Rothesay Residents Association Inc. v. Rothesay Heritage Review Board

The Rothesay Common marks the very centre of the Town of Rothesay. The Common is a picture-perfect park that is surrounded by quaint churches, ancient trees and the historic homes of New Brunswick’s business elite. The geographic area surrounding the Rothesay Common is designated as a heritage area which, in turn, is protected by a municipal by-law. The by-law prevents the construction of structures which would be inconsistent with the architectural styles predominant in the area. When the construction of a congregate housing project was proposed inside the heritage area, a group of concerned citizens raised sincere concerns about the style, size and overall impact of the planned building. At a municipal heritage board hearing, two members of a Church that held an interest in the project participated in the decision-making, in spite of our question of bias. The board approved the proposed project, but the Court of Appeal ruled in favour of our client on the basis that the participation of the two board members gave rise to an apprehension of bias. The project did not proceed.

This case offers insight into the importance of procedural fairness in administrative law, and illuminates the complications which can arise if board members do not recognize the possible apprehension of bias which might flow from their relationship (even if minor) to a party engaged in the dispute.