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Form 66 (Rules 16-1 (2) and 21-5 (14)

VANCOUVER REGISTRY
No .... $.; ...... 4 .. 4.. ..1.. .
JVN 1 3 2014
Vancouver Registry
*
Jj'n tbe <ourt of )&tfti,Gb
BETWEEN:
ERIK WARREN WHITEWAY, JAK ROBERTS KING, WILLIAM ABRAHAM FOOK WAH
LIM, NATHAN OLIVER CROMPTON, TREVOR JOHN MCEACHRAN, GRANT
MUNRO FRASER, HENDRIK.US MARINUS BEUNE, WILLIAM RIDER JAMES
GERRARD MCLEAN, DEAN WILLIAM MATTATALL, ISABEL FERGUSON MINTY
PETITIONERS
AND:
..
GEOFFREY MEGGS and KERRY JANG
RESPONDENTS
Re: '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 Whiteway
302- 865 West 15th Avenue
Vancouver BC V5Z IRS
Jak Roberts King
202-183 7 Adanac Street
Vancouver, BC VSL 2E1
James McLean
305-310 Alexander Street
Vancouver, BC V 6A 1 C4
Dean Mattatall
210-134 Powell Street
Vancouver, BC V 6A 1 G 1
William Rider Cooey
800 Greenchain
Vancouver, BC V 5Z 3Z7
Nathan Crompton
308-25 East 12th Ave
Vancouver, BC V ST 2G6
Page 1 of8 .
Trevor John McEachern
31 7 E Pender Street,
Vancouver, BC V6A lVl
ON NOTICE TO:
Geoffrey Meggs
819 Sawcut
Vancouver, BC V57 4A2
Kerry Jang
3005 E 16th Ave
William Abraham Fook Wah Lim
2486 Venables Street
Vancouver, BC V5K 1P9
Grant Munro Fraser
2378 Garden Drive
Vancouver, BC V5N 4X3
Vancouver, BC V5M 2MX
City ofVancouver
453 West 12th Avenue
Vancouver, 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 must
a) 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, and
b) serve on the petitioner(s)
(i) 2 copies of the filed response to petition, and
(ii) 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 any
further notice to you, if you fail to me the response to petition within the time for response.
Time for response to petition
A response to petition must be filed and served on the petitioner(s),
(a) if you were served with the petition anywhere in Canada, within 21 days after that
service,
(b) if you were served with the petition anywhere in the United States of America, within
35 days after that service,
(c) if you were served with the petition anywhere else, within 49 days after that service, or
(d) 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 2El
(2) The ADDRESS FOR SERVICE of the Petitioners is:
c/o FRANCESCO GRAYER LLP
Suite 103-1416 Commercial Drive, Vancouver,
British Columbia, Canada V5L 3X9
E-mail address for service of the Petitioners: marco@francescograyer.com
The name and office address of the Petitioners' lawyer is:
Marco Francesco Lilliu
FRANCESCO GRAYER LLP
Suite 103-1416 Commercial Drive, Vancouver,
British Columbia, Canada V5L 3X9
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CLAIM OF THE PETITIONERS
Partl:ORDERSSOUGHT
1. A declaration that Geoffrey Meggs ("Meggs") failed to disclose a direct or indirect pecuniary
conflict 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 conflict
of interest contrary to sections 141 and 145.3 of the Vancouver Charter [SBC 1953] Chapter
55 (the "Vancouver Charter").
3. A declaration that Meggs attended a meeting, participated in discussions, and attempted to
influence 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 influence
voting, and voted on a matter contrary to sections 141 and 145.3 of the Vancouver Charter.
5. An order that Meggs is disqualified and his office is hereby declared vacant pursuant to
section 141 ofthe Vancouver Charter.
6. An order that Jang is disqualified and his office is hereby declared vacant pursuant to section
141 ofthe Vancouver Charter.
7. Costs.
Part 2: FACTUAL BASIS
1. The Petitioners reside in the City of Vancouver and are resident electors within the City of
Vancouver, British Columbia.
2. The Respondents, Meggs and Jang, are elected members ofthe Vancouver City Council.
3. The Respondents also serve as directors on the board of the Metro Vancouver Housing
Corporation (hereinafter "MVHC").
4. The board ofthe Metro Vancouver Housing Corporation is composed of the same individuals
who comprise the Housing Committee of the board of Metro Vancouver (Greater Vancouver
Regional District) and meetings of both entities are generally held coterminously or
sequentially. Members of the full Board and of the Committees of Metro Vancouver are paid
to attend meetings.
5. The Minutes of the Regular Meeting of the MVHC Board of Directors held 14 March 2014
state:
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Conflict of Interest
10:11 a.m. Director Jang declared a conflict of interest as the Heather Place rezoning was
forwarded by the City of Vancouver 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 Vancouver
City 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." Meggs
and Jang were both present at this hearing for the presentation and debate regarding this
rezoning application, and both spoke during the hearing about the proposal. Neither recused
himself from the discussion or the meeting itself.
7. On 29 April2014, Jang spoke as follows at Vancouver City Council just prior to his
affirmative vote to approve the MVHC development rezoning at Heather Place:
Who is and what is the Metro Vancouver Housing Corporation? ... Councillor Louie and
Councillor Meggs, on the Board, I joined a little bit later, fought strenuously for that, to
keep that housing here in Vancouver.
Part 3: 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 under
Vancouver Charter Section 142.1(1):
142.1 (1) If it appears that a person is disqualified under section 141 and is continuing to
act 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 of Council within the
meaning set down within the Vancouver Charter.
3. Meggs and Jang also have an indirect and/or direct pecuniary interest in the redevelopment
application for Heather Place pursuant to their service on the MVHC board. Both have a
fiduciary duty to the MVHC, and both receive payment for attending meetings of the Housing
Committee of Metro Vancouver (Greater Vancouver Regional District) which are scheduled
coterminously or sequentially with the MVHC board meetings.
4. Contrary to procedures outlined in Vancouver Charter Section 145.2, neither Meggs nor Jang
disclosed to the Vancouver Council the alleged conflict of interest between their fiduciary
duty to the MVHC and that to the Vancouver City Council. Neither recused himself from the
Council meeting and discussions of 15 April 2014, and Jang cast his vote in the Council
decision to approve the project on 29 April2014.
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5. If electors are to continue to have confidence in the electoral process and the integrity ofthose
who discharge public duties, then councillors such as Meggs and Jang must undertake an
even-handed and independent consideration of the matters before Council unaffected by any
direct 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 influence
the voting on any question in respect ofthe matter.
7. Pursuant to Subsection 145.3(3) of the Vancouver Charter, Meggs and Jang are disqualified
from holding office.
(3) A person who contravenes this section is disqualified from holding an office described
in, and for the period established by, section 141 (2) [disqualification], unless the
contravention was done inadvertently or because of an error in judgment made in good
faith.
8. Section 145.3 applies if a Council member has a direct or indirect pecuniary interest in a
matter, whether or not the member has made a declaration under section 145.2(2), pursuant to
145 .3(1).
9. The Respondents are subject to sections 141 and 145.3 ofthe Vancouver Charter by virtue of
being 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 the
Vancouver Charter and is continuing to act in office.
Direct or Indirect Pecuniary Interest
11. 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 councillors
also serving on the boards of organizations with matters before council..
[3] In my judgement, the pecuniary interest of the respondents lies in the fulfillment of
their fiduciary obligation to their societies.
[34] The object of the legislation is to prevent elected officials from having divided
loyalties in deciding how to spend the public's money. One's own financial advantage can
be 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 committed
believers in the cause, like the respondents, who as directors were under a legal obligation
to put the entity first.
[ 45] Directors of societies have a fiduciary duty of loyalty to "act honestly and in good
faith and in the best interests of the society": s. 25(1)(a) of the Society Act. This fiduciary
duty is the same duty that directors owe to corporations under the Business Corporations
Act at s. 142(1)(a), which provides that directors of a company (defined as a corporation
recognized as a company under that Act), when exercising the powers and performing the
functions of a director of the company must act honestly and in good faith with a view to
the best interests of the company, as well as the federal Canada Business Corporations
Act under s. 122(1 )(a), which provides that every director of a corporation in exercising
their powers and discharging their duties shall act honestly and in good faith with a view
to the best interests of the corporation. Therefore, case law relating to the fiduciary duty
of directors of corporations is analogous to the fiduciary duty of directors of societies.
[46] As the Supreme Court of Canada noted in Peoples Department Stores Inc. (Trustee
of) v. Wise, 2004 SCC 68, [2004] 3 S.C.R. 461, the duty ofloyalty imposes several duties
on directors:
[35] The statutory fiduciary duty requires directors and officers to act honestly and
in good faith vis-a-vis the corporation. They must respect the trust and confidence that
have been reposed in them to manage the assets of the corporation in pursuit of the
realization ofthe objects ofthe corporation. They must avoid conflicts of interest with
the corporation. They must avoid abusing their position to gain personal
benefit. They must maintain the confidentiality of information they acquire by virtue
of their position. Directors and officers must serve the corporation selflessly, honestly
and loyally: seeK. P. McGuinness, The Law and Practice of Canadian Business
Corporations (1999), at p. 715.
[47] In Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261,
Chief Justice McLachlin, for the Court, wrote of the fiduciary principle in general as
follows:
[43] The duty is one of utmost loyalty to the beneficiary. As Finn states, the
fiduciary principle's function "is not to mediate between interests. It is to secure the
paramountcy of one side's interests ... . The beneficiary's interests are to be
protected. This is achieved through a regime designed to secure loyal service of those
interests" (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.]); see
also [Hodgkinson v. Simms, [1994] 3 S.C.R. 377], at p. 468,per Sopinka J and
McLachlin J. (as she then was), dissenting);
[50] As directors of the Societies, the respondents were under a fiduciary duty to the
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Society's interests first. Directors of societies, by virtue of their position, have an indirect
interest in any contract a society is awarded. When the respondents moved and voted in
favour of resolutions that benefitted their Societies through granting of contracts, arguably
contracts the Societies might not have been awarded had the Councillors not also been
directors, their duties as directors to put the Society's interests first were in direct conflict
with their duties as councillors to put the public interests first.
The public is disadvantaged by the conflict, whether the respondents derived any personal
gain or not, because the public did not have the undivided loyalty of their elected officials.
(p. 18)
Part 4: MATERIAL TO BE RELIED ON
1. 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 of William Abaham Fook Wah Lim made on 12 June 2014.
4. Affidavit #1 of Grant 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 of Dean 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 of Counsel for the Petitioners
IIAIICO FUIICEICO LIWU
.,., and Solicitor
FRANCESCO GRAYER UP
Suite 103-1418 Commercial Drive, Vancouver,
British Columbia, canada V5L.3X9
tel: +1 (778) 885-7873 fu: +1 (881) 5177896
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To be completed by the court only:
' Order made
l [ ] in the terms requested in paragraphs ...................... of Part 1 of this petition
, [ ] with the following variations and additional terms:
: ................................................................................. ............................................... .
!Date: ....... [ddlmmmiYY.Y.Y]. ...... .
;
Signature of [] Judge [ ] Master
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