Options to Restructure the Community Standards and Licence Appeal Committee

Options to Restructure the Community Standards and Licence Appeal Committee

Recommendation:
That Community Services Committee recommend to City Council:
That Administration bring forward amendments to Bylaw 15166, the Community Standards and Licence Appeal Committee Bylaw, so that the board be comprised of citizens-at-large.

Report Summary

This report recommends that the Community Standards and Licence Appeal Committee be restructured from a standing committee of Council to a quasi-judicial board comprised of members of the public appointed by Council.

Previous Council/Committee Action

At the April 29, 2009, Council meeting, the following motion was passed:

That Administration explore options to restructure the Community Standards and Licence Appeal Committee to include citizen-at-large appointments and report back to Community Services Committee.

Report

  • Recent court decisions and additional complexity to Licence appeal hearing procedures prompted a review of the Community Standards and Licence Appeal Committee structure.
  • After reviewing best practices of tribunals within Edmonton and other municipalities, and available expertise within Edmonton’s administrative tribunals, Administration recommends that Council consider restructuring the composition of its Community Standards and Licence Appeal Committee to be citizens at large. The following considerations led to this recommendation:

Licence Appeal Procedures and Evidence

  • The volume and complexity of licence appeal evidence necessitates considerable time and expertise to review.
  • Recent court decisions have changed the standard of review required by quasi judicial tribunals. The courts give more deference to tribunals with demonstrated expertise in the area under review.
  • Procedural fairness can be enhanced through specific expertise on a tribunal. For example, the courts have said allowing cross examination of witnesses would enhance procedural fairness. Consistently, there have been requests to allow cross examination in licence appeal hearings. Allowing cross examinations is a trend across Canada for administrative tribunals.

Scheduling

  • Scheduling hearings or rescheduling requests for postponed hearings can be difficult given competing demands on Councillors’ time. On occasion, this has led to lengthy delays and a possible hardship to the parties involved, which could be viewed unfavourably by the courts.
  • In the event that a Member of Council steps down from a hearing due to a conflict of interest, it can be difficult making quorum due to the lack of availability of another Councillor with the appropriate licence appeal hearing training, or time to review the evidence.
  • It is not uncommon for a business licence review to take several months. This can be problematic when the review spans a Council Committee rotation change or general municipal election.

Perception of Bias:

  • One of the key principles of Administrative Law is that a person appearing in front of a tribunal should feel that he or she will be given a fair hearing, which includes having a decision-maker render a decision without bias.
  • Bias can be actual or perceived. In the case of the Community Standards and Licensing Appeal Committee, the potential for bias is greater for Council Members given the duality of their roles. A Councillor must be aware of, and involved in, issues affecting their his or her ward, and the entire city. A common situation where a decision-maker will be perceived to be biased includes a decision-maker who has had prior participation in the process. Having had prior participation in the process, a person may perceive a decision-maker as having prejudged the issue as to bias the hearing and subsequent decision. There are times that a Councillor may take a position on a matter that may later relate to a specific appeal. For example, a Councillor may have supported a motion calling for Administration to take a tougher stance on addressing overcrowding issues related to bars on Whyte Avenue. Later, an appeal may come forward from a bar on Whyte Avenue. Although the courts have allowed for distinctions between political and adjudicative functions, the potential for public perception of bias remains.

Scheduling

Scheduling hearings or rescheduling requests for postponed hearings can be difficult given competing demands on Councillors’ time. On occasion, this has led to lengthy delays and a possible hardship to the parties involved, which could be viewed unfavourably by the courts.

In the event that a Member of Council steps down from a hearing due to a conflict of interest, it can be difficult making quorum due to the lack of availability of another Councillor with the appropriate licence appeal hearing training, or time to review the evidence.

It is not uncommon for a business licence review to take several months. This can be problematic when the review spans a Council Committee rotation change or general municipal election.

Licence Appeal Procedures and Evidence

The volume and complexity of licence appeal evidence necessitates considerable time and expertise to review.

Consistently, there have been requests to allow cross examination in licence appeal hearings. Allowing cross examinations is a trend across Canada for administrative tribunals.

Quasi Judicial Boards in Edmonton

  • Should Council change the Community Standards and Licence Appeal Committee composition, the Committee will cease to be a Standing Committee of Council and become a civic agency classified as a quasi-judicial board.
  • Under City Policy C473C, Appointment of Members of Council to Civic Agencies, the appointment principle states that Council Members will not be appointed to quasi-judicial boards.
  • In Edmonton, mMembers of Council have not served on quasi judicial boards since December 1998.
  • One of the principles of this policy is that it is not appropriate that Council Members serve on quasi-judicial boards with members they appoint. Public members sitting with Council members who appoint them yearly may feel pressured to vote in a similar fashion as their appointer, rather than impartially.

Subdivision and Development Appeal Board

  • Taking into consideration these issues, it is our recommendation that the Committee be comprised of to populate the Committee with citizen at large appointments. These appointments may not necessarily need to be filled with new appointments as expertise does exists within another City quasi-judicial tribunal, namely the Subdivision and Development Appeal Board (the “SDAB”).
  • As you are aware, tThe SDAB is an independent, quasi-judicial body established under the Municipal Government Act and its members are appointed by City Council to hear appeals from citizens on decisions by the City’s Development Authority and Subdivision Authority. Prior to being selected, each Board member must go through a rigorous appointment procedure, including obtaining letters of reference and being tested on Administrative Law principles. Prior to sitting on hearings, new members must take several hours of training as well as observing numerous SDAB hearings. Further, Board members receive yearly training on administrative law, planning law, decision writing, and on rules of evidence including receiving, admitting and assessing various types , and decision writing. Currently membership on the Board includes lawyers, engineers, developers, mediators, business executives, and other individuals well-versed in planning law. Also, several of the members have served or are currently serving on other administrative boards.
  • The SDAB has an established structure that would easily facilitate the needs of the Committee. Hearings are held every Thursday throughout the year. SDAB members are well-versed in managing members of the public and dealing with contentious situations. Further they are experienced in participating in quasi-judicial hearings, including listening and weighing evidence, interpreting legislation and bylaws, making fair decisions, and preparing written reasons to support those decisions. Also, the Presiding Officers currently chairing meetings are knowledgeable in procedural rules governing these types of hearings, such as application of bias, order of appearance, direct and cross-examination of witnesses, and other fairness requirements.
  • In reviewing administrative tribunal decisions, the courts have recently placed increased emphasis on board member expertise. Thus it is Administration’s position that SDAB’s members’ current expertise would be able to adjudicate Community Standards and Licence Appeal CommitteeCSLAC appeals.
  • The Subdivision and Development Appeal Board members were provided with a copy of the report and are aware that it will be going to the Community Services Committee. The SDAB Chair supports transferring the responsibility to a citizen board and feels the SDAB is well positioned to do Community Standards and Licence Appeal Committee appeals.

Community Standard and Licence Appeal Committees in Canadian Municipalities

  • Six Canadian municipalities, including Edmonton, were reviewed with respect to how they dealt with community standard and licence appeals.
  • Of the municipalities reviewed, the greatest consistency was found in the Alberta municipalities of Red Deer and Calgary due to common legislation. The legislation, and hence, licence reviews, differ in other provinces.
  • Key findings were that the composition of most of these Committees was a combination of mMembers of Council and citizens. Although Calgary’s Committee has Council and citizen members, in practice, it is predominantly citizens at large that hear these types of appeals.
  • Every other municipality researched allowed for cross examination.

Policy

  • City Policy C473C, Appointment of Members of Council to Civic Agencies
  • City Policy C475A, Civic Agencies Appointments;
  • City Policy C476C, Civic Agencies Reporting

Focus Area

  • This proposed Committee restructuring supports the goal of improving the capacity and capability to deliver services to businesses and citizens.

Legal Implications

  • A Committee that is comprised of citizens may reduce arguments of bias against a member.
  • Hearings, especially business licence revocations and suspensions, require strict adherence to the principles of natural justice.
  • Licensees are retaining legal counsel resulting in a more litigious and complex process.

Justification of Recommendation
Restructuring the Community Standards and Licence Appeal Committee from a Standing Committee of Council to a quasi judicial board comprised of citizens is deemed to be a better administrative tribunal model and brings greater consistency to quasi-judicial functions within the City of Edmonton.

Attachments

  1. Community Standards and Licence Appeal Committees in Canadian Municipalities

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Attachment 1

Community Standard and Licence Appeal Committees in Canadian Municipalities

Municipality / Committee Composition / Quorum / Is Cross Examination Allowed / Number of Licensing Appeals Heard in 2008 / Total Appeals Heard in 2008
Edmonton / 3 Members of Council (drawn from 4 mMembers of Community Services Committee) / 3 of 3 / No / 5 / 22
Calgary / 2 Aldermen/ 3 Citizens
All other Aldermen are ex officio members / Any 3 of 5 / Yes / 8 / 9
Red Deer / 2 Members of Council/ 1 Business person/ 2Citizens / 3 of 5 / Yes / 0 / 1
Toronto / Citizens / 2/3
3 members are required if Applicant wishes / Yes / 175 / Not applicable
Ottawa / Members of Council / 2/3 Members
3 members are required if Applicant wishes / Yes / 10 /
10
Vancouver / Members of Council / 3/4 Members / Yes / 4 / 4

Page 1 of 1Report: 2009COC043 Attachment 1