ACCOZZAGLIA

Prepared 6 April 2010 for Prof. Marc-André LeChasseur (URBP616, McGill University).

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Save Richmond Farmland Society v. Richmond (Township), et al. (hereafter Richmond Farmland Society v. Richmond), resolves a dispute of bias over a proposed zoning by-law re- designating an agricultural area as a residential area — based on recommendations outlined by Richmond’s Official Community Plan. §945(1) of the British Columbia Municipal Act defines an official plan not as a law, per se, but as a non-binding policy document under which subsequent zoning by-laws passed, per §949(2), must maintain consistency with the official plan.

An accusation of bias was directed at Hugh Mawby, an alderman on the Richmond council. Mawby had spoken publicly in the press both prior to and following a second reading of the proposed zoning by-law. This by-law was to include new zoning rules for the area — named Terra Nova — to allow zoning for and subdivision of residential housing. Richmond Farmland Society assumed Mawby would vote in favour of the by-law, basing this from remarks he made to the press on how his decision was reached before public consultation was to commence.

An earlier attempt by council to pass two zoning by-laws for the Terra Nova site had been drafted and passed through first and second readings. Public consultation was held; Mawby chaired the hearings. Over forty hours were devoted to these hearings. §956(2) of the Municipal Act requires a municipality to hold public consultations at any time following a first reading but prior to a third reading. Council’s effort to pass these two by-laws for Terra Nova, however, was dismissed by the Supreme Court of British Columbia (S.C.B.C.), because it had failed to adhere to the Municipal Act’s rules on announcing a public consultation.

Following the Court’s decision, council returned to session to introduce a new by-law to “repeal all zoning rules in force” for Richmond and to create new zoning rules according to the newly proposed by-law (292). This new proposal called for, inter alia, re-designating zoning for Terra Nova from agricultural to residential use. It was an alternative approach to pass provisions from the two proposed by-laws that previously were dismissed on technicality by the S.C.B.C.

The new by-law proposal passed a first and second reading and, following public notice in compliance with §956(2), underwent fifty-seven hours of public consultation. Alderman Mawby did not chair this round of consultation, but attended every session. The Municipal Act does not require a council member to be present at a hearing in order to vote, just so long as a briefing of the consultation is made available to the councillor prior to a final council vote.

Mawby’s position was widely known from media appearances and news reports. Richmond Farmland Society raised the question of Mawby’s bias and persuasiveness at the public consultation. Prior to consultation, Mawby explained how he would not change his mind on Terra Nova’s re-zoning, but remarked that if exceptional evidence was introduced which might sway other aldermen to change their vote, then it might also be enough for him to do the same. As public consultation produced little new information pertaining to Terra Nova, Mawby’s steadfast position, regarded by opponents as a fait accompli, was accused of illegal bias (294).

Under the provincial Judicial Review Procedure Act, Richmond Farmland Society petitioned the lower court to block Mawby from voting on the third reading and final vote due to a perception of bias. The court dismissed the petition. A third reading proceeded and was approved by Council. A fourth and final reading was deferred until the petition’s appeal was decided by the Court of Appeal, which affirmed the lower court’s dismissal. Before a fourth reading, Richmond Farmland Society appealed to the S.C.B.C., which also declined to hear the matter. Upon fourth reading, Council adopted the by-law. A subsequent petition brought directly to the S.C.B.C. was also dismissed.

This case pivoted on whether bias by a councillor could be construed as a violation of the Municipal Act. Per Committee for Justice & Liberty v. National Energy Board [1978], the Court opined that any bias must not be “disabling” or “apprehensive” and must allow the public “a reasonable opportunity to be heard.” The Court agreed that Mawby faithfully attended, participated, and listened to comments throughout the entire public consultation. While the Court noted that Mawby’s comments in the media got him very close to a “reasonable apprehension of bias”, his actions failed to meet that test. Mawby, they concluded, maintained a “receptivity” to listen during consultation and allowed the possibility to be persuaded by attendees away from his well-known position, even if said possibility was extremely minute.

The Court remarked that §956 of the Municipal Act “does not require an open mind” when a contested issue pertains to public policy (i.e., a zoning by-law passed to comply with a municipal plan) (298). Richmond Farmland Society’s argument that Mawby should have recused himself the way a judge recuses a biased jurist was also dismissed, given that a municipal council, when creating a by-law based on the Official Community Plan, operates legislatively, not judicially. Public consultations, therefore, cannot be considered a sham or charade because of prior knowledge that a councillor is decided on a pending measure: councillors are elected to represent their constituents’ interests. In such controversial circumstances, a council vote may implicitly be known based on whom is elected to council, but this is a legislative matter to settle (i.e., amend the Municipal Act to somehow preclude this from happening), not one for the courts.