COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Redmond v. Wiebe,  
2022 BCCA 244  
Date: 20220713  
Docket: CA47678  
Between:  
Michael Redmond, David Mawhinney, Barbara May, Paul Meret, Robert Murray,  
Sui Fen Zhou, Terry Martin, Kathleen Austin, Ian Leslie, Kevin Menard,  
Filippo Lovera, Jane Guy, Spiro Polyhronopoulos, Douglas Leung  
and Antonio Cruz  
Appellants  
(Petitioners)  
And  
Michael Wiebe  
Respondent  
(Respondent)  
Before:  
The Honourable Chief Justice Bauman  
The Honourable Justice Dickson  
The Honourable Mr. Justice Fitch  
On appeal from: An order of the Supreme Court of British Columbia,  
dated July 19, 2021 (Redmond v. Wiebe, 2021 BCSC 1405,  
Victoria Docket S210053).  
Counsel for the Appellants  
(via videoconference):  
W. Mussio  
Counsel for the Respondent  
(via videoconference):  
A. Faulkner-Killam  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, British Columbia  
April 11, 2022  
Vancouver, British Columbia  
July 13, 2022  
Written Reasons by:  
The Honourable Chief Justice Bauman  
Concurred in by:  
The Honourable Justice Dickson  
The Honourable Mr. Justice Fitch  
Redmond v. Wiebe  
Summary:  
Page 2  
Michael Wiebe is part owner/operator of a company doing business as a restaurant  
and an investor in a pub, both in Vancouver. He is also an elected member of the  
Vancouver City Council. In May 2020, in response to restricted indoor attendance  
due to COVID-19, the City adopted a program that allowed the creation or extension  
of outdoor seating areas adjacent to food and liquor serving establishments.  
Councillor Wiebe participated in and voted on those matters. The restaurant that  
Councillor Wiebe holds an interest in was one of the first to be approved for a permit  
under the program. The pub also later received a permit. The Vancouver Charter  
prohibits councillors from participating in matters in which they hold a direct or  
indirect pecuniary interest—the penalty: disqualification. However, there are several  
exceptions. One is that a councillor is not prohibited from participating when the  
pecuniary interest they hold in a matter is one that is “in common with electors of the  
city generally”: the interest-in-common exception. The appellants/petitioners applied  
to the Supreme Court of British Columbia for a declaration that Councillor Wiebe  
contravened the conflict-of-interest provisions and that he be disqualified. The judge  
found that Councillor Wiebe did participate and vote in a matter in which he held a  
pecuniary interest but that the interest-in-common exception applied: Councillor  
Wiebe’s pecuniary interest was one that he shared with the 3,127 other restaurant  
and liquor licensees in Vancouver. On appeal, the appellants argue that for the  
interest-in-common exception to apply, Councillor Wiebe’s interest would have to be  
in common with all electors in the city. They also argue that Councillor Wiebe’s  
interest was not even in common with the 3,127 other restaurant and liquor  
licensees.  
Held: Appeal allowed. While the interest-in-common exception does not require that  
a councillor’s pecuniary interest in a matter be shared with all electors, Councillor  
Wiebe’s interest in this matter was not shared with the 3,127 other restaurant and  
liquor licensees. At most, his interest was shared with a subset of those—those who  
were ready and considered themselves able to apply for a permit. Theirs was an  
interest that was different in kind from the broader population of licensees. This was  
a small group, numbering in the hundreds. And Councillor Wiebe distinguished  
himself even further from this already small group: he was actively pursuing the  
private benefits he obviously perceived in the program that he was simultaneously  
crafting as a public official. The interest-in-common exception is unavailable to  
Councillor Wiebe in the circumstances. The matter is remitted to the Supreme Court  
of British Columbia for a determination of two other defences asserted by Councillor  
Wiebe: a remoteness exception and a good-faith excuse.  
Redmond v. Wiebe  
Page 3  
Reasons for Judgment of the Honourable Chief Justice Bauman:  
I. Overview  
[1]  
The Latin phrase nemo debet esse judex in propria causa expresses in an old  
language a maxim that is timeless and always relevant: “no one ought to be a judge  
in their own cause.”  
[2]  
In the context of municipal politics in Vancouver, the City’s Charter  
(Vancouver Charter, S.B.C. 1953, c. 55) provides (in s. 145.3) that a council member  
must not, amongst other prohibitions, vote in respect of a matter if that council  
member has a direct or indirect pecuniary interest in it. In more common parlance  
this is a “conflict of interest”: a conflict between the councillor’s public duties as an  
elected person and their private interests as an individual. Here, Councillor Michael  
Wiebe’s participation in and votes in respect of the passage of the City’s Temporary  
Patio Program for the holders of restaurant and bar licences is said by the  
appellants, electors in the city, to have breached the conflict-of-interest provisions  
found in the Vancouver Charter. The appellants seek Councillor Wiebe’s  
disqualification from office.  
[3]  
The chambers judge declined to disqualify Councillor Wiebe and this appeal  
results.  
[4]  
The central issue before the Court here and below is whether Councillor  
Wiebe was excused in this matter because his direct or indirect pecuniary interest in  
the matter at hand “is a pecuniary interest in common with the electors of the city  
generally”: Vancouver Charter, s. 145.6(1)(a).  
[5]  
The chambers judge concluded that Councillor Wiebe was thus excused:  
Redmond v. Wiebe, 2021 BCSC 1405. I have concluded otherwise for the reasons I  
will now develop.  
Redmond v. Wiebe  
Page 4  
II. Detailed Background  
[6]  
Michael Wiebe is the owner/operator of Tripod Investment Group doing  
business as Eight ½ Restaurant and an investor in the Portside Pub as disclosed in  
his municipal “Statement of Disclosure” dated 3 January 2020. These are “food and  
liquor serving establishments” in the City of Vancouver, colloquially “restaurant and  
bar operations.”  
[7]  
Councillor Wiebe is also an elected member of the municipal council of the  
City of Vancouver. His four-year term runs through the fall elections of 2022.  
[8]  
The COVID-19 pandemic began in earnest in March 2020. Early Provincial  
Health Orders (PHOs) greatly restricted attendance at premises preparing and  
serving food and/or drink.  
[9]  
In May 2020, in response to these PHO restrictions, the City began exploring  
options to address the economic impacts on food and liquor serving establishments  
in the City. The principal option under consideration involved permitting the creation  
of, or extension to, outdoor seating areas adjacent to the establishments (the  
Temporary Expedited Patio Permit or “TEPP Program”).  
[10] On 13 May 2020, the Standing Committee on City Finance and Services met.  
It is a committee of the whole of council and Councillor Wiebe was present.  
[11] The committee considered a motion by Councillor Kirby-Yung entitled  
“Flexible, Innovative and Expedited Patio Permitting.” This later formed the core  
basis for the TEPP Program.  
[12] As the name suggests, the apparent purpose of the motion was to expedite  
patio permitting and make it more flexible and innovative in aid of the restaurant/bar  
sector subject to the COVID-19 restrictions set by the PHO.  
[13] Councillor Wiebe did not declare a pecuniary interest in the motion under  
consideration; he participated in the discussion and voted on the motions.  
Redmond v. Wiebe  
Page 5  
[14] As finally adopted, the resolution read as follows:  
THAT the Committee recommend to Council  
WHEREAS  
1.  
The COVID-19 pandemic has inflicted significant negative  
economic impacts with many Vancouver businesses including  
restaurants, tourism businesses, hotels, and personal-care  
services such as hair stylists, nail salons and dentists, forced  
to close or severely limit operations due to health and physical  
distancing restrictions;  
2.  
Restaurants have been one of the most immediate and  
hardest hit sectors, and small business operators are  
struggling to survive with many limited to takeout offerings and  
attempting to make it through the pandemic;  
3.  
4.  
5.  
Small businesses like restaurants are vital to the fabric and  
character of Vancouver neighbourhoods and support complete  
communities;  
Small businesses like restaurants are key contributors to  
Vancouver’s economic health generating jobs and tax  
revenue;  
The City has a key role to play in supporting economic  
recovery. Speed flexibility and nimbleness in permitting and  
business support services will be instrumental to helping  
businesses get back up and running and survive;  
6.  
Patio season is a critical revenue generator for restaurants  
and is upon us now. Expedited patio permitting must be  
turnkey when restaurants are able to reopen to table type  
service;  
7.  
8.  
Some work has begun with staff offering online renewals for  
patio permits during the COVID-19 crisis;  
An outcome of COVID will likely be the need for some  
continued physical distancing processes in businesses.  
Customers will also be cautious about being in close quarters  
to others;  
9.  
Patios provide the health benefit of fresh air and sunlight;  
10.  
There is opportunity to be innovative and redefine patios such  
as pop-up standing patios for quick service type offerings,  
expanded size to enable physical distancing, or utilization of  
curb lane, street, sidewalk and laneway space for extensions  
where it doesn't impede accessibility, transit, emergency  
vehicles or traffic;  
11.  
Currently, patio permitting can require a combination of  
licensing, development permits and permits to enable  
operations;  
Redmond v. Wiebe  
Page 6  
12.  
13.  
Currently, craft breweries are not permitted to have patio  
operations in Vancouver;  
The City of Vancouver has initiated a street reallocation  
response that focuses on Room to Queue, Room to Load, and  
Room to Move during the COVID-19 pandemic. There is  
opportunity to add Room to Eat to this work, and to re-examine  
public space use as part of a new post-pandemic world; and  
14.  
Many cities are re-examining the use of public space now to  
achieve healthier communities. A COVID legacy can be a  
more vibrant and people focused public realm.  
THEREFORE BE IT RESOLVED  
A.  
THAT Council direct staff work directly with business operators  
to identify immediate patio seating options that would move  
indoor seating capacity outdoors to improve physical  
distancing (including consideration for temporary outdoor  
seating guidelines, pre-detailed designs and formats that are  
designed with the needs of those who use wheelchairs,  
mobility scooters and other mobility devices in mind and that  
ensure safe and accessible paths of travel are maintained),  
utilization of curb lane, street, sidewalk and laneway space for  
extensions, expedited permitting including applications and  
renewals, as well as the number of patios allowed, in order to  
support the economic recovery and safe operations of  
Vancouver's restaurant sector in the context of COVID-19.  
B.  
THAT breweries that currently hold a lounge endorsement  
within the City of Vancouver may apply for patio  
endorsements, aligning with the recommendations and  
guidelines set out by the Provincial government, and that  
brewery patio applications will be considered as long as the  
total patron load including the new patio remains below the  
current City patron limit for ancillary brewery lounges.  
Considerations for brewery lounge patios should adhere to  
similar licensing and permitting fees as restaurants and cafes.  
C.  
THAT such options be considered for the duration of the  
COVID-19 response and recovery, recognizing that innovation  
will provide for valuable learning towards operations and  
adaptation in a new, post-COVID world;  
FURTHER THAT staff report back on possible opportunities to  
create common-style eating spaces with additional chairs,  
benches or tables on public plazas or public spaces, that can  
enable outdoor eating areas to support different takeout or  
quick service restaurants and cafes in various neighbourhoods  
and commercial districts, ensuring they are accessible to those  
who use wheelchairs, mobility scooters and other mobility  
devices, and with consultation with impacted Business  
Improvement Associations as may be appropriate (recognizing  
previous Council motions such as Celebrating Italian Culture:  
Redmond v. Wiebe  
Page 7  
Welcome Signage in Little Italy and a Pilot Program for an  
Italian Piazza in Vancouver as it relates to Commercial Drive).  
D.  
THAT the motion entitled "Flexible, Innovative and Expedited  
Patio Permitting", be shared with the Council Pandemic  
Response and Recovery Working Group for the purpose of  
enabling them to seek or share further information from the  
restaurant sector as may be beneficial to and aid this work.  
E.  
F.  
THAT Council approve in principle the prioritization of  
additional staff and budget resources to support the allocation  
of flexible, innovated and expedited patio space, and direct  
staff to seek out cost recovery opportunities where possible  
and where reallocation of public space may be for private use.  
THAT Council direct staff to consult with Vancouver Coast  
Health, City Engineering, and Emergency Operations Centre  
to determine best practices to safely allow patio spaces while  
considering best practices around safe physical distancing as  
well as access to ancillary and public spaces for all ages and  
abilities.  
G.  
H.  
THAT staff look at ways to expand public access to public  
spaces for people who don't have the money to spend in  
restaurants, and ensure that there are safe spaces outdoors  
for members of the public to sit even if they don’t spend any  
money.  
THAT the Mayor write to the Premier and Attorney General  
David Eby on behalf of Vancouver City Council, applauding  
the Province's announced move to allow BC restaurants to  
purchase liquor at wholesale prices, and to expedite provincial  
approvals for expanded outdoor liquor service and that the  
letter cite Council's support for flexibility in the adjustment of  
regulations, in order to enable expedited outdoor dining in  
support of public health and economic recovery for BC's  
Restart Plan.  
[15] As noted, Councillor Wiebe voted in favour of the resolution and participated  
in the discussion as it went through various amendments before final adoption.  
[16] In particular, Councillor Wiebe actually moved an amendment to Part A of the  
resolution. As proposed by Councillor Kirby-Yung, Part A would have read:  
THAT Council direct staff to prepare options and report back as soon as  
possible to support more flexible patio types (including consideration for pre-  
detailed designs and formats), utilization of curb lane, street, sidewalk and  
laneway space for extensions, expedited permitting including applications  
and renewals, as well as the number of patios allowed, in order to support the  
economic recovery and safe operations of Vancouver’s restaurant sector in  
the context of COVID-19.  
Redmond v. Wiebe  
Page 8  
[17] Councillor Wiebe’s amendment, carried unanimously, read:  
insert the words “work directly with business operators to identify  
immediate patio seating options that would move indoor seating  
capacity outdoors to improve physical distancing”, after the words  
“direct staff to”;  
delete the words “prepare options and report back as soon as  
possible to support more flexible patio types”; and  
insert the words “temporary outdoor seating guidelines” after the  
words “consideration for”;  
[18] The Wiebe amendment had the effect of cutting through the potential back-  
and-forth of staff reports and encouraged direct action “with business operators to  
identify immediate patio seating options that would move indoor seating capacity  
outdoors to improve physical distancing.”  
[19] Just before the vote on the final motion, Councillor Kirby-Yung thanked  
“council for their enthusiastic and whole-hearted support for this. Particularly  
Councillor Wiebe also provided some great input and feedback for this motion.”  
[20] At the special council meeting of 27 May 2020, council considered two  
motions designed to complement what is now referred to as the Temporary Patio  
Program. One would expedite the provincial approval for an expedited liquor service  
area. This would cover extended patio spaces. The second waived permit and  
application fees for the temporary expansion of patio spaces.  
[21] These motions were seconded and voted on by Councillor Wiebe. They were  
minuted so:  
MOVED by Councillor Kirby-Yung  
SECONDED by Councillor Wiebe  
A.  
THAT Council instruct the Chief Licence Inspector to inform  
the General Manager of the Liquor and Cannabis Regulation  
Branch in writing that Council pre-approves all liquor primary  
and manufacturer establishments in the City of Vancouver who  
may apply for expanded liquor service area before October 31,  
2020.  
B.  
THAT Council approve in principle an amendment to the  
Licence By-law No. 4450 to temporarily waive the “fee for  
Redmond v. Wiebe  
Page 9  
assessing and providing comments on an application for a  
temporary amendment to a liquor licence requesting any other  
change to a liquor licence” when the application is for an  
expanded service area, until October 31, 2020;  
FURTHER THAT the Director of Legal Services bring forward  
for enactment the necessary amendments to the Licence By-  
law No. 4450.  
[22] The TEPP Program was launched by the City on 1 June 2020. It invited  
applications for a restaurant or café patio located on the sidewalk or the applicant’s  
property. The program set out detailed business and design requirements.  
[23] On 4 June 2020, the City announced that Eight ½ Restaurant, Councillor  
Wiebe’s business, was among the first 14 eateries, bars, and breweries awarded  
temporary patio permits. At that date there had been 46 applications. (The Portside  
Pub also received a temporary patio permit on 30 June 2020.)  
[24] It was later reported by the Vancouver Sun that in text messages between  
councillors and the mayor’s office before and after the vote of 27 May 2020,  
Councillor Wiebe referenced his own restaurant patio, toasting the expansion with a  
“cheers” emoji showing clinking beer glasses. In his affidavit filed in response,  
Councillor Wiebe does not dispute this. Councillor Wiebe deposed, frankly, “that the  
private messages that were shared celebrating the successful passage of the bylaw  
were not ‘ideal’.”  
[25] The Georgia Straight newspaper published an article on 5 June 2020  
reporting on the inclusion of Eight ½ Restaurant in the 14 approved locations. The  
article questioned whether Councillor Wiebe had contravened the conflict-of-interest  
provisions of the Vancouver Charter.  
[26] On 11 June 2020, City council considered further by-law amendments  
concerning temporary patios. Councillor Wiebe absented himself from these votes  
“due to conflict of interest.”  
[27] On 29 June 2020, the appellant Michael Redmond filed a conflict-of-interest  
complaint regarding Councillor Wiebe under s. 8.2 of the City of Vancouver Code of  
Redmond v. Wiebe  
Page 10  
Conduct Policy AE-028-01. This led to the appointment of an independent third party  
to investigate that complaint. That investigator’s report of 12 September 2020 was  
sent to the mayor. It was tendered in evidence below but declared inadmissible by  
the chambers judge. No issue is taken with that ruling on appeal, and I will say no  
more of this report and its conclusions.  
[28] I turn to relate several facts that are relevant to the “interest-in-common”  
exception to the conflicts rules under the Vancouver Charter. They include:  
(i) there were 453,190 registered electors eligible to vote in the 2018  
Vancouver municipal election;  
(ii) there were 69,230 business licences issued by the City of Vancouver in  
2020;  
(iii) there were 3,127 restaurant and liquor-primary licences issued in 2019 by  
the City;  
(iv) by 24 July 2020, the City had received 408 TEPP applications;  
(v) by 2 September 2020, the City had received 452 TEPP applications;  
(vi) by January 2021 the City had issued 334 TEPP permits to businesses.  
III. These Proceedings and the Chambers Judgment  
[29] The appellants commenced petition proceedings in the Supreme Court of  
British Columbia on 26 October 2020. They sought these declarations:  
1.  
A declaration that the Respondent failed to disclose a direct, or  
indirect, pecuniary conflict of interest contrary to section 145.2(2)  
(Disclosure of conflict) of the Vancouver Charter, [SBC 1953] Chapter  
55 (the “Vancouver Charter”);  
2.  
3.  
A declaration that the Respondent contravened section 145.3  
(Restrictions on participating if in a conflict) of the Vancouver Charter  
and is disqualified from holding office under s. 145.3(3);  
A declaration that the Respondent contravened section 145.4  
(Restrictions on inside influence) of the Vancouver Charter and is  
disqualified from holding office under section 145.4(2);  
Redmond v. Wiebe  
Page 11  
4.  
5.  
An order that the Respondent is disqualified from holding office and  
his respective position as City Councillor is hereby declared vacant  
pursuant to sections 38(2) and 142.1 of the Vancouver Charter; and  
Costs.  
[30] The petition came on for hearing before a judge of the Supreme Court on 24–  
25 February and 1 and 3 June 2021; judgment was pronounced on 19 July 2021.  
The petition was dismissed.  
[31] After dealing with a number of preliminary and evidentiary objections which I  
need not deal with, the judge began his analysis under the statutory provisions of the  
Vancouver Charter.  
[32] I reproduce the relevant sections below at para. 43. Here I note that the judge  
discussed s. 145.2 dealing with the disclosure of conflicts of interest by councillors,  
participation in meetings when there is a conflict, and declaring the conflict. The  
judge also discussed ss. 145.3 and 145.4 which describe restrictions on a councillor  
when there is a conflict of interest.  
[33] The judge found that Councillor Wiebe did enjoy a pecuniary interest in these  
matters and that he participated in meetings and voted contrary to s. 145.3. No  
appeal is taken from this finding.  
[34] The judge then noted the “Exceptions from conflict restrictions” set out in  
s. 145.6(1). In particular, he highlighted s. 145.6(1)(a):  
145.6 (1) Sections 145.2 to 145.5 … do not apply if one or more of the  
following circumstances applies:  
(a)  
the pecuniary interest of the Council member is a pecuniary  
interest in common with electors of the city generally;  
[Formatting removed; omission noted.]  
[35] The judge noted that the provisions dealing with conflicts of interest in the  
Vancouver Charter are a “complete code.”  
[36] Nevertheless, the judge rejected the petitioners’ argument that this rendered  
irrelevant or inapplicable jurisprudence decided at common law and under similar  
Redmond v. Wiebe  
Page 12  
provisions in the Community Charter, S.B.C. 2003, c. 26, which regulates  
municipalities in British Columbia apart from the City of Vancouver (paras. 84 and  
85):  
[84]  
… Some of the authorities discussed in argument are cases under  
the Vancouver Charter, it is true that some are under the Community  
Charter, some are from other jurisdictions and some of the cases discuss  
common law issues that predated the Vancouver Charter and  
the Community Charter. Some go back to 1881 (for example, Regina v.  
Mayor and Justices of Deal; Ex parte Curling (1881), 45 L.T.N.S. 439, 441;  
cited in Re Hoeppner, [1976] 4 W.W.R. 481 [Re Hoeppner], at 489). As I  
understand it, the petitioners’ point is that their petition is to be considered  
only in the context of the Vancouver Charter without looking at previous  
cases, especially ones that might be described as historical ones.  
[85]  
I do not agree that I am restricted to looking only at the Vancouver  
Charter. Despite the best efforts of legislators, it is often not possible for the  
courts to consider disputes over the interpretation or application of legislation  
without also looking at how the courts have interpreted it in similar cases. In  
addition, the development of common law includes how other jurisdictions  
have considered similar legislation and how the applicable principles have  
developed over time. For example, there is a dispute here between the  
parties about the meaning of “the pecuniary interest of the Council member is  
a pecuniary interest in common with electors of the city generally” in  
s. 145.6(1)(a) of the Vancouver Charter. In order to decide that dispute, in my  
view, I must consider how other cases have interpreted that language. I also  
note that the petitioners themselves rely on authorities outside the Vancouver  
Charter.  
[Emphasis added.]  
[37] Based on the statutory language and a review of the authorities, the judge  
rejected the petitioner’s position that in order for Councillor Wiebe to fall within the  
interest-in-common exception, the pecuniary interest at issue must be one that he  
shares with all 453,190 electors eligible to vote in the 2018 election. Rather, the  
judge took the comparator group to be the 3,127 holders of restaurant and bar  
licences issued in 2019: para. 122.  
[38] The judge concluded that Councillor Wiebe’s pecuniary interest in this matter  
was not an interest “separate from the other owners of restaurants and bars and  
distinct to his particular case”: para. 124. Thus, Councillor Wiebe’s pecuniary interest  
in this matter was one that was shared with the 3,127 holders of restaurant and bar  
Redmond v. Wiebe  
Page 13  
licences, and this was sufficient to bring Councillor Wiebe within the interest-in-  
common exception. For that reason, the petition was dismissed.  
[39] The judge therefore had no need to decide whether Mr. Wiebe’s  
contravention of s. 145.3 was inadvertent or because of an error in judgment made  
in good faith, and he declined to address that question.  
IV. Positions of the Parties  
[40] The appellants (petitioners) argue that the judge erred by improperly  
narrowing the “comparator” group to the 3,127 restaurant and liquor licensees. They  
argue on appeal that the proper comparator group for an analysis of the interest-in-  
common exception is the 453,190 registered electors in the city. The appellants  
further argue that even within the “narrow” comparator group, the judge erred by  
finding that Councillor Wiebe’s interest in the matter was one that was in common  
with the other restaurant and liquor licensees.  
[41] The respondent (Councillor Wiebe) argues that the judge was correct to  
assess that he held an interest in common with the 3,127 restaurant and liquor  
licensees and that this was a sufficiently large group to bring him within the interest-  
in-common exception. He emphasizes the breadth of the program: that it applied to  
“all food and drink service businesses without exception” and that there was “no  
disqualifying process.”  
V. Standard of Review  
[42] The legal framework applicable to a s. 146(1)(a) interest-in-common analysis  
is a question of law, reviewable on a standard of correctness. Whether Councillor’s  
Wiebe’s interest in the matter is one shared with the 3,127 restaurant and liquor  
licensees, the 453,190 registered electors, or anyone at all is a question of mixed  
fact and law. This Court should not interfere with such a finding absent a palpable  
and overriding error or an extricable error in law. See generally, Housen v.  
Nikolaisen, 2002 SCC 33 at paras. 28–34.  
Redmond v. Wiebe  
Page 14  
VI. Analysis  
The Law  
[43] I begin by setting out the relevant portions of the statutory scheme in  
ss. 145.2 to 145.6 of the Vancouver Charter:  
Disclosure of conflict  
145.2 (1)  
This section applies to Council members in relation to  
(a)  
(b)  
(c)  
Council meetings,  
Council committee meetings, and  
meetings of any other body referred to in section 165.7  
[application of open meeting rules to other city bodies].  
(2)  
If a Council member attending a meeting considers that he or  
she is not entitled to participate in the discussion of a matter,  
or to vote on a question in respect of a matter, because the  
member has  
(a)  
(b)  
a direct or indirect pecuniary interest in the matter, or  
another interest in the matter that constitutes a conflict  
of interest,  
the member must declare this and state in general terms the  
reason why the member considers this to be the case.  
(3)  
After making a declaration under subsection (2), the Council  
member must not do anything referred to in section 145.3 (2)  
[restrictions on participation].  
…
Restrictions on participation if in conflict  
145.3 (1)  
This section applies if a Council member has a direct or  
indirect pecuniary interest in a matter, whether or not the  
member has made a declaration under section 145.2 (2).  
(2)  
The Council member must not  
(a)  
remain or attend at any part of a meeting referred to in  
section 145.2 (1) [disclosure of conflict] during which  
the matter is under consideration,  
(b)  
(c)  
(d)  
participate in any discussion of the matter at such a  
meeting,  
vote on a question in respect of the matter at such a  
meeting, or  
attempt in any way, whether before, during or after  
such a meeting, to influence the voting on any question  
in respect of the matter.  
Redmond v. Wiebe  
Page 15  
(3)  
A person who contravenes this section is disqualified from  
holding office as described in section 145.911 [disqualification  
for contravening conflict rules] unless the contravention was  
done inadvertently or because of an error in judgment made in  
good faith.  
Restrictions on inside influence  
145.4 (1)  
A Council member must not use his or her office to attempt to  
influence in any way a decision, recommendation or other  
action to be made or taken  
(a)  
at a meeting referred to in section 145.2(1) [disclosure  
of conflict],  
(b)  
(c)  
by an officer or employee of the city, or  
by a delegate under section 161 [delegation of  
powers],  
if the member has a direct or indirect pecuniary interest in the  
matter to which the decision, recommendation or other action  
relates.  
(2)  
A person who contravenes this section is disqualified from  
holding office as described in section 145.911 [disqualification  
for contravening conflict rules] unless the contravention was  
done inadvertently or because of an error in judgment made in  
good faith.  
…
Exceptions from conflict restrictions  
145.6 (1) Sections 145.2 to 145.5 [disclosure of conflict; restrictions on  
participation; inside influence; outside influence] do not apply if  
one or more of the following circumstances applies:  
(a)  
the pecuniary interest of the Council member is a  
pecuniary interest in common with electors of the city  
generally;  
(b)  
in the case of a matter that relates to a local  
improvement project, the pecuniary interest of the  
Council member is in common with other persons who  
are or would be liable for the cost of the local  
improvement project;  
(c)  
(d)  
(e)  
the matter relates to remuneration, expenses or  
benefits payable to one or more Council members in  
relation to their duties as Council members;  
the pecuniary interest is so remote or insignificant that it  
cannot reasonably be regarded as likely to influence the  
member in relation to the matter;  
the pecuniary interest is of a nature prescribed by  
regulation.  
Redmond v. Wiebe  
Page 16  
(2)  
Despite sections 145.2 to 145.5 [disclosure of conflict;  
restrictions on participation; inside influence; outside  
influence], if a Council member  
(a)  
has a legal right to be heard in respect of a matter or to  
make representations to Council, and  
(b)  
is restricted by one or more of those sections from  
exercising that right in relation to the matter,  
the Council member may appoint another person as a  
representative to exercise the member's right on his or her  
behalf.  
[Emphasis added.]  
[44] Of these, most relevant to the appeal, are ss. 145.3 and 145.6(1)(a) to the  
effect that the restrictions and penalty apply to a councillor who participates in a  
matter in which the councillor has a direct or indirect pecuniary interest unless that  
pecuniary interest “is a pecuniary interest in common with the electors of the City  
generally.”  
[45] Courts have developed a two-stage approach, adopted by the judge below,  
for assessing alleged violations of the conflict-of-interest restrictions. At the first  
stage, the petitioners must demonstrate that Councillor Wiebe in fact had a conflict  
of interest arising from a direct or indirect pecuniary interest and that, despite the  
conflict, he improperly participated in council or committee proceedings. At the  
second stage, the burden shifts to Councillor Wiebe to prove either: (1) that he acted  
inadvertently or made an error of judgment in good faith; or (2) his pecuniary interest  
is excused by an exception listed under s. 145.6(1) of the Vancouver Charter. See  
generally: Fairbrass v. Hansma, 2009 BCSC 878 at paras. 17–20 [Fairbrass SC],  
aff’d 2010 BCCA 319 [Fairbrass CA]; Allan v. Froese, 2021 BCSC 28 at paras. 26–  
27 (but not for its position on onus at para. 28). I note the question of onus was an  
issue on appeal, which I discuss below at paras. 67–69.  
[46] Again, there is no appeal from the judge’s finding at the first stage that  
Councillor Wiebe improperly participated in a matter in which he had a direct or  
indirect pecuniary interest.  
Redmond v. Wiebe  
Page 17  
[47] What becomes critical then for stage two is the interpretation and application  
of the exception “a pecuniary interest in common with electors of the City generally”:  
the interest-in-common exception.  
[48] This Court has not yet considered this exception nor the analogous provision  
at s. 104 of the Community Charter. There is, however, helpful analysis from the  
Supreme Court of British Columbia, as well as authority from other provinces  
applying similar statutory provisions. For example in Re Ennismore (Township),  
[1996] O.J. No. 167, 31 M.P.L.R. (2d) 1 (Ont. Ct. J. (Gen. Div.)) [Re Ennismore], the  
relevant statutory exception said that the restrictions on participation did not apply  
“by reason of the member having a pecuniary interest which is an interest in  
common with electors generally”: Re Ennismore at para. 6.  
[49] The starting point for interpretation is Section 8 of the Interpretation Act,  
R.S.B.C. 1996, c. 238 states:  
Every enactment must be construed as being remedial, and must be given  
such fair, large and liberal construction and interpretation as best ensures the  
attainment of its objects.  
[50] Further guidance comes from the modern approach to statutory interpretation  
(Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) 193,  
citing Elmer Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths,  
1983) at 87):  
Today there is only one principle or approach, namely, the words of an Act  
are to be read in their entire context and in their grammatical and ordinary  
sense harmoniously with the scheme of the Act, the object of the Act, and the  
intention of Parliament.  
[51] The words of the provision and related context of the Vancouver Charter are  
set out above, and the scheme is a simple one: a councillor may not participate in  
matters in which they hold a pecuniary interest unless they fall within one of the  
exceptions.  
[52] Any exercise in interpretation should recognize the purpose that has  
animated these rules since their inception in the common law. The interest-in-  
Redmond v. Wiebe  
Page 18  
common exception predated codification in any statute: see e.g., Re L’Abbé v.  
Corporation of Blind River (1904), 7 O.L.R. 230, 1904 CarswellOnt 87 (Ont. Div. Ct.)  
[Re L’Abbé]; Elliott v. St. Catherines (City), [1908] O.J. No. 8, 18 O.L.R. 57 (Ont.  
H.C.J.) [Elliott]. It has also been recognized that the statutory codification does “little  
more than express in statutory form the fundamental principle[s] of the common law,  
respecting to disqualification from voting by reason of interest”: Re Blustein and  
Borough of North York (1967), 61 D.L.R. (2d) 659, 1967 350 (Ont. H.C.J.),  
aff’d Ont. C.A. (6 April 1967), leave to appeal to SCC refused 1967 S.C.R. vii [Re  
Blustein]; see also Re Ennismore at paras. 9, 11.  
[53] In Schlenker v. Torgrimson, 2013 BCCA 9, this Court accepted the following  
purpose of conflict-of-interest legislation generally (Schlenker at para. 38, quoting Re  
Moll and Fisher et al. (1979), 96 D.L.R. (3d) 506 at 509, 23 OR (2d) 609 (Ont.  
H.C.J.)):  
This enactment, like all conflict-of-interest rules, is based on the moral  
principle, long embodied in our jurisprudence, that no man can serve two  
masters. It recognizes the fact that the judgment of even the most well-  
meaning men and women may be impaired when their personal financial  
interests are affected. Public office is a trust conferred by public authority for  
public purpose. And the Act, by its broad proscription, enjoins holders of  
public offices within its ambit from any participation in matters in which their  
economic self-interest may be in conflict with their public duty. The public’s  
confidence in its elected representatives demands no less.  
Legislation of this nature must, it is clear, be construed broadly and in a  
manner consistent with its purpose.  
[Emphasis removed.]  
[54] In Elliott, the question arose whether the interest-in-common exception could  
apply when the “community of interest” is not all the ratepayers but instead, only a  
subset of ratepayers who are affected by a local improvement by-law. The Court  
held that “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” (emphasis added): Elliott at para. 28. It had been argued that if the  
exception were to apply only when the interest was shared with all the other  
ratepayers, local improvements might be blocked. In Elliott, the Court found that a  
Redmond v. Wiebe  
Page 19  
councillor was not prohibited from voting on a by-law that would authorize the  
construction of a sewer along a street where he owned property.  
[55] In Re Blustein, it was argued that a district plan covering approximately 4,350  
acres would increase the value of property owned by one of the councillors.  
However, his interest was “the same interest or the same community of interest  
which any other ratepayer or landowner in the area would also have” (emphasis  
added). So, he was not restricted from voting on the by-law. The judge was not  
concerned with weighing precisely whether the particular benefit that would accrue  
to the councillor’s property was greater than that of other properties in the area: what  
matters is “the kind, not the degree, of the interest” (emphasis added).  
[56] Other cases support an interpretation that does not require the interest to be  
held in common with all electors of the city. See e.g., Re Hoeppner, [1976] 4 W.W.R.  
481 at 491, 1976 1525 (B.C.S.C.):  
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.  
[Emphasis added.]  
[57] See also, Stewart v. Yorkton (City) (1982), 16 Sask. R. 258, 1982  
2530 (Q.B.) [Stewart], in which a mayor and councillor were shop-owners and voted  
in favour of a by-law that would change opening hours. The judge held (at para. 15):  
[15]  
The interest… is one they had in common with all other managers and  
owners of businesses in Yorkton governed by the bylaw. It was the same kind  
of interest although it may have differed in degree.  
[16]  
The question, therefore, arises: did an interest held in common of the  
same kind but different in degree, with a segment of the residents of a  
municipality as opposed to all the residents of the municipality, entitle the  
mayor and the councillor to vote on the bylaw?  
[17]  
The answer to the question is “yes”. …  
[58] In Re Ennismore, the judge was faced with a similar argument to that of the  
petitioners here. The applicable statute provided an exception wherein restrictions  
on participation did not apply “by reason of the member having a pecuniary interest  
Redmond v. Wiebe  
Page 20  
which is an interest in common with electors generally.” The judge disagreed that  
this meant “all electors”:  
14  
… the Interested Parties argue that the term “electors generally”  
means “all electors” within the area subject of the dispute. With respect, I  
disagree with the submission.  
[59]  
Like the chambers judge in this case, the judge in Re Ennismore read “with  
electors generally” to mean something different than “all electors.” He set out a test  
that would ask, “does the member of council have a pecuniary interest in the matter  
being considered by council, and, if yes, is it different in kind and not merely degree,  
from any pecuniary interest that those electors affected by the matter have in it”: at  
para. 21.  
[60] In Casson v. Reed (1975), 60 D.L.R. (3d) 455, [1975] 6 WWR 431 (Alta. S.C.  
(App. Div.)) [Casson], it was accepted that a recreational complex approved by  
council would drive up the value of “all land within a radius of five miles,” including  
that of a councillor who had voted in favour of the complex: at 462, 466. But, the  
councillor in Casson did more (at 465):  
Returning to the circumstances in which Reed voted on July 15th, he had a  
community of interest in the development of a recreational complex which in  
the end would have the effect of enhancing the value of lands in the  
community in varying degrees. On the above authorities his vote on the  
question, if there were nothing more in this case, would not subject him to  
disqualification. But the case does not end there. Throughout the relevant  
period, he was actively engaged in subdividing the quarter-section and in  
selling the resulting lots at a very substantial profit.  
[Emphasis added.]  
[61] In Guimond v. Sornberger (1980), 115 D.L.R. (3d) 321, 13 M.P.L.R. 134 (Alta.  
C.A.) [Guimond], a secretary, superintendent, and accountant of a large employer (a  
pulp mill) in a town were elected to municipal council. They voted against a town  
plan that had the potential to increase traffic along routes used for the mill’s  
transport. The employees/councillors argued that they were in a “community of  
Redmond v. Wiebe  
Page 21  
interest.” The Court of Appeal accepted the trial judge’s conclusion on this (at  
para. 18):  
The short answer to this contention is that the interest that the respondents  
have in the matter and in the continued success of their employment through  
consciously or unconsciously preferring to be looked upon favourably by their  
employer, or to avoid occurring his displeasure, is quite a different thing from  
the interest of all the other employees in the welfare and success of St.  
Regis. This to my mind is a difference in kind and not in degree.  
[62] In Godfrey et al. v. Bird and District of North Saanich, 2005 BCSC 626  
[Godfrey], a councillor had participated in discussions and votes regarding zoning  
changes that would affect up to 48 properties in the area. One issue was whether  
the indirect pecuniary interest that the councillor had in a property was one that was  
“in common with the electors of the municipality generally” (applying s. 104 of the  
Community Charter). On this point, the judge decided (at para. 97):  
Mr. Bird knew throughout that it was the opinion of the solicitors for the  
District that, in order for a councillor to have a pecuniary interest in common  
with the electors of the District generally, it would be necessary for the  
pecuniary interest to relate to in excess of 100 properties. To the knowledge  
of Mr. Bird, the Ardmore Property was one of less than 50 properties within  
the District that were being considered by the Committee and Council.  
Without assuming that less than 100 properties in any municipality will mark  
the boundary between an interest “in common with the electors of the  
municipality generally” and an interest which is not “in common”, I am  
satisfied that the solicitors for the District were correct in concluding that 100  
properties would be the appropriate “boundary” for this District.  
[63] I would adopt a reading of the interest-in-common exception consistent with  
that from Re Ennismore: electors generally does not mean all electors.  
[64] It is clear that an interest held in common with some other electors has been  
sufficient to engage the interest-in-common exception: see e.g., Elliott (a street’s  
sewer); Re Blustein (a local district plan); Re Hoeppner (all properties zoned RT-2);  
Stewart (all store owners in Yorkton); Casson (all properties within a five-mile radius  
of a proposed recreational centre); Re Ennismore (only electors within the study  
area).  
Redmond v. Wiebe  
Page 22  
[65] However, even if there is some shared interest between the councillor and a  
segment of the electors, actions of the councillor or specifics of the by-law may  
cause the councillor’s interest to be different in kind. In such a case, the councillor  
cannot be said to hold an interest in common with the broader group: Casson (where  
the councillor was actively subdividing and selling his affected properties), Guimond  
(where the councillors had an interest that was “quite a different thing from the  
interest of all the other employees” of the mill).  
[66] And the population of electors with which the councillor shares the interest in  
kind must also be sufficiently large—a “significant segment” of electors: Re  
Hoeppner; see also Re Ennismore (there are “more, perhaps many, within the study  
area than just the member of council”); Godfrey (in which the judge accepted that  
100 properties sharing the interest would have been sufficient to establish an  
interest in common with electors generally, but in the circumstances, fewer than 50  
properties so benefited).  
[67] The onus of proof in bringing oneself within the interest-in-common exception  
is important. There is discrepancy in the case authority. In Allan v. Froese, 2021  
BCSC 28, the Supreme Court held that the onus was on the petitioners—those  
bringing the disqualification application—to prove that the exceptions, including the  
interest-in-common exception, do not apply: at para. 28. However, there is also the  
approach taken in Fairbrass. In Fairbrass SC, Rodgers J. said that after establishing  
that an official participated in a meeting despite a pecuniary interest (stage one), “the  
process shifts the onus onto the official” (stage two). He goes on to describe some of  
the potential excuses at this second stage: inadvertence, an error in judgment made  
in good faith, or s. 104 of the Community Charter (the analogue to s. 145.6(1) of the  
Vancouver Charter). On appeal, this Court said that those reasons for judgment  
“properly reflect the burden on the petitioners.”  
[68] The judge here held (at para. 99):  
[99]  
I prefer the approach to the two-step analysis taken in Fairbrass SC,  
as affirmed by the Court of Appeal, over that in Allan. That is, I conclude that  
Redmond v. Wiebe  
Page 23  
the onus of proof under the second stage of the analysis lies with the  
respondent. Therefore, in my view, the following two-stage approach applies:  
1)  
At the first stage, a petitioner has the burden of proving on a  
balance of probabilities that an official had a conflict of interest  
by establishing that he/she had a direct or indirect pecuniary  
interest in a matter, as set out in s. 145.3(1) of the Vancouver  
Charter. Then, the petitioner must prove that, despite having a  
pecuniary interest, the official offended any of the restrictions  
listed under ss. 145.3(2). If the petitioner establishes the  
requisite elements under ss. 145.3(1) and (2), the inquiry then  
proceeds to the second stage. If they are not established, that  
is the end of the matter and the petition must be dismissed.  
2)  
At the second stage, the burden shifts to the respondent to  
prove that he/she acted inadvertently or made an error of  
judgment in good faith under s. 145.3(3) or that he/she is  
otherwise excused under one of the exceptions listed under  
s. 145.6(1). If the respondent fails to discharge this burden, the  
Court must disqualify him from office for the specified period of  
time provided under s. 145.911.  
[Emphasis added.]  
[69] I agree, following Fairbrass, that the burden lies with the respondent at the  
second stage.  
Application  
[70] As I have related, the judge rejected the appellants’ submission that the  
appropriate comparator or class against which the councillor’s pecuniary interest is  
compared is the electors of the City: in total, some 453,190 persons at the relevant  
time. In respect of that group it is submitted that Councillor Wiebe most assuredly  
did not share a common pecuniary interest in the TEPP Program.  
[71] I accept the judge’s conclusion in this regard and agree that the cases to  
which he referred support this conclusion. I have reviewed some of these above, but  
in particular, the judge quoted and relied upon Justice Anderson’s decision in Re  
Hoeppner, and I reproduce that extract:  
The second case, Elliott v. St. Catharines (1908), 18 O.L.R. 57 (C.A.) deals  
with the point that where the legislation is for the benefit of the public at large,  
or a substantial segment thereof, it cannot be said that the elected official is  
biased merely because he gains a benefit from the legislation. The judgment  
of Meredith, C.J. reads in part, at p. 61, as follows:  
Redmond v. Wiebe  
Page 24  
“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:  
(a)  
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.  
(b)  
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  
Redmond v. Wiebe  
Page 25  
is that a benefit enjoyed by an elected official in common with other members  
of the public is not a pecuniary benefit. The same is not so in the case of non-  
disclosure. If a zoning by-law is recommended as being in the public interest  
by an alderman, with extensive professional experience, the members of  
Council might well be influenced by his recommendations. If, however, the  
members of Council were also aware that the alderman owned property  
which would be enhanced in value as the result of passing the by-law, they  
might not pay much attention to his recommendations. As at present advised,  
while it would seem that full disclosure must be required in all such matters,  
the failure to disclose would not, in itself, be a ground for quashing a by-law  
enacted in the public interest. It must be remembered that the interests of  
those members of the public favourably affected by the by-law must be  
protected and by-laws enacted in the public interest will not be lightly struck  
down. I think, however, that the issue of non-disclosure is still open to be  
argued in a future case, should the occasion arise.  
[72] The judge went on, however, to settle on the 3,127 holders of restaurant and  
bar licences issued in 2019 as the appropriate comparator.  
[73] The judge concluded (at para. 135):  
Overall, I conclude that the respondent did have a pecuniary interest in  
common with the owners of restaurants and bars in Vancouver in May 2020.  
This included during the meetings on May 13, 2020 and May 27, 2020. All  
members of this group benefitted from the decision of Council to expand patio  
seating. Applying s. 145.6(1)(a), the respondent has satisfied the burden of  
proving his pecuniary interest came under that provision and he is entitled to  
the exception to conflict restrictions described in that provision. Further, by  
operation of s. 145.6(1)(a), ss. 145.2 to 145.5 of the Vancouver Charter do  
not apply to the respondent for his participation and voting at those meetings.  
[74] The judge is here conflating the fact that the TEPP Program, on its face,  
applies to all restaurant and bar licensees in the City with the conclusion that they  
accordingly share a common pecuniary interest in its promulgation. Respectfully, the  
judge is assuming without analysis that all licensed restaurant and bar owners  
properly form the comparator group. This ignores, however, that a principled  
application of the test requires homogeneity in that group; that its members share a  
pecuniary interest similar in kind although not necessarily in degree: Guimond at  
para. 18; Casson at 463; Stewart at para. 15. An error in principle of this sort is an  
error of law.  
Redmond v. Wiebe  
Page 26  
[75] Sharing a pecuniary interest in kind in respect of a policy like the TEPP  
requires more than being a member of a group that might benefit from it, ignoring the  
application requirements. The “sharing a pecuniary interest in kind” analysis in this  
context must take into account how the policy will work “on the ground”—in reality.  
Just as a councillor whose pecuniary interest in a matter is too insignificant or too  
remote is excepted from the conflict-of-interest restrictions, when an elector’s  
purportedly shared interest is too insignificant or remote, it ceases being similar in  
kind. In Godfrey, for example, the judge reviewed the on-the-ground reality to  
conclude that even if the municipal council had proceeded with a new Country  
Estate zone, there were fewer than 50 properties with “sub-division potential.” And  
“on the ground” here, the group realistically sharing common ground is much smaller  
than “all the restaurant and bar licensees in the City of Vancouver.”  
[76] On a proper analysis, the comparator group of licensees who can be said to  
enjoy a common pecuniary interest similar in kind, is that segment of the 3,127  
restaurant and bar licensees who were ready and considered themselves able to  
take advantage of the TEPP Program during its initial limited availability (June to  
November 2020). The only evidence of the size of that group is the number of such  
licensees who applied to take advantage of the program. We do not have a precise  
number covering the entire period but we do have evidence that only 452  
applications were received by the City by September 2020. The only inference that  
can be drawn on the evidence is that over the entire period a relatively small number  
of licensees fell within the comparator group. And we do know that of these only 334  
applicants received permits.  
[77] That the comparator group is so limited is clear from the fact that the program  
imposed various requirements on applicants.  
[78] To receive a TEPP permit, an owner was required to comply with various  
design requirements, including “[a] clear exit path from the door to the sidewalk that  
is at least as wide as the door,” “[a]n accessible design, with ramps,” “[a] deck to  
accommodate a sidewalk slope exceeding 5%, or to meet accessibility  
Redmond v. Wiebe  
Page 27  
requirements,” [n]o blocking of any entrances and exit, loading, garbage, [and/or]  
recycling zones.” There were also minimum clearance requirements from structures  
to fire department connections and utility access points.  
[79] Again, I emphasize that the onus is on Councillor Wiebe to bring himself  
within the interest-in-common exception. For Councillor Wiebe to rely on an interest  
shared with a meaningfully larger group, the burden is on him to show it.  
Accordingly, the respondent has not met his burden in proving a more definitive view  
of a similarly interested class numbering anything significantly above the actual  
number of TEPP Program permits actually issued or applied for.  
[80] To summarize, at its largest, I would describe the appropriate similarly  
interested class as those restaurant and bar licensees who were, in the relevant  
period 1 June 2020 to 31 October 2020, ready and considered themselves able to  
make application for a TEPP permit. This is a group significantly smaller than “all  
restaurant and bar licensees” in the City in 2019 and numbers in the hundreds.  
[81] How small must the class of those sharing the pecuniary interest become  
before the benefit of the exception is lost?  
[82] The judge here appears to conclude that the benefit received by the councillor  
must be singular and “distinct to his particular case” (at para. 124):  
The petitioners suggest that the respondent received a business advantage  
when the expanded patio seating was approved by Council. That seems self-  
evident but the point is that the comparator group of restaurant and bar  
owners of which the respondent was a member received the same  
advantage. It is also apparently the case that the respondent’s businesses  
received immediate approval of its licences to have patio seating but, again,  
that is true of the other 45 applications who were waiting for licences (the  
respondent’s business interests were among the first 14 establishments to be  
given temporary permits). This would be a very different case if there was  
some evidence that the respondent received an indirect or direct pecuniary  
interest separate from the other owners of restaurants and bars and distinct  
to his particular case.  
Redmond v. Wiebe  
Page 28  
To the same effect is para. 141 of the reasons for judgment:  
At the second stage (where the respondent has the onus), I conclude that the  
respondent had a pecuniary interest in common with other members of the  
group of restaurant and bar owners. 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. Under s. 145.6(1)(a) the respondent is  
entitled to an exception from the restrictions on conflicts of interest as set out  
in other provisions of the Vancouver Charter.  
[Emphasis added.]  
[83] With respect, I say this is a too narrow view of the circumstances in which the  
exception may be lost. It suggests that one must bring the councillor within a class of  
one. It is not that it is incorrect to say that the exception is lost if the councillor has a  
pecuniary interest “separate from the other owners of restaurants and bars and  
distinct to his particular case.” But it is wrong to say that the exception is available to  
everyone except the person who has an individualized, separate, and distinct  
benefit. The exception is not so readily available: the “ineligible group” is not  
restricted to the single councillor enjoying a singular advantage.  
[84] The cases in this area call for the exception applying where the pecuniary  
interest is shared “by a significant segment of the public”: Re Hoeppner at 491.  
[85] As I have said, the burden of proving that rests on Councillor Wiebe. It is  
apparent on the record that he did not meet that burden. I also emphasize that this is  
not a case where the group of similarly interested parties is on the cusp of what  
would be considered a large enough group. What evidence there is of the scope of  
the relevant “segment of the public” in this case is that it is very small. Obviously this  
is not a simple exercise of numbers: “2000 parties benefiting in kind is enough but if  
1990 is the number the exception is lost,” is not an appropriate approach. It is a  
matter of judgment, keeping in mind the purpose of the legislation and the directions  
of this Court in Schlenker (at para. 38) speaking of kindred conflict of interest  
legislation in the Community Charter and already quoted above at para. 53:  
This enactment, like all conflict-of-interest rules, is based on the moral  
principle, long embodied in our jurisprudence, that no man can serve two  
masters. It recognizes the fact that the judgment of even the most well-  
meaning men and women may be impaired when their personal financial  
Redmond v. Wiebe  
Page 29  
interests are affected. Public office is a trust conferred by public authority for  
public purpose. And the Act, by its broad proscription, enjoins holders of  
public offices within its ambit from any participation in matters in which their  
economic self-interest may be in conflict with their public duty. The public’s  
confidence in its elected representatives demands no less.  
[86] Here I have concluded that the judge erred in law in determining that only a  
pecuniary interest distinct to the councillor himself would be sufficient to lose the  
exception. In my view, good judgment would conclude, as do I, that Councillor  
Wiebe did not share a pecuniary interest in this matter similar in kind with a  
significant segment of the public, with the electors generally, as required by  
s. 145.6(1)(a) of the Vancouver Charter. Quite simply, the class of persons with  
whom Councillor Wiebe might be said to share a pecuniary interest is too small a  
segment of the community to found an application of the exception.  
[87] But I would go further. Even if the class of persons I have described (the  
hundreds of permit applicants) were large enough to support the interest-in-common  
exception, Councillor Wiebe has on the facts distinguished himself from that class  
and put his pecuniary interest in common with an even smaller group. Here I would  
draw on the analogy presented in Casson. That case involved an application to  
disqualify a councillor under the familiar statutory scheme. He voted in favour of a  
recreational facility that would increase the value of his land in the immediate vicinity  
and “all land within a radius of five miles.” It was held that his shared interest with  
others within that radius would have “saved” the councillor under the “community of  
interest” exception. However, the councillor was actively engaged in subdividing and  
selling his lots as substantial profit. He was disqualified.  
[88] The court reasoned (at 466):  
Haddad, D.C.J., held that the profit made or in the course of being realized by  
Reed was an interest personal to him, not a matter of communal interest, and  
I agree. Certainly it cannot be argued that it was a matter of community  
interest that the complex be developed for the purpose of enhancing land  
values and realizing a profit thereon. On Reed’s own evidence the purpose  
was to improve the amenities of the community. It is this purpose that is  
recognized as legitimate by statute, and the enhancement of land values in  
the community resulting from the proposed conversion of a nuisance ground  
to an elaborate recreational complex was, it might be said, inevitable. But  
Redmond v. Wiebe  
Page 30  
Reed actively embarked on a course to realize the value of the lands in which  
he was interested as vendor, and as shareholder of the purchasing company  
which stood to make a huge profit on the sale of lots. In January he applied  
for rezoning of the land; in February the survey into 36 lots was completed; in  
May he applied for subdivision, and by June he was engaged in selling the  
lots. From May 7th on, the record shows that he was actively engaged in  
furthering the proposed recreational complex upon which the enhancement of  
value has been found to be based. As Haddad, D.C.J., pointed out, his  
interest in making a profit was personal to him, and the enhancement of  
values must have its effect on the profits. In short, Reed did not displace the  
presumption of bias arising out of his pecuniary interest in the vote, and in  
this aspect of the matter no community of interest existed to except him from  
the operation of s. 30. I would dismiss the cross-appeal on this point.  
[89] Here Councillor Wiebe was in a class of licensees who could immediately  
enjoy the benefits of the TEPP Program and he clearly knew it—witness the  
celebratory clinking-of-glasses emoji. In this case, not unlike the councillor in  
Casson, Councillor Wiebe was very active in pursuing the benefits he obviously  
perceived in the TEPP Program. He proposed an amendment to the Kirby-Yung  
motion—an amendment that directed staff to “work directly with business operators  
to identify immediate patio seating options….” His “input and feedback” was  
particularly noted and appreciated by Councillor Kirby-Yung. He actively seconded  
the critical motions for by-law amendments on 27 May 2020. He celebrated their  
passage with direct reference to his own business operation. He was among the first  
14 businesses awarded the TEPP on 4 June 2020, literally days after the  
inauguration of the program and within eight days of the vote on the critical by-law  
amendments. Clearly Councillor Wiebe was considering and actively pursuing his  
private interest in the TEPP Program while exercising his public duties as an elected  
Councillor.  
VII. Disposition  
[90] It remains the case that the court below has not considered whether the  
“good faith” excuse at s. 145.3(3) might apply. It states:  
(3) A person who contravenes this section is disqualified from holding office  
as described in section 145.911 [disqualification for contravening conflict  
Redmond v. Wiebe  
Page 31  
rules] unless the contravention was done inadvertently or because of an error  
in judgment made in good faith.  
[Emphasis added.]  
[91] Councillor Wiebe also responded that his pecuniary interest is so remote or  
insignificant that it cannot be reasonably regarded as likely to influence him in  
relation to the matter: see Vancouver Charter, s. 145.6(1)(d). This remoteness  
exception was likewise not addressed by the judge, given that he had concluded that  
the interest-in-common exception applied.  
[92] 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. But this Court is simply not in the position to decide whether either of the  
additional defences apply. And even if a disqualification remedy were to become  
moot, the appellants have also sought a declaratory remedy against the respondent,  
which would still be available: see e.g., Schlenker at paras. 22–24.  
[93] I would allow the appeal and set aside the order below that dismissed the  
petition.  
[94] I would further declare that:  
a) subject to Councillor Wiebe establishing in the court below that ss. 145.2  
through 142.5 do not apply by operation of the exception at s. 145.6(1)(d)  
(the remoteness exception), he has contravened ss. 145.2(2) (the  
requirement to declare a conflict), 145.3 (restrictions on participation when  
in conflict), and 145.4 (restrictions on inside influence); and  
b) the exception under s. 146(1)(a) does not apply in these circumstances.  
[95] It would be premature to declare that Councillor Wiebe is disqualified. As  
mentioned, the remoteness exception is argued. And even if the remoteness  
exception does not apply, the disqualification provided at ss. 145.3(3) and 145.4(2)  
can be avoided if Councillor Wiebe demonstrates that the contravention was done  
inadvertently or because of an error in judgment made in good faith.  
Redmond v. Wiebe  
Page 32  
[96] Accordingly, I would remit these remaining questions—applicability of the  
remoteness exception and the good-faith excuse—to the Supreme Court of British  
Columbia and adjourn the petition to that end.  
“The Honourable Chief Justice Bauman”  
I agree:  
“The Honourable Justice Dickson”  
I agree:  
“The Honourable Mr. Justice Fitch”  


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