B.C. Court of Appeal upholds municipal bylaw on nightly rentals 

Accommodation providers hope it spells the end of illegal temporary accommodation operators

By Clare Ogilvie.

The B.C. Court of Appeal has dismissed an appeal by two Whistler property owners against the municipality’s zoning bylaw, which prohibits tourist accommodation in houses zoned as single family dwellings.

"The right decision was made," said Bill Barratt, the municipality’s general manager of community services.

"The impact on this is that if anyone out there was thinking things were going to change, or that maybe it is up in the air, it is pretty clear it’s not."

Barratt said the municipality would be sending out a letter confirming the finding of the appeal court to anyone previously contacted about illegally renting their homes.

And anyone who contravenes the bylaw will be pursued all the way to court if necessary said Barratt.

The Court of Appeal decision comes more than two years after a pair of Prince George dentists were taken to court by the municipality for renting out their Whistler home to co-workers and friends on a short term basis.

In January 2001, a year after the case was heard, a B.C. Supreme Court judge granted the municipality a permanent injunction banning the couple from renting their home on Clifftop Lane for short periods of time.

But the case may not be over yet.

Jonathan Baker, lawyer for the dentists, Vicki Miller and Michael Rivera, said his clients were still considering taking the case to the Supreme Court of Canada.

"There is a possibility," Baker said this week. "That decision hasn’t been made yet."

There is an interesting twist to the story in that the Court of Appeal did not hand down reasons for its judgement.

In essence it did not address any of the arguments raised by Baker.

"The effect of it is that the arguments that were raised on appeal will now be raised on behalf of the next defendant who comes along," said Baker.

"A judge could say this is a different case than the one before and we are going to decide it on different grounds."

And just because the court has upheld the bylaw, said Baker, doesn’t mean that there aren’t other defences that could be used should another case come before the courts.

For example homeowners could argue that they were doing this before the bylaw came into force and therefore are allowed to continue doing it, said Baker.

It’s up to the municipality to prove that people are renting out their homes and that could be difficult.

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