Wheale v. Brazeau (County), 2006 ABCA 171, concerns an application for leave to appeal a Subdivision and Development Appeal Board decision. One of the appeal grounds was an allegation that the tribunal was not impartial and therefore rendered an unfair decision.

The original planning authority decison was appealed to the SDAB. The SDAB’s decision was appealed and the matter was by consent referred back to the SDAB. To the appellant’s concern four of the five panel members sitting on the second SDAB panel were members of the first SDAB panel that had heard the matter. The matter was essentially being reconsidered by the same individuals that has denied the first hearing. The appellant argued that the second panel composition raised a reasonable apprehension of bias.

Justice Cote holds:

[22] Four of the five panel members who heard the second appeal also sat on the first panel.
Wheale argues that a reasonable apprehension of bias arises as a result of the first panel having
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voted for the subdivision. He states that an informed individual viewing the matter realistically and
practically would conclude that it was more likely than not that the SDAB would not decide fairly:
Wewaykum Indian Band v. Canada, [2003] S.C.J. No. 50, 2003 SCC 45.
[23] The analysis of this proposed ground starts with the presumption that SDAB panel members
will decide impartially: Sara Blake, Administrative Law in Canada, 4 ed. (Markham: LexisNeth xis,
2006) at 114. Factors for determining if there is a reasonable apprehension of bias include whether
the decision makers have a personal or financial interest in the outcome of the matter; a present or
past link with a party; earlier participation or knowledge of the litigation; or has expressed a
sentiment or undertaken an activity illustrating bias: Weywaykum at para 77.
[24] The assessment as to a reasonable apprehension of bias also includes the conduct of the
impugned persons at the hearing. Obviously bias can be demonstrated by what was said by panel
members at the hearing or by a board shown to be going through the motions of holding a hearing
with the result not in doubt.
[25] The only factor suggesting bias is that the panel members sat on the matter at the earlier
hearing. Balanced against that is the absence of the other factors, as well as the conduct at the
hearing itself. Here, the SDAB members were open to argument and actively involved in the
hearing. For example, considerable time was spent reviewing the soil quality maps to ensure that
the SDAB correctly assessed this issue. A review of the summary of the proceedings reveals that
the SDAB provided a full opportunity to all interested parties to fully and completely advance their
case.
[26] I conclude that in these circumstances the submission as to a reasonable apprehension of bias
has little chance of success. Leave for appeal on this ground is denied.

The fact that most of the panel members had already heard the matter did not make the panel impartial and raise a reasonable apprehension of bias.