Court action ‘dismissed’ against Vancouver city councillor in conflict case

Green Party Coun. Michael Wiebe voted in May 2020 on temporary patio program

A B.C. Supreme Court judge has dismissed the court action against Green Party city councillor Michael Wiebe| File photo: Jennifer Gauthier

Vancouver Green Party city councillor Michael Wiebe can keep his job.

That is the result of a ruling released Monday by B.C. Supreme Court Justice John Steeves, who dismissed the court action brought on by 15 citizens who alleged Wiebe was in a conflict of interest over his vote in May 2020 on a temporary patio program.

At the time of the vote, Wiebe owned the Eight ½ restaurant in Mount Pleasant and was an investor in Portside Pub in Gastown. Both businesses received temporary patio licences after council unanimously approved a program for bars, restaurants and breweries.

In his written reasons for judgment, Steeves ruled Wiebe had a pecuniary interest in common with other members of the group of restaurant and bar owners.

But he said there was no evidence that Wiebe “asserted an interest that is personal to him in the sense of being distinct from other owners of restaurants and bars.”

Under section 145.6 (1)(a) of the Vancouver Charter, he added, Wiebe was entitled to “an exception from the restrictions on conflicts of interest” as set out in other provisions of the Charter.

“Since [section 145.6] applies at the second stage of the analysis, that is the end of the matter and there is no need to proceed to consider whether the respondent acted inadvertently or made an error in judgment in good faith,” Steeves said. “The petition filed October 26, 2020 is dismissed.”

Reached Monday, Wiebe said he got emotional when he learned the case had been dismissed.

"It's been an emotional rollercoaster for sure, and the support has been pretty amazing," he said. "I had a couple of councillors call me crying this morning."

Added Wiebe: "This has been hard for me to be able to focus on what I do, and it's good to know that the judge supports the work I did to continue to support small business here in Vancouver."

Wiebe said he has been "super humbled" through the court process and vowed to do better to avoid any perception of conflict.

"I know how fragile and how honoured this position is, and I want to make sure that every day I'm doing something that's improving the city," he said, noting the experience has only bolstered his reasons for seeking re-election in October 2022.

"When you have something like this almost taken away from you, it really showcases the importance of it and how much I want to get done — so that this city is lifting up our business community and our most vulnerable."

Michael Redmond, the lead petitioner in the case, said Monday that "it was unfortunate that the judge took a different view of the law than we had presented."

During the hearing, lawyer Wes Mussio, acting on behalf of Redmond and the petitioners, argued Wiebe’s vote was a clear example of a pecuniary interest and presented a conflict. He said the program benefited a specific group of businesses — including Wiebe’s — and that the councillor should have recused himself from the vote.

Redmond pointed out the judge did find that Wiebe's vote constituted a pecuniary interest. He questioned how large or small does a group of like-minded business owners has to be — in this case, referring to other restaurant and bar owners — before it presents an interest that directly benefits or doesn't benefit a politician who owns a business or property.

"If [the judge] is saying, 'You're in a conflict but it's OK because part of the group of people that are similarly affected,' well how big does that group have to be?" said Redmond, a retired lawyer.

Wiebe’s lawyer, Aurora Faulkner-Killam, built her case on Wiebe acting in good faith when he cast his vote. She noted his business interests were filed previously on the city’s website and that the patio program benefited his competitors.

She also argued the case against Wiebe was “brought with heavy influence from a political party.” Faulkner-Killam didn’t mention the party, but petitioners included NPA president David Mawhinney, party director Federico Fuoco and Redmond, also a party member; Mussio became a director of the NPA after the petition was filed in court.

On the last day of the hearing, Steeves made it clear that his ruling wouldn’t consider the political ties of the legal action brought against Wiebe, who is one of three Green Party members on the 11-member council.

The NPA is now down to one member on council — Melissa De Genova — after councillors Sarah Kirby-Yung, Lisa Dominato and Colleen Hardwick left the party in April; Coun. Rebecca Bligh left the NPA in 2019.

The case went to court after Redmond complained to Mayor Kennedy Stewart’s office in June 2020 about Wiebe’s vote.

At the agreement of Redmond and Wiebe, lawyer Raymond Young conducted an investigation and report on the complaint. Young concluded Wiebe should be disqualified from holding office until the next election in October 2022, and that it would be appropriate for the councillor to resign.

Wiebe chose to remain on the job, which left either the city or at least 10 citizens to initiate court action, which is what led to the petition before the judge.

Young’s report, however, was deemed inadmissible by Steeves on the first day of the hearing. He ruled that “the issues, evidence and conclusions in the report are for me to make, and they are at the heart of the petition before me.”

Redmond said it was too early to say whether he and the other petitioners would appeal the ruling. He wouldn't disclose what it cost to pursue the court action but said the process demonstrated how difficult it is for citizens to challenge elected officials.

"Short of setting up a whole trial where we could do examinations for discovery and everything else — and all the expensive parts of lawsuits — there's no easy way for people to bring these things forward," he said.

"I would have wished for a different outcome, but it was an important issue and I think the fact is Mr. Wiebe was in a pecuniary conflict of interest, but the judge determined on a point of law that there's an excuse for it. That's lawsuits, for you."

Note: This story has been updated since first posted.

mhowell@glaciermedia.ca

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