Company and Finance News:

PST Bulletins
The following PST bulletins and notices were issued in the month of January.

• Bulletin PST 105, Software
• Bulletin CTB 006, Board Member's Liability
• Bulletin PST 111, Mining Industry
• Bulletin PST 122, Caterers, Event Planners and Party Supply Stores
• FIN 472, Application for Refund of Provincial Fuel Tax for Persons with Disabilities

For more information, visit the Consumer Taxes website.

45-106 Prospectus and Registration Exemptions
[NI and F Amendment Proposed]
From the BC Securities Commission Website:
NI 45-106 – Notice of Publication and Request for Comment – Proposed Amendments to National Instrument 45-106 Prospectus and Registration Exemptions relating to the Short-term Debt Prospectus Exemption and Proposed Securitized Products Amendments The Canadian Securities Administrators are publishing for comment proposed amendments to the short-term debt prospectus exemption in National Instrument 45-106 Prospectus and Registration Exemptions. The proposed amendments introduce new requirements for prospectus-exempt distributions of commercial paper and asset-backed commercial paper. The comment period expires April 23, 2014.

Notice from Gowlings: Update on BC Franchise Legislation
A few months ago, Leonard H. Polsky & Peter V. Snell with Gowlings wrote a news alert regarding British Columbia Law Institute's project on bringing forth recommendations for a Franchise Act for British Columbia. The British Columbia Law Institute (BCLI) published a consultation paper with tentative recommendations back in March 2013 and asked franchisors, franchisees, business and consumer organizations and the general public to give the BCLI input about franchise regulation in BC. The consultation phase of the project ended on September 30, 2013. The BCLI is currently in the process of preparing a final report and recommendations for submission to the BC legislature. Click here to read more.

Energy and Mines News:

Gas Exports from BC Seen as Key to Reviving Pipeline
Northwest Territories Premier Bob McLeod says the key to reviving dormant plans for the Mackenzie Valley pipeline will be to transport natural gas from the Arctic into British Columbia instead of Alberta.

Private-sector proponents of the Mackenzie line consider the NWT project to be currently uneconomic, based on market conditions of plentiful gas supplies in North America.

But the prospect of liquefied natural gas exports from British Columbia to Asia has given a new lease on life to the much-delayed Arctic venture, Mr. McLeod said.

"We've never given up on the Mackenzie Valley pipeline," he said in an interview during a visit to Vancouver, just days after leading a NWT trade mission to China. "After coming back from China, I'm convinced that the Chinese are going to need Canadian natural gas."

In 1974, Justice Thomas Berger, a Supreme Court of British Columbia justice at the time, headed a commission into plans for the Mackenzie route. He concluded his lengthy inquiry in 1977, recommending a 10-year moratorium on construction because of unsettled First Nations land claims. A series of political and economic delays then dogged the venture. Read the Globe and Mail article.

New Institute Promotes Sustainable Mining
in Developing Countries
From Vancouver, academics in a new $25-million resource-sector research institute can see how training artisanal miners in Ecuador to use more sustainable practices can lead to better government policies and a more prosperous mining sector.

A pilot project to train small-scale miners in better techniques is one of the initial efforts of the just-launched Canadian International Institute for Resource Extraction and Development, but it is already gaining traction, and in a nutshell sums up what the institute's job will be.

"Trying to formalize artisanal mining hasn't worked well," said Bern Klein, acting executive director of the institute. "You just give someone a piece of paper to do what they've always done. But education is transformational."

Klein said the pilot project capitalizes on research done in the mining school at the University of BC, which is one of three academic partners in the institute along with Simon Fraser University and Ecole Polytechnique de Montreal.

The institute's mission, Klein added, is to help national, regional and local governments to leverage mining and resource extraction into long-term, sustainable livelihoods. Read the Vancouver Sun article.

BC Won't Mandate Electric-Powered LNG Plants,
Says Energy Minister
BC Energy Minister Bill Bennett says the government won't force oil and gas companies that plan to develop liquefied natural gas plants in the province to use electricity in their operations. Bennett says the companies will have the choice to run the LNG plants that cool the gas to a liquid state with natural gas or electricity despite pollution and efficiency concerns about natural gas by environmental groups. The minister says a report by Clean Energy Canada calling on the government to mandate electric-drive power at LNG plants is naive and could result in LNG companies deciding to locate outside of the province. Read the full article in the Province.

Canadian Mining Industry Calls for Mandatory Disclosure
of Payments to Governments
Canada's two largest mining industry groups, the Mining Association of Canada ("MAC") and the Prospectors and Developers Association of Canada ("PDAC"), joined by two civil society transparency groups (together, the "Working Group") released their final report (the "Report") yesterday calling for mandatory disclosure by mining companies that are reporting issuers of their payments to host governments for developing mineral resources. Support for this disclosure among the mining industry in Canada began shortly after the passage of the Dodd-Frank Act in the United States, which requires similar disclosure for mining and oil and gas companies listed on a stock exchange in the United States. Last June, Prime Minister Harper publicly endorsed these efforts and pledged that Canada would adopt comparable mandatory reporting rules for all extractive companies (mining, oil and gas) in the near future. Read the full article posted by on the Davis LLP website.

Family and Children News:

Birth Registration Form Amended:
Amendments Problematic
The Vital Statistics Agency has updated its Birth Registration form to reflect the assisted reproduction provisions of Part 3 of the new Family Law Act which allow people to make agreements that say who is and is not the parent of a child, and allows a child to have more than two parents.

Under s. 2 of the Vital Statistics Act, a medical professional present at the birth of a child must notify Vital Statistics Agency of the birth within 48 hours.

Under s. 3, the parent or parents of a newborn must register the birth with Vital Statistics within 30 days; this is the form which has been updated. The Birth Registration form tells the agency who the parents of the child are, what name has been chosen for the child and the date and place of the child's birth, and is required for the agency to issue a birth certificate.

In the new form, which incidentally can also be used to register children conceived in the traditional manner:

• the birth mother must declare that the child was born as a result of assisted reproduction
• the father must declare that he is not the biological father of the child and was married to or in a marriage-like relationship with the mother at the time the child was conceived
• up to two additional people may be registered as parents of the child, and must declare that their "reproductive material" was used in the conception of the child

So far so good, however there are two problems with the copy of the form I've been able to review. Read the full article by John-Paul Boyd, posted on the Blog.

New Publication – Separation Agreements:
Your Right to Fairness
Produced in collaboration with West Coast Legal Education and Action Fund (West Coast LEAF) and with financial support of Status of Women Canada to improve women's access to justice in family law cases. Separation Agreements: Your Right to Fairness explains in plain language the law about fair division of family property or debt when spouses separate, and what to do if you believe your agreement might be unfair. The 16-page booklet, to be printed in six languages, provides information about:

• setting aside a separation agreement,
• making a fair agreement,
• preparing your financial statement for court, and
• managing your case and working with a lawyer.

Read the new publication here.

Forest and Environment News:

Administrative Penalties Regulation under the Environmental Management Act
and the Integrated Pest Management Act
The Ministry of Environment is intending to introduce a new Administrative Penalties Regulation under both the Environmental Management Act (EMA) and the Integrated Pest Management Act (IPMA).

Although new to the Ministry, administrative penalties are an enforcement tool widely used by government agencies within BC and across Canada as a means of encouraging compliance with regulatory requirements. Specifically, administrative penalties are financial penalties that can be imposed on those who fail to comply with a provision of a statute or regulation, with an order issued by a Ministry official or with the terms of an authorization issued under a statutory scheme. For minor to moderate violations, administrative penalties are a cost-effective, timelier, and more certain response to non-compliance than court imposed penalties.

The enabling statutory provisions for administrative penalties already exist in the EMA and the IPMA. The Ministry is preparing detailed regulations to bring these provisions into force. Read the full government news release.

WorkSafeBC Revises Rules, Cracks Down on Sawmills
BC forest companies face new, prescriptive regulations that define how much sawdust can settle in a wood-products plant before it is considered a hazard, almost 2 years after the deaths of four workers in sawmill explosions. The new regime has been rolled out in the midst of a safety crackdown by WorkSafeBC inspectors on BC sawmills. Sawdust has been identified as the key fuel that fed a massive fireball that flattened the Babine Forest Products mill in Burns Lake in January 2012, leaving 2 workers dead and another 20 seriously injured. A report on the April 2012 explosion at the Lakeland Mills plant in Prince George has not yet been made public, but that mill was also processing the super-dry, pine beetle-killed timber that was a major source of dust at Babine. Read The Globe and Mail article.

Professional Reliance in Timber Pricing
Timber Pricing Branch, along with other members of Government, the Forest Industry and the Association of BC Forest Professionals has developed a framework to advance professional reliance in appraisals and cruising. The objective of this framework is to utilize the opportunities offered by professional service to achieve greater efficiency in timber pricing for both industry and government, while protecting the public interest. For more information visit the Ministry website.

Health News:

Ban on Nicotine-Loaded E-Cigarettes Aggressively Enforced While
Some Anti-Smoking Advocates Call for Legalization
Even as some public-health advocates call for legalization, Health Canada has been vigorously applying its controversial ban on nicotine-loaded e-cigarettes, ordering scores of businesses to stop selling the devices and telling Internet providers and credit card companies to cut off the companies.

The regulator has investigated 250 complaints about sales of electronic cigarettes in the past 4 years and issued cease-and-desist letters to most of the businesses involved, said Leslie Meerburg, a spokeswoman.

The enforcement attempts come amid a spirited debate among public-health experts about whether e-cigarettes risk encouraging real smoking – or represent an effective stand-in for tobacco, minus the life-threatening side effects. Read the National Post article.

BC Leads Canada in Living Organ Donations
Doctors in British Columbia performed a record number of kidney transplants from living donors in 2013. One hundred twenty-seven of the life-saving procedures were carried out in BC last year, an increase of 44 over 2012. Officials with BC Transplant report 2013 was also a banner year for the total number of transplants performed in the province, at 346. Organs came from 197 British Columbians, including 130 living donors, helping the province mark its greatest increase in living kidney donations. BC Transplant says BC leads the nation in living donations at 28 donors per million population, while the rate of 14.5 donors per million for deceased donations matches the national average. Read the CTV News article.

Labour and Employment News:

Supreme Court of Canada Confirms Pension Benefits Should Not Be
Deducted from Damages for Wrongful Dismissal
In the recent decision of IBM Canada Limited v. Waterman, 2013 SCC 70, the Supreme Court of Canada confirmed that an employee's pension benefits should not be deducted from his/her common law entitlement to pay in lieu of notice arising from a wrongful dismissal. In doing so, the Supreme Court squarely addressed the issue known as the "collateral benefit" or "compensating advantage" issue. Specifically, the compensating advantage issue addresses whether or not two payments arising from the same breach of contract would result in double recovery for the employee (i.e., damages for wrongful dismissal and pension payments arising from the same wrongful dismissal), and should therefore be deducted.

In this case, Mr. Waterman was 65 years old and had 42 years of service with IBM when IBM decided to terminate his employment and it only paid him 2 months of pay in lieu of notice. Throughout his employment, Mr. Waterman had been part of a defined benefit pension and he was entitled to commence collecting his full pension effective the date of his wrongful dismissal. IBM's position was Mr. Waterman's pension benefits should be subtracted from any common law notice period he was entitled to. The Trial Judge rejected this position on the basis that pension benefits were a deferred payment and different to damages for wrongful dismissal. The Trial Judge awarded a 20-month common law notice with no deduction. IBM appealed the case to the Supreme Court of Canada. Read the full article by Simon Heath and posted on the First Reference website.

Computer Based Hiring and Its Impact on
Employers and Employment Law in BC
While it is by no means the norm, increasingly, employers are using computer software to decide who they hire. It would be interesting to explore the impact this will have on employment law.

With a computerized hiring process, employers use computers to generate questions to gauge whether a potential employee is likely to be a successful additional to the business. Employers, and thus the computers and software they use, know whether an employee is more likely to be successful based upon particular characteristics of current and past employees who have been successful within their organization. By hiring employees with these same characteristics, employers are better able to successfully place employees and, in turn, reduce their turnover rate and the related training costs.

Although a system as described above does not guarantee that every hire will work out, it does increase the likelihood that an employee will be a good fit within the organization.

This trend is likely to have a far reaching impact on employment law, especially as the technology develops and becomes more common place. Read the full article by Daniel Sorensen with Waterstone Law Group LLP.

Age and Performance Management
If you are going to lay off older workers while hiring younger ones in the same category, you better have a good explanation. That's essentially what the BC Human Rights Tribunal said in Price and Top Line Roofing Ltd., 2013 BCHRT 306. The Complainant, Paul Price, was a journeyman working for the Respondent Top Line. He was one of the two oldest journeymen employed at Top Line. Both were laid off in July 2012. A few months before this, however, Top Line had hired a journeyman in his 40s and two young journeymen apprentices.

Top Line said Price was laid off because of a shortage of work, lack of speed, and poor motivation and attitude. Price denied performance and motivation issues, and said they had never been raised with him. Read the full article by Donovan Plomp with McCarthy Tetrault.

Miscellaneous News:

Amid Questions Over Fairness, Oppal Backs
Civil Forfeiture Act Review
Wally Oppal was attorney-general when BC opened its Civil Forfeiture Office. The former judge has since left politics and returned to law, where he's heard concerns about the fairness of the process.

And, Mr. Oppal said, he would support a review of the Civil Forfeiture Act and the effect it has had.

"I think it's always healthy to take a review and look at it from a global perspective. Let's step back and see how it's been operating, particularly in terms of fairness and how can we improve not only the act, but the way it's been executed," he said.

Mr. Oppal was one of more than two dozen people interviewed by The Globe and Mail during its months-long investigation of BC's Civil Forfeiture Office.

A 4,000-word piece published [recently] noted the office has rapidly increased the number of files it accepts and the amount of money it brings in. At $41-million, BC has already seized more property than Ontario, despite opening its office three years later. Read The Globe and Mail article.

Beer Garden Rules to be Loosened in BC
The BC government says it will implement all 73 recommendations from its Liquor Policy Review, including relaxing the laws around beer gardens, wedding receptions and sports events.

The government has already announced it is implementing some of the recommendations, such as allowing happy hours in bars and letting kids be in pubs during certain hours.

On [January 31] it announced it was moving forward on several new elements, including:

• Eliminating the need for fencing around festival beer gardens and simplifying online applications.
• Allowing mixed drinks made from spirits like rum and vodka to be sold at big events like sports games.
• Allowing people to serve their own U-brew beer or wine, and mixed drinks at weddings and similar events with a special events licence.
• Extending room service hours in hotels and allowing guest to move more freely with them.

Read the CBC article.

Motor Vehicle and Traffic News:

Motor Vehicle Stops and the Charter: Points
to Consider and Some Interesting Cases
Motor vehicle stops are the most commonly occurring interactions between the police and civilians. In some of these cases, the police have made a decision to stop the vehicle because they have information that a criminal offence has occurred. This can be based upon an investigative detention, or reasonable and probable grounds. However, many vehicle stops are initiated as a result of vehicle stops related to Motor Vehicle Act concerns. Vehicles are stopped in roadblocks that may be designed to check on impaired drivers or to check on the fitness of vehicles. Vehicles can be stopped because they are contravening the Motor Vehicle Act. These sorts of stops are very common. Click here to read the full paper written by Michael P. Klein of Michael Klein Law Corporation and prepared for the CLE course entitled Criminal Law and the Charter 2013.

Motor Vehicle Act Regulations Amendment
Effective January 30, 2014, the Motor Vehicle Act Regulations, B.C. Reg. 26/58, was amended by adding a division regarding the inscription of medical condition statements on drivers' licenses in compliance with the North American Free Trade Agreement.

Wide Left Turn Leads to Contributory Negligence Finding
Reasons for judgment were released [at the end of January] by the BC Supreme Court, Vancouver Registry, discussing fault for a crash involving a wide left hand turning vehicle.

In this case (Le v. Point), the Plaintiff was operating a scooter and passed a vehicle which was stopped ahead of him waiting to turn left. The Plaintiff passed on the right hand side of the vehicle. At the same time the Defendant, coming from the opposite direction, was attempting a left hand turn through the intersection. The Defendant almost cleared the intersection when the Plaintiff clipped the rear of the vehicle.

The Court found the Defendant was established in the intersection and was the dominant vehicle with the Plaintiff failing to keep a proper lookout. Despite this the Defendant was found partially at fault because she was turning wide into the curb lane. Read the full article by Erik Magraken on his BC Injury Law Blog.

Property and Real Estate News:

Strata Property Act Amendment
Effective January 1, 2014, strata corporations are required to identify how parking and storage lockers are allocated to strata lots on a new Form B (Information Certificate). Strata corporations are now obliged to disclose the nature of parking and storage lockers and how they are assigned to a strata lot. These amendments have now been consolidated into the Quickscribe database and can be accessed here.

Developers Beware! Strata Owners May Unite
in a Class Proceeding Against You
Recently in Bosworth v. Jurock, 2013 BCCA 4, the British Columbia Court of Appeal affirmed that where a developer has misrepresented facts to a group of strata owners, a strata owner need not rely on the strata corporation to commence proceedings and may obtain class certification on behalf of all the other owners.

In Bosworth, Mr. Bosworth and his wife purchased a strata unit after reviewing the developer's disclosure statements which warranted the development as "free from defects." Notwithstanding that statement, the developer failed to disclose a 2005 engineer report which listed several problems. After many of the units were sold, the strata corporation learned that, among other things, the development required substantial remedial work to the common property valued at $1,579,922 or $35,109 per strata unit.

The sole issue on appeal was whether Mr. Bosworth could bring an action against the developer for misrepresentation on behalf of the other strata owners under the Class Proceedings Act ("CPA"), or whether the Strata Corporation was the proper party to bring this proceeding under the Strata Property Act ("SPA"). Read the full article by Pushor Mitchell LLP.

Liability of Other Professionals in Real Estate Transactions
This paper, from the annual Residential Real Estate Conference and published on the CLE website, examines the regulatory framework in which real estate licensees, appraisers, and home inspectors operate and the duties that each professional owes to his or her client or to third parties. Click here to view a pdf version of the paper.

Wills and Estates News:

WESA Tips and Traps: Mandatory Hold Period
One of the changes made in BC's Wills, Estates and Succession Act (WESA) (coming into effect on March 31) relates to the mandatory period that an estate executor must wait before distributing assets. It looks innocuous, but the effects of this change may come as a surprise to some people when encountered in practice.

Currently, the only hold period restriction set out in section 12 of the Wills Variation Act (WVA). This section says an executor of a will must not distribute estate assets to beneficiaries until 6 months after the issue of a grant of probate, unless they have consent of all persons entitled to apply under the WVA, or a court order authorizing distribution.

Section 12 of the WVA was recently considered in the case of Stevens v. Wood Estate in which the executor had distributed to beneficiaries prior to the expiry of the hold period. The Court held that the appropriate remedy was to require her to personally repay the distributed funds. Read the full article by Richard Weiland with Clark Wilson LLP.