Yes, but only with a court order and only in exceptional circumstances.
Section 100 of the Community Charter (the "Act") requires council members to disclose matters which are before Council in which they have a pecuniary interest or other conflict and stipulates that they are not to participate in discussion, vote, or attempt to influence the voting on a matter in which they have a conflict of interest. If a municipality cannot achieve the quorum necessary to vote on a council matter because of conflicts of interest, section 129(4) of the Act allows a municipality to apply to the Supreme Court for a "without notice" order permitting council members to vote on the matter despite their conflicts of interest. In the recent case of Port Clements (Village) (Re), 2015, BCSC 1675 , the Honourable Madam Justice Harris clarified the scope of a municipality's duty of disclosure under section 129(4) and the process required to set aside an order issued under that section.
In Port Clements, a land owner, Infinity West, applied to the Village of Port Clements (the "Village") to re-zone its property to allow for the construction of a barge facility. The Village is a small municipality of approximately 350 people in Haida Gwaii, governed through an elected Council, comprised of the Mayor and four councillors. Prior to the adoption of a re-zoning bylaw which would have permitted the barge facility to proceed, the Mayor and two councillors declared that they could not vote on the re-zoning bylaw due to conflicts of interest. More particularly:
- the Mayor was indirectly employed by Infinity West, through a sub-contracting company;
- one councillor had an agreement with Infinity West to conduct log booming; and
- another councillor had friendships with the principals of Infinity West and family members employed by one of its competitors.
The Village obtained an order from the Supreme Court permitting the Mayor and the two councillors to vote on the re-zoning bylaw, despite their conflicts of interest (the "Order"). Four residents of the Village applied to set aside the Order on the basis that the petition and the affidavits filed in support of the petition failed to disclose to the court all of the relevant and material facts that were related to the involvement of the Mayor and councillors in the re-zoning application.
When the matter came before Madam Justice Harris, the Village argued that the residents' application should be dismissed on the basis that: (1) the residents did not have standing to apply to set aside the Order; (2) the residents' application could not be brought under the Supreme Court Civil Rules; and (3) the Village complied with its duty of disclosure under section 129(4) of the Act.
Madam Justice Harris granted the residents public interest standing to bring their application, finding that the residents had a genuine interest in the matter, and that their application was a reasonable and effective way to bring their concerns before the court. She confirmed that the residents' application was properly brought under Rule 8-5(8) of the Supreme Court Civil Rules, which permits a court to set aside a "without notice" order. Finally, while she agreed with the residents that the Village had a duty to disclose all facts that were "relevant and material" to its application, and that the court materials provided by the Village were "lean", she ultimately concluded that the Village discharged its duty of disclosure and declined to set aside the Order.
Port Clements confirms that:
- Insofar as section 129(4) of the Act allows elected officials to be involved in a matter despite a declared conflict of interest, the remedy provided for under section 129(4) is an exceptional remedy, which will only be permitted with court approval and subject to judicial oversight.
- An order issued under section 129(5) of the Act may be challenged by residents with a genuine interest in the council matter subject to the order - but not by "mere busybodies".
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