By Loreth Beswetherick
Mike Dempsey was the first to be lined up in the municipality’s sights when it launched 12 legal actions this summer against homeowners who rent their properties out as tourist accommodation while zoned exclusively for residential use.
His case is now first in the legal lineup and was due for a discovery hearing with municipal law firm Lidstone Young Anderson last week. The hearing was however postponed indefinitely at the law firm’s request.
The application for an injunction against Dempsey involves a total of five properties in White Gold and Brio.
Dempsey said the municipal lawyers weren’t ready to proceed and he has no idea when his case will now be heard. "They brought the action against me and I have spent umpteen thousands right now and I have nothing... they haven’t got anything on me."
Dempsey is being represented by lawyer Jonathan Baker of Jonathan Baker and Associates, one of the leading firms to act against municipalities in this province. Baker is representing about 10 different Whistler property owners in the tourist accommodation actions. He said he will be defending his clients against top municipal lawyer Barry Williamson, someone he has argued against in countless cases. Baker said most of the cases are awaiting examination for discovery by Lidstone Young Anderson. He said the purpose of the examinations is for the plaintiff, Whistler, to find out what the defendant’s case is. The next step will be for the defendants to assess the plaintiff’s case before any court dates can even be set.
The municipality maintains the homeowners are in contravention of a bylaw that prohibits rentals for a period less than four consecutive weeks. The bylaw also stipulates that any rentals beyond four weeks must only be to tenants who live in Whistler or are Whistler employees.
Dempsey said most of his rentals have been for periods over 28 days. He said it is only recently the municipality told him he cannot rent for periods of more than 28 days. "I have five week rentals and now they are calling that illegal." Dempsey said has been running his tour operation since 1984.
He said councillors themselves have rented their homes and this information will be contained in affidavits. He said the court action has cost him tens of thousands of dollars to date and is proving to be a very long and drawn out process.
Baker said he is now considering putting forward an application to have the bylaw itself voided on the grounds it is vague, unenforceable and is not being used for what it was intended. Baker said there is substantial evidence for this action. He said to bring an application forward to void the bylaw both legal parties must agree to a set of facts and the defendants would have to admit they were indeed doing what the plaintiff alleges. He said getting a hearing would then be simple and it could be over within two hours.
Baker said legal discussion has commenced on this option and he feels the avenue will likely be pursued. He added his clients are getting anxious to have the issue resolved.