Mayor Lois Jackson's office Friday released the findings of an outside legal opinion on how councillors, as well as candidates in the upcoming civic election who could find themselves on council, should deal with providing their views on the Southlands development application.
The mayor recently announced she was seeking an opinion because she was concerned a councillor may appear to be showing bias on one side of the issues or the other, thus appearing not to giving an opportunity for a fair hearing and consideration.
Jackson got some heat from political opponents who claimed she was trying to stifle debate when it comes to the Southlands, but the mayor told the Optimist she simply wanted everyone to be clear and on the same page how to avoid being in a situation where a landowner or developer can claim they weren't afforded a fair process.
The following is as letter, dated Sept. 22, to Delta solicitor Greg Vanstone that contains a legal opinion from Bill Buholzer of Young & Anderson Barristers & Solicitors:
Re; Apprehension of Bias and Election Campaigns
Our File No. 00076-0136
You have requested our opinion on the question of election campaign statements on the Southlands development, in relation to the common law obligation of council members to avoid any reasonable apprehension of bias in quasi-judicial decisions they might be called upon to make once elected, for example in the context of a public hearing held under Part 26 of the Local Government Act or under the Agricultural Land Commission Act.
The leading cases in this area of law are Old St. Boniface Residents Association Inc. v. Winnipeg (City)  3 S.C.R 1213 and Save Richmond Farmland Society v. Richmond (Township),  3 S.C.R. 1213, concurrent decisions of the Supreme Court of Canada. In these cases, the Court considered the application to land use decisions involving a public hearing, of the general administrative law principle that decision-makers must base their decisions, and must be seen to be basing their decisions, on nothing but the evidence that is properly before them. The following passage from the Winnipeg case summarizes the Court's conclusion (at para 57):
In my opinion, the test that is consistent with the functions of a municipal councillor and enables him or her to carry out the political and legislative duties entrusted to the councillor is one which requires that the objectors or supporters he heard by members of Council who are capable of being persuaded. The Legislation could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adapted, would be futile. Statements by individual members of Council while they may very well 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, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in disqualification of a majority of Council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard.
From the foregoing, it is clear that avoiding an apprehension of bias in public hearing proceedings does not
require that individual members of Council have avoided making any statements or taking other actions that give rise to an appearance of bias. As a practical matter, for example, all official community plan and zoning bylaws that are before a public hearing have already been voted on at least once, and if an actual vote for or against a bylaw gave rise to a reasonable apprehension of bias, all Council members would be disqualified from participating in a public hearing. The Supreme Court's observations do, however, implicitly counsel against the making of any statements of final opinion that cannot be dislodged, on a matter that may in the future be the subject of a public hearing. thus it is always prudent for Council members and candidates for Council, when commenting on such matters, to acknowledge the public hearing process and avoid giving the appearance of having a closed mind on the matter. We are not aware of any case decided since the Supreme Court's decisions in these two cases, in which it has been proven that an elected municipal official had in fact reached a final opinion that could not be dislodged, such that they were not entitled to participate in a hearing.
We understand that Mayor Jackson made the following comments at a recent Council meeting:
Um, the only other thing I wanted to mention Mr. Hodgins is that and you referred to understanding what was happening with Council and how they felt and actively being involved. I'm assuming before a Public Hearing and just for the record I have to state that obviously this Council is anything has come before us and it goes to first and second reading we can certainly talk about all kind of things but we must take great care not to prejudice a decision of any member of Council in case it is seen by a court at any particular time as that person being biased on way or another. And as you remember when I go to Public Hearing we talk about sitting in a quasi-judicial settling. That means we have to be going into a public hearing with an open mind, looking at everything with new eyes and new ears from not only the applicant or the landowner but also from the public as well. So I just wanted to state that for people who may not maybe understand the question of the setting for a public hearing and any person that has perhaps been deemed to have already made up their mind may be disqualified from voting on the issue. So with that I would ask you, Mr. Harvie were there any comments you wanted to make, were there any questions that Council wanted to bring forward as a result of the presentation?
In our view, this is a correct statement of the law as set out above. Council members are entitled to hold opinions about matters that may come before them in a public hearing context, and to publicly state those opinions, but if they do so in a manner that indicates that they have prejudged the matter to the extent that what they hear at a public hearing cannot affect their views, they run the risk of having their participation in the hearing challenged on the basis of bias.