Assert your Rights to TA Rentals
You have probably read about the recent BC Court of Appeal (BCCA) decision
that came down about a week ago. RMOW took legal action against a Whistler
chalet owner who periodically rented out his chalet for temporary tourist
(TA) accommodation. The BCAA decision upheld the original chamber's judge
decision of January, 2001 in RMOW's favour. It has taken almost 3 years to
reach this stage, from legal action commencement.
The defendant in this case is considering an appeal to the Supreme Court of
Canada (SCC), the ultimate arbiter of legal issues. If the defendant chooses
to appeal it to this final stage and succeeds, then RMOW will have
permanently lost its enforcement rights with respect to its current bylaw
terminology. It could take another 2 years for the SCC to hear an appeal and
render a decision. Statistically, about 1 out of 3 judgments that are appealed
to the BCCA or SCC are overturned. However, many people never pursue their
full rights for a variety of reasons.
If you are in support of the right to rent out your chalet for TA purposes,
and your property is not zoned for the purpose, don't be disheartened by
this latest decision. It is just a mere bump in the road to rectifying the
injustice that currently exists on this TA issue at the present time in
Whistler. It is important to understand the context, and your legal rights.
That way you won't be intimidated if RMOW contacts you.
Here is a basic primer of the steps to take to assert your rights to rent
out your chalet for TA purposes:
1. Keep in mind that this recent court decision has NO umbrella legal
implications in terms of enforceability on anyone OTHER than the specific
party to the action. Bottom line: EACH individual property owner has the
right to defend themselves from any attempt by RMOW to "shut them down".
Each case in law is separate from any other, in terms of the facts and
available defences. However, expect RMOW to spin the current court decision
as "proof" that they are justified in continuing to vigoursly pursue their
"enforcement" action against any alleged TA transgressor, and use the
outcome of the case as justification. That is just part of the tactical
game. Don't get suckered by it.
2. Don't be swayed by terminology or the legal process, even though it is
all a very foreign and stressful experience to you. The public can be easily
intimidated by receiving "threatening" RMOW letters that use words such as
"cease and desist", "show-cause hearing", "consent order", and "court
injunction". That is part of the RMOW strategic game plan - compliance
through the threat of legal action. In other words, attempt to accomplish by
intimidation, what RMOW could not accomplish through the legal process. This
approach by RMOW is legally, morally and ethically wrong of course. Everyone
has the right to defend themselves in court, and should be advised that they
have those rights and should fully assert those rights. Of course that is
not being done. The chalet owner /taxpayer, is being treated like the
"enemy". That is the way the game is being played.
3. If you are contacted by RMOW in any way, assert your legal rights. This
means obtaining independent legal advice immediately. Don't reply to any
letter from RMOW or contact them. Let your lawyer do that. You don't want to
compromise your rights by interacting with RMOW personally. Remember, it is
a game - RMOW against you. You are totally vulnerable. You need a lawyer to
provide the balance of power on your side. However, you need to seek the
advice of a lawyer who is an expert in the specialized area of municipal law
and related litigation. You don't want to obtain advice from a generalist
lawyer, or one who works the Whistler/Squamish area. In the latter
situation, they don't have the specialty expertise. Also, there could be a
real or imaginary potential conflict of interest because of their proximity
to, or interaction with, RMOW.
4. Here are the two options to consider, to obtain a legal opinion specific
to your individual situation:
- contact the lawyer referral service. This service is operated in conjunction with the
Canadian Bar Association, BC Branch, and the Law Society of BC. It is a
vehicle for people to locate lawyers with specialty expertise and receive an
initial consultation (generally 1/2 hour) for a nominal fee -$10. You will
be given one name a day, so you need to phone back several days to get
several lawyers' names. Ideally, you want to have a comparative feedback on
your situation and your rights. Ask to speak to a lawyer in the downtown
Vancouver area. That is where most of the Municipal law specialty lawyers
work. The lawyer referral phone # in Vancouver is (604) 687-3221.
- contact a lawyer who you know has expertise in the area of municipal law
and related litigation. Ask for an initial consultation and what the fee
would be for that. For example, the lawyer who is acting for the case
recently heard, who represents a lot of other Whistler chalet owners, and
who is obviously very familiar with the RMOW TA bylaw issues, would come to
mind. That is, Jonathon Baker of Baker & Corson in Vancouver.
Whatever option you select from the above, you owe it to yourself to obtain
objective legal feedback, assert your rights and not be intimidated by the
unknown. You don't want to make decisions in a legal vacuum. To make sure
your initial legal meeting is productive, here is the recommended approach:
prepare a historical, chronological factual summary of your situation, so that
you can refer to it. It will also help you focus, refresh your mind, and be
organized. Put all your questions in writing so you don't forget, and
prioritize them in case you run out of time.
Remember, as a chalet owner, you have legal rights that are very potent and
very extensive. RMOW cannot push you around unless you allow them to do so.
Art Collins, Whistler