By Loreth Beswetherick Husband and wife Vicky Miller and Michael Rivera, two dentists from Prince George, are the first two Whistler property owners to go before the B.C. Supreme Court for allegedly violating a municipal bylaw the prohibits nightly rentals in residential neighbourhoods. Although the Whistler versus Miller case was not the first in a series of actions launched by municipal law firm Lidstone Young Anderson last year, it has been picked by defence lawyer Jonathan Baker to test a point of law. A one day trial was slated for Thursday, Feb. 17 to determine whether the Whistler bylaw, designed to prohibit tourist accommodation operations in residential areas, is actually enforceable. Both the municipality and Baker say the case will be a pivotal one and the outcome will likely affect all those that follow. To date, the municipality has launched legal actions against 25 Whistler homeowners and a total of 33 properties, stating they are violating the residential zoning bylaw that prohibits 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. Baker is acting as defence counsel for about 12 of the homeowners. He said he chose to bring the Miller case forward first because the facts were clearest. "What happened here is that Whistler brought their action to shut down Miller on an injunction," said Baker. "We in turn have applied for an immediate summary trial under rule 18a of the rules of procedure. It basically means a quick trial on affidavits and the court will be asked to decide on very narrow point." That point is whether the bylaw can actually be upheld by law. "We say it is hopelessly vague and uncertain and the court is going to be asked to deal just with that." Baker said Miller has been "accused of renting so as to violate the bylaw." He will admit the property was made available for individual stays of less than four consecutive weeks and less than a total period not greater than 70 days per year but will argue the bylaw itself is void because it is "vague, uncertain, ambiguous and overly broad to the extent a reasonably intelligent person would be unable to determine the meaning of the bylaw and govern his or her actions accordingly, and as such it is illegal and unenforceable." If Baker wins, the other cases will all be affected. If he loses, Whistler will still have to prove the bylaw is being violated. The judge could hand down a decision right away, toss the case out or reserve judgement for up to a year. Either way the court decision will likely be appealed. "The easiest thing would be for Whistler to enact a new bylaw but it wouldn’t apply retroactively," said Baker. "It would only apply to the future." Lidstone Young Anderson lawyer Barry Williamson is acting as counsel for the RMOW but he was not available for comment. Municipal administrator Jim Godfrey did not want to comment on the case either. "It is before the courts so we wouldn’t speak about the issue at this point. The court date has been set and we will see what happens." When the municipal actions were filed last year RMOW planner Mike Kirkegaard said the municipality had budgeted between $3,000 and $5,000 for each injunction. He said the RMOW was hoping once it had had success with one or two of the actions the remaining homeowners would decide to comply.
