The Court of Appeal has ruled against the Appellants in the decision of Fairbrass v. Hansma 2010 BCCA 319, upholding the lower court’s decision that the Mayor of the Township of Spallumcheen did not have a direct or indirect pecuniary interest in relation to a proposed amendment of the Township’s Official Community Plan.
A salient fact of the case is that the proposed Official Community Plan amendment would have allowed a person to seek a zoning amendment permitting a smaller minimum parcel size of 2.5 acres. The Mayor’s property was only 4 acres and therefore he would not have been able to subdivide his property. However, his two sons who co-owned an adjacent 10 acre property, would have been able to subdivide their property, potentially deriving a pecuniary benefit.
The Official Community Plan amendment bylaw was defeated at third reading and the Mayor participated in the vote based on a legal opinion that he was not in a conflict. The Petitioners proceeded with their petition, despite the defeat of the bylaw, based on the disqualification provision in section 101 of the Community Charter.
The lower court held that, as to the potential disqualification based on the Mayor’s direct pecuniary interest, the Petitioners presented no evidence to support hypothetical scenarios from which they alleged the Mayor might directly benefit. The first was that he could acquire additional land to enable the subdivision of his property. The second was the possibility that the bylaw might be amended in the future to allow even smaller parcels.
On whether the Mayor had an indirect pecuniary interest because of his sons’ property, the lower court also found no evidence in support. The sons did not have a financial relationship with their father nor was there an intertwining of their financial affairs.
The Court of Appeal agreed with the lower court judge. It found the Appellants had the burden of proving the direct or indirect pecuniary interest. The Appellants had merely speculated that the bylaw amendment would make the property more valuable and that the Mayor might acquire additional lands. Additionally, the possibility that further changes to the bylaw might create an interest was too speculative.
This case is significant in two ways. It confirms the principle that a familial relationship does not by itself create a pecuniary interest. It also clearly assigns the burden of proving a direct or indirect pecuniary interest on those alleging it. The burden is not discharged with speculation; there must be evidence to support it.