By Loreth Beswetherick Whistler has turned upside down Benjamin Franklin’s saying that guests and cheese stink after three days. In Whistler guests smell sweet over four weeks but they stink under four weeks. That, said lawyer Jonathan Baker, was his opening salvo in B.C. Supreme Court Thursday, Feb. 17 where he faced off against municipal lawyer Barry Williamson. Baker was acting as defence counsel in the pivotal Whistler versus Miller case — the first tourist accommodation case to go to trial since the municipality moved to crack down on "illegal" chalet and villa operations in residential neighbourhoods. Last year the RMOW launched 25 legal actions for a total of 33 properties. Williamson, of Lidstone Anderson Young was representing Whistler. Although judgement had not been handed down as of Wednesday, Feb. 23, the outcome will likely hinge on the definition of one word and will impact all the other cases to follow. Whistler 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 that any rentals beyond four weeks must be to tenants who live in Whistler or are Whistler employees. But Baker, who is acting as defence counsel in about 12 of the tourist accommodation cases, maintains the bylaw is hopelessly vague and uncertain. He applied for an immediate summary trial in the Miller case to test a point of law and Supreme Court Justice Ian Drost was asked to decide Thursday if the bylaw is actually enforceable. Baker and Williamson, familiar foes, quibbled over the definition of "excluding" in Whistler’s zoning bylaw. "The premise of our argument was the city has misread one of the words in their own bylaw," said Baker. "It is amazing to think that millions of dollars ride on the definition of a word." Baker said he used the Cambridge dictionary while Williamson turned to Websters to define "excluding" in a sentence that reads something like: "Residential means a fixed place of dwelling, excluding temporary accommodation, that a person intends to return to when absent." Baker said he argued the word "excluding" is used as a preposition in the sentence and it means "not including" or "exclusive of." "We say it means that residential is a fixed place of living, not counting temporary accommodation that may be in the building, that a person intends to return to. From that we argued that if there is temporary accommodation in the building it is allowed as an auxiliary use which is permitted in that zone," said Baker. "In simple terms, it means a person who owns a house can occasionally rent it out for short-term. And, occasional, since it is not defined, means for less than half the year." The municipality does not want to speak about the case before the courts and RMOW legal counsel has not been available for comment, but Baker said Whistler’s counsel made a strong, persuasive presentation. He said Whistler’s argument is that the sentence needs to be looked at in the context of the entire structure of the bylaw. Whistler argued since temporary accommodation seems to be permitted in other zones, the intention must have been to exclude it from this zone. "We say it isn’t expressly permitted in other zones and that what is permitted is tourist accommodation, which is different (from temporary or short-term accommodation)," said Baker. He added it would have been very, very easy for Whistler in drafting its bylaw to specifically prohibit short-term accommodation. "To sum it all up, our argument turns on definitions of words and so does theirs and the judge is being asked to read those definitions in light of the structure of the bylaw and see whose interpretation seems to make the most sense." It could take some time before judgement is handed down, however. Justice Drost is known for his very long, very thorough and thoughtful decisions. It is also likely that whatever the outcome, there will be an appeal.
