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Conflicts of interest diminishes appeal board

Four out of seven members of Banff’s Development Appeal Board have declared a perceived conflict of interest in hearing Parks Canada’s appeal of a planning commission approval.

Four out of seven members of Banff’s Development Appeal Board have declared a perceived conflict of interest in hearing Parks Canada’s appeal of a planning commission approval.

The federal agency is challenging the Municipal Planning Commission’s decision in November to approve a permanent development permit for a lawyer’s office in a public service district.

Michael Aasen, legal counsel for the building’s owner, Bow Valley Credit Union, challenged the appropriateness of three Parks Canada employees sitting on the board to hear the appeal.

Aasen said there is a reasonable apprehension of bias when “Parks Canada is appealing a decision and having employees hear it.”

“We ask these three members to recuse themselves from hearing the appeal,” he said, adding he is not implying board members would actually exercise bias, but a perception exists. “It would create a reasonable apprehension of bias in the mind of a right minded person observing the procedure.”

“It is not a question if there is bias, but would a reasonable person perceive bias?”

Aasen said his client wants to ensure the board is independent in its decision and not subject to outside influence.

Under the Land Use Bylaw and Incorporation Agreement, Parks has the right to appoint two representatives to the appeal board. Those representatives, Lara Seward-Guenette and Mark Merchant, recused themselves due to the perception of conflict because they are employed by the agency.

Appeal board chair Philip Carmody, who sits as a public member, but is also a Parks employee, chose to recuse himself as well.

Finally, Councillor Leslie Taylor declared a perceived conflict of interest as her husband is a lawyer in the community.

Lawyer Angela Fritze, counsel for the minister of the environment, said ultimately the issue is to have a fair hearing, but the sole factor of who is a board member’s employer is, is not enough for a person to recuse themselves.

“Boards have to be able to conduct business even if an appellant has some representation on the board about to hear an appeal,” Fritze said.

She said the appearance of bias is dealt with in the incorporation agreement between the municipality and Parks Canada.

That document sets out that it is not a conflict for Parks employees to hear appeals that deal with Crown land as all property in Banff belongs to the government.

She argued that is the only exception anticipated by the drafters of the agreement set out and further exceptions should not be read into it.

“It is not for this board to read into this article exceptions that are not there,” she said. “(This section) makes the case that employment by the government of Canada in and of itself is not enough to be disqualified, no exceptions.”

The legal documents also guarantee the minister representation on the appeal board, according to Fritze.

“It comes down to if Parks Canada has a duty and a right to be at the appeal board table and I would argue that they do,” she said. “To remove Parks Canada from the board creates an imbalance.”

After the legal positions were submitted, members of the board went in-camera to discuss the situation and when they returned the three employees stepped down.

Fritze then gave notice to the board that the minister will put forward two names for council’s consideration to represent the federal government before the actual appeal is heard on March 7.

Town of Banff legal counsel Sheila McNaughtan agreed that an issue like apprehension of bias applies to members of quasi judicial boards like DAB.

However, she did not agree with Fritze’s interpretation of whether or not further exceptions apply to Parks representatives on the board.

“Parks Canada is not just the owner of the land, they are the applicant… they are a party in the dispute,” McNaughtan said. “There is nothing in the language that Parks Canada has to appoint employees and I do not really like the suggestion the Crown deserves a perspective at the table.”

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