B.C.'s new tax is illegal and discriminatory - academic

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With the new 15 per cent tax on foreign buyers of homes in British Columbia having taken effect earlier this week, fears of a mass exodus of overseas buyers to other markets have intensified due to what an academic has called a “straightforward example of discrimination in housing.”
In a contribution piece for The Globe and Mail, Sean Rehaag of York University’s Osgoode Hall Law School said that the recently launched tax is a patently unlawful imposition on overseas nationals.
“The Charter of Rights and Freedoms forbids governments from discriminating on the basis of a list of prohibited grounds, including national origin. Canadian courts have extended those prohibited grounds to include citizenship status,” Rehaag wrote.
“There is little question that a tax applying exclusively to a group defined by one of the Charter’s prohibited grounds would constitute discrimination.”
The associate professor argued that the tax is indefensible on legal grounds, and instead only crystallizes the long-running undercurrent of discrimination in British Columbia.
“The Charter includes a provision that renders measures lawful that would otherwise be unconstitutional if they are reasonable limits that can be justified in a free and democratic society,” Rehaag explained. “But to benefit from this provision, the government must show, among other things, that there are no other ways to achieve the intended policy objective that would do less to infringe people’s rights. It is unlikely that the B.C. government could meet this test in this case.”
“While the new 15-per-cent B.C. levy applies to foreign nationals, we all know the aim of the legislation is narrower: curtailing real estate investment by Chinese foreign investors. In this context, what is striking about the levy is how closely it parallels other attempts to restrict Chinese participation in the B.C. and Canadian economies,” he added.
Rehaag noted that the soaring demand in the country’s markets could be curbed without resorting to nationality-based measures.
“Some obvious ones include residency requirements, taxes on vacant property, taxes that discourage speculation and flipping, bylaws that encourage dense and diverse housing stock, and increased public investment in social housing. None of these would require unlawful discrimination,” he offered.
“[It] is imperative that we be cautious about policies that target people on the basis of national origin or citizenship status. The message sent by the new B.C. tax legislation – about who is welcome to participate in our economy and in our communities – matters.”
  • Tomas on 2016-08-05 9:28:19 AM

    Any tears, outrage or university faculty pleas, for foreign students who pay 3x the local rate?

    He who lives in glass houses...

  • Michael on 2016-08-05 10:36:16 AM

    Tomas, while your comment is obviously an important matter as well, it does not change the fact that this 15% is in fact ILLEGAL! Foreign students coming to our universities take spots from our local children and foreign students do not pay into any of the infrastructure costs incurred in having more people here while they are going to school here and so there also needs to be some kind of an extra cost applied to them to cover all the extra infrastructure costs in our society they get to benefit from but don't pay for. But I agree 3x the costs is excessive if that is the case at some schools. This is the schools' faults however, they are taking advantage of the demand and squeezing our local children out.

  • Tomas on 2016-08-05 10:53:09 AM


    On what basis is the tax "illegal"?

    If that's the case then buyers can simply launch a court challenge or at minimum gain injunctive relief on the 15% transfer tax.

    You've correctly identified the 3x tuition fee issue as an attempted remedy for crowding out of local students. Is this not the same situation in the crowding out of locals in real estate?

    What if local students were required to pay the foreign student rate to win a spot in a school?

  • Alchemist on 2016-08-05 11:06:50 AM

    This article places too much emphasis on racism. Is the concern in BC really against Chinese ownership or do they just happen to be the most numerous foreign buyers? What if the buyers were mostly American, Russian or something else? I think the concern in BC would be the same.

  • Alchemist on 2016-08-05 11:30:43 AM

    This article places too much emphasis on racism. Is the concern in BC really against Chinese ownership or do they just happen to be the most numerous foreign buyers? What if the buyers were mostly American, Russian or something else? I think the concern in BC would be the same.

  • BJ on 2016-08-05 11:31:30 AM

    Michael - your justification for increased costs for foreign students is in eerily similar to why increased costs should be applied to foreign buyers: do foreign home buyers pay infrastructure costs? Are foreign buyers not squeezing our local children out? It is wealth over wages that is driving prices. Canadians can't easily buy in China - is that discriminatory? I don't think so. That being said, the tax shouldn't have pertained to pending sales. Moving forward there are many loop-holes to get around the tax, just like there has been with avoiding paying capital gains tax. The "statistics" show foreign ownership at 3-5% - we all know this data is wrong because of such loop-holes. I'm not sure what is wrong with "restricting Chinese participation in the B.C. and Canadian economies" - We can't sell out our country just to be perceived as being nice people.

  • Jason Nugent on 2016-08-05 11:37:43 AM

    I think illegal is probably a stretch here, I believe it might be morally a bit questionable about how they implemented it. Considering other countries have foreign ownership taxes there is no legal issue with the tax. I believe BC might be challenged on how they almost made the tax retroactive instead of going forward. You can bet a team of lawyers went through the legislation before it was inacted.

  • LanceH on 2016-08-05 12:31:11 PM

    Absolute nonsense!! Under no circumstance does the Charter extend to ppl's of other countries. We don't have that jurisdiction, whether our activist courts like it or not. You notice he didn't provide the clause? There's a reason for that!! This is the Lefty desire for One-World. And the SCC decision to include "citizenship status" is an activist decision for the same purpose. But that's for ppl ALREADY living here, not one's living abroad simply buying a house, which may well be for investment purposes, not to live in.

  • lotuslandrealestate.com on 2016-08-05 12:33:14 PM

    Those foreigners are welcome to send their money but please expect nothing in return. Just send the cash, please.

  • Anthony C. on 2016-08-05 3:32:41 PM

    “It is easier to seize wealth than to produce it, and as long as the State makes the seizure of wealth a matter of legalized privilege, so long will the squabble for that privilege go on.”

    ― Albert Jay Nock

  • Kuldip S Panesar Homeland Mortgage Corp. on 2016-08-05 6:34:31 PM

    The property purchase tax of 15 % is applied on all the buyers those are neither Canadian Citizen nor Permanent Residents . Why don't the Government strictly implements the other measures to control the foreign buyers ? Do they qualify the mortgage as Canadian Citizen or Permanent Residents are to qualify ? If the BC Government want to restrict the foreign investments , why the Ministers and their Associates tour the other countries ( Especially Asian Countries ) to induce them for the investments in Canada . Investors have the option to invest their money where they expect the maximum return ?

  • Tim Hill on 2016-08-05 6:37:56 PM

    It's a moot point, anyway - the Province can invoke the Notwithstanding clause rendering any Charter Right null and void.

  • Leon Johnson on 2016-08-08 1:16:21 AM

    I don't see the similarity between this and school costs. Tuitions are subsidized by taxpayers and the rate that foreign students pay is merely the unsubsidized rate. I don't see how that is controversial. This is completely off topic and a bad analogy. I think Sean Rehaag raises some valid objections and appropriate alternative actions.

  • Paul Therien on 2016-08-08 1:18:05 PM

    I do not think that this tax is illegal, nor is it immoral. The issue at hand is not people who move to Canada and establish lives here, it is people who purchase property as a vehicle to turn a quick profit, or as a solution for taking money out of their home country.

    Canada needs immigration, it is after all what built this country. But immigration and economic speculation are very different things. Speculation adds to the economy short term. Once the home is built and sold, there is negligible long term benefits outside of the property tax paid. Immigration on the other hand provides long term economic benefit through taxes paid, support of local business, and creating jobs (most new business in Canada is started by new immigrants).

    There are jurisdictions all over the world that restrict foreign ownership to protect citizens and permanent residents. China, Australia, Denmark, Mexico, Japan, Some US states, and many others have highly restrictive policies in place that give those who are actively living and working in the country priority for housing.

    Will this new tax have the desired results? Maybe, maybe not. Is it illegal, probably not, but even should it be struck down... government will find a way to "tax" foreigner speculation - they don't have a choice because it is what the majority of the general public has indicated they want.

  • Tomas on 2016-08-09 9:27:40 AM

    Leon Johnson,

    Don't see the difference?

    Based on residence status, students will pay effectively a 200% tax on their tuition.

    Obviously a university should endeavour to admit more foreign students and less locals right?

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