Company and Finance News:

BC Law Institute Puts Forward Report
Pushing for Franchise Legislation
In a province often considered the Wild West when it comes to franchise law, the British Columbia Law Institute is putting forward a report proposing a model for legislation that would help protect all parties. The report analyzes franchise legislation in force in Canada, the U.S., and elsewhere, and contains a detailed legislative proposal for the province that is unregulated. "Given the prevalence of franchised businesses in BC and their importance to the provincial economy, it is surprising that BC has no franchising legislation," said Jim Emmerton, executive director of BCLI in a statement Monday. "The enactment of franchise legislation in BC along the lines set out in this report would give appropriate and needed protection to BC franchise owners. It would also benefit franchisors by contributing to the establishment of consistent standards across the country." BC is one of a handful of remaining provinces without specific legislation protecting franchisees from franchisors, who currently don’t have to disclose financial data, litigation history, and other information to prospective franchisees. Read the full article by Jennifer Brown and published on the Canadian Lawyer & Law Times Blog, Legal Feeds. 

BC Securities – Policies & Instruments
The following policies & Instruments were published on the BCSC website in the month of March

• 23-103 – National Instrument 23-103 Electronic Trading and Direct Electronic Access to Marketplaces
  The Commission has adopted, effective March 1, 2014, amendments to National Instrument 23-103 Electronic Trading, its companion policy and related amendments. The amendments relate to direct electronic access.
• BCN 2014/01 – Notice of Varied BC Instrument 32-517 Exemption from Dealer Registration Requirement for Trades in Securities of Mortgage Investment Entities
  The BC Securities Commission is extending BC Instrument 32-517 Exemption from Dealer Registration Requirement for Trades in Securities of Mortgage Investment Entities until June 30, 2015
• 45-313 – Multilateral CSA Notice 45-313 Prospectus Exemption for Distributions to Existing Security Holders
  The notice is publishing a prospectus exemption that would, subject to certain conditions, allow issuers to raise money by distributing securities to their existing security holders. Effective March 13, 2014, the Commission is adopting BC Instrument 45-534 Exemption from prospectus requirement for certain trades to existing security holders.
• BCN 2014/02 – Specification of Forms for Summons to Attend and Demand for Production of Records
  The Executive Director has specified new forms for a summons to attend before an investigator and a demand for production of records and things under section 144 of the Act.
• BCN 2014/03 – Notice and Request for Comment on Start-Up Crowdfunding
  The BCSC is seeking comment on the start-up crowdfunding exemption proposed by a number of CSA jurisdictions in publications made today. The proposed start-up crowdfunding exemption is modeled on the Saskatchewan Equity Crowdfunding exemption adopted on December 6, 2013. The comment period ends on June 18, 2014.
• CSA Staff Notice 45-314 – Consolidated List of Current CSA Exempt Market Initiatives
  The CSA is publishing a series of significant initiatives related to prospectus exemptions. This CSA Staff Notice lists all the initiatives in one place for the benefit of industry and investors. In BC Notice 2014/04, the BCSC is concurrently publishing the information in CSA Staff Notice 45-314 on a jurisdiction-by-jurisdiction basis to further assist industry and investors.
• 81-101 – CSA Notice and Request for Comment – Implementation of Stage 3 of Point of Sale Disclosure for Mutual Funds – Point of Sale Delivery of Fund Facts – Proposed Amendments to National Instrument 81-101 Mutual Fund Prospectus Disclosure and Companion Policy 81-101CP to National Instrument 81-101 Mutual Fund Prospectus Disclosure (2nd Publication)
  
  The comment period ends on May 26, 2014.

PST Bulletins
The following PST bulletins and notices were issued in the month of March:

• Bulletin PST 300, Special Occasion Liquor Licences
• Bulletin PST 402, PST Refunds on Charity-Funded Purchases of Medical Equipment
• Bulletin MFT-CT 008, International Fuel Tax Agreement and Motive Fuel User Permits
• Bulletin PST 134, Aircraft
• Bulletin PST 202, School Supplies

Credit Card Fees "Civil Conspiracy", Class Action Lawsuit Says
BC Supreme Court allows action against Canada's 12 major banks to proceed
A class action lawsuit alleging Canada's major banks and credit card companies are engaged in a "civil conspiracy" involving credit card fees, has been certified by the BC Supreme Court, allowing it to proceed. The class action lawsuit was filed by a Vancouver furniture retailer Mary Watson, who alleges the fees charged by 12 separate financial institutions, including Visa, Mastercard and Canada's big banks, "unlawfully interfered with the economic interests of merchants." The suit says merchants are forced to accept every Visa or MasterCard presented by customers – including premium cards – even though merchants are charged much higher fees for those premium cards. Read CBC article. 

Energy and Mines News:

Mines Act Amendment
The government’s recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014, proposes to amend the Mines Act by giving the Lieutenant Governor in Council the authority to prescribe fees and charges through regulation for services provided and duties performed under the Mines Act. The amendment also intended to ensure that fees are paid prior to the issuance of a permit or permit revision. The primary purpose of this amendment is to facilitate the introduction of fees for Mines Act permits to maintain timely and efficient service.

BC Fracking Challenged by Environmental Groups
in Court – Water Act
A coalition of environmental groups will be in BC Supreme Court in Vancouver [March 17] arguing against the use of river and lake water for hydraulic fracturing, or fracking, for natural gas. Ecojustice first filed the lawsuit on behalf of the Western Canada Wilderness Committee and the Sierra Club of BC against BC's Oil and Gas Commission and energy company Encana Corp last November. The groups claim the commission and Encana, are in violation of the province's century-year-old Water Act because of the repeated use of short-term permits allowing millions of litres of fresh water to be drained from lakes, streams and rivers and mixed with chemicals and sand and injected under high pressure into the ground to release natural gas. Morgan Blakley, a lawyer who represents the coalition, says his clients believe repeatedly granting short-term water withdrawal permits to the same company for the same reason is illegal. View article on CBC News website.

Federal Government Announces Approval of
Four Long-term LNG Export Licences
On March 26, 2014, the Government of Canada approved four long-term liquefied natural gas (LNG) export licences for Pacific NorthWest LNG, Prince Rupert LNG, WCC LNG and Woodfibre LNG. The four export licences authorize the export of a total of up to 73.38 million tonnes per annum (mtpa) of LNG. This approval by the Government of Canada is the last step in the approval process for the issuance of a LNG export licence. While obtaining a long-term National Energy Board (NEB) export licence is one key step in the approval process for these LNG projects, additional permits and approvals are still required. The outstanding project approvals will focus on facility and construction approvals and environmental assessments from provincial and federal regulators, including upstream approvals for pipelines. Read the full article by Gordon Nettleton and Kimberly Howard of McCarthy Tetrault. 

Family and Children News:

Adoption Act Amendments
The government’s recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014, proposes a number of amendments to the Adoption Act. Among other changes, amendments are intended to correct a legal issue identified by the Ministry of Justice in a review of the Adoption Act. The amendments clarify the legislative authority of a director – under the Child, Family and Community Service Act – to support the adoption of children in care and support eligible families through adoption assistance payments.

Supreme Court Releases Important Decision on Paramountcy
Problem between Divorce Act and Family Law Act
The excellent decision of Mr. Justice Sewell, of the British Columbia Supreme Court, in the case of B.D.M. v A.E.M. also known as A.M. was released a few days ago. The case is both another example of how high conflict family law disputes are so spectacularly ill-served by the justice system in its present form – the case featured a whopping 17 court applications and the trial required 68 days of court time, in fits and spurts, between 27 February 2012 and 13 September 2013! – but more importantly makes a point about the intersection of the Divorce Act and the new Family Law Act on parenting issues that [John-Paul Boyd has] been pressing since the act was first tabled on 14 November 2011. Read the full article by John-Paul Boyd on the Blog. 

Special Accounts Appropriation and Control Act Amendments
Proposed amendments to the Special Accounts Appropriation and Control Act will enable successful implementation of the new BC Training and Education Savings Program (BCTESP). The program will provide $1,200 grants paid from the Children's Education Fund into Registered Education Savings Plans for BC six-year-olds born on or after January 1, 2007. This is intended to help BC families save for their children's post-secondary education. These changes also authorize the creation of a separate fund or funds to provide for the training and educational needs of former children in care and other vulnerable children who have had significant involvement with the Ministry of Children and Family Development and who would not have their training and educational needs met by BCTESP. These proposed amendments are a result of Bill 17, Miscellaneous Statutes Amendment Act, 2014.

Administrative Remedies in the BC Forest Industry:
Where Are We 20 Years after the Forest Practices Code
The Ministry of Forests, Range and Natural Resource Operations (the "Ministry") enforces numerous environmental and financial obligations imposed upon the holders of Crown forestry tenures in BC. With the enactment of the former Forest Practices Code of British Columbia Act (the "Code") some 20 years ago, the Ministry began to acquire what has become a surprising array of administrative remedies to enforce compliance with these obligations. These remedies enable the Ministry to pursue compliance and enforcement action against those in the BC forest industry without the need to first resort to the courts – what was then a novel concept. While the possibility of a traditional prosecution or civil law suit before a judge still remains, it has become more theoretical than real. The Ministry no longer needs to persuade the Ministry of Attorney General that evidence exists to establish beyond a reasonable doubt that someone committed an environmental offence, or that an alleged contravention is otherwise of sufficient importance to warrant a prosecution. The Ministry can simply act on its own and exercise any of a number of administrative remedies. And once the Ministry does act, the onus is placed on the person subject to the Ministry’s authority to take positive steps to ensure the Ministry has exercised its authority appropriately. Read the Forestry Law Bulletin published by Davis LLP.  

DFO "Fudging the Numbers," Court Finds;
Bars Commercial Fishery off Vancouver Island
An unprecedented court injunction has barred the Department of Fisheries and Oceans from opening a commercial fishery off Vancouver Island after a judge concluded DFO was "fudging the numbers" and that the federal minister declared it open against her own bureaucrats' advice. The Nuu-chah-nulth First Nations, whose herring-roe fishery has been closed since 2006, went to court last month seeking the injunction. The ruling has prompted the Haida First Nation to threaten similar court action. And the central coast First Nations say they’ll do whatever it takes to protect their fisheries. The First Nations say the fisheries should not be opened because they have not recovered enough to allow harvesting safely. Read the Globe And Mail article. 

Haida Nation to Enforce Forestry Laws
in Tandem with BC Government
The provincial government is giving a first nation a direct role in enforcing environmental laws on Haida Gwaii. Under a new program that is being tried for the first time in British Columbia, the law-enforcement arms of the Ministry of Forests and the Ministry of Environment will be run jointly by the province and the Haida Nation. The approach calls for the Council of the Haida Nation to fund and appoint a conservation officer who will join a small provincial team that is already in place on the remote archipelago off BC’s north coast. "What we’ll see is more day-to-day involvement by the Haida in compliance and enforcement activities," said Gordon Hitchcock, an inspector with the Conservation Officer Service. Read full article in the Globe And Mail. 

Water Use in BC: BC Tables Long-Awaited
Water Sustainability Act
On March 11, 2014 the BC government introduced a first reading of the Water Sustainability Act, Bill 18, the culmination of a 4-year initiative to modernize the 100-year old Water Act. Followers of this blog or BC water issues will know that the government released a comprehensive "proposal" regarding the new statute in the fall of 2013 (see previous blog post here). The Water Sustainability Act is no less comprehensive – more than 150 pages long, with 15 pages of definitions alone. Given its knee-buckling scope, this blog focusses on the new statute in comparison to the fall 2013 legislative proposal, with a more fulsome comparison to the current Water Act to follow when the Water Sustainability Act becomes law. In general, the Water Sustainability Act repeals most of the 1909 Water Act; re-enacts the Water Act’s regulatory scheme for the diversion and use of stream water; extends that regulatory scheme to groundwater; authorizes the establishment of "water objectives" and their consideration in water-use decision-making; requires the consideration of "environmental flow needs" of streams in issuing licenses; moves certain Fish Protection Act provisions to the new statute; establishes new powers to modify existing precedence of water use to protect streams, aquifers and essential domestic uses of water; and establishes an administrative penalty scheme. Read the full article by Jeff Christian of Lawson Lundell LLP.

Environmental Appeal Board Decisions
There was one Environmental Appeal Board decision released in the month of March.

• Halme's Auto Service Ltd.; Petro Canada Limited, now known as Suncor Energy Inc. v. Regional Waste Manager, Waste Management Act [Final Decision – 1998-WAS-018 Dismissed; 1998-WAS-031 Allowed]

Nurse Practitioners Amendments and
Vital Statistics Act Amendments
The government recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014. This Bill, if passed, proposes a number of amendments to various statutes and will allow nurse practitioners to work more fully within their existing scope of practice. Amendments are also intended to modernize the Vital Statistics Act and change the approach to providing identity-related services for those who wish to change their sex designation on a birth certificate.

Dosage Errors May Have Tilted Clinical
Heroin Trial, BC Court Hears
Participants in a clinical trial fighting to receive prescription heroin may have failed conventional treatments only because they received inadequate dosages, a lawyer for the federal government has told a BC Supreme Court judge. Lorne Lachance made his arguments on [March 26], the second day of an injunction hearing that will determine whether select participants of the Vancouver-based heroin study will be able to receive a prescription version of the drug while a larger constitutional challenge is before the courts. Read the Globe and Mail article. 

BC Introduces First-of-Its-Kind Mental
Health and Addiction Supports
Government is delivering on its Mental Health Action Plan to improve care for patients with severe addiction and mental health needs by launching an Assertive Outreach Team in Vancouver and opening a new Acute Behavioural Stabilization Unit at St. Paul’s Hospital. "In the past, we have seen patients with severe mental illness and addiction cycle through our health-care and justice system," said Health Minister Terry Lake. "The Vancouver team is the first of its kind in BC and, combined with the expansion of services at St. Paul’s Hospital, we will be able to provide more complete and supportive care to this vulnerable patient group." The Assertive Outreach Team includes a nurse, social worker, psychiatrist, physician and Vancouver Police Department staff. Members of the team work together to support patients who suffer from severe addictions and mental health issues and transition them from local emergency departments in Vancouver to appropriate community services. "We recognized that individuals with severe mental health and addiction challenges have difficulty connecting to community supports after their medical needs have been met," said Anne McNabb, Vancouver Coastal Health’s director of mental health and addiction, inner city. "This team takes a rapid, hands-on approach to ensure patients are completing the transition from acute care to community care." Read government news release. 

Employment Standards Act Amendment
The government recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014 which proposes a minor housekeeping change to the Employment Standards Act. The proposed legislation is intended to correct an oversight and confirms the appointment of Brent Mullin as chair of the Employment Standards Tribunal for the period between February 13, 2009, and October 5, 2011. The intent is to correct an oversight that resulted in Mr. Mullin's appointment to the tribunal technically lapsing during the period February 13, 2009, to October 5, 2011, although Mr. Mullin continued to act as the chair. The proposed legislation would apply retroactively and would confirm the validity of all decisions rendered by the Employment Standards Tribunal between February 13, 2009, and October 5, 2011. There are no financial or other direct impacts for government.

Suncor Loses on Random Alcohol and Drug Testing
The long-awaited arbitration decision is in, and the result is a loss for random alcohol and drug testing. (See the Decision here and the Dissent here.) Suncor had tried to implement a random drug and alcohol testing policy with respect to all of its safety-sensitive employees in the oil sands. The union resisted and was able to get an injunction from the Alberta courts to prevent implementation of the policy until the arbitration was completed. A majority of the three member arbitration panel ruled against Suncor. They found that there was insufficient evidence of a problem with alcohol and drug use affecting the workplace, and that the evidence was lacking on the issue of whether random testing would help address whatever problem there was. Meanwhile, a dissenting member of the panel found there was compelling evidence (including three alcohol or drug related fatalities and 149 positive post-incident alcohol and drug tests, in 10 years) to justify random testing. Suncor intends to appeal the decision. Read the full article by Christopher McHardy of McCarthy Tetrault. 

Workers Compensation Act Amendments
Proposed amendments to the Workers Compensation Act are intended to restore heart disease in firefighters to the list of presumptive diseases recognized by WorkSafeBC. The amendment to this legislation is intended to provide further protection for firefighters, as well as forest firefighters. If a firefighter suffers from heart disease or a heart injury – including a heart attack – it will be presumed to be due to their work as a firefighter unless the contrary is proved. The proposed amendments can be found in Bill 17, Miscellaneous Statutes Amendment Act, 2014.

You Get What You Bargain for: Enforceable Termination Clauses
We are told that in almost every organization human resources is under pressure to find cost savings. A growing, but still under-utilized, method of accomplishing real savings for the organization is through the use of employment agreement or offer letter provisions that define the severance owing on termination. A recent BC Court decision reinforces the efficacy of that strategy. Employment agreements can provide employees with only the Employment Standards Act minimum severance on termination. These agreements modify what would otherwise be an obligation to provide an employee with reasonable notice of termination and can greatly reduce severance costs for employers. Reasonable notice is often 50% to 90% greater than ESA notice. Read the full article published on the law firm Bull Houser’s website. 

Miscellaneous News:

BC Online Act Amendments
The government’s recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014, proposes a number of amendments to the BC Online Act. Proposed amendments are intended to enable government, in its role as operator of BC OnLine, to collect and retain operator fees associated with delivering the service. The changes are an important first step as government looks to enhance BC OnLine services. These amendments will allow for the online information service to move back into government from its current service provider at the end of the operating agreement. BC OnLine provides online access to government programs such as: Land Titles Registry, Corporate Registry, Personal Property Registry, Manufactured Homes Registry and Wills Registry. The service is primarily used by legal, financial, real estate, land surveying, government and business professionals. These changes will enable government to deliver efficient and effective services that government, businesses and citizens depend on.

Miscellaneous Professional Association Acts – Amendments
The government’s recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014, proposes changes to legislation governing three professional accountant associations: the Certified General Accountants Association of British Columbia; the Institute of Chartered Accountants of British Columbia, and the Certified Management Accountants Society of British Columbia. As a first step toward a planned merger of the three associations, these changes will allow association members to legally use the additional designation Chartered Professional Accountant (CPA), and enable the associations to make bylaws regarding use of designations provided for under their legislation.

New Animal Health Act To Replace and Consolidate Other Acts
This Government recently introduced Bill 19, Animal Health Act. The Bill repeals and replaces the Animal Disease Control Act, the Fur Farm Act and the Game Farm Act, and replaces the Bee Act. If passed, the proposed legislation is intended to

• harmonizes licence, permit and registration schemes;
• establishes duties on persons responsible for animals to prevent the presence, transmission and spread of transmissible disease, environmental toxins, and organisms that cause infestations, to protect and promote animal health, and to protect public health in relation to diseases that are or may be transmissible from animals to humans;
• gives clear authority in respect of the collection, use and disclosure of information, including personal information;
• provides for the establishment of traceability systems to track the transport of animals, animal products and byproducts, and things related to these;
• strengthens powers to prevent, control and eradicate notifiable and reportable diseases and to address other animal health issues;
• harmonizes enforcement mechanisms;
• provides powers to act in emergency situations;
• harmonizes offence and penalty schemes and provides for a system of administrative penalties.

Negligent RCMP "Bait Car" Pursuit Results
in Nearly $1 Million in Damages
Reasons for judgment were released [recently] by the BC Supreme Court, Campbell River Registry, resulting in a nearly $1 million judgment following the RCMP’s negligent response to a "bait car" theft. In [this] case (Watkins v. Dormuth), the Defendant RCMP officer was responding to a bait car activation call. He proceeded North in the southbound lanes to get around traffic. At the same time the Plaintiff was making a left hand turn at an intersection. A t-bone collision occurred which resulted in serious injuries with profound consequences and were expected to have a permanent disabling effect on the Plaintiff. Damages of close to $1 million were assessed. The RCMP argued the Plaintiff was to blame for the collision. Mr. Justice Blok disagreed finding the RCMP were entirely at fault. Read the full article by Erik Magraken on his BC Injury Law Blog.

CVSE Circulars/Notices
CVSE issued two commercial transport related circulars/notices in the month of March. These included:

• CT Notice 03-14 – Cancellation of the planned Weight Reduction for Quad Axle Full Trailers
• Circular 02-14 – Amendment Additional Axle Weight Allowances for Liquefied Natural Gas (LNG) and Compressed Natural Gas (CNG) Fueled Trucks or Truck Tractors

BC Flaggers Still Looking for Fines to be Doubled
Members of the local flaggers association in BC are preparing to meet with the provincial minister of transportation next month to discuss the need for new laws that double the fine for drivers who are caught speeding in construction zones. "I am very excited about the meeting because this is contrary to what was said initially," said Tammy Sampson, cofounder of the BC Flagging Association and director of operations with BCRS Road Safe Inc. "At least, there is going to be a discussion and they are going to hear us out. We are excited that they are going to let us present a case to them." Minister of Transportation and Infrastructure Todd Stone has agreed to meet with Sampson, as well as representatives from the International Brotherhood of Electrical Workers and the City of Surrey in Victoria on April 2. Read the Journal of Commerce article. 

BC Tables Legislation on Transit Referendum
and TransLink Governance
The British Columbia government has tabled legislation that will allow Metro Vancouver mayors to determine the timing of a controversial referendum on how to fund transit expansion in the region. A referendum was to be held in November, during municipal elections, but Transportation Minister Todd Stone says the vote can take place at another time if local governments can come up with a funding plan by June. Stone has also introduced a bill that would give local governments more control over the TransLink system's regional strategies and investment plans. Read the CTV article. 

Property and Real Estate News:

Real Estate Development Marketing Act Amendments
The government’s recently introduced Bill 17, Miscellaneous Statutes Amendment Act, 2014, proposes to amend the Real Estate Development Marketing Act. These amendments are intended to bring clarity to the scope of purchasers' remedies and certainty to the enforceability of purchasers' contracts. The proposed changes are designed to increase industry efficiency and provide purchasers with a more readable disclosure statement.

League Assets Faces Potential $370-Million Insolvency
Now under creditor protection, investors unlikely to
receive much of their money back
Dan Robison, a commercial driver from Coquitlam, made a modest investment with League Assets Corp. in 2009 because it looked like a growing company that had garnered much respect within Victoria’s business community. He thought about putting in more, but decided to invest just $15,000 in one type of League-related shares that were lower risk, "to test them out." He and his wife kept the rest of their savings spread around. "It seemed really good at the time," Robison said. "The returns in the first few years were what they promised and what they said. There wasn’t any issue for the first two to three years." But as League continued to project an image of success, its financial reports show mounting losses. Read Vancouver Sun article. 

Wills and Estates News:

Wills, Estates and Successions Act – A New Regime for BC

"The law of succession is among the most archaic areas of private law, and British Columbia legislation dealing with various aspects of succession is highly fragmented, spread throughout a forest of statutes."

Wills, Estates and Succession,
A Modern Legal Framework,
B.C. Law Institute, 2006

Passings of Accounts and the New Probate Rules – Paper
This paper, published on the CLE website described procedural changes to passings of accounts and to the remuneration of personal representatives, as well as other issues such as "missing assets" and costs. The paper, by Scott Kerwin of Borden Ladner Gervais LLP, was originally published for the WESA and the New Rules: Is Your Estates Practice Ready? CLE course in November 2013. Read article Passings of Accounts and the New Probate Rules.

Last Minute Amendments to the Wills, Estates and Succession Act
On Monday, March 2, 2014, the Government of British Columbia introduced Bill 14, Justice Statutes Amendment Act, which, if passed and brought into effect, will amend the Wills, Estates and Succession Act. The new Wills, Estates and Succession Act [came] into effect on March 31, 2014. The amendments include changes to the provision setting out when spousal relationships end for the purposes of the legislation. As I wrote before, when one person ceases to be a spouse, this affects his or her rights to inherit under the will of a former spouse, the right to apply to vary the will, and the right to receive a share of the estate if the former spouse dies without a will. Read full article by Stan Rule on his blog, Rule of Law.