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Hearing on overcrowded Banff house leads to unexpected twists and turns

"We believe that it’s not appropriate for the same law firm that acts as legal counsel for the Town of Banff will provide legal services as board solicitor for this hearing.”

BANFF – An appeal hearing against a municipal stop order that shut down a Banff home where Alberta Health Services found people living in dangerously overcrowded and unhealthy conditions took some expected twists and turns.

Rick Grol, a heavyweight municipal planning lawyer in Calgary, was successful in his argument to have the Development Appeal Board (DAB) retain independent legal counsel separate from the Town of Banff in order to give his clients Janna-Joy Goff and Gail Morgan a fair hearing.

The Town’s longtime legal firm, Edmonton-based Reynolds Mirth Richards & Farmer, had one of its lawyers, Kelsey Becker Brookes representing the DAB present at the scheduled hearing on Friday (Nov. 18), following two adjournments at the request of Goff and Morgan.

Grol said the DAB is a quasi-judicial tribunal, which ought to be impartial in adjudicating the appeal, but believes there is “reasonable apprehension of bias” with having Becker Brookes providing legal advice to the board.

“My client is entitled to a fair and impartial hearing and we request that the board retains outside legal counsel for this,” he said.

“We believe that it’s not appropriate for the same law firm that acts as legal counsel for the Town of Banff will provide legal services as board solicitor for this hearing.”

In addition, Darren Enns, the director of planning and development for the Town of Banff, has also been removed from the appeal hearings after Grol contested his position as the DAB’s secretary.

Grol argued Banff’s DAB is not sufficiently independent from the development officers and the planning and development department for the Town.

He said Enns is the secretary for the DAB and the development officer who issued the stop order reports within the hierarchy to Enns.

“Mr. Enns has removed himself from this procedure entirely,” said Dak Kerr, the chair of the DAB.

Arguing there was no bias or conflict, Becker Brookes said Reynolds Mirth Richards & Farmer had provided no legal advice to the Town of Banff on matters relating to this particular appeal.

“I can advise that our firm hasn’t provided any advice with respect to the matter that is under appeal currently,” she said.

“It is quite common practice that if the solicitors who act for municipalities have not had any dealings with the issue under appeal, have not provided any legal advice with respect to the issue under appeal, that there isn’t any conflict for them to then act for the board on that matter."

Grol was quick to disagree, noting he regularly appears before Subdivision and Development Appeal Board (SDAB) hearings where the board has outside legal counsel.

“City of Edmonton SDAB has independent legal counsel, SDAB in Calgary has independent legal counsel, and next week I am appearing in Cochrane and it has outside legal counsel,” he said.

In addition, DAB member Ray Horyn has recused himself from the appeal hearing because his wife Kori Woodard works for Alberta Health Services and had previously written an inspection report on 321 Squirrel Street.

“I don’t believe I have a conflict of interest, but I wanted to make sure everyone here is aware and give the appellant the opportunity to speak,” he said.

“If anyone on the board or the appellant has issue with my participation, I am happy to recuse myself.”

After a five-minute recess, Grol thanked Horyn for disclosing the information and asked that he step away from the appeal hearing.

“We believe there’s too much of a close connection with Alberta Health Services staff in the form of Ms. Woodard,” he said.

“Also, my client sought advice from Alberta Health Services regarding how to solve one of the Alberta Health Services Health Act issues in relationship to this particular property.”

The Town of Banff issued a ticket against the owners of 321 Squirrel Street for violating the land use bylaw, for having unauthorized rooms without a development permit. A date in Canmore Provincial Court has been set for Nov. 24.

In addition, an Aug. 22 municipal stop order came on the heels of an Aug. 4 Alberta Health Services (AHS) enforcement order for exceeding the 16-person occupancy limit for this Squirrel Street property.

An AHS environmental public health report from an inspection on July 28, 2022, indicated the home was inspected based on a series of complaints including illness, such as coughing, sniffles and phlegm from the living conditions, and overcrowding concerns with 25 tenants living onsite.

The public health inspector said the complaints included bedrooms without windows, filthy kitchens, flies and potentially broken insect screens, a kitchen shared by 25 people, a bathroom shared by 12 people and an outdoor rental tent.

In the inspection, the AHS report indicates a total of 42 beds and/or mattresses were counted, of which 35 appeared to be occupied at the time of the inspection.

The maximum occupancy for this home is 16 people based on the two available kitchens, meaning only eight people can share a kitchen.

The DAB hearing is now scheduled for Dec. 6.