to present written submissions respecting matters contained in the bylaw that is the subject of the hearing.
Issues
- Bias
Was Alderman Mawby disqualified by bias from participating in the decision with respect to By-law 5300?
- Remedy
In view of the conclusion which I have reached, it will not be necessary to consider this issue.
Decisions Below
Supreme Court of British Columbia
Prowse J. noted that cases have held municipal councils must act in a quasi-judicial manner in some of their functions: Wiswell v. Metropolitan Corporation of Greater Winnipeg, 1965 SCC 106, [1965] S.C.R. 512. As By-law 5300 was a wide-ranging by-law, initiated by the Council, she was satisfied that the Council was acting in a legislative capacity in conducting its public hearings on the by-law.
In carrying out its function the Council must afford the public "a reasonable opportunity to be heard". In so doing, the Council must be free from "disabling" bias. The test for disabling bias is reasonable apprehension of bias, set out in Committee for Justice and Liberty v. National Energy Board, 1976 SCC 2, [1978] 1 S.C.R. 369. Prowse J. stated that the test was whether an informed person viewing the matter realistically and practically and having thought the matter through would conclude that members of Council had no intention of considering the submissions put before them.
After reviewing the facts Prowse J. stated her conclusion thus:
Alderman Mawby has walked as close to the line of reasonable conduct in this situation as one could walk without falling into the abyss. He has jeopardized his role as a member of Council on this important issue and, in so doing, has jeopardized the rights of the constituents who elected him to have him participate in the democratic process. He has been careless in his choice of words, and has caused a great uproar which need never have occurred. But I am unable to conclude, on balance, that in the context of the political process, and, in particular, in the context of the protracted dispute over Bill [sic] 5300, that he has created a reasonable apprehension of bias from the point of view of an informed observer having thought the matter through.
Precisely what he said, and the context in which it was said, is not as clear as it should be in order for me to conclude that Alderman Mawby had closed his mind against all argument. The fact that he attended the many nights and long hours of hearings is some indication to any observer that he was involved in the hearing process in a genuine way. [Emphasis added.]
Court of Appeal
The court received some fresh evidence tendered by both sides, including the transcript of the January 2 television show. The court unanimously dismissed the appeal, with reasons delivered by Lambert J.A. and Southin J.A. with the concurrence of Toy J.A.
Lambert J.A. took the view that s. 956 is sufficiently flexible to allow the appropriate standards of fairness to be applied to the particular circumstances of a hearing. He expressed the view that the appropriate standard required a councillor to retain the capacity to be influenced by persuasion by an argument that has not been heard and perhaps is unexpected. Applying this test, Lambert J.A. concluded, at p. 56:
In this case, Alderman Mawby had been elected. He had spoken out in the political arena about his views of the proper use of land throughout the municipality. He had been chairman of the first public hearing of by-laws 5100 [sic] and 5115 over the course of 40 hours. He had thought about the issues extensively. He was, to a large extent, covering the same ground all over again, the same ground on which he had already once been required to make up his mind. I think that what he was trying to say, or saying, in the course of the interview with the Richmond News was that it would take something very surprising to make him change his mind at that stage and that he did not expect to be surprised at that stage, but that he was going to attend the public hearings and he was going to see what happened. I reach that conclusion about what he was trying to say by taking together the report in the Richmond News, the affidavit of the editor of the Richmond News, Mr. Mawby's two affidavits, and the transcript of the television show. [Emphasis added.]
Southin J.A., Toy J.A. concurring, wrote that a reasonable person would probably conclude that by the second public hearing Alderman Mawby had a closed mind. However, in her opinion, s. 956 does not require an open mind when the issue is a broad public policy issue such as a zoning by-law for the whole municipality. If the closed mind is the result not of corruption but of honest opinions strongly held then the cases on apprehension of bias are not applicable. Southin J.A. wrote, at p. 61:
In my view, the public life of British Columbia would be the poorer if in a matter of this kind a politician must keep an inscrutable face and a silent tongue not disclosing his strongly held opinions lest he be deprived of his vote. There should be no penalty for candour. However distasteful Mr. Mawby's opinions may be to a very large segment of the electors of Richmond, he is entitled to hold them and to express them by his vote at the council table.
Bias
Natural Justice: Application to Local Government Bodies
In Old St. Boniface, I concluded that a member of a municipal council was not disqualified by reason of bias unless he or she had prejudged the matter to be decided to the extent of being no longer capable of persuasion. This test is to be applied to this appeal.
Application
The judge of first instance found that Alderman Mawby had not closed his mind against all argument. This finding was supported by Lambert J.A. in the Court of Appeal and by the evidence. Southin and Toy JJ.A. opined that a reasonable person would conclude that he had a closed mind. As explained in Old St. Boniface, the relevant test is whether the Councillor had a closed mind, in fact. Applying this test, and on the evidence, I conclude that Alderman Mawby had not reached a final opinion on the matter which could not be dislodged. It follows that he was not disqualified by bias. It is not alleged in this appeal that the Alderman had any interest or relationship that would disqualify him on the basis of conflict of interest.
Disposition
As provided in the judgment of this Court released August 16, 1990, the appeal is dismissed with costs.
//La Forest J.//
The reasons of Lamer C.J. and La Forest and L'Heureux‑Dubé JJ. were delivered by
LA FOREST J. -‑ The issue in this appeal may be stated as follows:
Did the Court of Appeal err in law in holding that the municipal council and its members had no obligation, under s. 956 of the Municipal Act, R.S.B.C. 1979, c. 290, to embark upon the hearing with an open mind?
This appeal was heard on the same day as Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 000, issued concurrently. Both raise issues regarding the application of the rules of natural justice, or the duty to act fairly, to municipal councillors. As my colleague Justice Sopinka observes, the present appeal was dismissed earlier with reasons to follow.
Though I have reached the same conclusion as my colleague, I approach the issue differently and I have, therefore, prepared my own reasons. My colleague has set forth the facts, judicial history and applicable legislation and I can, therefore, proceed directly to an analysis of the issue.
Analysis
I underscore the fact that in this appeal it is clear that the municipality made a policy choice to emphasize the provision of housing rather than the preservation of agricultural land in that portion of the municipality called the Terra Nova lands. This necessitated a zoning change for the lands in question, and, as is clear from s. 956 of British Columbia's Municipal Act, R.S.B.C. 1979, c. 290, a statutory duty is placed on municipal councils to hold a public hearing prior to the adoption of a zoning by-law. The issue raised by this appeal is that of defining what standard of fairness is owed to the participants in this hearing process.
This poses the problem of defining in what capacity the council acts when conducting a zoning by-law hearing such as that mandated by the above-noted section. The appellant association, relying on Karamanian v. Richmond (1982), 1982 BCSC 287, 38 B.C.L.R. 106 (S.C.), submitted that the council acts in a quasi-judicial capacity. The respondent municipality, stressing the high policy content of the decision to change the zoning of the lands in question, counters by suggesting that the council acts in its legislative capacity. I consider the implications of both alternatives.
If the association is indeed correct and the municipal council in this case was acting in a quasi-judicial capacity, the following passage from Re McGill and City of Brantford (1980), 1980 ONSC 1741, 111 D.L.R. (3d) 405 (Div. Ct.), at p. 414, may serve as a succinct statement of the duty of fairness that was owed by the councillors:
The fact is that the Legislature has required the hearing to be conducted by the very persons who are expected to have formed at least a tentative view, and to have made decisions to carry forward the plan at least to the stage where the formal closing of the roads is to take place. It must be assumed that the Legislature knew the functions, and the mode of developing such a project from its inception to the advanced stages, and nonetheless designated the Council as the body to hold the hearing. In these circumstances all that can be required of the Council is to put aside their tentative views individually and collectively, hear the objections, consider them honestly and fairly, see if they can be accommodated and then make the final decision.
On this standard, persons who stand to be affected by the decision will be entitled to object, and the courts to intervene, if council members by their words or actions raise a reasonable apprehension that they are entering the process with a closed mind. The association cites the following excerpt from the decision of the New Zealand Court of Appeal in Lower Hutt City Council v. Bank, [1974] 1 N.Z.L.R. 545, at p. 550, per McCarthy P.:
We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals. As to the necessary appearance of impartiality, we think it must follow that if a public authority exhibits that it has undertaken in advance to exercise the power and duty expressly entrusted to it by the Legislature in a specific way which appears to obstruct the fair consideration and disposal of public rights, prohibition should normally issue.
On the respondent's view of the matter, the municipal council in this instance was not acting in a quasi-judicial, but rather legislative capacity. It therefore submits that allegations of bias, if by that one understands solely a "form of political predetermination", are entirely misplaced. It points to American authority, citing Wollen v. Borough of Fort Lee (1958), 142 A.2d 881 (N.J.S.C.). In that decision, on facts very similar to those in this appeal, three aldermen had publicly stated that they would vote in favour of a rezoning ordinance. The court held, at pp. 888-89:
But this is a democratic process; and it would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn legislative duties. Such is not the bias or prejudice upon which the law looks askance. . . .
There is no showing of an abuse of power ‑‑ no basis for the conclusion of arbitrary action. The course taken was in the pursuit of what was in good faith conceived to be the essential public interest after long and earnest study, aided by experiential advice of unquestionable validity. We are not here concerned with the taint of self-interest in opposition to the public interest and welfare.
The Court of Appeal gave its imprimatur to this view of the matter: (1989), 1989 BCCA 2718, 36 B.C.L.R. (2d) 49. Southin J.A. (Toy J.A. concurring) held that in processes such as the one under consideration, it would be unjust to find fault with municipal councillors who maintained a closed mind on the development issue. Councillor Mawby, reasoned Southin J.A., had campaigned in favour of the contested development, had been duly elected, and it lay with his constituents to affect his thinking through the political process. Accordingly short of any suggestions of impropriety that would support allegations of bad faith, reasonable apprehension of bias would have no application.
Lambert J.A., in his concurring judgment, took a more conventional view of the matter. He rejected the notion advanced by counsel for the municipality that it would be open to an alderman to state that "[m]y mind is made up; I cannot be influenced by persuasion; but the law requires me to be present and I will be present; and the law requires me to listen attentively and I will do so; but that is all". Lambert J.A. reasoned, at p. 56:
There must be a degree of openmindedness; there must be a capacity to be influenced by persuasion. But provided that the alderman is not acting improperly in the sense of having been procured to vote in a certain way (of which there is no suggestion whatsoever in this case), and providing that he retains the capacity to be influenced by a yet unheard and perhaps unexpected argument, he or she will not be disqualified from participation in this particular process of zoning by-law consideration by attitudinal views of the kind that are inherent in the political nature of our form of municipal government . . . .
Lambert J.A. went on to conclude that here, on the facts, it could be said that Councillor Mawby, despite the remarks attributed to him by the media, did indeed maintain this degree of receptivity.
On this last point, I think that Lambert J.A. is correct. It must be remembered that the council's initiative to rezone the lands was one that had polarized opinion in the respondent municipality. Aldermen had lined up both for and against the proposal, and an election was fought on the issue, with the pro-development camp emerging victorious. In short, both sides had strongly felt views and made no secret of them. It is true that Councillor Mawby was quoted in the press as saying that he would not change his mind. But Mawby claimed that his remarks were taken out of context, and during a television interview he also raised the possibility that arguments presented during the course of the public hearing might lead to a change of mind on his part or on the part of the anti-development forces. Consequently, even if this Court were to adopt the "amenable to persuasion" standard as the test for bias (the test proposed by Lambert J.A. and which, in essence, is the same standard as that put forward by the association), it follows that no order should issue that Alderman Mawby was not entitled to vote on By-law 5300.
"Amenable to Persuasion": A Valid Test?
Both judgments of the Court of Appeal are premised on the notion that it is an error, in the context of a rezoning application, to imply bias from the fact that a municipal councillor holds very firm and strongly stated views on the matter. The difference between the two approaches lies in the fact that Lambert J.A. would hold to the notion that having taken a firm position on a given proposal is not a licence to close one's mind entirely to being persuaded otherwise.
This sounds good in theory, but breaks down in practice. Southin J.A.'s approach might seem drastic but is the more realistic of the two. There is no way of gauging the "openness" of a person's mind, and indeed it would be pointless to attempt to do so. In the result, it seems to me that if this Court is to adopt the "amenable to persuasion" test, this is bound to lead to a lot of posturing. Politicians who have campaigned on a given issue, and owe their election to it, can be expected to make solemn pronouncements to the effect that they remain "amenable to persuasion" if a truly convincing argument is presented to them. There would seem to be little to be gained by enforcing a campaign of "lip-service" to this ideal.
In conclusion, I think that Southin J.A. is correct when she holds that a "closed mind" (provided it is not a corrupt mind) should not disentitle an alderman from participating in the electoral process. Woolf J. puts the matter well in Regina v. Amber Valley District Council, Ex parte Jackson, [1985] 1 W.L.R. 298 (Q.B.D.), at p. 307:
But does this have the effect of disqualifying the Labour majority from considering the planning application? It would be a surprising result if it did since in the case of a development of this sort, I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice.
It might be objected that this approach makes the public meeting called for by s. 956 a mere charade. By way of answer, it must be assumed that the Legislature will have been well aware of the fact that the very aldermen who are called on by statute to make the final decision on zoning by-laws initiated by municipalities themselves will often have run for office on the strength of their support or opposition to these measures. If this seemingly guarantees that zoning applications of this nature are decided before ever reaching the hearing stage, this inconsistency should be for the legislature to iron out, and not the courts.
Secondly, I think that Lambert J.A. is correct in his submission that s. 956 should not be interpreted as meant to apply in exactly the same way to all matters it covers (at pp. 55‑56):
If the by‑law affects a specific solution to a specific problem of a narrow scope that only touches the people it immediately concerns, different obligations of fairness may arise than if the by‑law affects a comprehensive solution to an overall policy problem confronting the whole municipality. The section is sufficiently flexible to allow the appropriate standards of fairness to be applied to the particular circumstances. [Emphasis added.]
In the particular circumstances of this appeal, I think that the respondent municipality is correct in its submission that in respect of a rezoning initiated by Council itself and driven by policy:
The emphasis is on the legislative nature of the process and thus on compelling "the elected" to listen to the views of "the electors". It is not, as in an adjudicative process, on compelling the hearing tribunal to find the facts by means of a hearing or inquiry and then to determine the issue on the facts as found.
If this is indeed the correct characterization of the purpose served by the meeting in the context of a "policy driven" zoning initiative, it follows that the standard of fairness mandated by s. 956 places on the council members little more than the obligation of ensuring that due notice is given to those who do stand to be affected, and of affording them a reasonable opportunity to express their views.
In the final analysis, I think that the association's position is an unrealistic one in the case of a hearing that is mandated in order to consider a rezoning "initiated by Council itself and driven by policy". A community plan or a comprehensive zoning by-law represents a general statement of the broad objectives and policies of the local government respecting the form and character of existing and proposed land use (see s. 945(1) Municipal Act), and the adoption of such a measure is less a judicial process than a legislative one. The aldermen who participate in such a process should be viewed accordingly not as judges, but as elected representatives who are answerable to the concerns of their constituents.
The above result finds support in the decisions of this Court in Martineau v. Matsqui Disciplinary Board, 1979 SCC 184, [1980] 1 S.C.R. 602, and Knight v. Indian Head School Division No. 19, 1990 SCC 138, [1990] 1 S.C.R. 653, which both stress that the attributes of natural justice that apply in a given context will vary according to the character of the decision made. Dickson J. puts the matter well in Martineau, supra, at pp. 628‑29:
. . . A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum.
Clearly, in this instance, the decision-making process is to be located at the legislative end of the spectrum. Accordingly the threshold test for establishing bias should be a very high one. In my view, Southin J.A. is correct in her view that a decision-maker is entitled to bring a closed mind to this decision-making process, provided that the "closed mind is the result not of corruption, but of honest opinions strongly held".
Appeal dismissed with costs.
Solicitor for the appellants: Thomas R. Berger, Vancouver.
Solicitors for the respondents The Corporation of the Township of Richmond, The Council of the Corporation of the Township of Richmond and Hugh Mawby: Lidstone, Young & Anderson, Vancouver.
Solicitors for the respondents Progressive Construction Ltd., Tempo Construction Ltd., Conway Richmond Ltd., Fraserview Construction Ltd., L. Horii Construction Ltd., First City Development Corp. Ltd. and Olga Ilich: Edwards, Kenny & Bray, Vancouver.
- Reasons delivered December 20, 1990.
** Chief Justice at the time of hearing.
*** Chief Justice at the time of judgment.