Huyck et al. v. Musqueam Indian Band et al., (2001) 272 N.R. 188 (FCA)

• Judge: Desjardins, Isaac and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 07, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 272 N.R. 188 (FCA);2001 FCA 150;28 RFL (4th) 100;[1997] SJ No 165 (QL);155 Sask R 96

Huyck v. Musqueam Indian Band (2001), 272 N.R. 188 (FCA)

MLB headnote and full text

Temp. Cite: [2001] N.R. TBEd. JN.013

Dorothy A. Huyck, Robert B. Lyman and Margaret M. Lyman (on behalf of a number of residents in Musqueam and Salish Parks as set out in Schedules "A" and "B") (appellants) v. The Musqueam Indian Band Assessor for the Musqueam Indian Band (respondents)

(A-388-00; 2001 FCA 150)

Indexed As: Huyck et al. v. Musqueam Indian Band et al.

Federal Court of Appeal

Desjardins, Isaac and Malone, JJ.A.

May 7, 2001.

Summary:

The applicants sought judicial review of a decision made by a panel of the Musqueam Indian Band Board of Review regarding 1997 property tax assessments. At issue, inter alia, was whether a reasonable appre­hension of bias existed.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 189 F.T.R. 1, dismissed the application. The applicants appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias -Apprehension of - A panel of the Mus­queam Indian Band Board of Review was to conduct a hearing regarding the appli­cants' 1997 property tax assessments - Two members of the Board resigned after questions concerning their impartiality were raised - The Band's counsel wrote the Board thanking the recusing members for having resigned and indicated that the Band "was not prepared to risk even the slightest allegation of potential bias on the part of the Board" - That letter was not disclosed to the applicants - A new panel was appointed and decided the tax assess­ment issue - The applicants complained of reasonable apprehension of bias - A motions judge ruled that the Band's non-disclosure of their counsel's letter and of the reasons for the initial panel's "mass resignations" gave rise to a reasonable apprehension of bias - However, the judge found that the applicants had waived their right to raise these issues, having failed to raise the allegation of a reasonable appre­hension of bias at the earliest practical opportunity - The judge dismissed the application - The Federal Court of Appeal affirmed the decision.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (consideration incl. bias) - Bias - Waiver - [See Administrative Law - Topic 2088 ].

Cases Noticed:

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 13].

Human Rights Tribunal (Can.) v. Atomic Energy of Canada Ltd. - see Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re.

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126 (F.C.A.), refd to. [para. 13].

Abdalrithah v. Minister of Employment and Immigration (1988), 40 F.T.R. 306 (T.D.), refd to. [para. 13].

Szilard v. Szast, [1955] S.C.R. 3, dist. [para. 14].

McGuire v. Royal College of Dental Sur­geons (Ont.) (1991), 44 O.A.C. 11 (Div. Ct.), dist. [para. 14].

Newfoundland Association of Public Employees v. Newfoundland (Treasury Board) - see Newfoundland Association of Public Employees and Scaplen v. Medical Care Commission (Nfld.).

Newfoundland Association of Public Employees and Scaplen v. Medical Care Commission (Nfld.) (1991), 90 Nfld. & P.E.I.R. 17; 280 A.P.R. 17; 47 Admin. L.R. 149 (Nfld. T.D.), dist. [para. 14].

Bailey et al. v. Saskatchewan Registered Nurses' Association, [1998] 10 W.W.R. 536; 167 Sask.R. 232 (Q.B.), dist. [para. 14].

Counsel:

Richard R. Sugden, Q.C., and Craig P. Dennis, for the appellants;

Darrell W. Roberts, Q.C., and Wendy A. Baker, for the respondent, Musqueam Indian Band;

John E.D. Savage, for the respondent, Assessor for the Musqueam Indian Band.

Solicitors of Record:

Sugden, McFee & Ross, for the appellants;

Roberts & Baker, for the respondent, Musqueam Indian Band;

Crease Harman & Company, for the res­pondent, Assessor for the Musqueam Indian Band.

This appeal was heard at Vancouver, British Columbia, on May 7, 2001, by Des­jardins, Isaac and Malone, JJ.A, of the Fed­eral Court of Appeal.

The decision of the Court of Appeal was rendered orally from the Bench at Vancouver, British Columbia on May 7, 2001, by Desjardins, J.A.