Company and Finance News:

Did You "Use" That?: Interpreting BC's PST Legislation
The way the BC Provincial Sales Tax (PST) legislation is worded, PST is required to be paid on property that is "used" within BC. But what does "use" mean? Basically, if a person acquires something in BC and does anything other than ship it directly outside of the province, it will most likely be considered to be used in BC. "Use" is defined so broadly, it is nearly impossible to escape.

Consider this scenario: You manufacture windows and doors in BC, ship them to your customers in Saskatchewan and install the windows and doors for your customers (either with your own employees or with subcontractors). Read the article by Angela Chang with MNP LLP. 

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

• 51-101 – CSA Notice of Amendments to National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities and Companion Policy 51-101 Standards of Disclosure for Oil and Gas Activities
  The proposed amendments would promote improved disclosure of resources other than reserves, provide for increased flexibility for oil and gas reporting issuers in different jurisdictions and align with the amended Canadian Oil and Gas Evaluation Handbook. Subject to obtaining required ministerial approval, the amendments will come into force on July 1, 2015.
• 81-101 – Implementation of the Third Stage of Point of Sale Disclosure for Mutual Funds – Pre-Sale Delivery of Fund Facts – CSA Notice of Amendments to National Instrument 81-101 Mutual Fund Prospectus Disclosure and its Companion Policy
• 41-101 – CSA Notice and Request for Comment - Proposed Amendments to Certain National and Multilateral Instruments and Policies Related to the Recognition of Aequitas Neo Exchange Inc.
  The comment period ends on March 11, 2015.
• BCIN 33-705 – Notice of Amended BC Interpretation Note 33-705 Conditions of Registration for Investment Dealers with a BC Office that Trade in the U.S. Over-the-Counter Markets
  The BCSC is amending BC Interpretation Note 33-705 Conditions of Registration for Investment Dealers with a BC Office that Trade in the U.S. Over-the-Counter Markets. The BCSC will renew with only one change conditions of registration on all investment dealers that trade in securities of OTC issuers through an office in British Columbia. The amendments to BCIN 33-705 reflect that change – there is no expiry date.
• MFDA – Notice of BCSC Non-Objection to Proposed Amendments to MFDA Rules 2.8.3 (Rates of Return), 5.3 (Client Reporting) and 5.4 (Trade Confirmations)
  This Notice announces the BCSC non-objection to the proposed amendments to MFDA Rules 2.8.3 (Rates of Return) , 5.3 (Client Reporting), and 5.4 (Trade Confirmation), and amendments to related rules, policies and forms.
• BCN 2014/13 – Notice of Strip Bond Information Statement under BC Instrument 91-504 Government Strip Bonds [BCN]
  This notice announces that the Executive Director has approved a revised information statement under BC Instrument 91-504 Government Strip Bonds. It also revokes the previous strip bond information statement.

For more information visit the BC Securities website.

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

• Bulletin PST 315, Rentals and Leases of Goods
• Bulletin MFT 004, Fuel Tax Refunds for Persons with Disabilities
• Bulletin PST 003, Small Sellers
• Bulletin PST 304, Thrift Stores, Service Clubs, Charitable Organizations and Societies
• Bulletin PST 505, Security
• Bulletin MFT-CT 005, Tax Rates on Fuels
• Notice 2014-007, Who Can Claim a Refund

For more information, visit the Consumer Taxes website.

Energy and Mines News:

BC Oil Gas Commission to Implement Area-Based
Analysis in Application Review Process
Effective January 5, 2015, the BC Oil and Gas Commission (the "OGC") will begin using "Area-based Analysis" in considering applications for oil and gas activities in northeastern BC.

The stated intention of Area-based Analysis is to integrate the requirements of existing statutes and regulations and allow the OGC to better and more consistently take into account the cumulative impact of industrial development when assessing applications for oil and gas activities. The combined footprint impact of all industrial development on the selected "values" will be taken into account. This includes all surface land use disturbance associated with oil and gas activity, geophysical activity, cutblocks and non-oil activity (such as mining, recreation, hydro, wind power, transmission lines).

The OGC and the Ministries of Forests and Lands and Natural Resource Operations have been collaboratively developing this new approach since 2012. The process is similar to the current cumulative impact assessments carried out by the Environmental Assessment Office, but will apply to all applications for oil and gas activities, not just major projects. It will cover the entire Western Canadian Sedimentary Basin in northeastern BC, including all four key development basins (Liard; Horn River; Montney; and Cordova).

The OGC has identified eight "values" that will be considered in the process. Only the first two will be used at the outset. The others are expected to be implemented over time. Read the full article by Rick Williams and Timothy Bottomer with Borden Ladner Gervais.

BC Regulations Ban Oil and Bitumen
from Natural Gas Pipelines
British Columbia's government says pipelines built to support the liquefied natural gas industry will not end up carrying oil or bitumen. The Natural Gas Development Ministry says a new regulation prohibits proposed natural gas pipelines from transporting oil or diluted bitumen. Aboriginal Relations Minister John Rustad says in a statement that the oil-and-bitumen-free pipeline regulation should address concerns of BC First Nations about possible environmental issues associated to oil pipelines. Read The Vancouver Sun article. 

British Columbia Environmental Appeal Board
Reduces Redundancy in Appeal Proceedings
On December 4, 2014, the British Columbia Environmental Appeal Board (the "Board") issued reasons in a preliminary hearing relating to an appeal against Rio Tinto Alcan Inc.'s ("Rio Tinto") amended multi-media permit (the "Permit") for its Kitimat Modernization Project.

A. Background
The Permit authorizes Rio Tinto to discharge effluent, emissions, and waste from its aluminum smelter located in Kitimat, British Columbia. In April 2012, the Director, under authority of the Environmental Management Act (the "Act"), approved certain amendments to the Permit, which were sought by Rio Tinto in support of a project designed to modernize and increase the production at the Kitimat smelter. The amendment authorized an increase in the sulphur dioxide emission limit and added several conditions to the Permit, including a requirement to develop and implement an environmental effects monitoring plan (the "Plan") which is approved by the Ministry of Environment. The amendment also required Rio Tinto to submit to the Director a review of Plan results. If the said results were determined to be unacceptable, the maximum sulphur dioxide discharge limit would revert back to the original amount, unless the Director otherwise amended the discharge limit.

Read the full article by Paul Cassidy and Monika Sawicka with McCarthy Tétrault LLP.

Family and Children News:

Family Law Act – New Annotation
John-Paul Boyd, a frequent contributor to Quickscribe, has published a new annotation regarding the recent Supreme Court Decision on jurisdiction in property cases under the Family Law Act. A quick way to review all of the recent annotations published on the FLA is to click the "View Annotations for this Law" button located on the top menu bar once you are in the Act itself.

The Incapable Spouse
From CLEBC
This paper from WESA for Family Lawyers (October 2014) examines the impact of capacity on issues arising at many points along the continuum of a family relationship: from marriage to separation to spousal support. The writers offer seven practical tips for lawyers acting for a person who lacks capacity, or for the representative of that person. Visit the CLEBC website for more information and to view the paper. 

Amendments to the Supreme Court Family Rules
The Supreme Court Family Rules, B.C. Reg. 169/2009, were amended on December 22, 2014 by B.C. Reg. 249/2014, and include the following:

1	Rule 1-1 (1) of the Supreme Court Family Rules, B.C. Reg. 169/2009, is amended
	(a)	by adding the following definition: "FHRMIRA order" means an order made under the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or under a First Nation's law made under that Act; , and
	(b)	in the definition of "family law case" by adding the following paragraph: (b.1) a FHRMIRA order; .
2	Rule 4-4 (1) is amended by adding the following paragraph: (b.1) a claim for a FHRMIRA order; .
3	Rule 5-1 is amended
	(a)	in subrule (1) in the definition of "party"
		(i)		by striking out "or" at the end of paragraph (b),
		(ii)		in paragraph (d) by striking out "Family Law Act;" and substituting "Family Law Act, or" , and
		(iii)		by adding the following paragraph: (e) a FHRMIRA order;
	(b)	in subrule (2) by adding the following paragraph: (c.1) if, in the family law case, a person is seeking to obtain, vary or revoke a FHRMIRA order, subrules (1), (3) and (10) to (32) apply; , and
	(c)	in subrule (10) by striking out "the Family Law Act or against whom such a claim is being made must" and substituting "the Family Law Act or applying for a FHRMIRA order, or against whom such a claim or an application is being made, must" .
4	Rule 7-1 (3) is amended by adding the following paragraph:
		(b.1) an application for an order under section 32 or 39 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or a First Nation's law made under that Act with respect to an equivalent matter; ,
5	Rule 13-3 (1) (a) is amended by striking out "Family Law Act," and substituting "Family Law Act or out of an application for a FHRMIRA order," .

Forest and Environment News:

The Inherent Insecurity of Log Purchase Transactions
The British Columbia government has rights available under the Forest Act to assess underpayment of stumpage owing on harvested Crown timber and collect charges on top of any stumpage already paid on the timber at issue. In the November/December 2014 issue of BC Forest Professional, Davis LLP's Jeff Waatainen takes a look at security issues surrounding retroactive stumpage appraisal for those who enter into agreements for the purchase and sale of Crown timber. Jeff is a regular contributor to the "Legal Perspective" column in BC Forest Professional magazine and a contributor to Quickscribe EnviroFor. You can view the article on the Davis LLP website.

First Nations Angry that NAFTA Environment
Body Won't Probe BC Salmon Farms
Conservationists and First Nations are angry that NAFTA's environmental watchdog has rejected a recommendation to investigate Canada's handling of salmon farms along the BC coast.

"I am deeply disappointed in Canada continuing to put wild salmon at risk," said Chief Bob Chamberlin of the Kwikwasutinuxw Haxwa'mis First Nation. "This process may have ended, but our struggle to safeguard wild salmon will not falter for a moment."

The Commission on Environmental Co-operation said Friday [December 12^th] that its three-member council had voted against looking into accusations that Canada violated its own laws by allowing fish farms to harm wild salmon stocks through the spread of parasites.

Canada and Mexico voted against the investigation, while the United States wanted to pursue it. Canada argued that there is already a lawsuit before the courts in BC. The commission's rules don't allow investigations into matters that are already the subject of legal proceedings. Read The Vancouver Sun article.

Environmental Appeal Board Decisions
A number of Environmental Appeal Board decisions were released in the month of December. These include the following:

Environmental Management Act

• Emily Toews; Elisabeth Stannus; Unifor Local 2301 v. Director, Environmental Management Act [Preliminary Issues – Appeals Denied]
• Emily Toews; Elisabeth Stannus v. Director, Environmental Management Act [Application for Order to Produce Documents – Denied]

Wildlife Act

• Brian Glaicar; Robert Travis Crabbe; Marty Lightburn; Kenneth Robins; Douglas E. Goodwin; Jim Schmidt; Steven Leuenberger; Donald T. Wolfenden; Darryl Sword; Alex Smutny; Domenic Ferrarelli; Craig Zawada; Harry Leuenberger; David Beranek v. Regional Manager (Kootenay Boundary Region) [Final Decisions – 2013-WIL-004, 008 & 025 Appeals Allowed in Part, otherwise Appeals Dismissed]

Visit the Environmental Appeal website for more information.

Site C Dam Approved: Troubled Waters Ahead?
On December 16, 2014, the Province of BC made a Final Investment Decision to proceed with the development of Site C – an $8.335 billion dam project on the Peace River with the capacity to produce 1,100MW of electricity.

A Cheaper form of Clean Energy:
The Province's analysis, released together with news of its FID, concludes that Site C will be a cost-effective alternative to help meet future electricity demands in BC and in particular, will be cheaper than developing gas-fired plants operated by BC Hydro, or any alternative projects by Independent Power Producers.

A Landmark Major Project for BC:
Site C will be, in current dollars, the most expensive capital project ever undertaken by the Province and merits scrutiny and continuing review for that reason alone. But Site C is also interesting because it will, over the next few years, provide global insight into whether costs and construction schedules for major capital projects can be effectively managed.

Read the full article by Jonathan Drance and Rachel V. Hutton with Stikeman Elliott.

Climate Change Round-Up
Legislative efforts to address climate change have attracted renewed attention in recent weeks. British Columbia and Alberta have developed emissions intensity regimes while, at a global level, a range of ideas are still percolating. BC's brand new regime regulates facilities that have yet to be built, whereas Alberta's regime is seven years old, with a legislated expiration date that was extended a second time on December 19, 2014 until June 30, 2015. A summary of these regimes, and other major climate change regimes relevant to British Columbia, follows below:

BC's Greenhouse Gas Industrial Reporting and Control Act
In November, 2014, Bill 2, or the Greenhouse Gas Industrial Reporting and Control Act, received Royal Assent. The new Act replaces the Greenhouse Gas Reduction (Cap and Trade) Act and regulates greenhouse gas (GHG) emissions from liquefied natural gas (LNG) facilities. These facilities will be subject to a GHG emissions "intensity" benchmark of 0.16 carbon dioxide tonnes for each tonne of liquefied natural gas produced.

Read the full article by Matthew D. Keen, Jana McLean, and Michael Manhas with the law firm Bull Housser LLP. 

Health News:

Federal Government Loses Appeal to Stop Medical
Marijuana Patients from Growing Pot at Home
The Conservative government has lost its latest attempt to prevent medical marijuana users from growing pot at home, with the Federal Court of Appeal upholding an injunction that exempted patients from a massive overhaul of the system.

New rules were introduced earlier this year that prohibited home growing and instead shifted production to commercial operations, but a group of patients is challenging that regime in a case expected to be heard in the new year.

A Federal Court judge issued an injunction in the spring that allowed patients who were authorized to grow and possess marijuana under the old system to continue to do so until their case is resolved. Read the CBC article. 

Supreme Court Preparing Landmark Ruling on
Euthanasia and Assisted Suicide
After a hearing in October, the Supreme Court of Canada is preparing to issue a landmark ruling on euthanasia and physician assisted suicide, marking the first time the top court has addressed the issue since 1993, when it upheld the criminal ban in the case of Sue Rodriguez. No date has been set for the decision, but the court has asked intervenors for their consent to a media preview, a routine practice for such high profile cases, by [January 12^th]. The case is an appeal of a ruling by the British Columbia Court of Appeal, which overturned the victory at trial of the appellant Gloria Taylor. She and others convinced a lower court that the criminal law against assisting someone to commit suicide violated her right to life, liberty and security of the person, and her equality rights to be free of discrimination based on physical disability. Read the National Post article. 

Labour and Employment News:

What is Physical Disability? BC Human Rights Tribunal
Confirms Legal Test under Human Rights Code
A decision this month by the BC Human Rights Tribunal (the "Tribunal") considered the evidence required to prove a "physical disability" under the Human Rights Code (Li v. Aluma Systems Inc. et al, 2014 BCHRT 270).

Mr. Wan Ji Li based his complaint on the fact that his employment was terminated when his hands had become swollen and painful after a strenuous job at Aluma Systems. The medical evidence was that his swollen hands and pain would be resolved by use of muscle relaxants and anti-inflammatory medication followed by a period of rest or light duties at work.

The Tribunal considered the test for establishing a "physical disability". The tribunal affirmed its position that:

"… the concept of disability, for human rights purposes, has generally been held to involve a physiological state that is involuntary and has a degree of severity, permanence and/or persistence. Generally, the disability impairs a person's ability to carry out the normal functions of life to some degree and poses an impediment to a person's participation in the economic or other areas of life which the Code seeks to protect against. It is a case-by-case analysis."

Read the full article by Larry Page with Davis LLP. 

"Unlike" – Social Media Gaffes Not Cause
To Dismiss Communications Manager
Lack of warnings about inappropriate online posts was fatal to employer's case
As more people use social media to communicate in and out of the office, social media posts by employees are increasingly a concern for employers. In a recent case, the International Triathlon Union ("ITU") dismissed its Senior Manager of Communications, Paula Kim, because of negative posts she made on her personal blog and social media accounts. In Kim v. International Triathlon Union, the British Columbia Supreme Court found there was no just cause for her dismissal because she had not been clearly warned that her communications put her employment in jeopardy.

Ms. Kim was considered the "voice of ITU". She was responsible for liasing with the media and writing materials for ITU's website, press releases, newsletter and Facebook account. Ms. Kim also kept a personal blog where she posted about her life, and had two Twitter accounts, one personal and one with the handle "Paula Kim ITU" where she posted about triathlon matters. ITU did not have any social media, communication or internet policies or a written contract with Ms. Kim, but Ms. Kim later stopped using the "Paula Kim ITU" account when requested by ITU. Read the entire article by Christopher McHardy with McCarthy Tetrault.

Local Government News:

SPCA, Burnaby City Officials Acted within Law in Seizing Dogs
and Cats from Rescuer, Court Rules
Judge rules one SPCA statement defamed animal rescuer
The BC SPCA and the City of Burnaby were operating within the law when they seized 52 dogs and 19 cats from a Burnaby animal rescuer in 2012, a judge has ruled. Sandra Simans sued the society and the city, alleging that the seizure was unlawful and that she and her rescue organization were defamed in news releases and statements to media. Simans runs 1atatime Rescue Society, which takes in disabled and abused animals from Canada, the U.S. and Asia. Until mid-2012 she kept the animals she rescued at a home where she lived in Burnaby. Read the full article published in The Province. 

Miscellaneous News:

Interim Preservation Orders: The Civil Forfeiture Act and
Its "Overzealous" Use by the Director of Civil Forfeiture
"Regrettably, this appears to be a case where the office of the Director of Civil Forfeiture has taken zealous measures outside the proper bounds of its home statute with the unfortunate effect of depriving a citizen of lawful possession and use of her property, putting that citizen to what I suspect is considerable expense and inconvenience to retrieve her property."

Those are the closing words to a recent judgment in which the court dismissed an application by the Director of Civil Forfeiture (the "DCF") to seize a pickup truck. These comments are a clear reflection of the court's displeasure at the DCF's tactics.

In this particular case, the DCF seized a pickup owned by Roberta Allwright. Following that seizure, the DCF applied for an interim preservation order allowing the continued detention of the truck, depriving Ms. Allwright of its use, until the substantive issues in the claim were resolved. If the DCF succeeded, Ms. Allwright would have lost the use of her vehicle for a year or more until the trial. The DCF's likely motive was to put practical and economic pressure on Ms. Allwright in an effort to extract from her an advantageous "settlement" (i.e., money) to bring the matter to an end sooner and allow her to retrieve her vehicle. Read the article by Peter Roberts with Lawson Lundell LLP. 

PD-44 – Requirement for Appearance List
Chief Justice Hinkson has issued PD-44 – Requirement for Appearance List which sets out the requirement for parties appearing before the court on certain matters to provide the court clerk with an appearance list. PD-44 – Requirement for Appearance List takes effect on January 1, 2015 and replaces PD-2 – Appearance List on Applications. This information was taken directly from the Supreme Court website. 

Motor Vehicle and Traffic News:

Amendments to Motor Vehicle Act Regulations
Effective January 1, 2015, the Motor Vehicle Act Regulations, B.C. Reg. 26/58, was amended by B.C. 227/2014. The amendments include:

1	Section 47.01 of the Motor Vehicle Act Regulations, B.C. Reg. 26/58, is repealed and the following substituted:
	Definition
	47.01	(1)	In this Division, "official vehicle" means a vehicle that
			(a)	is authorized under section 4.28 to display flashes of red, blue, white or amber light, and
			(b)	is displaying flashes of red, blue, white or amber light
				(i)	in accordance with any limits or conditions set out in section 4.28 or specified by the director under section 4.28 (1) (b),
				(ii)	while the vehicle is stopped on or on the side of a highway, and
				(iii)	while the vehicle's components are being operated, or a member of the vehicle's crew is working, on or on the side of the highway.
		(2)	Despite subsection (1), a school bus is not an official vehicle for the purposes of this Division.
2	Section 47.02 (1) is repealed and the following substituted:
		(1)	Subject to subsection (2), a person driving a motor vehicle on a highway in either direction must drive the motor vehicle at no more than the following rate of speed when approaching or passing an official vehicle:
			(a)	70 km/h, if signs on the highway limit the rate of speed to 80 km/h or more;
			(b)	40 km/h, if signs on the highway limit the rate of speed to less than 80 km/h;
			(c)	the rate of speed indicated on the signs, if signs on the highway limit the rate of speed to less than 40 km/h.

CVSE Bulletins
There were a number of bulletins, notices, circulars and forms published by CVSE in the month of December. These included:

• CVSE0047 – National Safety Code Authorization
• CVSE0048 – Declaration of Overall Responsibility
• CVSE0049 – Voluntary Surrender Declaration
• CVSE1014 – LCV Operating Conditions & Routes
• Bulletin 03-14 – Maintenance of Records – Motor Vehicle Act Regulations 37.29 (1)

For more information please visit the CVSE website.

Road Rage Intimidation Incident Leads to
Liability for Subsequent Crash
Reasons for judgment were released [late December] demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.

In this case (Davies v. Elston) the Plaintiff was an experienced cyclist. As he passed a parked truck whose mirror extended into the bike lane the Plaintiff's son who was riding with him commented about the truck. The truck's owner heard this, jumped in his vehicle and drove after the cyclists to confront them. Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.

The Defendant argued the Plaintiff was solely at fault for the incident. Madam Justice Griffin disagreed and found the defendant fully responsible. In reaching this conclusion the Court provided the following reasons: Read the full article by Erik Magraken and posted on his BC Injury Law blog. 

Property and Real Estate News:

Fundamental Breach and the Sale of Real
Property: Timing is Everything
Many land developers arrange to sell lots in a proposed development before the subdivision is completed. The vendor benefits from the promise of confirmed future sales and non-refundable deposits. Purchasers benefit from lower prices for purchasing early. However, what happens if the land development is delayed. Can a purchaser get a non-refundable deposit back?

The answer is: it depends. For the most part, it depends on the terms of the written agreement between the parties but it can also depend on the timing of a critical decision by the purchaser. That decision is whether or not to treat a vendor's delay in closing the transaction as a fundamental breach of the contract. Equally important is when to make and communicate that decision.

A recent case in the Court of Appeal provides a good example. Read the full article by Peter Roberts with Lawson Lundell LLP. 

Lien Out: Arbitrary Protection for
Pre-Construction Consultants
Those who claim a builders lien must comply strictly with the requirements of the Builders Lien Act, and owners (or at least their counsel) are frequently on the lookout for liens that can be extinguished for a failure to satisfy such requirements. The recent BC Supreme Court decision in Stanley Paulus Architect Inc. v. Windmill Holdings Ltd., 2014 BCSC 1816 serves as a reminder of one fundamental requirement: in order to claim a lien there must be an "improvement" within the meaning of the Act. More particularly, there is no "improvement" where construction has not yet commenced even though considerable pre-construction work may have been undertaken.

In Stanley Paulus, an architectural consulting firm sought a declaration of builders lien in respect of amounts unpaid under its contract with the owner. The consultant was retained to prepare plans for the project site, apply for a development permit, and provide construction administration for certain aspects of the project. Work commenced and continued over a series of months, with many changes to the project being made, but the necessary approvals were not obtained. The owner purported to terminate the consulting agreement on the ground that the consultant failed to perform in a timely manner, and the consultant filed a claim of lien against the project property. Read the full article by Aidan Cameron with McCarthy Tetrault LLP. 

Wills and Estates News:

The Incapable Spouse
From CLEBC
This paper from WESA for Family Lawyers (October 2014) examines the impact of capacity on issues arising at many points along the continuum of a family relationship: from marriage to separation to spousal support. The writers offer seven practical tips for lawyers acting for a person who lacks capacity, or for the representative of that person. Visit the CLEBC website for more information and to view the paper.