Redmond v. Wiebe
“The result of these cases is that there is a consensus of opinion that
where the personal or pecuniary interest of the member is that of a
ratepayer, in common with other ratepayers, or, as put by Osler, J.A.,
‘where, though he is personally interested, his interest is not different
from that of the community in general’, the member is not disqualified.
The community of interest spoken of I understand to be a community
in the kind, not in the degree, of the interest.
It remains to be considered whether this rule is applicable as was held
in Re McLean and Ops (1880), 45 U.C.Q.B. 325, where the
community of interest is not between all the ratepayers, but between
all the ratepayers to be affected by the by-law, as is the case where
the by-law is a drainage by-law or where, as in the case at bar, it is a
local improvement by-law.
I see no reason for differing from the view taken in the McLean case.
As I view it, the principle upon which the rule is founded is the same
whether the by-law is one affecting all the ratepayers of the
municipality or only those within a section of it.”
For the purposes of this case, the following principles may be extracted from
the above authorities as follows:
If the evidence indicates or appears to indicate that an elected official
is instrumental in having a by-law enacted in order to obtain
advantages which are purely personal, the by-law will be struck down
as being made in bad faith and hence illegal.
If the evidence indicates that the advantages obtained are not purely
personal but are the same advantages as those obtained by the
public at large, the allegations of bad faith and illegality must fail.
The distinction seems to be that even though an elected official may be
personally interested in the enactment of a by-law, if the advantage obtained
by him is one enjoyed in common with the public generally then it cannot be
said that the advantage sought by him is a personal advantage. A simple
example of this principle is that an elected official does not act or appear to
act in bad faith when he votes to reduce the tax burden falling on real
property. As a property owner he gains an advantage, but this advantage is
not a personal advantage but one which is shared by all property owners.
It follows that as Alderman Cowie did not stand to gain any purely personal
advantage but only an advantage shared by a significant segment of the
public, it cannot be said that there is any evidence of bad faith or an
appearance of bad faith on his part.
I point out that the applicant has not argued the case on the basis that
Alderman Cowie did not disclose that property which he owned and wished to
develop would be favourably affected by the amending by-law. I point out,
moreover, that non-disclosure is not set out as one of the grounds for
declaring the by-law illegal. There is a distinct difference between non-
disclosure and bias. As the authorities indicate, where the by-law is one for
the benefit of the public at large an elected official may cast his vote even if
he stands to gain an advantage from the enactment of the by-law. The theory