An Order to Remove a Seawall and a Refugee Charged $1.32 Million Property Speculation Tax

 

Starting in 2012, the Gabriola Island Local Trust started a legal effort to have an elderly couple remove a seawall that protects their waterfront property because it was less than 30 meters from the ocean.

At a trial of the matter, the Gabriola Island Local Trust lost the case because the judge concluded there was a common-law right to protect property from erosion.

The Island Trust didn’t like that outcome and so appealed to the BC Court of Appel, which eventually overturned the first judge’s order concluding that the Province of BC had authority, that it delegated to the Island Trust, to prohibit the seawall regardless of the impact on erosion.

Following two additional years of litigation, the seawall was still in place and the Island Trust asked the BC Court of Appeal to start imposing fines for civil contempt of the order.

During the intervening time, the wife who co-owned the property with her husband was diagnosed with dementia and passed away. Her 87 year old husband has numerous physical ailments and the couple’s adult daughter had moved back to BC from Ontario in an attempt to help with the seawall issue.

The daughter obtained an environmental and geotechnical assessment report which indicated that removing the seawall could cause environmental harm to the shoreline and would require the removal of several mature trees which had roots that had grown into the seawall.

Unfortunately, the BC Court of Appeal judge dealing with the case concluded that the court no longer had any authority to change the order that required the seawall to be removed.

The daughter then approached 10 different contractors to have the seawall removed. All but one denied to do the work and the one that did attend concluded his equipment wasn’t adequate for the job.

The daughter then tried to remove the seawall herself using a sledge hammer and jackhammer but was unsuccessful. She concluded the concrete structure was “about as strong as the Great Pyramid of Giza.”

As a result of all of this, the BC Court of Appeal judge imposed a smaller fine than was requested for contempt: $2,500. He also suggested that if the seawall wasn’t removed by the end of October there could be another $7,500 fine imposed.

How the case of the immovable seawall plays out may depend on the continued health of the remaining 87 years old owner. The order for removal was made against only his late wife and him.

Also, on the show, an ongoing case of an Iranian Refugee who escaped that country and came to BC in 1995 is discussed.

The man was successful and, in 2019 was able to purchase a home in West Vancouver for $6.6 million.

The man had applied to become a Permanent Resident of Canada on three occasions, with the last application being filed in January of 2017.

Because it took the government until February of 2022 to grant him Permanent Resident Status he was changed $1.32 million pursuant to the BC property speculation tax that is intended to discourage people from other countries speculating in BC real estate.

The legislation that imposes the tax requires it to be applied to anyone who isn’t a Canadian citizen or Prominent Resident.

While the man involved is making a challenging constitutional argument against the tax, the real issue is that it cannot have been intended to apply to refugees who have lived in BC for 24 years.

The case demonstrated the need to amend the legislation.

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.