Eckervogt et al. v. British Columbia (Minister of Employment and Investment), (2004) 201 B.C.A.C. 302 (CA)

• Judge: Finch, C.J.B.C., Ryan, Donald, Saunders and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 19, 2004
• Jurisdiction: British Columbia
• Citations: (2004), 201 B.C.A.C. 302 (CA);2004 BCCA 398

Eckervogt v. B.C. (2004), 201 B.C.A.C. 302 (CA);

    328 W.A.C. 302

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JL.037

Heinz Eckervogt and T.D. Oilfield Services Ltd. (appellants/claimants) v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Employment and Investment (respondent/respondent)

(CA029283; 2004 BCCA 398)

Indexed As: Eckervogt et al. v. British Columbia (Minister of Employment and Investment)

British Columbia Court of Appeal

Finch, C.J.B.C., Ryan, Donald, Saunders and Low, JJ.A.

July 20, 2004.

Summary:

The claimants sought compensation under the Expropriation Act. They received an advance of $250,000 on their claim. The Expropriation Compensation Board awarded the claimants only $175,000. The claimants appealed pursuant to s. 28 of the Act, on the ground that the decision was tainted by a reasonable apprehension of bias arising from the participation of one board member (Greenwood). The Board applied to be added as a party to the appeal or, in the alternative, to intervene.

The British Columbia Court of Appeal, per Smith, J.A., in a decision reported 176 B.C.A.C. 57; 290 W.A.C. 57 dismissed the application. The Board sought a review of the decision.

The British Columbia Court of Appeal, in a decision reported at 181 B.C.A.C. 14; 298 W.A.C. 14 dismissed the application. The appeal proceeded.

The British Columbia Court of Appeal dismissed the appeal. Greenwood's participa­tion in the case did not compromise the independence of the panel nor did it create a reasonable apprehension of bias.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A three person panel of the Expropriation Compensation Board reserved their decision respecting a claim for compensation from the Crown in May 2000 - While the decision was still on reserve, a part-time panel member (Green­wood) applied to the Ministry of the Attor­ney General for a position as Crown coun­sel in the Criminal Justice Branch of the Ministry - He was hired and commenced his duties in May 2001 - He had partici­pated in all of the meetings of the panel to discuss the compensation claim - In July 2001, the Board chairman disclosed Green­wood's new employment with the Crown to the parties - The panel proceeded with­out Greenwood and rendered a decision - The claimants appealed - The British Columbia­ Court of Appeal dismissed the appeal - Greenwood's participation in the case did not compromise the indepen­dence of the panel nor create a reasonable appre­hension of bias - Greenwood had not placed himself in a situation of divided loyalties - There is no connection between the subject matter of the dispute and Greenwood's work at the Criminal Justice Branch - Neither was there any reasonable possibility that Greenwood's determina­tions as a Board member would have influenced the Crown's decision to hire him - The possibility of bias was too remote - See paragraphs 8 and 22 to 45.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A three person panel of the Expropriation Compensation Board reserved their decision respecting a claim for compensation from the Crown in May 2000 - While the decision was still on reserve, a part-time panel member (Green­wood) applied to the Ministry of the Attor­ney General for a position as Crown coun­sel in the Criminal Justice Branch of the Ministry - He was hired and commenced his duties in May 2001 - He had partici­pated in all of the meetings of the panel to discuss the compensation claim - In July 2001, the Board chairman disclosed Green­wood's new employment with the Crown to the parties - The panel proceeded with­out Greenwood and rendered a decision - The claimants appealed, alleging a reason­able apprehension of bias - The British Columbia Court of Appeal rejected the claimants' argument that taking employ­ment with one of the parties automatically lead to disqualification - The whole of the circumstances had to be examined to deter­mine whether there existed a reasonable apprehension of bias - See paragraph 37.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - The British Columbia Court of Appeal stated that "if, during the course of a proceeding, a party apprehends bias he should put the allegation to the tribunal and obtain a ruling before seeking court intervention. In that way the tribunal can set out its position and a proper record can be formed ... I do not think it is proper for a party to hold in reserve a ground of disqualification for use only if the outcome turns out badly. Bias allegations have serious implications for the reputation of the tribunal and in fairness they should be made directly and promptly, not held back as a tactic in the litigation. Such a tactic should, I think, carry the risk of a finding of waiver. Furthermore, the genuineness of the apprehension becomes suspect when it is not acted on right away." - See para­graphs 47 and 48.

Cases Noticed:

Golden Valley Golf Course Ltd. v. British Columbia (Minister of Transportation and Highways) et al. (2001), 154 B.C.A.C. 42; 252 W.A.C. 42; 89 B.C.L.R.(3d) 287; 2001 BCCA 392, refd to. [para. 2].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 20].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 22].

Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34; 2003 SCC 36, refd to. [para. 24].

R. v. Bow Street Stipendiary Magistrate; Ex parte Pinochet Ugarte (No. 2) - see Pinochet, Re.

Pinochet, Re, [1999] 2 W.L.R. 272; 237 N.R. 201; [1999] 1 All E.R. 577 (H.L.), refd to. [para. 33].

Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451 (C.A.), refd to. [para. 36].

Conmee v. Canadian Pacific Railway Co. (1889), 16 O.R. 639 (Q.B.), refd to. [para. 37].

Ghirardosi v. British Columbia (Minister of Highways), [1966] S.C.R. 367, refd to. [para. 38].

Boucher v. R., [1955] S.C.R. 16; 110 C.C.C. 263, refd to. [para. 42].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 49].

Authors and Works Noticed:

Brown, D.J.M., and Evans, J.M., Judicial Review of Administrative Action in Canada (2003) (Looseleaf), para. 11:5500 [para. 49].

Counsel:

D. Lunny and D. Young, for the appel­lants;

A.V.W. Hincks, for the respondent.

This appeal was heard at Vancouver, British Columbia, on May 19, 2004, before Finch, C.J.B.C., Ryan, Donald, Saunders and Low, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the follow­ing decision on July 20, 2004.