Bias by Hearing Conduct: Environmental Appeal Board v. District Director, Metro Vancouver, 2025 BCCA 303

On rare occasions, an administrative decision-maker will conduct a hearing in such a way as to give rise to a reasonable apprehension of bias, that is that the decision-maker had prejudged the outcome before the conclusion of the hearing. Environmental Appeal Board v. District Director, Metro Vancouver, 2025 BCCA 303.

The Court of Appeal (Edelmann JA) pithily summarized the underlying issue (at para. 1): “In August 2018, the District Director for Metro Vancouver (the “District Director”) issued a detailed permit with a number of restrictions and requirements following an application by GFL to operate a large composting facility in Delta. GFL and several residents of Delta filed appeals with the Board”.

Edelmann JA concluded that “the lengthy questioning of the District Director’s witnesses went well beyond the role of an adjudicative body, at several points veering into cross-examination appearing to favour the position taken by GFL” (at para. 51).

This was “particularly stark” (at para. 52) in the questioning of a senior project engineer for Metro Vancouver. Edelmann JA pulled out a couple of examples from the transcript:

Another member of the Board returned to the issue subsequently:

The problem was not so much the aggressive questioning per se but the impression it gave that the Board was aligned with the position of GFL before the hearing had concluded:

As reviewed by the chambers judge, the questioning included extensive interventions in the evidence of witnesses for the District Director that created the impression that the Chair and one of the members were effectively acting as co-counsel for GFL. As the chambers judge noted, the lines of questioning frequently strayed from any attempt to get to the substance of the issues before the Board, focussing instead on peripheral matters. For example, the District Director’s witnesses were questioned at length about the process through which the final recommendations for the permit were formulated, and the authorship of various drafts of the recommendations. Yet these issues appeared irrelevant to the real issue before the Board—whether the permit adequately protected the environment—and were not even referred to in GFL’s closing submission. Furthermore, the tenor of the questioning was seemingly directed at undermining the credibility of the District Director’s witnesses, particularly Ms. Mayne (at para. 56).

Why would an experienced panel of Board members engage in hearing conduct that (for the reviewing judge and Court of Appeal) fell short of what is expected? Interestingly, the Board argued that it was not, in fact, operating in an adjudicative capacity but was, rather, exercising inquisitorial functions and, accordingly, was necessarily entitled to greater latitude in its conduct of the hearing. Edelmann JA rejected these arguments. It is useful to begin with his quoting with approval the first-instance judge’s conclusion:

The [Board], in conducting a hearing de novo, is not conducting its own investigation. It is responding to a dispute between the permit issuer, in this case the District Director, and one or more interested parties. It receives the evidence and rationale of the District Director justifying the permit and its requirements, the evidence of interested members of the public as to impacts on the environment, and the evidence of the permittee in relation to the requirements in a permit necessary to adequately and properly protect the environment. Having heard all of the interested parties, the [Board] then is in a position to determine if the permit as issued by the District Director is adequate and proper, or to make any changes to the permit it deems appropriate after hearing all of the evidence. While it does conduct a hearing de novo, it is nevertheless exercising a quasi-judicial, or adjudicative, role in determining the adequacy of the permit under appeal (at para. 40).

Edelmann JA also rejected arguments made on appeal about the inquisitorial nature of the Board:

[38]      The Board argues that, unlike trial courts, the ultimate question before it is what is appropriate and advisable for the protection of the environment. It relies on s. 103 of the EMA, which gives the Board the power to “make any decision that the person whose decision is appealed could have made, and that the appeal board considers appropriate in the circumstances.” I am not persuaded these provisions indicate that the Board has an investigatory role. I would note that the structure of these provisions are not unusual for an appellate body, and are similar to those in s. 24(1) of the Court of Appeal Act, S.B.C. 2021, c. 6, granting this Court the power to “make any order that the court appealed from could have made” along with “any additional order that it considers just”. I would also note that part of the adjudicative function of trial courts routinely requires the consideration of interests beyond those of the parties before them, such as the best interests of the child in family law or privacy concerns in various aspects of criminal law. Such considerations do not make trial courts into inquisitorial or investigative bodies.

[39]      The Board also argues that after a complaint is filed and a hearing is initiated the parties “are no longer fully in control of what happens.” While this may be true of certain procedural elements of an appeal, crucial aspects of the process set out by the EMA are party driven. As noted, an appeal is initiated when a person aggrieved by a decision of a director or district director files an appeal under s. 100(1). Under s. 17 of the ATA, once the appellant withdraws all or part of an appeal, the Board must accordingly dismiss all or part of the appeal. I would note that this is consistent with the interpretation set out in s. 15 of the Board’s own Practice and Procedure Manual, which states that an appellant may withdraw an appeal before or at a hearing. The ability of an appellant to end the process at any time prior to a decision is not indicative of an investigative or inquisitorial function.

Administrative tribunal members are told to engage in ‘active adjudication’, which often might involve questioning witnesses to ensure that they have a full grasp of all relevant issues. But active adjudication can run up against the principle that the adjudicator must remain above the fray and not be seen to enter the fray on behalf of one party. In the courts’ view, active adjudication here crossed the relevant line.

Whether having an inquisitorial or investigatory function permits even more active adjudication than an adjudicative function is an interesting question. For my part, I think the concept of active adjudication already blurs any clear lines that might exist between the adjudicative, the inquisitorial and the investigatory. And in all contexts, there are some types of questioning — repeated, aggressive, demonstrative of a fixed position — that should be avoided. Where, as here, the parties are represented by counsel, it is wise for decision-makers to take something of a back seat and only intervene where it is necessary to get clarity on a key element. That said, in a multi-day hearing where the adjudicator is struggling for clarity on key points, this may be a counsel of perfection and, indeed, an adjudicator may well rely on counsel to intervene if any line of questioning from the panel is judged to be problematic. In this area, as in so many others of administrative law, all that can be confidently stated is that there is a line that the decision-maker should be careful not to cross.

One last interesting point to note is that the Director made a recusal motion to the Board. In a 36-page decision, the Board determined that it should not recuse itself. At first instance, Baker J held that the Board’s views on recusal were of no moment (effectively applying the correctness standard to the question of whether there was a reasonable apprehension of bias):

While a tribunal’s decision on bias can be helpful to a reviewing court in some cases, I find that the usefulness of the views of the tribunal on bias arise where the tribunal sets out some substantive facts which are put into issue, such as the facts of a prior or existing relationship with a party, or some financial relationship to a party or an issue. That kind of information in a tribunal’s ruling would be useful for a reviewing court to have before it. In the Recusal Decision, the Panel attempted to assess its own conduct in the hearing. I find that the Panel cannot provide an objective assessment of its conduct and, therefore, I am not able to give any weight to the Recusal Decision (2024 BCSC 1064, at paras. 199-200).

Edelmann JA agreed (at para. 80), on the basis that the standard of review for questions of procedural fairness is correctness even where reasons for decision have been given on the procedural fairness point at issue (see similarly, Abiodun v. Canada (Citizenship and Immigration), 2021 FC 642).

This content has been updated on September 29, 2025 at 17:05.