Letter to Whistler Mayor and Council by
Donna Neale...
June 11, 2002
Mayor and Council
Resort Municipality of Whistler
4325 Blackcomb Way
Whistler, B.C.
VON 1B4
FAX (604) 935-8109
cc. Jim Godfrey
Administrator, RMOW
cc. Pique Newsmagazine
cc. Whistler Question
ENFORCEMENT OF TA BYLAW THROUGH CONSENT ORDER IS OUTRAGEOUS
I have a formal complaint to make about the conduct of RMOW staff and legal counsel, with respect to the enforcement of the bylaw relating to temporary accommodation rentals of chalets in non TA-zoned areas. I also have recommendations to make for changes to the RMOW application of its policy.
Complaints:
The conduct of RMOW's staff and lawyer in dealing with alleged infringements of the TA rental bylaw by chalet owners, is appalling and outrageous. These excesses and abuses need to be reined in, by council giving explicit direction to both staff and legal counsel without further delay. Otherwise, RMOW will be bringing itself into serious disrepute and disrespect. This could cause irreparable harm to RMOW's image and reputation. Here are some specific examples to illustrate the concerns:
- RMOW staff are arbitrarily and unilaterally interpreting the bylaw when speaking to the public, whether by phone or in person. This results in misleading, inaccurate and inconsistent information being given out. The result is public confusion and perceived intimidation. RMOW staff are giving the storyline that now that a court decision has been made, that everyone has to fall into line. This is inaccurate and untrue. It is my understanding that the recent court decision has been appealed to the Supreme Court of Canada. Until Canada's top court makes a determination that particular case is undecided. Also, that case outcome has no legal relevance on the rights of any other property owner to dispute the bylaw, based on different facts and defenses. That is the way our society, rule of law, due process and justice system operates. RMOW staff, council and lawyer should be reminded of that obvious reality. This means recognizing and respecting the rights that every chalet owner and citizen has in law. That is, to challenge any law they feel is unjust or unenforceable, without fear of intimidation, sanctions, threats or punitive actions in the meantime.
- RMOW staff are making threatening statements to chalet owners who are alleged to be breaking the TA rental bylaw, that if they don't comply with RMOW's dictates and supply information and sign a "consent" order which would be filed in court, that they will face serious legal and possibly criminal sanctions. This is outrageously irresponsible, inappropriate and inaccurate.
- At other times when phoning in to City Hall for information about the bylaw, the public is referred to Bylaw No 303, and told to read it in its entirety and then interpret it accordingly with respect to what is permitted for chalet temporary accommodation rentals in non-TA zoned areas. This is very confusing, as the bylaw is long and convoluted.
- RMOW staff are going to people's homes, or asking for the chalet owner to provide detailed documentation and information about any rentals. This is bordering on a police state mentality. RMOW has no right to conduct itself in such an oppressive, officious and offensive manner. It is an infringement of the property owner's rights, is abusive, and has to stop. It is also placing Whistler chalet owners and citizens, under immense psychological and financial stress and duress. This is clearly wrong.
- RMOW lawyer has no right to phone up any chalet owner under any circumstances. This could only be perceived as blatant intimidation. The "consent order" that RMOW is sending out to the chalet owners' it considers to be infringing the TA rental bylaw, is irresponsible in the extreme. It is requesting that the chalet owner agree to legal restrictions that RMOW has no right under its bylaw to require or enforce. These restrictions are draconian, inequitable, punitive, and grossly unfair. Yet RMOW has permitted this document to be one that chalet owners are being required to sign, if they don't want to face legal and financial sanctions. This is morally and ethically reprehensible. RMOW is trying to coerce the chalet owner to give up rights that they otherwise would enjoy, and that are not covered by any RMOW bylaw.
- Examples of the absurd, inequitable, and restrictive clauses in the "consent order" document prepared by RMOW and its lawyer include that the chalet owner: not rent out the property for a period less than 2 months (the TA bylaw allows any rental more than 4 consecutive weeks), only be permitted to advertise the premises in the classified section of a newspaper, or with a "for rent" sign posted on the property, and shall not advertise on the internet, on pamphlets or any other advertising forum (the TA bylaw has no restrictions whatsoever on advertising); restricts the categories of people who can rent the chalet if for one more than 1 month eg students (the TA bylaw has no restrictions on who can rent). In addition, the "consent order" says that it applies to all other persons who might try to rent the property (a chalet owner can't bind other parties not party to the order). In short, this ridiculous "consent order" document must have been drawn up by people ignorant of the basic tenants of law, and rights of individuals and property owners' under the law. In other words, by people who have no respect for the chalet owners and citizens of Whistler. No chalet owner should ever be asked to sign such a document, and fetter the rights they would otherwise enjoy under the current bylaw. It is insulting, unethical, and irresponsible to ask them to do so.
- On doing some basic research (easily obtainable public information), it appears that the RMOW lawyer who is sending out the "cease and desist" letters and "consent orders" to sign, has only being a practicing lawyer for 3 years. On the relative scale of accumulated legal judgment and maturity, this is still at the infancy stage, and the reason why such lawyers are referred to as "juniors". Is this the degree of experience that RMOW is relying on when seeking legal advice, preparing "consent order" documentation, or speaking to the public to assert Whistler's position?
Proposals:
The following constructive and practical proposals are intended to protect the legal rights of Whistler chalet owners, and minimize the potential risk that the chalet owner receives misleading information, or perceives RMOW's conduct is legally intimidating or threatening:
- that all communication from RMOW staff or lawyer to a chalet owner relating to an alleged TA rental bylaw infraction, be by written letter only.
- That the above letter details the alleged bylaw rental infraction and provide proof of the allegation. In addition, that the letter state that the chalet owner has the right to obtain independent legal advice, and should do so before signing any documentation. That in the meantime, anything the chalet owner says could, and would likely be used against them.
- that no RMOW staff or lawyer be permitted to initiate contact with the chalet owner by phone or in person, with respect to an alleged TA rental bylaw infraction
- that no RMOW staff or lawyer be permitted to interpret the bylaw or interpret what sanctions could happen if they don’t comply. This would reduce the risk of a staff member or lawyer intentionally or unintentionally, making misleading statements or possible sanctions that could be perceived as threats. This proposal also includes preventing RMOW staff from interpreting the bylaw, or implication of any court cases to the media. Again, to prevent the risk of inaccurate or misleading information.
- That no RMOW staff member or lawyer be permitted to verbally or in writing, threaten civil or criminal legal sanctions or penalties, if the chalet owner does not comply with the request by RMOW
- That if a chalet owner responds to a RMOW or RMOW's lawyers' letter by phone or in person for further clarification, that the chalet owner must be advised at the outset, that anything they say could, and would, likely be used against them, and that they have a right to obtain independent legal advice, and should do so before agreeing to sign any documents.
- That under no circumstances will RMOW attempt to have the chalet owner sign a "consent order" (that is filed in court) or any other documentation, that alters the rights that the chalet owner already enjoys under the current RMOW bylaw relating to TA rentals. That RMOW will only propose documentation that simply states that the chalet owner will adhere to the current RMOW Zoning and Parking Bylaw No. 303, 1983.
- That City Hall make available at the reception desk, as well as on the RMOW website, an objective and accurate summary overview of the current TA rental bylaw for chalet owners. The purpose of this summary is to try to give clarity without causing confusion or providing misleading information. The additional benefit of this summary, is to eliminate the risk of a RMOW staff member or lawyer, giving a one-sided and inaccurate or misleading interpretation of the bylaw.
If RMOW adheres to the suggested proposals above, it will assist in reducing the potential for abuse of the legal rights of Whistler chalet owners, who are also taxpayers and citizens. We are living in a democratic society, where the individual legal rights of property owners and citizens must be fully respected in every way. The legitimate right of a property owner to disagreement and dissent on matters of bylaw policy and law, must be accorded full recognition and acknowledgement in every step RMOW takes. To date, RMOW's conduct on the TA rental bylaw enforcement issue, has failed to follow this fundamentally critical obligation to demonstrate respect for due process.
I look forward to your response to my proposals.
Thank you.
Donna Neale
#739 - 916 West Broadway
Vancouver, B.C. V5Z 1K7
Whistler
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