PROPERTY TAX – Real estate transfer tax – Foreign buyers tax

Li’s appeal against the rejection of his action which challenged the constitutionality of the amendments to the Real Estate Transfer Tax Act. The changes imposed an additional transfer tax on foreign buyers of residential property in specific areas of the province where foreign demand has been shown to be contributing to higher prices. The appellant was a Chinese citizen who moved to British Columbia in 2016. She held a valid work permit but was not a permanent resident of Canada. In 2016, she bought a residential property in Langley and had to pay the additional 15% property transfer tax.

DECISION: Appeal dismissed. The amendments were not ultra vires Province. The overarching purpose of the tax, its pith and substance, was to address the issue of housing affordability by discouraging foreign nationals from purchasing residential property in specific areas, which was a matter of ownership and property. civil rights under art. 92 (13) of the Constitution Law and only incidentally affected the federal powers over foreigners and international trade. The law was not inapplicable under the doctrine of federal paramountcy. There was no operational conflict between the legislation and the Citizenship law or the North American Free Trade Agreement (“NAFTA”). The additional tax did not prevent foreign nationals from acquiring and owning residential property, but simply imposed a stricter obligation on them to pay a higher transfer tax upon purchase. The law did not violate s. 15 (1) of the Canadian Charter of Rights and Freedoms (Charter). The provisions do not create a distinction based on citizenship or national origin. They created a distinction based on immigration status, which was not an enumerated or analogous ground under s. 15 of the Charter. They did not perpetuate a real disadvantage for the group of non-nationals affected by the tax. No negative stereotypical assumptions made against the affected subset of non-citizens have been perpetuated by the tax. The tax was not based on anti-Chinese prejudices.

Li v. British Columbia, [2021] BCJ No. 1405, British Columbia Court of Appeal, B. Fisher, SA Griffin and PG Voith JJ.A., June 29, 2021. Digest No. TLD-August22021002


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