A tribunal with a statutory right of appearance in a review of its own decision is limited in its participation to explaining the record before it and making representations relating to jurisdiction. “Jurisdiction” in this context does not include the transgression of the authority of a tribunal by its failure to adhere to the rules of natural justice.

Administrative law – Boards and tribunals – Jurisdiction – Right to appear in a review of its own decision – Judicial review – Application for intervenor status – Bias

Eckervogt v. British Columbia (Minister of Employment and Investment), [2002] B.C.J. No.2755, British Columbia Court of Appeal, December 10, 2002, Smith J.A.

The Appellant applied for compensation for its placer gold-mining leases from the Minister of Employment and Investment and from the Expropriation Compensation Board (the “Board”). A panel of the Board conducted a hearing over several days and reserved its decision. Before the hearing was concluded and prior to final panel discussion on the decision, one of the panel members was interviewed, hired, and commenced employment as Crown counsel. The Appellant appealed the decision, arguing reasonable apprehension of bias in the decision.

The Minister of Employment and Investment would not participate in the appeal because the issue was recently decided in favour of an appellant in a similar case. The Board sought to be added as a respondent or intervenor to the appeal in order to argue the question of reasonable apprehension of bias. The Board submitted that its participation as a party was necessary to create a lis on the appeal since there was no other party with an adverse interest to that of the Appellant. It contended it should not be precluded from arguing the issue on the principle that administrative tribunals should not generally be heard on appeals from their own decisions because the courts have permitted tribunals to appear on questions of bias. The Board submitted that it had an interest in the appeal because the outcome would have an effect on its procedures and that its ability to attract persons to serve as members and carry out its mandate may be impaired.

The Court dismissed the Board’s application. The Expropriation Compensation Act, R.S.B.C. 1996, c. 125 does not make the Board a party or give it a right to be heard on appeal. The limits on participation by a tribunal with a statutory right of appearance in a review of its own decision is limited to explaining the record before it and making representations relating to jurisdiction (Northwest Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684. The same conclusion applies to the standing of a tribunal with no statutory right of appearance. “Jurisdiction” in this context does not include “the transgression of the authority of a tribunal by its failure to adhere to the rules of natural justice”.

This was not a case of systemic or institutional bias and the ultimate decision would not affect the manner in which the Board carried out its work. At most, the Board would simply be required to recruit its members who would not put themselves in positions that might create a reasonable apprehension of bias.

The Board’s application to be added as an intervenor was also dismissed. The Board sought to “take the litigation away from those directly affected by it”, to compel the appellants to deal with an issue not contested by the Ministry. To permit the Board to intervene in these circumstances was not appropriate.

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