Vancouver city councillor Michael Wiebe’s legal fight over allegations that he was in a conflict of interest when he voted in May 2020 on a temporary patio program for restaurants, bars and breweries is not over.
The B.C. Court of Appeal released a decision Wednesday, July 13, that overturned a B.C. Supreme Court ruling from July 2021 that dismissed a petition from 15 citizens against Wiebe, who owned the Eight ½ restaurant in Mount Pleasant and was an investor in Portside Pub in Gastown.
The petitioners wanted Wiebe disqualified from office, arguing that the councillor stood to gain financially from voting on the patio program, which was put in place to help businesses attract customers during the pandemic.
The appeal decision means the petition that was dismissed by B.C. Supreme Court Justice John Steeves is now relevant in a future proceeding, which may not happen before Wiebe seeks a second term on council in the Oct. 15 election.
“I recognize the potential urgency to have this matter resolved prior to the next Vancouver municipal election after which a disqualification remedy may become moot,” Chief Justice Robert Bauman wrote in his ruling, which was agreed to by Justices Gail Dickson and Gregory Fitch.
“But this court is simply not in the position to decide whether either of the additional defences apply.”
Those defences would include whether the pecuniary interest for Wiebe was so remote or insignificant for him that it couldn’t reasonably be regarded as likely to influence his decision in relation to the matter.
Lawyers commonly refer to this as “the remoteness” exemption, or exception.
The other potential defence would be whether Wiebe acted inadvertently or made an error in judgment in good faith, as outlined in the Vancouver Charter.
Steeves considered but didn’t analyze those sections of the Charter in his 2021 ruling.
'Error in judgment'
He said Wiebe had a pecuniary interest in common with other members of the group of restaurant and bar owners — but that there was no evidence 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, Steeves 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.”
The Appeal Court decision said Wiebe was in a class of licensees who could immediately enjoy the benefits of the temporary patio program “and he clearly knew it,” referring to a text message with a celebratory clinking-of-glasses emoji that was entered as part of the petitioners’ evidence.
“He was among the first 14 businesses awarded the [patio program licence] on 4 June 2020, literally days after the inauguration of the program and within eight days of the vote on the critical bylaw amendments,” the Appeal Court decision said.
“Clearly councillor Wiebe was considering and actively pursuing his private interest in the [patio program] while exercising his public duties as an elected councillor.”
Lawyer Wes Mussio, acting on behalf of the petitioners, said in an email Wednesday the “remoteness” defence would not apply to Wiebe, if he and his legal team chose that route in a future proceeding.
So, Mussio said, the onus now lies on Wiebe to prove inadvertence or error in judgment made in good faith when he voted on the temporary patio program.
“In this case, clearly voting on the patio program was not inadvertent,” he said. “So the question becomes whether it was an error of judgment made in good faith. However, councillor Wiebe did not speak to legal counsel or get direction from the city hall so his chances of success on that exception are pretty low.”
Wiebe’s lawyer, Aurora Faulkner-Killam, said in an email that Wiebe is reviewing the decision closely and will consider his options in relation to it in the coming weeks.
“He remains committed to holding office and serving the citizens of Vancouver,” Faulkner-Killam said.
“He has always been candid that he assessed the votes in issue as a business owner, in good faith and in the belief that he was permitted to participate in the vote consistent with his training and past practice at the city. This case will be important guidance for elected officials in the future.”
Reached Wednesday, Wiebe noted the Appeal Court’s decision did not disqualify him from office.
“I am able to still represent the City of Vancouver and do the important work that I do,” he said by telephone. “So I appreciate that I'm able to continue that work. And I recognize that this process just means that we'll be continuing the court process, which has now almost been two years.”
Added Wiebe: “This has been really stressful and difficult, not just financially, but with my family. It’s been about two years of continuous legal calls and meetings and Zoomed in at the B.C. Supreme Court, and then the Appeal Court stuff.”