Yes, but only with a court order and only in exceptional
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
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
the Mayor was indirectly employed by Infinity West, through a
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
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).