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ASSESSMENT APPEAL BOARD

Our legal system has always been based on the concept of natural justice.  This means an independent Judge who has no direct or indirect interest in the issue tried.

It is important that nothing in the Judge’s conduct or his relationship to the case he is trying would indicate any form of bias.  It is an important principle of our judicial system that justice must not only be done but seen to be done.  The appearance of justice and the absence of an appearance of bias is just as important as the fact that bias does not exist.  This makes the conduct and appearance of a person in a judicial office very important.

This system can easily be managed in regular courts with professional Judges.  However, modern life has introduced forms of tribunals which require persons who are not professional judges to make decisions of a quasi judicial nature.  Our common law however still requires those, who in an administrative capacity, make what are in fact judicial decisions to abide by the concept of natural justice and the principles relative thereto.

One of these tribunals is the Municipal Assessment Appeal Board.  There is nothing I can find in the Act or Regulations which require the appointment of any particular person to these offices except that the City Clerk does not qualify.  This leaves the Council to appoint whoever they will and frequently a member of Council is appointed to the Board.  When I was a member of Council, I sat on the Development Appeal Board.  Today I would question whether that is right for reasons I will explain.

The City of Red Deer has indicated that there will be little increase this year in municipal taxes.  On the other hand, the City sent out its assessors to substantially increase assessments of property values, which would result in major tax increases.  There is more than one way to skin a cat.

Many citizens will appeal their assessments to the Assessment Appeal Board and there will, in all likelihood, be a member of Council or someone else connected with the City on this Board.  If so, in my humble opinion, the Board is improperly constituted.  A member of Council or City employee must be seen to have the City policies at heart.  The Council member promotes it.  An Appeal Board so constituted does not give an appearance of impartiality and therefore cannot comply with the common law requirements of dispensing natural justice.  There is clearly an appearance of bias even if the individual himself may do his best to be impartial.  The appearance which is given is sufficient to leave the Board open to legal attack of being a biased Board.  People who support City policies or make them must not sit on such a Board.

I therefore hope Council, in making its appointments, will bear in mind what I have suggested.  If not, any citizen who is affected can take legal action to attack the composition of the Board and to disqualify members, and the decision they make.

By Herbert Fielding, Q.C.
March 30, 2005