140613 Whiteway Et Al v Meggs,Jang

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O F \ ~ ~ ~ ~ ~ ~ g ~ t l ~ J A Form (Rules 16-1 (2) and 21-5 (14)V NCOUVER REGISTRY No .... .; . . .

VN 1 3 2014 Vancouver Registry

*j'n tbe ~ u p r m t ourt of ) tfti,Gb ~ o l u m l t fBETWEEN:ERIK WARREN WHITEWAY, JAK ROBERTS KING, WILLIAM ABRAHAM FOOK WAH

LIM, NATHAN OLIVER CROMPTON, TREVOR JOHN MCEACHRAN, GRANTMUNRO FRASER, HENDRIK.US MARINUS BEUNE, WILLIAM RIDER O O E ~ JAMES

GERRARD MCLEAN, DEAN WILLIAM MATTATALL, ISABEL FERGUSON MINTYPETITIONERS

AND:GEOFFREY MEGGS and KERRY JANG

RESPONDENTSRe: Heather Place Rezoning'

PETITION TO THE COURT[Rule 22-3 of the Supreme Court Civil Rules applies to all forms.]

THIS IS THE PETITION OF:Erik Warren Whiteway302 865 West 15th AvenueVancouver BC V5Z IRSJak Roberts King202-183 7 Adanac StreetVancouver, BC VSL 2E1James McLean305-310 Alexander StreetVancouver, BC V6A 1C4

Dean Mattatall210-134 Powell StreetVancouver, BC V 6A 1G 1William Rider Cooey800 GreenchainVancouver, BC V 5Z 3Z7Nathan Crompton308-25 East 12th AveVancouver, BC VST 2G6

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Trevor John McEachern3 7 E Pender Street,Vancouver, BC V6A lVl

ON NOTICE TO:Geoffrey Meggs819 SawcutVancouver, C V57 4A2Kerry Jang3005 E 16th Ave

William Abraham Fook Wah Lim2486 Venables StreetVancouver, BC V5K 1P9Grant Munro Fraser2378 Garden DriveVancouver, BC V5N 4X3Vancouver, BC V5M 2MXCity ofVancouver453 West 12th AvenueVancouver, BC V5Y 1V4

This proceeding has been started by the Petitioners for the relief set out in Part I below.If you intend to respond to this petition, you or your lawyer musta) file a response to petition in Form 67 in the above-named registry of this court within

the time for response to petition described below, andb) serve on the petitioner s)

i) 2 copies of the filed response to petition, andii) 2 copies of each filed affidavit on which you intend to rely at the hearing.

Orders including orders granting the relief claimed may be made against you without anyfurther notice to you i you fail to me the response to petition within the time for response.

Time for response to petitionA response to petition must be filed and served on the petitioner s),

a) if you were served with the petition anywhere in Canada, within 2 days after thatservice,b) if you were served with the petition anywhere in the United States ofAmerica, within

35 days after that service,c) if you were served with the petition anywhere else, within 49 days after that service , ord) if the time for response has been set by order of the court, within that time.

The address of the registry is:1) ~ w Courts, 800 Smithe Street, Vancouver, British Columbia V6Z 2El2) The ADDRESS FOR SERVICE of the Petitioners is:

c/o FRANCESCO GRAYER LLP Suite 103-1416 Commercial Drive, Vancouver,British Columbia, Canada V5L 3X9


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E-mail address for service o the Petitioners: [email protected] name and office address o the Petitioners lawyer is:

Marco Francesco LilliuFRANCESCO GRAYER LLPSuite 103-1416 Commercial Drive, Vancouver,British Columbia, Canada V5L 3X9

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CL IM OF THE PETITIONERS

Partl ORDERSSOUGHT

1 A declaration that Geoffrey Meggs ( Meggs ) failed to disclose a direct or indirect pecuniaryconflict of interest contrary to sections 141 and 145.3 of the Vancouver Charter [SBC 1953]Chapter 55 (the Vancouver Charter ).

2 A declaration that Kerry Jang ( Jang ) failed to disclose a direct or indirect pecuniary conflictof interest contrary to sections 141 and 145.3 of the Vancouver Charter [SBC 1953] Chapter55 (the Vancouver Charter ).

3 A declaration that Meggs attended a meeting, participated in discussions, and attempted toinfluence voting contrary to sections 141 and 145.3 of the Vancouver Charter.

4 A declaration that Jang attended a meeting, participated in discussions, attempted to influencevoting, and voted on a matter contrary to sections 141 and 145.3 of the Vancouver Charter.

5 n order that Meggs is disqualified and his office is hereby declared vacant pursuant tosection 141 ofth Vancouver Charter.

6 n order that Jang is disqualified and his office is hereby declared vacant pursuant to section141 ofth Vancouver Charter.

7 Costs.

Part : F CTU L B SIS

1 The Petitioners reside in the City ofVancouver and are resident electors within the City ofVancouver, British Columbia.

2 The Respondents, Meggs and Jang, are elected members ofth Vancouver City Council.3 The Respondents also serve as directors on the board of the Metro Vancouver Housing

Corporation (hereinafter MVHC ).4 The board ofth Metro Vancouver Housing Corporation is composed of the same individualswho comprise the Housing Committee of the board ofMetro Vancouver (Greater Vancouver

Regional District) and meetings ofboth entities are generally held coterminously orsequentially. Members of the full Board and of the Committees ofMetro Vancouver are paidto attend meetings.

5 The Minutes of the Regular Meeting of the MVHC Board ofDirectors held 14 March 2014state:

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Conflict o Interest10:11 a.m. Director Jang declared a conflict of interest as the Heather Place rezoning wasforwarded by the City ofVancouver Council to a public hearing and left the meeting.(page HC 5)

6. On 15 April2014, senior staff and architects for the MVHC appeared before the VancouverCity Council at a public hearing for a development rezoning application for a property at 706-774 West 13th Avenue and 725-799 West 14th Avenue, hereinafter Heather Place. Meggsand Jang were both present at this hearing for the presentation and debate regarding thisrezoning application, and both spoke during the hearing about the proposal. Neither recusedhimself from the discussion or the meeting itself.

7 On 29 April2014, Jang spoke as follows at Vancouver City Council just prior to hisaffirmative vote to approve the MVHC development rezoning at Heather Place:

ho is nd what is the Metro Vancouver Housing Corporation? Councillor Louie ndCouncillor Meggs, on the Board, I joined a little bit later, fought strenuously for that, tokeep that housing here in Vancouver.

Part : LEGAL BASIS

1 The Petitioners are Resident Electors within the meaning set down by the Vancouver Charter,[SBC 1953] Chapter 55 (the Vancouver Charter ), and are proceeding together underVancouver Charter Section 142.1(1):

142.1 (1) If it appears that a person is disqualified under section 141 and is continuing toact in office,(a) 10 or more electors of the city, or

(b) the city,may apply to the court for an order under this section.

2 The Respondents are elected representatives to the position of members ofCouncil within themeaning set down within the Vancouver Charter.

3 Meggs and Jang also have an indirect and/or direct pecuniary interest in the redevelopmentapplication for Heather Place pursuant to their service on the MVHC board. Both have afiduciary duty to the MVHC, and both receive payment for attending meetings of the HousingCommittee ofMetro Vancouver (Greater Vancouver Regional District) which are scheduledcoterminously or sequentially with the MVHC board meetings.

4. Contrary to procedures outlined in Vancouver Charter Section 145.2, neither Meggs nor Jangdisclosed to the Vancouver Council the alleged conflict of interest between their fiduciaryduty to the MVHC and that to the Vancouver City Council. Neither recused himself from theCouncil meeting and discussions of 15 April 2014, and Jang cast his vote in the Councildecision to approve the project on 29 April2014.

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5. f electors are to continue to have confidence in the electoral process and the integrity ofthosewho discharge public duties, then councillors such as Meggs and Jang must undertake aneven-handed and independent consideration of the matters before Council unaffected by anydirect or indirect pecuniary interest.

6. Section 145.3(2) of the Vancouver Charter mandates:(2) The Council member must not

(a) remain or attend at any part of a meeting referred to in section 14 5.2 (1[disclosure of conflict] during which the matter is under consideration,(b) participate in any discussion of the matter at such a meeting,(c) vote on a question in respect of the matter at such a meeting, or(d) attempt in any way, whether before, during or after such a meeting, to influencethe voting on any question in respect ofthe matter.

7. Pursuant to Subsection 145.3(3) of the Vancouver Charter Meggs and Jang are disqualifiedfrom holding office.

(3) A person who contravenes this section is disqualified from holding an office describedin, and for the period established by, section 141 (2) [disqualification], unless thecontravention was done inadvertently or because of an error in judgment made in goodfaith.

8. Section 145.3 applies if a Council member has a direct or indirect pecuniary interest in amatter, whether or not the member has made a declaration under section 145.2(2), pursuant to145 .3(1).

9. The Respondents are subject to sections 141 and 145.3 ofthe Vancouver Charter by virtue ofbeing elected representatives to the position of council members.10. Section 142.1 of the Vancouver Charter allows a petition to be brought by 10 or more electors

in the British Columbia Supreme Court when a person is disqualified under section 141 of theVancouver Charter and is continuing to act in office.

Direct or Indirect Pecuniary Interest11. Justice Donald of the BC Court of Appeal held recently in Schlenker v Torgrimson 2013

BCCA 9, the following with regard to conflicts of interest of elected municipal councillorsalso serving on the boards of organizations with matters before council..

[3] In my judgement, the pecuniary interest of the respondents lies in the fulfillment oftheir fiduciary obligation to their societies.[34] The object of the legislation is to prevent elected officials from having dividedloyalties in deciding how to spend the public s money. One s own financial advantage canbe a powerful motive for putting the public interest second but the same could also be said

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for the advancement of the cause of the non-profit entity, especially by committedbelievers in the cause, like the respondents, who as directors were under a legal obligationto put the entity first.[45] Directors of societies have a fiduciary duty of loyalty to act honestly and in goodfaith and in the best interests of the society : s. 25(1)(a) of the Society Act. This fiduciaryduty is the same duty that directors owe to corporations under the Business CorporationsAct at s. 142(1)(a), which provides that directors of a company (defined as a corporationrecognized as a company under that Act), when exercising the powers and performing thefunctions of a director of the company must act honestly and in good faith with a view tothe best interests of the company, as well as the federal Canada Business CorporationsAct under s. 122(1 )(a), which provides that every director of a corporation in exercisingtheir powers and discharging their duties shall act honestly and in good faith with a viewto the best interests of the corporation. Therefore, case law relating to the fiduciary dutyof directors of corporations is analogous to the fiduciary duty of directors of societies.

[46] As the Supreme Court ofCanada noted in Peoples Department Stores Inc. Trusteeof) v. Wise, 2004 SCC 68, [2004] 3 S.C.R. 461, the duty ofloyalty imposes several dutieson directors:

[35] The statutory fiduciary duty requires directors and officers to act honestly andin good faith vis-a-vis the corporation. They must respect the trust and confidence thathave been reposed in them to manage the assets of the corporation in pursuit of therealization ofthe objects ofthe corporation. They must avoid conflicts of interest withthe corporation. They must avoid abusing their position to gain personalbenefit. They must maintain the confidentiality of information they acquire by virtueof their position. Directors and officers must serve the corporation selflessly, honestlyand loyally: seeK P. McGuinness, The Law and Practice ofCanadian BusinessCorporations (1999), at p. 715.

[47] In Alberta v Elder Advocates ofAlberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261,Chief Justice McLachlin, for the Court, wrote of the fiduciary principle in general asfollows:

[43] The duty is one ofutmost loyalty to the beneficiary. As Finn states, thefiduciary principle's function is not to mediate between interests. t is to secure theparamountcy of one side's interests . The beneficiary's interests are to beprotected. This is achieved through a regime designed to secure loyal service of thoseinterests (P. D. Finn, The Fiduciary Principle , in T. G. Youdan, ed., Equity,Fiduciaries and Trusts (1989), 1 at p. 27 (underlining added [by McLachlin C.J.]); seealso [Hodgkinson v Simms,[1994] 3 S.C.R. 377], at p. 468 per Sopinka andMcLachlin J. (as she then was), dissenting);

[50] As directors of the Societies, the respondents were under a fiduciary duty to the6


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Society s interests first. Directors of societies, by virtue of their position, have an indirectinterest in any contract a society is awarded. When the respondents moved and voted infavour of resolutions that benefitted their Societies through granting of contracts, arguablycontracts the Societies might not have been awarded had the Councillors not also beendirectors, their duties as directors to put the Society s interests first were in direct conflictwith their duties as councillors to put the public interests first.The public is disadvantaged by the conflict, whether the respondents derived any personalgain or not, because the public did not have the undivided loyalty of their elected officials.(p. 18)

Part : MATERIAL TO BE RELIED O1. Affidavit 1 of Erik Warren Whiteway made on 12 June 2014.2. Mfidavit 1 of Jak Roberts King made on 13 June 2014.3 Affidavit 1 ofWilliam Abaham Fook Wah Lim made on 12 June 2014.4. Affidavit 1 ofGrant Munro Fraser made on 12 June 2014.5. Affidavit 1 ofNathan Crompton made on 12 June 2014.6. Affidavit 1 oflsabel Ferguson Minty made on 12 June 2014.7. Affidavit 1 of Trevor John McEachran made on 12 June 2014.8. Affidavit 1 of William Rider Cooey made on 12 June 2014.9. Affidavit 1 ofDean William Mittatall made on 12 June 2014.10. Affidavit 1 of James Gerrard McLean made on 12 June 2014.11 . Affidavit 1 ofHendrikus Marinus Beune made on 12 June 2014.The Petitioners estimate that the hearing of the Petition will take one day.Date: June 13, 2014.

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Signature ofCounsel for the Petitioners

II IICO FUIICEICO LIWU. . nd olicitor

FRANCESCO GR YER UPSuite 103 1418 Commercial Drive, Vancouver,British Columbia, canada V5L.3X9tel +1 778) 885-7873 fu: +1 881) 5177896


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1 o be completed by the court only'Order madel[ ] in the terms requested in paragraphs ...................... ofPart 1 of this petition,[ ] with the following variations and additional terms::

Date: lmmmiYY Y Y]; Signature of ] Judge [ ] Master

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140613 Whiteway Et Al v Meggs,Jang

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