Calgary (City) v Properties Plus Limited, 2013 ABQB 246

Court of Queen ’ s Bench of Alberta Citation: Calgary (City) v Properties Plus Limited, 2013 ABQB 246 Date: 20130425 Docket: 1201 09805 Registry: Calgary Between: City of Calgary Applicant - and - Properties Plus Limited, Condominium Corporation No. 7811509 and Safety Codes Council of Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B. A.

Millar _______________________________________________________ Introduction [ 1 ] The City of Calgary (the “ City ” ) appeals from a decision of the panel (the “ Panel ” ) of the Safety Codes Council of Alberta (the “ Council ” ). [ 2 ] The City alleges: (1) that the Panel breached the principles of natural justice and procedural fairness by prohibiting the City ’ s technical specialist from giving evidence, and (2) that the decision is in error by freezing building safety risks to prior standards. [ 3 ] The Respondent property owners oppose the appeal. The Council intervened in defence of its decision.

[ 4 ] I will dispose of the appeal in favour of the appellants on the issues of natural justice and procedural fairness. It will be unnecessary for me to deal with the balance of the issues raised on appeal. Factual Background [ 5 ] On April 1, 2012, a child fell five stories out of an apartment building window and sustained serious injuries. A Safety Codes Officer, Scott Miller ( “ Officer Miller ” ), investigated the incident and concluded that the sill height of the newly installed windows was below the minimum height required under the Alberta Building Code .

Officer Miller ordered the owner to rectify the Code non- compliance. [ 6 ] Properties Plus Limited and Condominium Corporation No. 7811509 (collectively referred to as “ Properties Plus ” ), the owners of the building, appealed Officer Miller ’ s order to the Council. The Council is given statutory authority to hear appeals from the decisions of Safety Code Officers. The Council appoints an appeal panel from among the members of the Building Technical Council, a subcommittee of the Council, whose members are considered experts in the

interpretation of the Alberta Building Code . On July 25, 2012 after an oral hearing, the Panel issued Order No. 0015425 revoking Officer Miller ’ s order. [ 7 ] The Act allows for an appeal to the Court of Queen ’ s Bench from a decision of the Panel; however, appeals are restricted to questions of law or jurisdiction (s 53(1)). In addition to its substantive appeal, the City alleges that the Panel failed to comply with the principles of natural justice and procedural fairness in its conduct of the hearing. [ 8 ] The City had two representatives at the hearing: Officer Miller and Bruce Schultz.

Officer Miller was intended to be and was the primary presenter of the City ’ s evidence at the hearing. He has been a Building Safety Codes Officer for more than 2 years. Mr. Schultz is a technical Code specialist and attended the hearing for the purpose of providing technical support to Officer Miller. Mr. Schultz also intended to present relevant information he had obtained from the National Research Council. [ 9 ] In February 2012, Mr.

Schultz had been appointed to the Building Technical Council, which qualified him to serve as a panel member for Safety Codes Act appeals, although at the time of the hearing he had not yet served as a panel member on such an appeal. Prior to the start of the hearing, when everyone was in their places ready to begin, the Panel Chairperson (the “ Chair ” ), took Mr. Schultz aside into the hallway and asked him not to provide evidence directly. His purpose in so asking was to remove any possible apprehension of bias resulting from Mr.

Schultz ’ s membership in the Building Technical Council. [ 10 ] The Chair suggested that Mr. Schultz remove himself from the presenter ’ s table and sit behind Officer Miller in the observer seats and that Officer Miller could consult with him as needed. No one else involved in the hearing was aware of the hallway discussion between the Chair and Mr. Schultz. When Mr. Schultz came back into the room, he removed his materials to the observer seats, much to Officer Miller ’ s surprise. Mr.

Schultz did not raise an objection at the time because he did not “ want to make a fuss ” . [ 11 ] At one point in the hearing, a question was put to Officer Miller which he thought would best be answered by Mr. Schultz. The Chair did not let Mr. Schultz respond; he indicated that Mr. Schultz would only be permitted to give his evidence through Officer Miller. This exchange, unlike the initial conversation between the Chair and Mr. Schultz, took place during the public portion of the hearing. [ 12 ] The end result was that Mr.

Schultz was able to provide evidence only by whispering his information to Officer Miller who in turn communicated the information to the Panel. Officer Miller found the whole situation awkward; to get help from his technical specialist he had to turn around away from the panel and try to listen to Mr. Schultz ’ s advice while the hearing continued and he had to summarize detailed information provided by Mr. Schultz in answer to specific hypothetical and other questions. Positions of the Parties

[ 13 ] The City argues that the Panel breached the principles of natural justice and procedural fairness: (1) by not receiving relevant evidence through an available witness or by failing to provide an effective alternative means to hear that evidence; (2) by not providing the City with an adequate opportunity to present its case; (3) by effectively limiting the City ’ s choice of representative; or, (4) by placing inordinate weight on irrelevant evidence without considering other relevant evidence. [ 14 ] In particular, the City argues that the Chair acted improperly in pulling Mr.

Schultz aside in the hallway and deciding privately, without consulting the parties and other members of the Panel, that Mr. Schultz should not participate in the presentation of evidence and argument. The City suggests that if there were concerns regarding Mr. Schultz ’ s recent appointment to the Building Technical Council the issue should have been raised openly at the start of the hearing in the presence of all parties and other panel members. Both sides could then have made submissions on the issue or waived any concerns. [ 15 ] Furthermore, the City submits that Mr.

Schultz had particular expertise as a technical specialist and that his information was necessary to make the City ’ s case. By his exclusion, the City did not have a proper opportunity to present its case. The City suggests that a proper course of conduct would have been to adjourn the hearing so that an alternative technical specialist could represent the City. [ 16 ] The City argues that it was not incumbent on Officer Miller or Mr.

Schultz to object to the Chair ’ s decision: neither City representative was trained in the law and the City submits it is the Panel ’ s obligation to ensure a fair hearing. [ 17 ] The respondent Properties Plus argues that the Chair was justifiably concerned that Mr. Schultz ’ s membership in the Building Technical Council could raise an apprehension of bias if he was allowed to present evidence and argument.

Properties Plus argues that the Panel discharged its obligation to provide a fair hearing by correctly balancing the potential for an apprehension of bias with the City ’ s need to provide adequate evidence. It argues that the Chair ’ s choice of procedure gave Officer Miller considerable leeway to consult with Mr. Schultz and share evidence, in spite of the potential for bias. In sum, Properties Plus supports the Panel ’ s decision and submits that the City was not significantly precluded from providing evidence and that the decision would have been the same in any event, even if Mr.

Schultz had been permitted to give evidence directly. [ 18 ] The Council, in defence of the Panel ’ s decision and approach, argues that the Panel fulfilled its obligation to allow the parties to fully put forward their views and evidence. In particular, the Council submits that there was no restriction placed on the City ’ s primary presenter, Officer Miller. He was free to consult with Mr. Schultz and relay any information provided to him and there was no order or direction preventing him from consulting with Mr. Schultz.

The Council argues that this court should respect the Panel ’ s choice of procedures in the conduct of the appeal hearing. Law and Analysis Standard of Review [ 19 ] A tribunal must meet the requirements of natural justice and procedural fairness; whether these requirements have been met is reviewable on the correctness standard: Inter Pipeline Fund v Alberta (Energy Resources Conservation Board) , 2012 ABCA 208 at para 27 , 533 AR 331 . Natural Justice and Procedural Fairness

[20] In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at para 22, theSupreme Court of Canada explained the principles underlying the duty of procedural fairness: ...to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and itsstatutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidencefully and have them considered by the decision maker. [21] Understood broadly, the duty of fairness requires that those who may be adversely affected by some administrative action ordecision be afforded a reasonable opportunity to participate in the decision-making process, by tendering proofs and makingsubmissions: Brown & Evans, Judicial Review of Administrative Action in Canada (Toronto, ON: Canvasback Publishing, 2012 at 10-1). [22] In McLeod v Alberta Securities Commission, 2006 ABCA 231 at para 34, 391 AR 121 the Alberta Court of Appealsummarized the key principles from Baker and how they should be applied: The factors outlined in Baker to be considered in determining the content of the duty of procedural fairness are: (1) the nature of thedecision and the process followed in making it (i.e., the closeness of the administrative process to the judicial process); (2) the nature ofthe statutory scheme and the terms of the statute, as well as the role of the particular decision within the statutory scheme (i.e., whetheran appeal procedure is provided in the statute or whether the decision is determinative of the issue); (3) the importance of the decision tothe individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices ofprocedure made by the agency itself, particularly where the statute leaves the ability to choose its own procedures to the decision-maker,or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Baker at paras 23-27.

TheCourt in Baker at para 27 noted that great weight and respect must be given to the choice of procedures made by the agency itself and itsinstitutional constraints. [23] As the above passage suggests, procedural fairness is a highly contextual area of law and the courts are guided by broadprinciples that are meant to be tailored with care to the specific facts of each case. The content of the right to procedural fairness dependson the governing legislation and the specific administrative context; the right to procedural fairness must be balanced against theagency’s power to control its own proceedings.

The Supreme Court of Canada pointedly stated in Canada (Attorney General) v Mavi,2011 SCC 30 at para 41, [2011] 2 SCR 504 that “the particular legislative and administrative context is crucial to determining[procedural fairness] content”. [24] The right to make representations is a significant aspect of the duty of procedural fairness. This right is not absolute; anadministrative body has the power to place limits on the making of representations. The nature of those limits are governed by thelegislative and administrative context.

Legislative framework [25] The Safety Codes Act, RSA 2000, c S-1 and its associated bylaws provide guidance as to the nature of the duty of proceduralfairness applicable to this case. The Safety Codes Council was created pursuant to s. 16 of the Act.

Section 18 gives the Council thepower to hear appeals from orders made under the Act and

section 19(

c) gives the Council power to create bylaws governing the practiceand procedure applicable to appeals. [26] Section 52(1)(

d) of the Act provides for more relaxed rules of evidence than exist in a traditional court: “When the Council isconsidering an appeal ... evidence may be given before the Council in any manner the Council considers appropriate and the Council isnot bound by the rules of law respecting evidence applicable to judicial proceedings”. [27] Council Bylaw 14.11.4 gives the chair of the appeal panel the power to decide on the admissibility of evidence that ispresented at the hearing. The panel may accept oral, written or demonstrative evidence that in its discretion it considers proper.

[ 28 ] Council Bylaw 14.12 gives the chair discretion to determine the order and form in which evidence and arguments shall be presented, whether any new evidence will be permitted, and whether any person, other than the parties to the hearing, has the right to be heard or to submit written argument. This discretion is subject to the objection of the parties and where an objection is received the chair has authority to rule on those objections.

Bylaw 14.20 provides that the principles of natural justice apply to appeals made to the Council. [ 29 ] The Safety Codes Council Policy & Information Manual also contains guidance regarding the conduct of appeal hearings: 6. The appellant and respondent may bring witnesses to the appeal hearing. The Appeal Panel will determine if any person present has the right to be heard at the hearing. 17. The Chair shall ensure the Panel: a. allows each party reasonable opportunity to furnish evidence, and to submit oral or written arguments; ... 19.

The Panel shall determine if any person at the hearing has the right to be heard or to submit written arguments. Decision [ 30 ] The issue in this case is whether the Chair acted within the bounds of procedural fairness in restricting Mr. Schultz from giving evidence directly to the Panel. The Panel hears matters in a judicial-like context: an oral hearing with various court-like procedures such as the presentation of evidence and argument, cross-examination, etc. and has the power to make orders that can have a significant financial impact on the parties before it.

The matters presented to appeal panels are individualized and the participants involved in the hearing are directly affected by the outcome. [ 31 ] I also note that the Act provides a limited right of appeal on questions of law and jurisdiction only. Given this limited right of appeal, it is imperative in my view that parties before an appeal panel are treated in a procedurally fair manner that accords with the principles of natural justice.

I find that strong procedural protections are required. [ 32 ] Although the Panel is given authority to control its own procedures and the Chair is given the discretion to determine the order and form in which evidence and arguments are presented, this discretion is subject to the objection of the parties. In my view, the manner in which Mr. Schultz was prohibited from directly giving evidence and making argument violated the principles of procedural fairness. The Chair ’ s decision to exclude Mr.

Schultz was made in private, in a hallway discussion, with no formal opportunity for objection, and without the knowledge of the City ’ s other representative, the opposing party, and the other two panel members. The transparency envisioned by the Bylaws was not apparent and I find that this, in itself, constitutes a breach of the principles of natural justice and procedural fairness. [ 33 ] If the Chair had concerns regarding a possible apprehension of bias in relation to Mr.

Schultz ’ s involvement in the hearing, he should have raised them publicly at the start of the hearing, thereby giving all parties an opportunity to hear his concerns and respond. A transparent and public approach is critical, not just from the City ’ s perspective but for the other parties as well. Properties Plus had a right to know that the Chair was concerned about a possible apprehension of bias, particularly since the solution crafted by the Chair still enabled Mr. Schultz to participate in the hearing, albeit in a circumscribed and awkward manner.

The importance of an open discussion is underscored when one considers the objections that might have been raised by Properties Plus on appeal in relation to a possible apprehension of bias had the decision gone against it. [ 34 ] Furthermore, I find that the procedure used by the Chair to limit the manner in which Mr. Schultz gave evidence also violated the City ’ s right to procedural fairness. The evidence of Officer Miller and Mr. Schultz suggests that much was “ lost in translation ” , that is, in the process of Mr.

Schultz whispering information to Officer Miller and Officer Miller then passing the information on to the Panel. This process created barriers affecting the City ’ s ability to make effective and complete submissions.

Conclusion [ 35 ] For the above stated reasons, I revoke the Panel ’ s decision and remit the matter for a new hearing before a new appeal panel. [ 36 ] The parties may speak to costs. Heard on the 26 th day of February, 2013. Dated at the City of Calgary, Alberta this 25 th day of April, 2013. B. A. Millar J.C.Q.B.A. Appearances: Shannon Belvedere The City of Calgary Law Department for the Applicant, City of Calgary Emmett S.C. Scrimshaw Parlee McLaws LLP for the Respondents, Properties Plus Limited and Condominium Corporation No. 7811509 Thomas D. Marriott Brownlee LLP for the Safety Codes Council of Alberta