Company and Finance News:

BCSC Allows Shareholder Rights Plan to
Survive almost 160 Days
On May 2, the British Columbia Securities Commission (BCSC) ruled on an application by HudBay Minerals Inc. to cease-trade Augusta Resource Corporation's shareholder rights plan (the Pill). While the BCSC panel granted an order cease-trading the Pill as at 5:00 pm Vancouver time on July 15, 2014, the decision is a clear victory for Augusta, providing Augusta with nearly 160 days (from the date on which HudBay commenced its hostile bid) to find a competing offer. Prior to this decision, you would have been hard-pressed to find a securities lawyer that would have bet that a poison pill could survive for more than 90 days in the face of a hostile bid. Read the full article by John Anderson published the Canadian Securities Law publication by Stikeman Elliot. 

Share Structures and Rollovers
from CLEBC
The topic of share structures and rollovers is a very broad and expansive area which cannot be covered in the scope of a single paper of this type. As such, this paper is intended only to be a brief general overview of share structures and rollovers. It focuses on some basic principles and discusses some of the more practical considerations ("tips and traps") that commercial practitioners may want to note and be cautious of when dealing with these issues in their practice. This paper also assumes that the audience has some level of general knowledge and experience with corporate law and corporate planning. Read the paper prepared by Annie H. Chen of Richards Buell Sutton LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, May 2014. 

BC Securities – Policies & Instruments
The following policies and instruments were published on the BCSC website in the month of May:

• 31-338 – CSA Staff Notice 31-338 Guidance on Dispute Resolution Services Client Disclosure for Registered Dealers and Advisers that are not members of a Self-Regulatory Organization
• 23-101 – CSA Notice and Request for Comment – Proposed Amendments to National Instrument 23-101 Trading Rule regarding order protection
• 51-102 – CSA Notice and Request for Comment – Proposed Amendments to National Instrument 51-102 Continuous Disclosure Obligations, National Instrument 41-101 General Prospectus Requirements and National Instrument 52-110 Audit Committees
• 31-339 – CSA Staff Notice 31-339 Omnibus/Blanket Orders Exempting IIROC and MFDA Registrants from Certain Provisions of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations
• MFDA – Notice of BCSC Non-Objection to Proposed Amendments to MFDA Rule 2.2.5 (Relationship Disclosure), Rule 2.4.4 (Transaction Fees or Charges) and Rule 5.4.2 (Trade Confirmations – Automatic Payment Plans)

For more information visit the BC Securities website. 

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

• Bulletin CTB 003, Audits
• Bulletin MFT 004, Fuel Tax Refund for Persons with Disabilities
• Bulletin GEN 001, Collecting Overdue Taxes
• Bulletin PST 134, Aircraft
• Bulletin PST 311, Promotional Materials and Special Offers
• Bulletin PST 316, Bundled Sales and Leases
• Bulletin PST 132, Building and Home Improvement Stores
• Bulletin PST 307, Goods Brought Into BC for Temporary Use
• Bulletin PST 129, Florists
• Bulletin PST 506, Real Property Situated Outside BC

Energy and Mines News:

BC LNG Plans Need First Nations'
Input Now: Government
The BC government is trying to bring First Nations on board to its ambitious natural gas venture by asking for their input on environmental issues at the early stages of each project. Aboriginal Relations Minister John Rustad said [May 23] the initiative marks a new way of dealing with First Nations, companies and government with respect to an industry that the provincial government said could be worth billions. "The goal is to build an environmental stewardship initiative that addresses our collective conservation and development interests," said Rustad. Minister of aboriginal relations and reconciliation John Rustad says the government's goal is to engage BC First Nations in the early stages of LNG development plans. (Jonathan Hayward/Canadian Press) "We're actually going to go out and bring First Nation input and industry input together with the province to develop this as opposed to coming out with an idea and asking for comment." However, Rustad said the goal is to create agreements between government and First Nations, not change laws. Read CBC article.

The Crown's Duty to Consult and the
Role of the Energy Regulator
Today, for many Energy Regulators, project proponents, Aboriginal groups and intervenors, issues surrounding Aboriginal rights and title and the Crown's duty to consult Aboriginal peoples have become a critical focus in the regulatory approval processes for major (and not-so-major) projects. In his article, "The Crown's Duty to Consult and the Role of the Energy Regulator," published in Energy Regulation Quarterly, Keith Bergner examines the role of the Energy Regulatory in respect of the Crown's duty to consult. Source: Lawson Lundell. 

Canada Revamps Pipeline Safety Rules
ahead of New Projects
Canada unveiled new rules [in May] to enhance pipeline safety and spill response, ahead of the development of new projects proposed to carry crude from Alberta's oil sands to coastal ports for export. The new legislation will give Canada's energy regulator, the National Energy Board (NEB), more power to enforce compliance on safety and the authority to step in to lead spill response if a company is unwilling or unable to do so. Companies will also now be held liable, up to C$1 billion ($917 million), for all spills or incidents on their lines, whether or not they are at-fault or negligent, putting the onus on owners to ensure safe operations. Read the full article published by Reuters Canada. 

Joint Review Panel Finds that Site C Will Have Significant
Environmental and Aboriginal Impacts
In their assessment of the Site C Clean Energy Project (Site C), the Joint Review Panel (the Panel) considered the potential impact of Site C on Aboriginal rights and treaty rights, along with the possible effects of the project on the cultural and economic well-being of First Nations. It identified 24 groups claiming an interest in the Local Assessment Area, as well as 6 other Aboriginal groups with potential interests who did not participate in the review process. Overall, the Panel determined that Site C would likely cause significant adverse effects on fishing opportunities and practices and on hunting and non-tenured trapping for various First Nation groups, and these effects cannot be mitigated. Read the full article by Selina Lee-Andersen and Jean-Olivier Lambert with McCarthy Tetrault. 

Family and Children News:

Shared Custody Bill Defeated on Second Reading
[Divorce Act Amendment]
Bill C-560, a bill to amend the Divorce Act tabled by Conservative MP Maurice Vellacott, was defeated by a whopping 80 to 174 at second reading on 28 May 2014. If successful, the courts would have been required to impose a regime of shared custody – an equal distribution of children's time between their divorcing parents – except "if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally." This presumption would have applied to all new parenting orders made under the Divorce Act, as well as to all orders previously made under the unamended act. Read the full article by John-Paul Boyd and published on the Blog.

Family Law Act Amendments
Sections of Bill 14, Justice Statutes Amendment Act, 2014, amending the Family Law Act, came into force on May 26 by B.C. Reg. 96/2014. Among other changes, the amendments clarify sections that deal with dividing property held in trust at the end of a relationship, and sections related to choosing the appropriate jurisdiction, law and court to determine property division.

Family Matters: Accommodating for
Child Care Needs as Family Status
The Federal Court of Canada recently released companion decisions that give some helpful guidance to employers in handling requests for work accommodations for child care. These cases help to highlight the unique and challenging issues employees and employers face in trying to balance employment and family duties and obligations.

Refusal of fixed full time shifts to accommodate child care
In the first case, Canada v. Johnstone 2014 FCA 110, the Federal Court upheld prior decisions that a border services officer had been discriminated against on the basis of family status because her requests for fixed full-time shifts to accommodate her child care needs were refused. Full-time employees were assigned rotating irregular shifts, with five days on, three days off. The employer had an unwritten policy that full-time hours would not be provided to employees requesting accommodation on the basis of child-rearing responsibilities. Those sorts of accommodations were provided to employees for medical or religious reasons.

Judge Dismisses Environmental Groups' Application that
BC Failed to Protect Endangered Trees
A BC Supreme Court judge has dismissed an application by environmental groups claiming the province fails to adhere to its own laws in protecting endangered coastal Douglas fir trees. Justice Gordon Weatherill sided with the government in ruling that the application for judicial review filed by the Western Canada Wilderness Committee and ForestEthics Solutions Society was premature. Weatherill said in a decision released [May 9] that the groups should have first applied to the Forest Practices Board, which conducts independent audits and investigations to determine if the province is complying with laws to protect endangered forests. Read the Province article. 

BC Amends Recycling Regulation
to Help Small Producers
Coinciding with the new recycling program, which began in most BC communities [in late May], BC has updated the Province's Recycling Regulation to ensure small producers of packaging and printed paper are exempt. This means the vast majority of businesses and organizations that put packaging and printed paper into the residential waste stream are exempt from any reporting or recycling costs associated with the program. An exemption is granted if any one of the following four criteria is met:

• Under one million dollars in annual revenues.
• Under one tonne of packaging and printed paper supplied to BC residents.
• Operate as a single point of retail sale and are not supplied by or operated as part of franchise, a chain or under a banner.
• Is a registered charity.

Environmental Appeal Board Decisions
There was one Environmental Appeal Board decision released in the month of May:

• Wildlife Act – Stewart Fraser v. Regional Manager, Recreational Fisheries and Wildlife Program (Cariboo Region) (British Columbia Wildlife Federation, Participant) [Final Decision – Appeal Dismissed with Recommendation]

All BC Adults Should be Tested for HIV
Every Five Years: New Guidelines
BC's provincial health officer is recommending all British Columbians get tested for HIV/AIDS every five years. The new guidelines are the first of their kind in Canada. It's now recommended that all adults in BC, aged 18 to 70 years old, be tested for HIV every five years. People who are more at risk of HIV infection should be tested every year. Adults who have an unknown HIV status, and are 70 years old or older, should be tested once. The province hopes the new guidelines will help catch new HIV infections earlier, and get people the treatment they need. Read the Global News article. 

Watering Gardens with Lead, BPA
and Phthalates (Not Regulated)
Garden hoses are a hot commodity these days as gardeners get their vegetables and flowers in the ground, but should we drink from them? Kevin Hurst is assistant manager of a Lee Valley Tools in Halifax, Nova Scotia, [and] he said most people don't read the fine print when they pick out a hose. "On the back here, [there's] a warning, 'this product contains one or more chemicals known to the state of California to cause cancer and birth defects'." "I certainly wouldn't let my kid, or any kid that I knew drink from a hose; it's a completely unnecessary risk," said Gideon Foreman, the Toronto, Ontario based executive director of the Canadian Association of Physicians for the Environment. "One of the concerns certainly around the garden hose is they are not meant to go into a child's mouth," he explained. "They're not meant to be drunk from ... they're not regulated, and there is some danger that the chemicals in the hose, just like other plastics, can leach." Read the CBC article. 

Health Canada's Modernization Makeover: An Update
on the New Food Safety Regulations
On May 27, 2014, the Canadian Food Inspection Agency ("CFIA") released an Overview of the proposed regulations under the Safe Food for Canadians Act (the "SFCA"). This is the latest deliverable in Health Canada's modernization makeover, and sets the stage for ongoing consultation on what will become Canada's new food safety regime. The February bulletin on this issue previewed some of the proposed changes, and included information on the motivation behind Health Canada's modernization efforts. This latest document follows the June 2013 discussion paper entitled "Proposed Regulatory Framework for Federal Food Inspection" (the "Proposed Framework") which marked the first step in the CFIA's regulatory transformation process under the SFCA. Consultation on the Proposed Framework was broad: the CFIA consulted with over 2,000 stakeholders and received over 75 written submissions from trade associations, individuals and other governments. Read the article by Sara Zborovski with Davis LLP. 

Labour, Industry Agree No Need to Change
WorkSafeBC Enforcement Model
Special administrator examining
systems in other jurisdictions
When provincial Labour Minister Shirley Bond apologized recently after Crown counsel rejected charges in the deadly 2012 Lakeland Mills sawmill explosion, she promised improvements in safety enforcement and better execution of complex investigations. Bond appointed a special administrator, former senior BC bureaucrat Gord Macatee, who is tasked with examining WorkSafeBC's structure to see if enforcement should be separated from prevention as is done in many provinces in Canada. Macatee must deliver a plan by July 1. Although labour and corporate views often differ, on this they agree: Rewriting WorkSafeBC's model would be a mistake. The organization is responsible for all areas of workplace safety and benefits: It provides workers' insurance in the case of injury or death, and is responsible for education, prevention, inspection and enforcement. That includes carrying out investigations into serious injuries and fatalities in the workplace. Read the Vancouver Sun article.

BC Legislation Creates Challenges for
Benefits Administration – WESA
Not long ago, Canadian pension blogs were ringing the death knell and warning plan administrators about the collapse of the "spouse-in-the-house" rule arising from the unexpected decision in Carrigan v. Carrigan Estate. Flash forward 18 months and new BC legislation is creating additional challenges for benefits administrators attempting to pay death benefits to a deceased's intended beneficiary. In Carrigan, the pension plan administrator had been grappling with death benefit claims from competing spouses. Contrary to prevailing industry expectations, the Ontario Court of Appeal denied payment of the death benefit to the common-law spouse of a deceased plan member because the member was legally married to another person at his death. It concluded the benefit should be paid to the designated beneficiary instead, who happened to be the married spouse (and her two daughters) and, hence, the common-law spouse, who had been living with the plan member at time of death, was denied the death benefit.

Carrigan highlights the death-related challenges facing benefits administrators and the importance of keeping beneficiary designations up to date. Beneficiary designation provisions in BC's new Wills, Estates and Succession Act (WESA) apply to myriad benefits plans, including pension and retirement plans, welfare or profit-sharing funds and any trust, scheme, contract or arrangement created for the benefit of BC employees. The new provisions permit participants to designate beneficiaries in a variety of written instruments. They apply regardless of whether the benefit plan grants the right to designate a beneficiary and override inconsistent plan provisions. However, they do not override plan provisions or beneficiary designations authorized by another statute of BC or Canada. Read the full article by Claude Marchessault published with Harris & Company LLP in Vancouver and published on the Benefits Canada website. 

If You Use E-Mail, Your World Is About To Change!
On July 1, 2014, most sections of Canada's new anti-spam legislation ("CASL") will come into effect. Among other things, there are important new requirements for continuing to use e-mail and other electronic messages for "commercial" purposes. In most cases, businesses and other persons disseminating such "commercial electronic messages" will need the consent of the recipient. You may already have seen messages from many organizations that send you electronic messages requesting your express consent in order to continue to send you such messages. Businesses that fail to obtain the consent of recipients of their commercial electronic messages or otherwise violate the CASL can be exposed to very substantial administrative monetary penalties (up to $1 million per offence for individuals and $10 Million for businesses). Read the full article by Blair Forrest with Pushor Mitchell LLP. 

The Risks of Downloading Data in the Workplace
If an employee is transferring data outside the workplace or is downloading questionable material from the internet, there are a number of concerns that arise. Even if the intent is innocent, the risk for employers is real. Employers should monitor these activities and implement appropriate company policies to address this issue. Typically, downloading occurs when data is transferred to a disk, USB key or information is sent to the employee's personal email address. Sometimes the downloading is innocent – the employee is simply taking work home. The downloading may also be for an improper purpose, such as a precursor to the employee departing. Often downloading of information is the employer's confidential business information. The information may have proprietary value and may include items such as marketing plans, client lists, financial data, pricing information, etc. Read the full article by Michael D. A. Ford, Q.C. with Davis LLP. 

Local Government News:

Court Casts Doubt on Right of Way Clauses
The BC Supreme Court recently released its judgment in the case of Atco Lumber Ltd. v. Kootenay Boundary (Regional District), 2014 BCSC 524, and the Court's decision should prompt every local government in the province to examine its standard statutory right of way documents. The Regional District expropriated a pair of rights of way, one for a water line, and one for the use of an access road. The case turned mainly on the Court's interpretation of certain clauses in the access right of way. The Court noted the principle, well-established in law, that an easement cannot impose positive covenants on the owner of the servient lands. In other words, an easement cannot require the owner of the servient lands to do something (as opposed to refraining from doing something) or, perhaps more to the point, spend money. Statutory rights of way are a form of easement, so the principle applies to them with equal force. Read the full article by Michael Hargraves of Stewart McDannold Stuart. 

Auditor General for Local Government Announces Local Government
Auditees and Newest Audit Topics
by Auditor General for Local Government
Basia Ruta, British Columbia's Auditor General for Local Government (AGLG), has identified the local governments selected for audit under the previously announced planned performance audit topics four and five. These topics relate to the management of key risks to local governments and are expected to be reported during fiscal year 2015/16. "At this time last year I announced five performance audit topics as well as the 18 local governments selected for audits under the first three topics," said Ms. Ruta. "While our focus continues to be on audits related to topics one through three, which relate to cost containment, I'm pleased to share that work will begin in the fall for audit topics four and five, which pertain to managing key risks. My office is looking forward to working closely with the selected local government auditees during the audit process." There will be one individual report for each local government selected for audit. Click here to view the full article posted on CivicInfo. 

Community Poverty Reduction Strategy Report
The Ministry of Children and Family Development (MCFD), in partnership with UBCM, has released a report on their joint Community Poverty Reduction Strategy. MCFD, with UBCM support, has been working for approximately 2 years in seven communities across BC to help families and develop community strategies to address poverty. MCFD Family Consultants have been working on half-time in seven BC communities basis to connect with families living in poverty and help them access provincial and community-based resources. The seven pilot project communities are Cranbrook, Kamloops, New Westminster, Port Hardy, Prince George, Stewart and Surrey. The Family Consultants have also been working with community partners to strategize on poverty initiatives. Findings from the report include a need to work with local government partners in ways tailored to each community, that the basics of food, health and housing continue to be the most important needs for families in poverty, and the need to standardize data collection while respecting families' privacy. Read full article on the UBCM website.   

Miscellaneous News:

Electoral Boundaries Commission Act Amendments
On May 7, 2014, amendments to the Electoral Boundaries Commission Act were passed by the B.C. Legislature. The amendments ensure that the existing number of northern and rural electoral districts will be maintained through the next boundary revision process, while also permitting the independent Electoral Boundaries Commission the discretion to propose up to 87 electoral districts provincewide. British Columbia's demographics have changed significantly since the act was first passed almost 25 years ago, and recent boundaries commissions have found it challenging to balance population growth with the need to ensure effective representation for northern and rural British Columbians. Source: Ministry of Justice website 

2014 Hunting Regulations Synopsis Now Available
The 2014-2016 Hunting and Trapping Regulations Synopsis is now online, and will soon be available in hard copy at Service BC centres and local hunting licence vendors across the province. The Hunting and Trapping Regulations Synopsis is published every two years, and is a summary of the BC hunting and trapping regulations made under the Wildlife Act, prepared for the convenience of hunters and trappers. Hunters should note that the 2014-2016 Hunting and Trapping Regulations Synopsis is effective from July 1, 2014 to June 30, 2016; the 2012-2014 Hunting and Trapping Regulations Synopsis remains in effect until June 30, 2014. This year's cover photo depicts an outdoorsman looking out on one of the many amazing vistas in BC's northeast. For any shutterbugs that want to be similarly immortalized, a second contest is still underway for the cover of the 2015-2017 Freshwater Fishing Regulations Synopsis. Photos submitted must be relevant to freshwater angling in British Columbia, and there is no limit to the number of submissions that can be made. Read the government news release. 

BC Appeal Court Reinstates Driving Ban on
Drinking Driver Who Blew a "Warn"
The BC Court of Appeal has overturned a BC Supreme Court ruling last year that threw out a three-day prohibition issued [to] a driver who was stopped at a road check and blew a "warn" on an approved roadside screening device. The decision released [May 30] cited the case of Lee Michael Wilson, whose initial prohibition was subsequently dismissed by Supreme Court Justice Dev Dley, who concluded that the "warn" signal – an indication of blood-alcohol content between .05 and .06 – wasn't enough to justify an immediate driving prohibition because police must also have evidence of impairment. Dley threw out the prohibition issued last year despite Wilson admitting drinking four beers and blowing a "warn" on two separate screening devices. Dley maintained that if the legislature intended the "warn" reading alone to trigger an immediate prohibition, it would have said so. However, in the ruling released [in May], Court of Appeal Justice David Harris upheld an appeal of Dley's decision by the Superintendent of Motor Vehicles, saying the judge incorrectly applied the "reasonableness" standard of review. Read the Vancouver Sun article.

Port Mann Ice Bombs Lawsuit Details Horrifying Experience
A Delta, BC woman, who claims she was hit in the head hard enough to make it bleed by ice chunks falling from the Port Mann Bridge in 2012, has launched a lawsuit against the company in charge of the project. In her claim filed in BC Supreme Court, Caryl-Lee Obrecht says her husband was driving across the bridge and she was in the passenger seat of their 2002 Ford Focus when large chunks of ice began to fall. Her lawyer, Veronica Milne-Medved, told CBC News the Obrechts had just started across the bridge when the ice began falling. Read CBC article. 

Why You Shouldn't "Steal" and Burn Your Own Car
It should go without saying that stealing and burning your own vehicle with a view to making an insurance claim is not a good idea. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a vehicle theft/fire claim. In last week's case (Singh v. ICBC ) the Plaintiff purchased a 2007 E-350 Mercedes. On October 24, 2009 the vehicle was found some 15 minutes from the Plaintiff's home and "had just been ignited with fire" with flames "shooting ten to twenty feet in the air". The luxury vehicle was rendered a total loss. The Plaintiff made a claim to ICBC to recover damages for loss of the vehicle but they were suspicious of the circumstances and denied the claim. The Plaintiff sued for damages seeking over $94,000 in replacement cost coverage. In denying the claim the Court found that the Plaintiff "made a key set available to someone so the Mercedes could be driven to the scene of the fire" and further that the Plaintiff conspired in the destruction of the vehicle, with Madam Justice Hyslop finding that "he knew in advance what would happen to the Mercedes." Read the full article by Erik Magraken on his blog BC Injury Law. 

Property and Real Estate News:

BC Law Institute Seeks Public's View on Rules for Terminating Strata
The British Columbia Law Institute is asking the public for its opinion on proposals to reform how the Strata Property Act deals with the termination of a strata. In its just-published Consultation Paper on Terminating a Strata, BCLI examines the development of what the Strata Property Act calls cancellation of a strata plan and winding up of a strata corporation and makes 21 tentative recommendations designed to improve this province's legal framework for terminating a strata. "Termination is likely going to become an important issue for stratas, as strata buildings age and as the strata sector in British Columbia continues to evolve," noted Strata Property Law Project Committee Chair Patrick Williams. "This consultation will give people an opportunity to have their say on how to strike the best balance in the rules applying to termination." Read the full article on the BCLI website. 

Leaky Condo Crisis Rears Its Head Again in BC
Buildings that weren't fixed earlier now face even costlier repairs
Evidence of a second wave in British Columbia's leaky-condo crisis is beginning to emerge, 15 years after the first one subsided. It is becoming more apparent as condo strata corporations prepare mandated depreciation reports on their buildings. That process is forcing them to own up to the condition of their properties and the shortcomings of maintenance programs for structures that weren't fixed in the first wave of repairs. Some are buildings that haven't started leaking until recently, or that owners patched over instead of repairing their underlying defects. There are still potentially thousands of faulty units that were built during the so-called "leaky-condo" period – from 1982-99 – which were never repaired, but figures on how many have been fixed are difficult to come by. Read the Vancouver Sun article. 

Bill 17: New Amendments to REDMA (Now in Force)
The real estate market in British Columbia has long been a driver of our province's economy and, in 2005, the province enacted the Real Estate Development Marketing Act ("REDMA") to more heavily regulate this market. While the consumer protection aspect of this legislation has been lauded by some, the practical implementation of REDMA has not always resulted in the efficient and profitable operation of the real estate development sector. In response to these criticisms, the province has amended REDMA, effective May 29, 2014, to address some of the shortcomings of this legislation. Read the full article by Sarah Jones and Robby Goodrich with Clark Wilson LLP. 

Depreciation Reports – Strata Presidents
Share Recent Experience
The Vancouver Island Strata Owners Association (VISOA) conducted a survey of 155 strata council presidents during the spring of 2014 to obtain data about their strata corporation's recent experience with new requirements for a depreciation report. Highlights from survey results are:

• 64% had completed a depreciation report
• of those that have not completed a depreciation report, 50% had passed a resolution to waive the requirement
• of those that have completed a depreciation report, 94% said that prospective purchasers had requested a copy of a deprecation report
• 59% of completed reports were done by an engineering firm or consulting engineer
• 68% of those with depreciation reports said they would be increasing contributions to the CRF
• 82% were satisfied or very satisfied with the cash funding scenarios in their depreciation reports

Click here to read the full article and survey results.  Source: VISOA