Casual Legal: Reasonable Apprehension of Bias from Assessment Review Board

By Taylor M. Thiesen
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider 

A recent Alberta Court of Queen’s Bench decision dealt with the question of whether a city’s Composite Assessment Review Board (CARB) demonstrated a reasonable apprehension of bias when upholding the city’s tax assessment of two commercial properties.

The property owners’ primary complaint about bias stemmed from the fact that the majority of the CARB had written, at the beginning of its decision, that:

“The Board questions if it should have even considered the complaint as this same complaint had been dealt with by another [CARB]. By even hearing this complaint it seems if you don’t like the ruling of a CARB all you have to do is keep submitting the same complaint.”

The property owners pointed out that the members who wrote these comments were on the panel in the previous CARB case mentioned in their comments. In the property owners’ view, this led to the inference that the members who wrote these comments had prejudged the case.

The Court of Queen’s Bench disagreed. The Court noted that demonstrating reasonable apprehension of bias is a high standard – there must be a real likelihood or probability, not just a mere suspicion. In this case, the CARB had asked questions and appropriately engaged with witnesses and representatives from both sides during the hearing. Furthermore, tribunal members often sit together in similar compositions, and hear similar types of cases, so the fact the majority members had been involved in a previous decision involving the same parties did not indicate bias.

Finally, while the Court acknowledged the second sentence of the CARB’s comment was “intemperate in tone,” it pointed out that impatience, rudeness or criticism do not establish a reasonable apprehension of bias unless it can be said the decision-makers prematurely made up their minds. In this case, the comments did not rise to that level.

Therefore, while decision makers should strive to avoid intemperate comments, mere suspicion does not establish a reasonable apprehension of bias. The test is whether a reasonably informed person, viewing the matter realistically and practically, would think it is more likely than not that the decision-maker did not decide fairly.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email )to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.