BC’s highest court rules foreign buyer’s tax constitutional

Province's Court of Appeal rejects arguments brought by plaintiff claiming discrimination

BC’s highest court rules foreign buyer’s tax constitutional

A lawsuit in BC claiming that the province’s foreign buyer’s tax is unlawful and discriminatory has suffered another setback.

The class action lawsuit was filed by Jing Li, a Chinese woman who moved to Canada in 2013 and had to pay substantial foreign buyer taxes after she purchased a home in Langley in November 2016, reported the Vancouver Sun.

Li argued that the tax, which was 15% when it was first imposed and has since risen to 20%, is the latest black mark in BC’s checkered historical record of discrimination.

The lawsuit was dismissed in October 2019 by BC Supreme Court Justice Gregory Bowden, who concluded that the tax’s main purpose was to make housing in Metro Vancouver more affordable. Rather than being discriminatory, he said that the tax fell within the province’s jurisdiction to implement.

Li went on to appeal the decision, maintaining that Bowden made numerous errors in his analysis and his determination of admissibility of expert evidence. But a panel of three judges at the B.C. Court of Appeal rejected her arguments and upheld Bowden’s finding of constitutionality.

In her reasons for judgment, Justice Barbara Fisher acknowledged that Bowden was not always consistent in his description, but found that the trial judge’s characterization of the substance of the law was sound.

“The legal effect of the law was to make it more expensive for foreign nationals to purchase residential property in an area where recent data showed that this group was purchasing a significant proportion of the housing market, raising serious concerns about ‘hyper-commodification of real estate,’” Fisher said.

While BC’s history is stained with some “shameful” discriminatory laws and attitudes against Asian and Chinese people, some of which still exist today, she said the foreign buyer’s tax is not illegal and doesn’t infringe on equality rights under the Charter on the basis of citizenship or national origin.

“[T]he current social context in which the tax provisions were enacted is very different from the discriminatory laws of the past, some of which were aimed at discouraging immigration from Asian countries,” Fisher said.


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