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B.C.'s housing speculation tax faces first major legal challenge

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Blog by MacPherson Real Estate Ltd | September 27th, 2019

B.C.'s housing speculation tax faces first major legal challenge

Lawsuit alleges tax is unconstitutional and beyond power of B.C. government

The Oak Bay home of Denise and Robert Simpson is at the heart of a lawsuit challenging B.C.'s speculation tax (Mike McArthur/ CBC)
Six homeowners have launched a legal fight against B.C.'s Speculation and Vacancy Tax — the only major lawsuit over the tax to reach the courts.

In a lawsuit filed Thursday, the homeowners claim the speculation tax unfairly targets residents and out-of-country Canadians who split their time between two homes — many of them retirees with limited income, who are house rich but cash poor.

The civil action alleges the levy is unconstitutional, infringes on the Charter of Rights and Freedoms, and is beyond the power of the provincial government.

It seeks an injunction to stop the province from imposing the tax. 

The lead plaintiffs in the case are an elderly couple from Oak Bay near Victoria — Denise Pettersson Simpson, 72, a Canadian citizen, and her husband Robert Simpson, 93, a U.S. war veteran who received a Purple Heart after being injured in the line of duty.

Denise Pettersson Simpson, 72, and her husband Robert Simpson, 93, split their time between Oak Bay and Texas, and had hoped she would live in her family home after he dies. (Mike McArthur/ CBC)

They spend part of the year in Texas, where Robert gets medical care covered by his U.S. military service, and part of the year in the B.C. family home where Denise grew up.

"I love this house and I don't want to lose it," says Denise Simpson. "I'm a Canadian. It doesn't make any sense to me."

'We're not speculators'

The seniors say they can't hold on to their $1.2 million home because they can't pay the $6,000 annual speculation tax they've been assessed on top of other taxes.

The two-storey yellow wood frame home has been in Denise's family since 1952, when she was five.

But the province has ruled the house isn't their primary residence and isn't rented out to "non-family members" — so it is ineligible for exemption.

Denise Pettersson Simpson first lived in the family home when she was five, 67 years ago.

"I couldn't believe it. I couldn't understand how this could apply to us," says Denise Simpson. "We didn't buy the house, we inherited it. We're not speculators."

'Government greed for money'

The B.C. government imposed the speculation tax in November 2018, saying it was designed to target foreign and domestic real estate speculators, turn empty homes into affordable housing, and generate tax revenue to be used for housing initiatives.

Rich offshore investors have been blamed for driving up market prices — buying homes and condos for investment purposes, often leaving them empty.

The Simpsons allege they've fallen victim to an overly broad tax.

They say they've repeatedly declined purchase offers from speculators, and recently paid off the Oak Bay mortgage so Denise could move back to Canada permanently after Robert dies.

Now they face an uncertain future.

"We were in the act of settling in when this hit," says Robert Simpson. "[We're] surprised the government greed for money could drive us out of here."

In July, the B.C. government revealed the speculation tax is expected to put $115 million into provincial coffers this year.

Crowdfunding legal costs

The Simpsons say they can only take part in the lawsuit because it's being handled pro bono — without charge "for the public good" — by a Vancouver-based law firm.

Lawyer Kailin Che says the firm hopes to finance the legal costs by crowdfunding through a website called "saynotospectax.com."

Lawyer Kailin Che hopes the lawsuit will lead to an expanded class action against the speculation tax. (Eric Rankin/ CBC)

There was a similar attempt last year to raise funds online for a different speculation tax challenge on behalf of Alberta-based B.C. property owners, which has yet to proceed.

But Che says this case will be fought in court — and could grow.

"I believe this petition is the first step to building a larger constitutional challenge that might evolve into a greater class action," says Che. "And we anticipate there will be other lawsuits to follow."

'Right to liberty' cited

The civil action alleges the speculation tax "infringes the petitioners' right to liberty protected" under the charter.

"Choosing where to establish one's home is a quintessentially private decision that goes to the very heart of personal autonomy," states the lawsuit. "The state should not be permitted to interfere in this private decision-making process … the act effectively coerces the petitioners to rent out their homes."

The B.C. government has yet to file a legal response. The allegations have not been proven in court.

'I'd be devastated'

Denise Simpson says renting out her family home to strangers isn't an option — it's full of family memorabilia and memories.

The thought of being forced to put the house on the market brings her close to tears.

"I would have a total breakdown if I had to sell this … I'd be devastated, crying," she said. "It'd be like losing a family member."

"I would never get over having to lose this house. And I would never want to go back to Canada again."


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