IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Gowman v. Provincial Agricultural Land Commission,

 

2009 BCSC 267

Date: 20090227
Docket: S077011
Registry: Vancouver

Between:

Elvin Gowman and Anne Clayton

Petitioners

And

Provincial Agricultural Land Commission
and H.F. Nodes Construction Ltd.

Respondents


Before: The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Petitioners:

L.J. Mackoff

Counsel for the Respondent,

Provincial Agricultural Land Commission:

D.I. McBride

Counsel for the Respondent,

H.F. Nodes Construction Ltd.:

R.D.W. Dalziel
R.A. Austin

Date and Place of Hearing:

December 15 and 16, 2008

 

Vancouver, B.C.

[1]                The petitioners, Elvin Gowman and Anne Clayton, own property that is within an agricultural land reserve (the “ALR”).  In this petition, they are seeking to have Resolution #426/2006 (the “Resolution”) of the Provincial Agricultural Land Commission (the “Commission”), removing 15 hectares of a neighbouring property owned by the respondent, H.F. Nodes Construction Ltd. (“Nodes Construction”) from the ALR, declared a nullity.  In the alternative they seek an order setting aside the decision, on the grounds that they were not given proper notice of the application to remove the property from the ALR, and that one of the commissioners who was involved in the decision was biased.

[2]                The issues are:

1.         should the Resolution to remove the 15 hectares of land from the ALR be declared a nullity, or alternatively set aside, on the basis that the petitioners were not given notice as required by the Agricultural Land Commission Act, S.B.C. 2002, c. 36; and

2.         should the Resolution be declared a nullity, or alternatively set aside, on the basis that one of the commissioners involved in the decision to remove the land was in a conflict of interest since he was a person who was affected by the decision and received notice of the exclusion application as an adjacent landowner. 

BACKGROUND

[3]                The petitioners own a property near the town of Pouce Coupe, British Columbia, as joint tenants.  The petitioners’ property is located to the west and across 211 Road from a 111 hectare parcel of land owned by the respondent, Nodes Construction.

[4]                Nodes Construction is a construction company that has been based in the Village of Pouce Coupe since 1965.  Nodes Construction provides a variety of construction services and operates out of a property in Pouce Coupe and a second property in Dawson Creek.  The 111 hectares parcel of land owned by Nodes Construction is on the outskirts of Pouce Coupe.  In April 2006, Nodes Construction made an application to exclude from the ALR 15 hectares in the south eastern portion of the larger 111 hectare parcel in order to consolidate its business into a single location. 

[5]                There is a residential subdivision separated from the 15 hectares that are the subject of the exclusion application by a public road known as 57A Avenue.

[6]                John Kendrew is a Commissioner who was a member of the regional panel which passed the Resolution.  Mr. Kendrew is the registered owner in fee simple (as a joint tenant with Patricia Dell Kendrew) of a property located immediately to the east of and adjacent to the 15 hectares that are the subject of the exclusion application.  As an adjacent land owner, Mr. Kendrew received a copy of the notice and a copy of the exclusion application.

[7]                The petitioners did not receive either a copy of the notice or a copy of the exclusion application prior to August 24, 2006 when the Commission passed the Resolution.  The petitioners first learned that the Commission had passed the Resolution on December 12, 2006 at a public meeting held by the Peace River Regional District dealing with an application to rezone the 15 hectares. 

[8]                Following the public meeting, the petitioners contacted the Commission.  In correspondence to the petitioners, the Chair of the Commission noted the inadvertent deficiency in the notification procedure and indicated that the applicant would be correcting the deficiency by providing a copy of the notice and a copy of the signed exclusion application to them.  Subsequently, Nodes Construction served a copy of the notice and a copy of the exclusion application on the petitioners. 

ANALYSIS

Should the Resolution to remove the land from the ALR be declared a nullity, or alternatively set aside, on the basis that the petitioners were not given notice as required by the Agricultural Land Commission Act?

[9]                An applicant for exclusion of land from the ALR must submit an application and pay the prescribed fee to the applicable local government pursuant to s. 34 of the Agricultural Land Commission Act.  Section 36 provides:

(1)        A person who makes an application referred to in section 34 must, in the prescribed circumstances,

(a)        give notice of the application in accordance with the regulations before submitting the application, and

(b)        provide evidence, satisfactory to the commission, that the applicant has complied with the notice requirements of the regulations.

(2)        A decision of the commission with respect to an application is not invalidated merely because the applicant fails to comply with the notice requirements of the regulations, if the applicant made reasonable efforts to comply with those requirements.

[10]            The pertinent portions of the Agricultural Land Reserve Use, Subdivision and Procedure Regulation, B.C. Reg. 171/2002 (the “Regulations”) provide:

15 (2)   An exclusion application must be accompanied by the following when submitted for filing under subsection (1):

(c)        a signed statement by the owner of the land stating

(i)         the name and address of each person served under section 16 (1) (c),

(ii)        the date of service, and

(iii)       the manner of service.

16 (1)   Before filing an exclusion application under section 15 (1), an owner must give notice of the exclusion application by doing all of the following:

(a)        publishing a notice of the exclusion application in at least 2 issues of a newspaper published or circulated in the municipality, regional district or treaty settlement lands within which the land to which the exclusion application relates is located, not less than 7 days and not more than 14 days apart, inclusive of the day of publication;

(b)        posting on the land that is the subject of the exclusion application, on a sign measuring at least 60 cm by 120 cm and positioned at the midpoint of a boundary of that land that is adjacent to a constructed road right of way if one exists,

(i)         a copy of the signed exclusion application, and

(ii)        a copy of the notice of exclusion application;

(c)        serving, personally or by registered mail, a copy of the signed exclusion application and a copy of the notice of exclusion application on each owner of land, in an agricultural land reserve, that

(i)         shares a common boundary with the land for which the exclusion application is being made, or

(ii)        is separated by a public road right of way from the land for which the exclusion application is being made.

[11]            The petitioners take the position that Nodes Construction did not make reasonable efforts to comply with the notice requirements.  The respondents take the position that Nodes Construction’s efforts amounted to reasonable efforts for the purpose of s. 36(2).

[12]            Nodes Construction submitted its exclusion application on March 7, 2006, to the applicable local government at the time, the Peace River Regional District.  The Peace River Regional Board authorized Nodes Construction’s exclusion application to proceed to the Commission. 

[13]            An applicant for exclusion of land from the ALR must give notice of the application in the prescribed manner before filing the application and provide evidence, satisfactory to the Commission, that the applicant has complied with the notice requirements.

[14]            Nodes Construction placed the required newspaper advertisements.  As well, the signage required by s. 16(1)(b) of the Regulations was placed on the property adjacent to Highway #2. 

[15]            The petitioners say they did not see any signs but do not contest that a sign was in place.  Rather, Mr. Gowman deposes that the petitioners do not typically travel along Highway #2. 

[16]            A copy of the notice and a copy of the exclusion application is to be delivered to owners of land which is in the ALR that either shares a common boundary with the land for which the exclusion is being made, or is separated by a public road right of way from the land for which the exclusion application is being made.

[17]            Ms. Myrna Nodes is a director and secretary of Nodes Construction.  Ms. Nodes deposes that in February 2006, Nodes Construction delivered a copy of the notice and a copy of Nodes Construction’s exclusion application to Ravelli Farms, Daryl Jabs, Borek Holdings and Mr. Kendrew by registered mail.  Ms. Nodes further deposes that, at the time she caused the notice and the application to be served, she did not realize there was a small, distinct parcel of land owned by the petitioners that was carved out from Mr. Borek’s land.  Nor did she realize that another neighbour, Mr. Norden’s property was adjacent to Nodes Construction’s property.  She believed that Mr. Norden owned property further north.  It was not until she heard of the petitioners’ objection sometime in 2007, that Ms. Nodes became aware that the petitioners and Mr. Norden owned property adjacent to Nodes Construction’s property.  Subsequently Ms. Nodes arranged for the petitioners and Mr. Norden to be served with a copy of the notice and a copy of the exclusion application, as well as another landowner, Mr. Breault.  Ms. Nodes deposes that the property owned by Mr. Breault is not adjacent to Nodes Construction’s property. 

[18]            As stated above, Nodes Construction’s application did not involve the exclusion of all of 111 hectare parcel.  The exclusion application is for property described as the south-east corner of the larger property and consists of 15 hectares to be used to construct an office building and training centre.  Neither the petitioners nor Mr. Norden’s properties are adjacent to the portion of Nodes Construction’s property, i.e. the south-east corner, which is the subject of the exclusion application.

[19]            Although the petitioners argue that there is evidence that Nodes Construction is planning to develop the larger property in the future, the exclusion application did not include any property other than the 15 hectares in the south-east corner.  Presumably, if Nodes Construction plans to develop more of its property in the future, it will have to make another exclusion application, and follow the required steps at that time. 

[20]            In my view, in determining whether the applicant made reasonable efforts to comply with the notice requirements, the entirety of notice provision in the Regulations should be considered.

[21]            In this case, Nodes Construction placed newspaper advertisements, posted a notice on its property and served a copy of the notice and a copy of the exclusion application on six of the adjacent landowners.  The evidence is that the omission to serve the petitioners and Mr. Norden was inadvertent.  Ms. Nodes served all of the landowners whom she believed owned land adjacent to Nodes Construction’s property. 

[22]            The service of the notice was not perfect, but s. 36(2) of the Agricultural Land Commission Act expressly contemplates that there may not be perfection in providing notice.  In enacting s. 36(2), the legislature must be taken to have accepted that some mistakes in giving notice will be made.  The section is in keeping with the reality that in rural settings many landowners may not be able to readily identify the whereabouts of all the property lines or the owners of property surrounding land sought to be excluded from the ALR. 

[23]            The petitioners rely on two cases in support of their notice argument:  Re Hobby Ranches Ltd. (1978), 8 B.C.L.R. 247 (S.C.) and “The Village” Mobile Home Estates Ltd. v. British Columbia (1982), 41 B.C.L.R. 189 (C.A.).  However, in my view, those cases are distinguishable as they both deal with adding the petitioner’s land to the ALR without notice to the petitioner.  The courts held that, even in the absence of statutory direction, common law procedural fairness required that the landowner be given notice before an administrative decision that changed the landowner’s right to use its own land was made.  In this case, the petitioners’ property rights are not at stake. 

[24]            I note that there are many residential landowners directly across the road from the 15  hectare parcel who were not entitled to receive notice as their property is not in the ALR.  Those landowners would presumably be more impacted by any development undertaken on the excluded land than the petitioners whose property is not adjacent to the 15 hectare parcel, but to the larger parcel. 

[25]            Having considered all of the evidence, it is my view that the facts weigh in favour of finding that the applicant made reasonable efforts to comply with s. 16(1)(c) notice requirements. 

Should the Resolution be declared a nullity, or alternatively set aside, on the basis that one of the commissioners involved in the decision to remove the land from the ALR was in a conflict of interest since he was a person who was affected by the decision and received a copy of the notice and a copy of the exclusion application as an adjacent landowner?

[26]            The petitioners argue that the Resolution should be declared a nullity, or alternatively set aside, on the basis that Commissioner Kendrew was barred by the Commission’s “Interim Governance Policy” from participating in the Resolution, or alternatively, that Commissioner Kendrew’s participation gave rise to bias. 

[27]            Commissioner Kendrew owns the property that is adjacent to the 15 hectares that are the subject of the Nodes Construction’s exclusion application.  He was served with a copy of the notice and a copy of the exclusion application prior to his participation in the Resolution. 

[28]            The Interim Governance Policy for the Land Reserve Commission contains provisions dealing with standards for conduct, including conflicts of interest.  The relevant portions of the provisions provide:

1.         Purpose of Standards for Conduct

The Standards for Conduct for the Commission are intended to achieve the following:

To ensure that the actions of the Commission and the Commissioners are legally and morally defensible, and demonstrate fairness, integrity, impartiality and accountability.

To provide guidelines for the conduct of the Commissioners and for potential conflicts of interest. 

To establish a process for addressing possible violations of the Standards for Conduct.

3.         Conflicts of Interest

Commissioners, including the Chair and Vice-Chair(s), must avoid any real or perceived conflicts of interest that could impair the independence and integrity of the Land Reserve Commission.  The following guidelines apply to conflicts of interest:

i)          Commissioners will disclose any potential conflicts of interest to the Chair, Vice-Chair or their panel and the Chief Executive Officer.  ...

j)          If potential conflict of interest situations arise during the course of a meeting of the Commission, the member must declare the conflict and remove him or herself from the meeting room, and will not discuss or vote on the matter.

k)         Members may vote on matters in which they have an interest, if the decision relates to the regulation of a large group and will not affect the member in a different manner than any other member of the group – e.g. a Member who owns land within the Agricultural Land Reserve may vote on a policy regarding specific uses on all lands within the Reserve.  If there is any doubt that a potential conflict of interest may exist, the member should consult with the Chair, and if necessary, with independent legal counsel. 

4.         Violations of the Standards for Conduct

a)         If a potential violation of the Standards for Conduct is identified, the Chief Executive Officer, in consultation with the Chair and the Vice-Chair of that panel, may take actions deemed reasonable and necessary to determine the circumstances of the potential violation and to recommend a remedy or sanction.

[29]            It is undisputed that Mr. Kendrew was served with a copy of the notice and a signed copy of Nodes Construction’s exclusion application as an adjacent landowner and did not disclose his interest to the Chair of the Commission.  He participated in both a site visit to the Nodes Construction’s property and the meeting at which the Resolution was passed.  As stated earlier, Mr. Kendrew’s property is adjacent to the 15 hectare parcel which was the subject of the exclusion application. 

[30]            The petitioners take the position that it is a breach of procedural fairness to act in a manner which is contrary to guidelines dealing with a conflict of interest relying on Wilkie (Town of) v. Greenhead District Health Board (1996), 150 Sask. R. 241 (Q.B.).

[31]            As stated in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at ¶ 57:  “Public confidence in our legal system in rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.”  The presumption of impartiality on the part of decision makers when bias or conflict of interest is alleged carries considerable weight.  The grounds for apprehension must be substantial (at ¶ 59).

[32]            At ¶ 60 in Wewaykum, the Supreme Court of Canada reiterated that the criterion for disqualification of a decision maker is a reasonable apprehension of bias, as expressed in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369:

In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[33]            Although the respondents argue that the petitioners have not shown any actual bias, the petitioners do not have to show actual bias.  The test for disqualification is the reasonable apprehension of bias, i.e. what would an informed person, viewing the matter reasonably and practically and having thought the matter through, conclude as to whether it was more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly.  The Court in Wewaykum cautioned that this is a highly fact-specific and contextual inquiry. 

[34]            While in Wewaykum the Court was dealing with the issue of whether a judge should be disqualified, the same test applies in determining whether a decision maker should be disqualified.

[35]            The respondents point to the fact that the Commission is specifically structured to have regional panels as part of the statutory regime of the Agricultural Land Commission Act.  Members of each panel are appointed from the region, and therefore, are likely to have geographic proximity to an applicant and an applicant’s property. 

[36]            The Commission submits that the “Interim Governance Policy for the Land Reserve Commission” is simply a guideline and does not have the force of law.  The Commission points to the fact that the Guidelines do not specifically make mention of a prohibition on deciding applications for neighbouring property.

[37]            The Commission argues that, in order to find a reasonable apprehension of bias as defined by the case law, one must go beyond the fact that Mr. Kendrew owns land in the ALR in proximity to Nodes Construction’s property.  Otherwise, the test for bias for a Commissioner, when there are regional panels made up of local individuals, would be unreasonable or uncertain.  The Commission asserts that to have such a standard would raise the spectre of bias in each case where a Commissioner happens to own land in the ALR in the vicinity of an applicant.

[38]            However, Commissioner Kendrew is not merely an individual who happens to own land in the ALR in the vicinity of the applicant.  In this case, the Agricultural Land Commission Act and Regulations specifically recognize Commissioner Kendrew as an interested party by the fact that he is required to be served personally or by registered mail with notice of the exclusion application and a signed copy of the exclusion application.  There is no issue that he was in fact served with a copy of the notice and a copy of the exclusion application. 

[39]            The respondents further submit that there is no evidence that the Resolution will have a positive value on the value of Commissioner Kendrew’s property or increase the likelihood of his property being excluded from the ALR.  However, they have provided no authority to support their argument that such evidence is necessary.

[40]            In my view, this is a situation in which an informed person, viewing the matter reasonably and practically and having thought the matter through, would conclude that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly.  Commissioner Kendrew did not merely have a community of interest with other landowners in the area; he was a landowner who was identified by the legislation as having an interest.  His land is adjacent to the 15 hectare parcel for which the exclusion is sought.  In my opinion, Commissioner Kendrew should have declared his interest and refrained from participating in the Resolution. 

REMEDY

[41]            The Commission takes the position that the appropriate remedy, in the event that the petitioners are successful in their arguments, is that the petitioners request the Commission reconsider the August 2006 decision pursuant to s. 33 of the Agricultural Land Commission Act.  The Commission points to the fact that the petitioners were invited to participate in a reconsideration but chose to proceed by way of this petition without first exhausting their statutory remedies. 

[42]            The Commission submits that there should be no court order, and that the Commission should be left to constitute a panel to determine whether a reconsideration of the original decision is appropriate and how to otherwise proceed. 

[43]            The Commission says that if a panel is now constituted to reconsider Nodes Construction’s exclusion application, there is no possibility of it including Commissioner Kendrew as his term as a commissioner has expired.  There is thus no need for judicial intervention in advance of the panel being constituted.

[44]            However, as stated above, I am of the opinion that Commissioner Kendrew should not have participated in the Resolution and accordingly, it would be inappropriate to leave it to the Commission to determine whether a reconsideration of the original decision is required.  I note as well that s. 33 which allows reconsideration provides that a decision may be reversed or varied in certain circumstances.  None of the circumstances listed are applicable to the facts of this case, i.e. a situation in which one of the Commissioners participating in a decision to exclude land from the ALR was in a conflict of interest. 

[45]            As a result, it is my view that the appropriate remedy is to make an order setting aside the decision under s. 7 of the Judicial Review Procedures Act, R.S.B.C. 1996, c. 241, which provides:

If an applicant is entitled to a declaration that a decision made in the exercise of a statutory power of decision is unauthorized or otherwise invalid, the court may set aside the decision instead of making a declaration.

[46]            Finally, the Commission argues that it should not be prohibited from considering Nodes Construction’s exclusion application because the petitioners refused to participate in a reconsideration, and they have delayed bringing their petition before the court. 

[47]            I agree that there is no basis on which to prohibit the Commission from considering the application.  The Commission has exclusive jurisdiction to decide exclusion applications pursuant to the Agricultural Land Commission Act

[48]            However, I am of the view that the Resolution should be set aside and the matter remitted to the Commission. 

[49]            The delay by the petitioners has been fully and rationally explained.  The petitioners did not discover that they were parties that had to be served until May 2007.  There has been no prejudice to Nodes Construction as it has not acted on the Resolution and taken any steps to develop the 15 hectare parcel. 

[50]            Given the advice regarding Commissioner Kendrew, I make no order regarding the constituency of the panel.

CONCLUSION

[51]            The Resolution is set aside and the matter is remitted to the Commission.  The petitioners are entitled to their costs at Scale B. 

"Madam Justice Gerow"