Whistler vs. Miller still awaiting judge’s decision 

The legal battle over tourist accommodation in Whistler’s residential areas has been in a state of suspended animation since last winter, when a Supreme Court judge was asked to rule on the definition of one word in a bylaw after a one-day hearing.

The future of all the tourist accommodation court cases to follow hangs on that definition, but Supreme Court Justice Ian Drost has yet to hand down his decision on the narrow point of law.

It is now appears to be the longest outstanding case in the B.C. court registry.

Last year the RMOW launched 25 legal actions against a total of 33 properties in a move to crack down on "illegal" chalet operations in residential neighbourhoods.

The Whistler versus Miller case was the first to go to trial, on Feb. 17.

The RMOW maintains homeowners Vicky Miller and Michael Rivera are in violation of a residential zoning bylaw that prohibits short term rentals for periods of less than four consecutive weeks.

The bylaw also stipulates any rentals beyond four weeks can only be to tenants who live in Whistler or are Whistler employees.

Their legal counsel, Jonathan Baker, asked the Supreme Court to first decide on the meaning of the word "excluding" in the bylaw. Baker maintained Whistler has misread its own bylaw and that it is vague and unenforceable.

Whatever the outcome of the Miller case, it will likely be appealed and it will likely affect all others to follow.

But, as of Nov. 29 there was still no decision.

"I really can’t imagine why," said Baker. "You can write to the judge and ask why this thing hasn’t come down yet but neither side wants to take the risk of offending anybody or jeopardizing the outcome," he said.

"It is just quite unusual to have a decision like this take so long. You would expect this in something like the Delgamuukw decision which had a year of hearings, but this is unusual."

Lawyer Kathryn Stuart, a spokesman for the Canadian Bar Association of B.C. and specialist in municipal legal matters, said the delay in the Whistler-Miller case does appear to be surprisingly long. But she said decisions can be delayed for a number of reasons.

"The judge could be retiring or perhaps the judge isn’t well or was ill for a while," noted Stuart. "Or the judge may be involved in a very lengthy case that has taken his attention for quite some time."

But, said Baker, this doesn’t appear to be the case. "There is no evidence of that. He has been hearing cases."

Baker said a clerical slip up that may have seen the case forgotten has also been ruled out. In August legal counsel for both sides wrote to the judge to bring his attention to the outcome of another case that hinged on dictionary definitions.

B.C. Supreme Court Chief Justice Allan McEachern has indicated on his Web site that the Canadian Judicial Council has issued an advisory opinion that judgments should be delivered in most cases within six months.

The Whistler-Miller judgement delay is stretching to well over 10 months.

However, McEachern notes that some cases are too complex to meet the advisory deadline.


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