A B.C. Supreme Court judge has ruled that a Vancouver councillor was not in a conflict of interest when he voted on the city’s temporary-patio program, even though he had interests in two businesses that would benefit.
The ruling by Justice John Steeves concluded that, although Green Party Councillor Michael Wiebe did have a financial interest in the patio issue, he had it in common with many others and so was not in a conflict when he voted.
“There is no evidence he asserted an interest that is personal to him in the sense of being distinct from other owners of restaurants and bars,” the judge wrote.
But the group of Vancouver voters who launched the original suit against Mr. Wiebe plans to challenge that decision, saying it sets a worrying precedent by giving city councillors permission to vote on almost any issue, even if they have a conflict and could personally benefit.
Lawyer Wes Mussio, who argued for the group that filed a lawsuit, said the decision by Justice Steeves goes beyond what other rulings about council conflicts have done.
“It means councillors can vote on anything,” Mr. Mussio said, because of the judge’s ruling that a councillor is not in a conflict unless there is evidence that only they would benefit, not any others. “This has really opened the door for councillors to vote on matters where they have a pecuniary interest.”
He said that could mean a councillor with an Airbnb suite can vote for (or against) new rules for vacation rentals, as can one who lives in a 300-unit building that might be rezoned and become much more valuable.
If Mr. Mussio’s group carries on the fight, that will mean more months of uncertainty for Mr. Wiebe, who at this point doesn’t know how his large legal bill will be covered.
He said he was hugely relieved by the decision, which was issued on Monday.
“This last month was very difficult,” Mr. Wiebe said.
“It is bigger than just my case. It was more about how it was going to be precedent-setting.”
Mr. Wiebe said the ruling was welcome among others he knows in the Vancouver business community who are thinking of running for council, but worry they would be unable to advocate for changes without being skewered by a conflict-of-interest charge.
He also said he believes he and future councillors will be better protected from accusations of conflict because of a new process the city has set up that allows them to call an integrity officer for advice on whether they should be able to vote on an issue.
Mr. Wiebe’s lawyer said the decision helps clarify the rules.
“This decision recognizes and affirms the balance in the law that allows for councillors to use their valuable experience in relation to a sector, or ‘community of interests,’ properly, while also making sure that the vote does not create a particular pecuniary interest that is unique to the councillor,” Aurora Faulkner Killam said.
Mr. Wiebe voted last spring with the majority of councillors to create an expedited process for permitting new street and sidewalk patios as way of helping bars and restaurants cope with pandemic restrictions.
One of Mr. Wiebe’s restaurants, Eight 1/2, was among the first 14 that got permits, although eventually more than 400 were issued.
He had always argued that he did not get a special benefit, since he was working on behalf of many businesses – including several of his direct competitors in the Mount Pleasant neighbourhood – so they could put in a temporary patio.
He also said he’d received advice from city management that he could vote because he had a shared interest with others. However, he was not able to provide evidence of that, and e-mails from the city manager presented in the case said he’d been advised to consult an outside lawyer.
None of his fellow councillors from any of the other three parties criticized his vote and, in fact, many publicly supported him.
But Michael Redmond, who had done volunteer work with the Non-Partisan Association, a long-standing centre-right party that almost won control of council in the last election, filed a complaint with the city.
The city appointed a lawyer to assess the complaint, and the lawyer concluded Mr. Wiebe had been in a conflict because he voted on an issue where he had a direct financial interest, even if it was shared with a few hundred others.
When Mr. Wiebe did not resign and council did not ask for his resignation, a group of electors – many of them, although not all, affiliated with the NPA – took the case to court. Mr. Mussio has been on the board of the NPA.
There have been many lawsuits in British Columbia with allegations of councillors voting on issues on which they have a conflict of interest, but very few have succeeded. The province and the courts have generally set a high bar for what constitutes a conflict.
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