Company and Finance News:

BC Finance Minister Optimistic Provinces Will See
Merit in National Securities Regulator
British Columbia Finance Minister Mike de Jong said the prospect of the federal government attempting to force the creation of a national financial-market regulator and a prolonged battle with provinces against it encouraged B.C. and Ontario to sign on to the framework for a cooperative effort Thursday.

It has been a back-and-forth battle with provinces, including B.C. initially, which disputed a federal incursion into provincial jurisdiction over the investment business. The battle last came to a head in 2011 with a Supreme Court of Canada decision in a case brought by Alberta that proposed federal legislation at the time would infringe on provincial rights.

However, with Ottawa continuing to suggest it was willing to continue pursuing a unilateral option, de Jong said there was encouragement to seek an alternative. Read the Vancouver Sun article.

New PST Bulletins
The Consumer Taxes website has issued a number of recent bulletins. These include:

• Bulletin PST 109 – Printers and Publishers
• Bulletin TTA 005 – Tobacco Tax Rates
• Bulletin PST 119 – Restaurants and Liquor Sellers
• Bulletin PST 107 – Telecommunication Services

• FIN 355/PME, Application for Refund of Provincial Sales Tax (PST) – Production Machinery and Equipment
• FIN 125, Collector's Return
• FIN 227, Wholesale Dealer's Inventory Return

For more information visit the Consumer Taxes website.

Supreme Court Rules in Envision Credit
Union Case - Income Tax Act
The Supreme Court of Canada released it decision in Envision Credit Union v. Canada, 2013 SCC 48 today concerning amalgamations and the application of section 87 of the Income Tax Act (Canada) (the "ITA"). The Court dismissed the taxpayer's appeal, finding that the requirements of section 87 of the ITA had been satisfied, the amalgamation was a qualifying amalgamation for purposes of the ITA and the tax attributes of the predecessor corporations flowed-through to the amalgamated corporation.

In 2001, two credit unions were amalgamated pursuant to the provisions of the Credit Union Incorporation Act (British Columbia) (the "CUIA") to form Envision Credit Union. The amalgamation was carried out for non-tax reasons, but the parties structured the amalgamation with the intention to avoid the application of section 87 of the ITA. Specifically, the intention was to fail to meet the requirement under paragraph 87(1)(a) of the ITA that all of the property of the predecessor corporations immediately before the merger becomes the property of the amalgamated corporation by virtue of the merger. To this end, the predecessor corporations transferred, at the moment of amalgamation, the beneficial interest in certain real properties to a recently created subsidiary in exchange for shares of the subsidiary. On this basis, the taxpayer took the position that the amalgamation was not a qualifying amalgamation and the provisions in section 87 of the ITA that provide for the flow-through of the predecessor corporations' tax attributes did not apply. Rather, the taxpayer took the position that the amalgamated corporation's preferred rate amount was reset to zero and its capital cost allowance was reset such that it could claim depreciation based on the original capital cost of the assets to the predecessor corporations. View the full article by Rebecca Potter with Thorsteinssons LLP.

BCSC Policies and Instrument Notices
The following policies and instrument notices were recently published BY BCSC:

• CSA Notice 25-301 – Proxy Advisory Firms
• CSA Staff Notice 11-326 – Cyber Security
• CSA Staff Notice 11-323 – Withdrawal of notices and policies
• CSA Multilateral Staff Notice 11-325 – Withdrawal or Revocation of National Policy 42 Advertising of securities on radio or television
• MFDA – Notice of BCSC Non-Objection to Proposed Amendments to MFDA By-law No. 1 (Definitions), Rule 2.5.5 (Branch Manager) and Policy No. 2 Minimum Standards for Account Supervision

Proper Compliance with Private Placement Exemptions
Two recent British Columbia Securities Commission ("BCSC") cases demonstrate the standard required of an issuer that wishes to rely on an exemption from the prospectus requirement when undertaking a private placement financing. In Cinnabar Explorations Inc. (2013 BCSECCOM 361) and Photo Violation Technologies Corp. (2012 BCSECCOM 284; 2013 BCSECCOM 276), the BCSC found that the issuers did not properly rely on exemptions from the prospectus requirements under National Instrument 45-106.

Companion Policy 45-106CP provides some guidance on proper compliance:

A person distributing or trading securities is responsible for determining when an exemption is available. In determining whether an exemption is available, a person may rely on factual representations by a purchaser, provided that the person has no reasonable grounds to believe that those representations are false. However, the person distributing or trading securities is responsible for determining whether, given the facts available, the exemption is available. Generally, a person distributing or trading securities under an exemption should retain all necessary documents that show the person properly relied upon the exemption.

View the full article by Vikram Dhir and Nick Ayling with Clark Wilson.

Energy and Mines News:

BC Oil and Gas Regulator Increases Transparency
with Enforcement Details
The public can now find out details of the B.C. Oil and Gas Commission's regulatory enforcement actions.

This summer, the regulatory body began quietly publishing on its website reports of its enforcement actions, including the names of companies, a description of the incident and its location. They will continue to do so on a quarterly basis.

The first report shows the B.C. Oil and Gas Commission (BCOGC) issued four orders, including to Nova Gas Transmission Ltd. in the Fort Nelson area in northeastern B.C. to stop withdrawing water from a pit because of the presence of minnows. Tervita Corp. was cited for well pressure problems in the Buick Creek area near Fort St. John.

Until now, the 15-year-old BCOGC had published annual compliance and enforcement statistics, but not the names of companies or details of its orders, tickets, administrative penalties or charges. Read the Vancouver Sun article.

Energy Companies Get BC Natural Gas
Extraction Royalty Breaks
The British Columbia government has announced nearly $116-million in royalty breaks for energy companies to construct roads or build pipelines in support of natural gas production in the province's northeast.

In a move meant to stimulate liquefied natural gas exports to Asia, oil and gas companies will get a break on the royalties they would normally pay to the B.C. government for resource extraction. The benefit under the Infrastructure Royalty Credit Program can be as high as 50 per cent of the cost of constructing roads, pipelines and associated facilities. The majority of the 12 projects that will benefit from the $116-million break announced Monday will be built at the Montney play in an area north of Fort St. John, B.C.

The announcement comes the same day a report warned that B.C's pledge to build the cleanest LNG industry in the world must be met with strict, and likely pricey, environmental measures. Without them, the report from environmental group Tides Canada warned, the province's sector risks creating a carbon footprint nearly double that of the oil sands in 2010. Read full article in the Globe & Mail.

AME BC Comments on Cooperative Capital Markets Regulatory System
Securities Regulation Overlap Addressed in Announcement
The Association for Mineral Exploration British Columbia (AME BC) commented today on the joint government announcement of September 19 to create a Cooperative Capital Markets Regulatory System. The Ministers of Finance of British Columbia, Ontario and Canada have agreed to establish a cooperative securities regulator and have invited all provinces and territories to participate in the proposed system.

The federal government stated that a cooperative securities regulator will better protect investors, enhance Canada's financial services sector, support efficient capital markets and manage systemic risk. It will feature a single regulator administering a single set of regulations and be operationally independent and self-funded through a single set of fees. The single regulator is expected to be operational by 2015. View the full article published on the AME BC website.

Proposed Changes to the National Energy Board Export and
Import Regulatory Framework – Comment Period Extended
The National Energy Board is proposing amendments to the National Energy Board Part VI (Oil and Gas) Regulations and the National Energy Board Export and Import Reporting Regulations. Concurrently, the Board is proposing amendments to the Toll Information Regulations. The proposed amendments can be found on the National Energy Board website. The Board is seeking public comment on the proposed amendments to these regulations. The comment period has now been extended until October 18, 2013.

Family and Children News:

An Overview of the Intersect between the Family Law Act, Criminal Code
and the Ministry of Children and Family Development
Author: Graham A. Kay of Webber Weiser McKinley & Kay, Kamloops, BC
In this paper written for the recent CLEBC course: Family Law for Non-Family Lawyers, Graham Kay offers recommendations for non-family lawyers whose clients may be involved in a family law dispute and considers the impact of the new Family Law Act on family violence issues, focusing specifically on protection orders and enforcement provisions. The paper can be viewed on the CLEBC website. Source: Taken directly from the CLEBC website.

Supreme Court Publishes First Decision
Dividing Property under the FLA
JP Boyd, director of the Canadian Research Institute for Law and the Family recently published the following summary of a recent BC Supreme Court case that examines how the new Family Law Act was used to determine the division of property and debt between an unmarried couple who were in a long-term relationship.

Mr. Justice Harvey of the Supreme Court has just released his decision in Asselin v. Roy, a case in which the parties, a couple in a long term unmarried relationship, agreed to use the new Family Law Act to determine how their property and debt would be split between them. Frankly, I'm surprised that we've had a decision on this topic so soon, but the judgment is welcome nonetheless.

Much toner will be spilt chewing over the nuances of this decision, and, on the assumption that sharper minds than mine will have a better analysis than I, I will provide a summary overview only.

View the full article posted on the Blog.

Best Practices for Relocating Guardians
Under the Family Law Act
The Family Law Act says that a joint guardian of a child must give all other guardians at least 60 days' notice in writing before moving with their children. The only real exceptions to this rule are if:

1. The other guardian(s) are likely to become abusive or violent as a result of giving notice; or
2. The other guardian(s) don't really have a relationship with that child.

The Family Law Act sets out some indication of what to include in this notice – that is, when the moving guardian will be relocating, and where the guardian is going with the child.

As the Act goes, if the other guardian(s) object to the proposed move, they have 30 days from the day they receive notice to file an application to stop the move. Theoretically (more on this later in this post) if they don't object in this timeframe, the moving guardian is free to start packing.

However, the Family Law Act is silent on how this notice is to be given. View the full article posted by Tom Wallwork on the BC Courthouse Libraries publication The Stream.

Common Law Relationships: Bressete v. Henderson
The Honourable Madam Justice S. Griffin recently gave reasons for judgment in the case of Bressette v. Henderson addressing the important question:

Does the Family Law Act (the "FLA") apply to common-law spouses whose relationship started and/or ended in the two years immediately prior to the FLA coming into force?

The reason that this question matters, in short, is that the application of the FLA to certain common-law relationships could result in a totally different division of property for spouses than would otherwise occur if the FLA did not apply (for example, one spouse might get half of all family assets if the FLA applied to their relationship but very little if the FLA did not apply).

Prior to the FLA coming into force, common-law couples in British Columbia were unable to apply for property division relief under the Family Relations Act (the "FRA"), the statute that provided for property division upon the breakdown of a marriage.

Instead, common-law couples were limited in the remedies they could seek for property division. View the full article published by Christine Murray with Cassels Murray.

New White Paper It's Time For Justice – Divorce Act
It's Time For Justice is a six-edition series of White Papers on the need for immediate change in Canadian family law, so couples who need to end their relationships can do so faster, more efficiently, at less cost and less strain to separating spouses and partners, and their children. Separation and divorce directly affect 38 per cent of Canadians. The link to the White Paper (published by Andrew Feldstein, with Feldstein Family Law Group) can be found here.

Forest and Environment News:

New Law from BC's Environmental Appeal Board –
Lots for Landowners, Lawyers and Consultants
BC Environmental Appeal Board Orders Ministry of Environment to Issue Previously Rejected Certificates of Compliance.
On July 17, 2013, the BC Environmental Appeal Board ("Board") rendered an important ruling in an appeal by a commercial landowner seeking to overturn a decision of a director of the Ministry of Environment ("MOE"). The director had rejected an application for two certificates of compliance (for the source site and a portion of impacted neighbouring property) and required, even after many years of investigation and remediation, resubmission of the entire application to current standards. The Board allowed the appeal and ordered the director to issue the certificates of compliance. Richard Bereti and Una Radoja of Harper Grey LLP acted for the successful party, Morguard Investments Limited, in this appeal. Read full article posted by Richard Bereti and Una Radoja with Harper Grey LLP.

Non-Compliance Issues Found During Audit of the
McBride Community Forest in British Columbia
An audit of the McBride Community Forest in the Robson Valley has found several instances of non-compliance with provincial forestry legislation, according to a report released today. These findings include failing to show road locations on site plan maps, in one instance leading to a poorly constructed road that caused environmental harm. Five access roads also were upgraded and used without authorization. The status of cutblocks was not reported to government when required and accurate silviculture information was not maintained by the community forest. "Each of these findings has potential implications for the overall sound management of forest resources, and collectively they raise serious questions about the community forest corporation's diligence and attention to detail," said board chair Al Gorley. WA and related regulations, as of September 2012. View the full news release published by the Forest Practices Board.

Provincial Logging Residue & Waste Measurement
Procedures Manual Amendment
A recent amendment to the Provincial Logging Residue and Waste Measurement Procedures Manual is intended to extend the expiry date of the waste benchmarks until September 30, 2014, unless terminated earlier. The amendment comes into force as of October 1, 2013. For more information on this amendment or to view the manual click here.

BC Forest Safety Council Launches Walking Challenge
to Help Improve Health of Log Haulers
The BC Forest Safety Council (BCFSC) is rolling out a new health and wellness program focused on increasing the physical activity levels and overall health of log truck drivers in BC. The Healthy Hauler Step Challenge aims to provide BC's log truck drivers with an opportunity to become more active in an easy, fun, and inexpensive way. Using pedometers provided free by the BCFSC, truckers can track the number of steps they take each day, log them over a month's time, compete for prizes, and earn recognition in their industry. They can challenge themselves, co-workers, and teams from other companies. View the full news release on the BC Forest Safety Council Website.

Health News:

Ministry of Health Clarifies Residential Care Fee Policy
The Ministry of Health is clarifying information that has been reported about the Province's Home and Community Care policy for publicly subsidized residential care.

The policy explains which items in residential care a resident can be charged for and which items must be included as part of a resident's basic care.

Operators of residential care facilities have always been allowed to charge clients for the cost and maintenance of personal services and equipment, such as telephone, wheelchairs, walkers, hearing aids and cable (the full list of chargeable items is included in the backgrounder).

The 1991 home and community care manual, for example, states, "the client is responsible for the cost and maintenance of equipment that is for their exclusive use (e.g., walker, crutch, wheelchair)."

In 2010 and 2012, the ministry clarified the manual as some operators were charging for items, such as incontinence supplies, that should be included as part of a person's basic care. In addition, the updated policy also requires operators to clearly explain each fee and make sure that clients are aware and agree in advance before they are charged.

Recently, there has been considerable media on wheelchair maintenance fees. This fee has been inconsistently applied throughout the province. For example, most health-authority-contracted and privately-owned facilities have required clients to cover the cost of their own wheelchairs, while most health-authority-owned and operated facilities have providing wheelchairs free of charge. Read full government news release.

Health Canada Decision to Allow Prescription Heroin
Will Save Lives, Pivot Lawyer Says
But health minister says decision was "wrong" and won't happen again
Health Canada's decision to provide prescription heroin to certain addicts will save lives in Vancouver, according to a lawyer representing them.

"This is a big step forward," Pivot lawyer Scott Bernstein said Friday, referring to a decision to approve access to heroin for at least 15 participants exiting a Vancouver study.

Pivot, which represents 22 study participants and the B.C. Association of People on Methadone, said the landmark decision will allow some of the most marginalized and addicted patients – who have not responded to other treatments such as methadone – to continue to receive proven treatment in a medical environment.

"The evidence out there demonstrates this is the appropriate treatment for people in this condition," added Bernstein. "For our clients this is access to a life-saving treatment that helps them stabilize their lives, become healthy, and not have to engage in criminal activity to get the drug they're dependent upon. It's definitely a good thing."

Bernstein said the decision was based on evidence rather than ideology and was made after doctors convinced Health Canada that heroin was the appropriate treatment. View the Vancouver Sun article.

Labour and Employment News:

You Have to Do It … "Or Else": New WorkSafeBC
Bullying & Harassment Policies
As of November 1, BC will have mandatory requirements for employers, workers and supervisors to address workplace bullying and harassment. The new WorkSafe BC Occupational Health & Safety bullying and harassment policies will be effective November 1, 2013 (the "OHS Policies"). All employers should be preparing and reviewing their policies.

This represents the second stage of significant developments addressing workplace bullying & harassment under WorkSafeBC's jurisdiction. The first stage, effective July 1, 2012, were amendments to the Workers Compensation Act that significantly expanded the scope of compensable mental disorder claims including those arising from bullying & harassment. Now, the OHS Policies approach bullying & harassment from the prevention side by treating bullying & harassment as a hazard just like any other workplace hazard.

Under the OHS Policies, employers in British Columbia will have a clear duty to "take all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment". The Employer Duties Policy includes a number of requirements including that employers must develop a policy with respect to workplace bullying and harassment, implement procedures for the reporting and investigation of incidents, and provide training to employees and supervisors to recognize and respond to bullying & harassment. View full article by Bull Housser LLP.

Miscellaneous News:

Fair Notice and Women's Reproductive Rights: SCC Dismisses Appeal
in R v Levkovic on Constitutionality of Criminal Code Section 243
On May 3, 2013, the Supreme Court of Canada unanimously dismissed the appeal of Ivana Levkovic, who challenged the constitutionality of section 243 of the Criminal Code (RSC c C-46). Section 243 makes it a criminal offense to dispose of a child's dead body with the intent to conceal the fact that it was delivered, "whether the child died before, during or after birth." Reuben Zaramian has provided a factual background for the case in a previous TheCourt.ca piece, found here.

Soon after the arguments were heard at the SCC on October 2012, Stephanie Voudouris commented on the implications of this decision for women's reproductive rights, and invited a more contextual vagueness analysis that considers the effect section 243 has on women's right to autonomy and privacy with respect to making decisions about reproduction. Her thoughts on the matter can be found here. View the full article by Anna Kwadrans and published on The Court.

Motor Vehicle and Traffic News:

Vehicle Lessor Liability Limit Over
and Above that of Motorist
Important reasons for judgment were released [in September] by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessors when their vehicles are involved in an at-fault collision.

Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor's to $1,000,000 of liability when their vehicles are involved in a collision. The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.

In this week's case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision. The quantum was agreed to at $1.6 million dollars. The ICBC insured defendant paid out the policy limits of $1 million. The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million. Mr. Justice Bowden disagreed finding a lessor's exposure, while capped at $1 million, is over and above damages collected from other liable parties. Read the full article by Eric Magraken on the BC Injury Law Blog.

CVSE 1052 Form – Very Large Loads – Updated
The CVSE1052 form has been updated. This form is used for District Notifications and Authorizations for Very Large Loads (over 6.0 m wide or over 4.88 m high), as part of the Extraordinary Load Approval process. You may access the revised form on the Ministry of Transportation and Infrastructure website.

Property and Real Estate News:

BC Condo Owners Want Better Municipal Oversight
of Temporary Occupancy Permits
A B.C. condo owners association will petition municipalities to adopt a new measure to ensure owners don't get caught with incomplete occupancy permits that can undermine their ability to sell.

The change is a simple one: it would require municipalities to notify strata corporations within the first year of occupancy whether the permit is complete, says Tony Gioventu, executive director of the Condo Home Owners Association of B.C.

If the requirements under the permit have not been met, a strata corporation will have an opportunity to file legal action while developer bonding is still in place. That will ensure there is money that can be used to complete work needed to get the occupancy permit, said Gioventu.

The issue was raised this month when residents at a Surrey condominium complex discovered they couldn't sell their units because the site didn't have a final occupancy permit. View the Vancouver Sun article.

BC's Strata Depreciation Report Deadline Looms
Time is running short for British Columbia strata corporations aiming to hit the December 13 target to have government-mandated depreciation reports in place.

Depending on who the stratas pick to prepare the report, they may be facing a wait of up to several months, which could take them into next year, and past the deadline.

B.C. regulations were changed in 2011 to require depreciation reports every three years to help stratas plan long-term for repairs and maintenance of common properties and assets.

It isn't known how many strata corporations have decided to go ahead with the reports, which can cost anywhere from a few thousand dollars to $10,000-plus, depending on the property.

Another factor in cost is who is hired to prepare the report. Legislation does not cite specific credentials.

Sandy Wagner, president of the Vancouver Island Strata Owners Association with 8,600 members, estimates the bulk of Island stratas are getting the reports done. The reports will help maintain property values, she said. Also, financing agencies are increasingly asking for them. Wagner recommends strata corporations budget anywhere from $5,000 to $12,000. View the Times Colonist article.

Wills and Estates News:

BCLI Publishes Report on Common-Law Tests of Capacity
The British Columbia Law Institute (BCLI), formerly known as the Law Reform Commission of British Columbia, is a not-for-profit law reform agency that works to improve and modernize the law. BCLI has had significant influence on important changes in the law in many different areas. Most recently, many of its recommendations in areas of family and estates law have been accepted by the Provincial government and have resulted in legislative changes.

BCLI has recently released its Report on Common-Law Tests of Capacity. This report follows BCLI's release of its Consultation Paper on Common-Law Tests of Capacity earlier in the year.

The report was the final stage of the Rationalizing and Harmonization of BC Common-Law Tests of Capacity Project. The project's purpose was to make recommendations related to mental capacity required to enter into certain transactions or relationships. The report contains the project's final recommendations for reform.

The report focuses on the elements of tests of capacity that have been developed by the courts over the years. These tests are known as "common-law tests of capacity". View the full article by Mark Weintraub with Clark Wilson LLP.

Son Cut from Mother's Will Still Deserves Inheritance: Judge
A retired logger who was written out of his mother's will is still morally entitled to half her estate, a B.C. Supreme Court judge has ruled.

When 98-year-old Smithers resident Dee Drummond died in January 2011, she left her entire inheritance – including a $110,700 home and $55,000 bank account – to her two neighbours.

That came as a shock to her 77-year-old son Bruce Drummond, who had formerly been named sole beneficiary on the estate.

In her will, Ms. Drummond said she'd grown very close to neighbours Casey and Clara Moore, and the couple had provided a lot of help to her over the years. She had fewer kind words for her son. Read the full story reported by CTV.