In Reasons for Judgement issued January 8, 2021 in Allan v Froese, 2021 BCSC 28 [Allan], the BC Supreme Court upheld the long-standing principle that the acceptance of a campaign contribution from a developer to an elected local government official does not establish that the official has a monetary interest in that developer’s matters before council without evidence of “something more”.
Jeff Locke and Andrew Buckley of Stewart McDannold Stuart “vigorously defended” the mayor, two current councilors and one former councilor from the Township of Langley in the Allen matter and successfully argued that the fact that a developer’s development applications were “in-stream” before council at the time the contributions were received does not constitute that “something more”. As Justice Walker concluded at the end of his judgement:
[102] I agree with the respondents’ submissions that elected officials are expected to have opinions about civic priorities and policies and to campaign on those positions. A candidate who receives campaign contributions from supporters of their positions and then carries out their promises when elected does not, without more, breach the conflict of interest provisions of the Community Charter. As the case authorities establish, electors have a democratic right to make campaign contributions to a candidate they believe will support policies or platforms they wish to see enacted or undertaken.
Much of the argument in the case surrounded the appropriate legal test for determining whether an elected official has a conflict of interest pursuant to the conflict provisions contained in ss. 101, 104, and 108.1 of the Community Charter. Clarifying the test was important given that the “singular penalty for breaching s. 101 is severe: the elected official is disqualified from holding office until the next election”.
The test, as laid out at paras. 26-32 of Allen, is as follows:
- The petitioners must prove, on a balance of probabilities, that the elected official had a “direct or indirect pecuniary interest in the matter under consideration” by council;
- If step one is proven, the petitioners must then show that the exceptions in s. 104(1) of the Community Charter do not apply, these include showing that:
- the pecuniary interest is not an interest held in common with electors of the municipality generally,
- the pecuniary interest does not relate to remuneration, expenses or benefits payable to the council member in relation to their duties as a council member; and
- a reasonably well-informed person would conclude that the pecuniary interest can reasonably be regarded as likely to influence the member in relation to the matter.
- If the exceptions in step two are shown not to apply, the onus then shifts to the respondents to demonstrate that the official should, nonetheless, not be disqualified because their contravention was inadvertent or due to a good faith error in judgement.
After articulating the test, Justice Walker then turned to an application of the facts to the test. At para 65, he concluded that “there is no evidence that any of the respondents had any direct or indirect pecuniary interest in the developers’ projects put in issue by the petitioners”.
As the claim failed at the first stage of the test, the Court was not required to assess the next two stages. Nonetheless, the Court concluded that even if the petitioners had proven the first stage of the test, they had not established that “a reasonably well-informed person would conclude that any such pecuniary interest would likely influence the respondents in the exercise of their public duties”. Each of the developers’ projects were within the bounds of the Township’s legislative authority, had been considered by planning Township staff, and the applications were recommended to Council by the planning staff who had vetted each project. In each instance, “the respondents’ votes were consistent with staff recommendations as well as the respondents’ own well-known pro-development campaign platforms”.
Lastly, with regards to the third stage, the Court accepted “the respondents’ unchallenged evidence that they acted in good faith and in the best interests of the Township throughout.”
Ultimately, the Court articulated its opinion of the petitioners’ case as follows:
[73] The petitioners’ claim is not based on evidence, but on speculation and suspicion founded solely on imprecise assertions of temporal proximity, which is insufficient to establish a pecuniary interest and insufficient to challenge the respondents’ evidence. There is no evidentiary basis to support a submission that the respondents had a direct or pecuniary interest in the matters – i.e., the developers’ various projects – before Council for consideration and vote. The petitioners’ case does not rise to the point where I am even required to assess the reliability of their evidence…
The Allen decision is important in analyzing the conflict of interest provisions in the Community Charter, clarifying the necessary evidence needed to support a claim brought under those provisions, and examining the interplay between the democratic right to receive campaign contributions and the trust that the public must have that such contributions will not interfere with the expectation that elected officials act in the best interest of their community.
