City councillor's restaurant ownership not part of common interest: BC Court of Appeal

The British Columbia Court of Appeal has ruled that a councillor had a conflict of interest when he participated in and voted for a program meant to ease pandemic restrictions while having pecuniary interest in a restaurant that was among the first to secure permits for the programs.

In Redmond v. Wiebe, 2022 BCCA 244, Michael Wiebe was an elected member of the Vancouver City Council who also had interest in a restaurant and a pub. When indoor attendance at restaurants was restricted due to the COVID-19 pandemic, the city adopted a program that allowed an extension of outdoor seating. This program required restaurants to secure permits.

Once the program was in place, permits for Wiebe’s businesses were the first to be approved.

Michael Redmond and several other electors in the city filed a conflict-of-interest complaint against Wiebe. They alleged that the Vancouver Charter prohibited councillors from participating in matters where they hold direct or indirect pecuniary interest.

The trial judge found that while Wiebe participated in the meeting and voted in it, his case was covered under the interest-in-common exception. This exception stated that Wiebe’s pecuniary interest was a common interest – one shared with the electors generally.

On appeal, Redmond argued that Wiebe’s interest was not one that was common with the other restaurant and liquor licenses.

The appellate court agreed.

Exception must relate to larger group

For the interest-in-common exception to apply, the onus was on Wiebe to prove that he had a shared interest with a meaningfully larger group, the court found. While the exception did not require that Wiebe’s interest be shared with all electors, the court found such interest be shared by a significant segment of the public.

Despite having found that Wiebe’s interest was limited to the group of permit applicants, the appellate court went further and ruled that Wiebe belonged to a smaller subset of these applicants. He belonged to a class of licensees who could immediately enjoy the benefits of the program, as he actively pursued his private interests, said the court.

The appeal was granted and the order set aside, but the appellate court remitted the matter back to the lower court for determination of two other defenses raised.