What makes a municipal Councillor's vote "bad"?
Where do we draw the line between proper considerations and
malicious misuse of power? The British Columbia Supreme Court
examined these issues in a recent ruling in
Rodgers v. Sechelt (District), 2015 BCSC 687.
The bistro and the liquor store
In 2005, Mr. Brock Rodgers applied to the District of Sechelt to
re-zone certain lands in West Sechelt to permit the construction of
a bistro. Mr. Rodgers intended the bistro to operate with a
liquor-primary license – a license typically issued for pubs,
bars and other facilities engaged primarily in the sale of
Together with the bistro, Mr. Rodgers wished to open a liquor
store on nearby Sechelt Indian Band lands (the "Band
Lands"). The bistro was crucial for this
purpose: pursuant to the liquor laws in place at the time, the
Liquor Control and Licensing Branch
("LCLB") would only issue the liquor
store license to Mr. Rodgers if he also held a concurrent
The District initially supported the rezoning bylaw which would
allow the bistro (the "Bylaw"). However,
after the public hearing, Council resolved that the bistro would be
permitted only with a food-primary license – a license
typically issued to restaurants. This, of course, would
thwart Mr. Rodgers' plan to open the liquor store on the Band
Lands (which required a bistro operating pursuant to a
A flurry of activity followed the District's decision,
including a delegation from the Sechelt Indian Band, which asked
Council to reconsider its decision. Council agreed, rescinded
the second and third readings of the Bylaw, and convened a second
The second public hearing was more controversial than the first,
with many people expressing concerns about the liquor store.
Ultimately, Council rejected the Bylaw. After the vote,
various Councillors made comments about the rezoning, with
Councillor Thirkell stating that "although I am married to
a native, I do not believe that the natives should be allowed to
In mid-June 2007, the LCLB cancelled the liquor-primary license
which Mr. Rodgers planned to use for the bistro and terminated the
application for the liquor store license.
Was the vote "bad"?
Mr. Rodgers challenged the vote to reject the Bylaw.
Relying on Councillor Thirkell's statement (above), Mr. Rodgers
argued that Council was motivated by an unlawful purpose - namely,
limiting liquor store competition. The District argued that
there was no evidence to support Mr. Rodgers' argument.
Madam Justice Balance of the BC Supreme Court agreed with Mr.
Rodgers that Council could not consider the desirability of the
liquor store as part of the rezoning, even if members of the public
commented on this point.
However, Justice Balance found that, except for Councillor
Thirkell's statement, there was no evidence to suggest that
Council in fact considered this issue. As for Councillor
Thirkell's statement, while the Court found it to be
"blatantly improper", it was made after the
bylaw was defeated and – therefore – was not indicative
of the reasons behind Council's decision.
This case illustrates the deference accorded by Courts to
elected officials. To establish that a municipal Councillor's
vote is "bad", or that Council misused its power, there
must be "a solid basis of proven facts" (to
quote Justice Balance).
Also, this case serves as a helpful reminder that there may be a
fine line between lawful and unlawful considerations at rezoning
– especially when dealing with complex developments. As
a rule, the scope of rezoning is restricted to the site being
rezoned, even if the project as a whole affects another site.
On this point, we refer you to the recent BC Court of Appeal
Community Association of New Yaletown v. Vancouver (City), 2015
BCCA 227 on which we previously reported here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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