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October date set to determine if foreign-buyer tax lawsuit will be class action certified

The hearing to decide whether a lawsuit targeting British Columbia’s 15-per-cent tax on foreign home buyers will be certified as a class action has tentatively been set for October.

© Ben Nelms / Reuters

The hearing to decide whether a lawsuit targeting British Columbia's 15-per-cent tax on foreign home buyers will be certified as a class action has tentatively been set for October.

The lawsuit was filed in September by Jing Li, a Chinese citizen who moved to Canada in 2013 and was forced to pay an extra $83,850 when she bought a townhouse last year in Langley, B.C. Her counsel has said the tax violates the Charter of Rights and Freedoms and "perpetuates prejudice and stereotyping on the basis of national origin."

Ms. Li, who is not a permanent resident, earned a master's degree from the University of Saskatchewan and later moved to the Vancouver region, where she works for a non-profit. She agreed to buy the townhouse for $559,000 plus GST in mid-July – about a week before the tax was announced. Ms. Li later purchased the property after paying the additional tax, which applied even to purchases that were already under way.

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The case was in B.C. Supreme Court for a hearing Tuesday. Ms. Li's counsel proposed the certification application be heard in October, a request the province opposed.

Joseph Arvay, one of the lawyers representing Ms. Li, told the court schedules can always go awry but it is important to "keep some momentum" going.

"Our suggestion is let's have a schedule so that everybody can work toward it. There is prejudice by the delay. Every day people have to pay this tax. That's a reality," he said.

"It's in nobody's interest that this matter be delayed. It's not in the interest of the province, because if we win they have to pay us all back. And it's not in the interest of our clients and the class that we represent because they're paying the tax."

Karen Horsman, counsel for the province, said it did not oppose a May 1 deadline for the filing of the government's statement of defence, a date the plaintiff also proposed. But Ms. Horsman said it would be unfair to bind the province to the plaintiff's broader timeline. Justice Gregory Bowden, however, said adopting the schedule would be of use.

"These cases can tend to drift if the court doesn't stay on top of it, as much as the court can," he said.

The case will return to court in late May. Justice Bowden said he will evaluate how well the parties are faring at that time.

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An amended notice of civil claim, filed by Ms. Li last week, said the tax unjustifiably infringes on a section of the Charter that prohibits discrimination based on race, national or ethnic origin, or colour.

"The Foreign Nationals' Property Tax assumes foreign nationals have more wealth and are able to outbid Canadian citizens and permanent residents in the housing market in the specified area. Nationality and citizenship are not related to wealth," the document said.

The amended claim said the tax is "disproportionately felt by persons whose national origin is from an Asian country, a class of persons that have historically suffered discrimination in British Columbia."

B.C. Premier Christy Clark said in September the tax had a solid legal foundation and she was hopeful the courts would dismiss the legal challenge.

"I mean, there is nothing government can do in the world today, in Canada, that doesn't garner a lawsuit," she said at the time.

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