By Loreth Beswetherick Jonathan Baker is preparing to square off against a familiar foe. His Vancouver-based law firm, Jonathan Baker and Associates is one of the leading firms to act against municipalities in this province. Lidstone Young Anderson, on the other hand, is the leading firm acting for municipalities throughout B.C. Lidstone Young Anderson, representing the Resort Municipality of Whistler, has launched more than a dozen legal actions against homeowners who rent their properties on a nightly basis in areas zoned exclusively for residential use. Baker is acting as counsel for about 10 of those property owners. He will be defending his clients against top municipal lawyer Barry Williamson, someone he has argued against in countless cases. "It's a battle of two firms," said Baker. We are always against each other in court." Most of the actions filed to date are now awaiting examinations for discovery by Lidstone Young Anderson. Those discoveries could be held, in some cases, within the next few weeks. Baker said the plaintiff, Whistler, will basically want to find out what the defendants’ case is. Presumably they will want to see receipts from nightly rentals and find out how and when units were rented and for how long. He said each case is unique and may not necessarily set a precedent for the next. "In some cases it will depend on how long the use has been going on," said Baker. "The bylaws have changed over the years and in some instances the defence will be that there has been a continuous non-conforming lawful use. In other words, it was lawful in the past, when it started, and so it remains lawful." Another defence will attack the interpretation of the wording of the present bylaw which Baker says is ambiguous. Baker said when the meaning of a bylaw is unclear it is generally interpreted in favour of the property owner. "One point I would make from a general point of view of policy is that when the Whistler town centre was developed, there was fundamental concern owners would not rent their properties out." Baker said this was addressed by covenants on buildings requiring owners to rent out on a short-term basis to make sure there were "warm" beds in the village. "That's the very thing they are trying to prohibit now. They were afraid Whistler was going to be bought out by a bunch of Saudi Arabians or something who would use it for themselves and never be there and the shops would be empty. They induced people to rent out nightly," said Baker. "Now that Whistler's been a great success, they are seeking to change that. This isn't necessarily going to be a defence in the action but it does put it in context. What you are seeing is a radical change in municipal policy." One of the last scuffles between the two law firms was the Great Pacific Pumice Supreme Court case against Squamish. The pumice mining company wanted to stockpile, crush and distribute its Mount Meager booty from land within the Squamish area against the wishes of council. "We won that one. It's under appeal right now," said Baker This time round, however, Whistler will foot the battle bill. RMOW planner Mike Kirkegaard has said the municipality has budgeted between $3,000 and $5,000 for each injunction. "We are hoping that once we have success with one or two of the actions the remaining ones will decide to comply," said Kirkegaard.
