Procedural fairness in the zoom era: A tale of an administrative body, a bad internet connection and a bylaw

8 minute read
13 April 2022

Background

In Young v Red Deer County (Young),[1]​ a group of adjacent landowners (the Landowners) affected by a proposed land use bylaw (the Bylaw) amendment challenged the procedural fairness of the public hearing approving the amendment. The amendment allowed for a land-use change within an established Environmentally Significant Area on the slopes of the Red Deer River which would eventually permit the development of a gravel pit (the Proposed Amendment). 



Red Deer County Council (the Council) passed first reading of the Bylaw approving the Proposed Amendment, and scheduled a public hearing in accordance with the Municipal Government Act[2] (the MGA) for March 24, 2020. That public hearing was postponed following the onset of the COVID-19 pandemic.  The public hearing was rescheduled for June 9, 2020, to take place via Zoom pursuant to the Meeting Procedures (COVID-19 Suppression) Regulation[3] (the Covid Regulation).

Grounds for review

The Proposed Amendment passed following the public hearing, and the Landowners applied to the Alberta Court of Queen's Bench for a declaration that the Bylaw was invalid on the basis that the County (1) did not enact the Bylaw in accordance with the MGA, (2) the public hearing process was procedurally unfair, and (3) the Bylaw itself is unreasonable.

Justice K.D. Yamauchi dispensed with the third ground, noting that "municipal bylaws cannot be challenged on the ground of unreasonableness… However, they are reviewable for substantive errors using a reasonableness standard of review." [4] Justice Yamauchi also dispensed with the first ground of review, confirming that despite certain inconsistencies in the public notices and letters which were sent to some, but not all, Landowners, the County had complied with the MGA and provided adequate notice of the public hearing.

However, Justice Yamauchi agreed with the Landowners that the public hearing process was procedurally unfair, and quashed the Bylaw.

Procedural fairness over Zoom

The standard of review on grounds of procedural fairness is correctness. However, His Lordship noted that it is not "correctness" in the sense of whether the County did something "correctly" or "incorrectly" but on whether "the proceedings met the level of fairness that the law requires".[5]  In this case, the Landowners were entitled to a "fairly high duty of procedural fairness", because:

  1. A public hearing was a necessary step for the County pursuant to the MGA;[6]
  2. The Bylaw was primarily a dispute between two disparate groups;[7] and
  3. Council's decision in considering and passing the Bylaw affects the rights, privileges, or interests of the [Landowners].[8]

Upon learning that the public hearing would proceed by Zoom, the Landowners contacted the County expressing concerns about internet connectivity in the rural area. The Landowners requested that any PowerPoint presentations or additional information to be provided during the public hearing be sent to them in advance. Although a PowerPoint presentation and drone footage was in fact presented at the public hearing, it was not provided to the Landowners in advance. Further, the Landowners' concerns with internet connectivity proved true, as the connectivity was so bad they could not hear the proceedings. In response, the County directed the Landowners to download an upgrade, or use the telephone connection. Of course, upgrades take time (and internet connectivity) and participating by telephone would not allow the Landowners to view the visual presentation materials. 

Further, the County failed to abide by its own process. Those Landowners who were not registered to speak were not permitted to speak, despite the County's own Meeting Procedures Bylaw not requiring registration.

Justice Yamauchi held:

            "…[T]his Court finds that the County complied with the MGA in terms of providing adequate             notice of the Public Meeting. However, it breached its duty of procedural fairness in not giving persons who claimed to be affected by the proposed bylaw a full and fair opportunity to be heard. Nor did the County facilitate an appropriate hearing because of the notoriously weak connectivity to the Zoom meeting, of which it was well-aware. Granted, the County made telephone access to the Public Hearing available, but Administration knew that it was going to be making visual presentations during the Public Hearing, which telephone participants could not see. This was a breach of MGA s 199(1), which, in turn, was a breach of the County's duty of procedural fairness."[9]

Take-away

Although some of the pandemic restrictions are easing, and a gradual return to in-person life is returning, there is little doubt that virtual, online platforms such as Zoom will continue to be used far more often than they were before. Events in which many people would previously have packed into community halls and conference facilities may in many cases be held virtually to save costs and travel time, not to mention avoid the future spread of disease in crowded places. 

Administrative and quasi-judicial bodies proceeding virtually into the future must be aware of how virtual hearings and consultations must be conducted to provide participants with proper procedural fairness. According to Young, such considerations must include the adequacy of internet access of the participants.  In rural areas such as Red Deer County, where internet connectivity is notoriously poor, accommodation will have to be made, such as hybrid virtual / in-person hearings to avoid a similar result as occurred in this case. 

Should you have any specific questions about this article or would like to discuss it further, you can contact one of the authors or a member of our Commercial Litigation Group.


[1] Young v Red Deer County, 2022 ABQB 13.

[2] RSA 2000, c M-26.

[3] AR 50/2020.

[4] Young at para 33, citing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

[5] Young at para 69.

[6] Young at para 75. 

[7] Young at para 77.

[8] Young at para 78.

[9] Young  at para 83. 


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