Company and Finance News:

CSA Release 2014 Enforcement Report
The Canadian Securities Administrators recently released their 2014 Enforcement Report, which provides a summary of the enforcement actions undertaken by CSA members over the past year.

According to the report, CSA member staff initiated 105 proceedings in 2014, involving 189 individuals and 92 companies. The most common offences for which proceedings were commenced included charges of illegal distribution, fraud, market manipulation and misconduct by registrants.

CSA member staff also concluded 105 cases against 149 individuals and 106 companies in 2014. About $58.2 million in fines and administrative penalties were ordered, in addition to about $65.7 million in restitution. The report also provides highlights of specific cases. Read the full article published by Stikeman Elliott LLP.  

Have Unpaid Student Loans? Proposed Law Wants You to
Pay Up, or Risk being Denied Drivers Licence
B.C. aims to recoup some of the $185.5 million in outstanding student debt
– [see Bill 13, Finance Statutes Amendment Act, 2015, which includes amendments to the Financial Administration Act]
British Columbians who ignore repayment of their student loans could find themselves unable to get a drivers licence or insure their vehicle, under a new bill introduced in the legislature [February 26].

Finance Minister Mike de Jong said the proposed law is intended to help government collect some of the debts owed, including an existing $185 million in outstanding student loans, as well as fines for other infractions such as illegal hunting and pollution.

"For folks that graduate and get a job and are working and decide they just don't want to take their obligation to repay their student loan seriously, this would be a mechanism to remind them on a fairly regular basis they need to honour that obligation," said de Jong.

The changes mean that the Insurance Corp. of B.C. could refuse to renew or issue a drivers licence if the government flagged a person's debt for repayment. Vehicle registration and insurance could also be denied. Read The Vancouver Sun article.

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

• CSA Notice 94-101 – Publication for Comment – CSA Notice and Request for Comment – Proposed National Instrument 94-101 Mandatory Central Counterparty Clearing of Derivatives and related documents This notice describes proposed National Instrument 94-101 Mandatory Central Counterparty Clearing of Derivatives and related documents. The comment period for this proposal expires on May 13, 2015.
• CSA Staff Notice 11-312 – National Numbering System
• CSA Staff Notice 81-326 – Update on an Alternative Funds Framework for Investment Funds
• BCN 2015/01 – 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 December 31, 2016.
• 45-106 – CSA Notice of Amendments to National Instrument 45-106 Prospectus and Registration Exemptions Relating to the Accredited Investor and Minimum Amount Investment Prospectus Exemptions
  The amendments are intended to improve investor protection for individuals when purchasing securities under these prospectus exemptions. Subject to obtaining required Ministerial approval, the amendments will come into force on May 5, 2015.
• 45-106 – CSA Notice of Amendments to National Instrument 45-106 Prospectus and Registration Exemptions
  Relating to the Short-term Debt Prospectus Exemption and Short-term Securitized Products
• CSA Staff Notice 51-342 – Staff Review of Issuers Entering Into Medical Marijuana Business Opportunities

For more information visit the BC Securities website.

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

• Notice 2015-002, Notice to Tobacco Manufacturers and Importers
• The provincial government announced its 2015 Budget in February. Programs administered by the Consumer Taxation Branch are amended as a result. Learn more at B.C. Provincial Budget Tax Changes.
• The Appeals webpages and Bulletin GEN 002, Appeals, have been updated to make it easier for you to find the information you need. Form FIN 298, Appeal to Minister, is a new form you can use to file an appeal related to an assessment, disallowed refund or other decision made by the Ministry of Finance.
  

For more information, visit the Consumer Taxes website.

Energy and Mines News:

Act Positions BC to Regulate Liquefied
Natural Gas (LNG) in Federal Ports
New legislation to regulate the construction, operations and permitting of LNG development on federal port lands was introduced into the BC legislature [February 16] by Deputy Premier and Minister of Natural Gas Development Rich Coleman.

Bill 12, the Federal Port Development Act (FPDA), will extend provincial authority and application of provincial law to LNG-related development on federal port lands. The bill creates a seamless regulatory environment that complements the 2014 amendments to the Canada Marine Act (CMA) made by the federal government.

The FPDA authorizes the Province to enter into agreements with the federal government and a federal port to administer and enforce provincial law on port lands. For example, agreements under the FPDA would detail how the BC Oil and Gas Commission would oversee development and operations of LNG facilities at a federally regulated port. Read the full government news release.

New Tax Incentives to Advance
Liquefied Natural Gas Projects
On February 19, 2015, the Canadian government announced new proposed tax incentives intended to encourage investment decisions with respect to liquefied natural gas ("LNG") projects. The tax incentive takes the form of an enhanced rate of capital cost allowance ("CCA", being the tax version of depreciation) of:

• 30% for equipment used in natural gas liquefaction; and
• 10% for buildings at a facility that liquefies natural gas,

in each case for capital assets acquired between February 19, 2015 and the end of 2024 (the "Incentive Period"). This will allow a faster recovery of the capital costs of these assets. The Department of Finance is accepting comments on these proposals until March 27, 2015. Read the full article by Richard Eisenbraun with the law firm Borden Ladner Gervais LLP.

AME BC Top Policy Issues and Recommendations
The Association for Mineral Exploration British Columbia recently published their annual discussion paper on the top policy issues and recommendations facing British Columbia's mineral exploration and development sector in 2015. It also offers specific recommendations that government and industry can work on together in order to address the identified issues and to implement policy measures that will position the sector for success in 2015 and beyond. View discussion paper.

Sweeping Aboriginal Lawsuit Threatens to Strangle
Resource Development in Northeastern BC
Development in British Columbia's resource-rich northeast sector, where the massive Site C dam is planned and gas exploration is booming, could be halted by a lawsuit that has been filed against the provincial government. The Blueberry River First Nations announced [March 4^th] that they are suing the government for breaching Treaty 8, a document enacted in 1900 that promised natives that in exchange for opening their lands to settlement they could continue their traditional way of life The Blueberry are now claiming in BC Supreme Court that the development of hydro dams, the burgeoning oil and gas industry, forestry, mining, agriculture and road building have largely destroyed their ability to hunt, trap, fish and gather plants as they traditionally did. The Blueberry bands are seeking (PDF) a declaration from the courts that in permitting the cumulative impacts of industrial developments the BC government breached its treaty obligations. The bands are also seeking an interim injunction restraining the government from permitting any further development. Read The Globe And Mail article.

Red Chris Tailings Pond "Totally
Different" from Mount Polley:
Minister of Mines Bill Bennett says independent experts have signed off on design for tailings pond
BC's Minister of Energy and Mines Bill Bennett said he's confident the tailings pond at the proposed Red Chris mine won't fall to the same fate as the one at the Mount Polley mine.

"It's a totally different design in terms of the tailings storage facility itself. Mount Polley had a two kilometre square facility with four man-made dams. At Red Chris you have the natural contour of the valley so you have two sides where you don't need a dam. You've got one in because the valley runs downhill," he told The Early Edition's Rick Cluff.

Bennett said independent engineers, engineers from Imperial Metals – the company behind the proposal, and engineers from the Tahltan First Nation have all signed off on the design.

Last week, the BC government granted Imperial Metals, which is the same company behind the Mount Polley mine, an interim permit to test the tailings pond at the Red Chris site. Read the CBC article.

Family and Children News:

Family Maintenance Enforcement Act Amendments
The government recently introduced Bill 6, Justice Statutes Amendment Act, 2015, which proposes amendments to the Family Maintenance Enforcement Act. The intent of the proposed changes is to ensure consistency with the Family Law Act's objective of encouraging the use of non-court processes, where appropriate, to resolve family law matters. This amendment would make it clear that child and spousal support granted under family arbitration awards can be enforced using the Family Maintenance Enforcement Act (FMEA). Previously, only court orders and agreements filed with the court were enforceable using the FMEA. 

Court of Appeal Releases Important Judgment on the Complexity of
Family Law, Limitation Dates and Commencement of Proceedings
In Halliday v. Halliday, the Court of Appeal for British Columbia addresses the critical issue of limitation dates under s. 198 of the Family Law Act and how court proceedings are started under the Supreme Court Family Rules; although its conclusions on s. 198 aren't particularly surprising or detailed, the court's observations about the Rules make a point few practitioners are alive to.

Halliday is one of those cases that are a procedural nightmare, with one misstep that goes unnoticed followed by another and another, until the file gets to the Court of Appeal which is then tasked with untangling the knots. This happens when lawyers are in charge of a case, but more often occurs when one or both parties are without counsel. The fact of the matter is that the rules of the Supreme Court are extraordinarily complex, can be difficult to interpret and can be difficult to apply. As it happens, in Halliday the husband was represented while the wife was not. Read the full article by John-Paul Boyd on the Blog. 

Business Practices and Consumer Protection Act Amendments
The government recently introduced Bill 6, Justice Statutes Amendment Act, 2015, which proposes amendments to the Business Practices and Consumer Protection Act. The intent of these proposed amendments is to allow for regulation of the debt-settlement industry and help ensure protection for BC families with burdensome debt loads. Debt-settlement companies will be prohibited from charging fees until both the debtor and creditor have approved a debt-repayment agreement, will have to disclose the risks associated with the debt-settlement process for customers and will be required to be licensed by Consumer Protection BC. The amendments will modernize outdated provisions so BC's debt-collection laws reflect the present-day industry and align with other Canadian jurisdictions.

Forest and Environment News:

Mitigation of Forestry Impacts to Natural Range Barriers
A New Forest Practices Board Report
This special investigation examined how well forest licensees plan and mitigate forestry impacts to timbered natural range barriers. Along with barriers such as steep gullies and large rivers, timbered range barriers are important because they help ensure cattle are contained within certain areas and do not graze where they are not supposed to. Forestry operations, including harvesting and road construction, can reduce the effectiveness of a timbered range barrier.

The investigation examined 10 case studies of range barrier mitigation on the ground and the commitments made in 56 operational plans (referred to as measures) to address forestry impacts to range barriers. In most of the case studies, the investigation found problems in how mitigation was planned and implemented. Most measures in operational plans were also deficient because, as written, they were not likely to lead to effective mitigation and were not verifiable. The investigation report includes three recommendations to improve how range barrier mitigation is planned and implemented. View the Forest Practices report here.

Environmental Appeal Board Decisions
There was one Environmental Appeal Board decisions released in the month of February:

Environmental Management Act

• Executive Flight Centre Fuel Services Ltd.; Danny La Sante v. Director, Environmental Management Act [Stay Decisions – granted pending final decision on merits]

Visit the Environmental Appeal website for more information.

BC's Environmental Studies Pose an Unsettling Paradox
Environmental assessment studies for industrial projects are contributing to the knowledge we have about BC's wildlife, but are they helping to protect anything?
Charlie Palmer's team of biologists wasn't looking for rare bats while conducting field work in 2010 to assess impacts of a wind farm on Bear Mountain near Dawson Creek. But that is precisely what they found – two eastern red bats, the first such sighting of that species in the region in 80 years, Palmer said. Typically, the biology that goes into an environmental assessment for a large industrial project is limited to conducting wildlife surveys and collecting data to establish what animals live in the path of a proposed resource project. So it is unusual to make a discovery such as this, said Palmer, a biologist and a manager on the assessment job for consultants Hemmera Envirochem. Read The Vancouver Sun article.

Occupational Health and Safety Regulation Amendments
A number of substantive changes to the Occupational Health and Safety Regulation came into force on February 1^st as a result of B.C. Reg. 199/2014. These amendments include new references to:

• Avalanche risk assessment
• Roll-on/roll-off containers
• Rope access

Amendments to the following sections are also included:

• Emergency lighting
• Chemical agents and biological agents
• Ladders and movable work platforms
• Concrete formwork and falsework
• Demolition
• Log transporters – cab guards

Health News:

Medical Marijuana: Federal Court to
Decide Who has the Right to Grow
A constitutional challenge of Canada's new medical marijuana laws got underway [late February] in Federal Court in Vancouver.

The case centres on whether patients can grow their own pot for medicinal purposes. Last April new federal marijuana laws banned all home growing for medical purposes, meaning users would have to buy pot from licensed growers. But four patients who grow their own marijuana challenged the new regulations in court, arguing licensed producers will inflate the price, making medical marijuana too costly.

The court heard testimony from Shawn Davey, who uses medical marijuana to alleviate chronic pain. His lawyer John Conroy argued the new laws force patients like Davey to choose between liberty and health. Read the CBC article. 

BC Nurses to Begin Filing Charges against
Violent and Aggressive Patients
BC nurses will begin pressing for charges against patients who hurt or abuse them, the president of the BC Nurses' Union announced [February 24^th].

Gayle Duteil said the union, which represents more than 43,000 nurses in the province, will pursue legal action when authorized by a nurse who has been injured on the job. The union is also creating a new support system for nurses who are physically or psychologically hurt.

A 24-hour, seven-day-a-week violence hotline will be set up for injured nurses to call, and the union will provide nurses with legal and financial resources if they choose to proceed with court action, said Duteil. Read The Vancouver Sun article. 

Labour and Employment News:

Early Consolidation of New
Pension Benefits Standards Act
Further to customer requests, Quickscribe is pleased to announce that we have published an early consolidation of the new Pension Benefits Standards Act, Chapter 30 [SBC 2012] (PBSA), as it is expected to read when it comes into force, possibly late summer or early fall. The text for the new PBSA is in red to distinguish this law from those that are currently in force. The new version includes the 2014 Bill 10 amendments. A decision was made not to include the 2014 Bill 9 amendments which are comparatively minor in scope. If you would like to view the Bill 9 amendments click here.

New Fees, Regulations on Tap for Employers of Foreign Workers
It's about to become more difficult and costly for Canadian employers to hire certain kinds of foreign workers
It is about to become more difficult and costly for Canadian employers to hire certain kinds of foreign workers, with the federal government set to impose new fees and regulations next week on a sector that has been at the centre of numerous scandals in recent months. Starting February 21, employers wishing to hire foreign workers without a Labour Market Impact Assessment – the federal government's check to make sure Canadians are not being displaced – will be required to submit information about their business or organization and an offer of employment to Citizenship and Immigration Canada, as well as pay an "employer compliance" fee of $230. Those on open work permits, which are not tied to a specific employer, will pay a new $100 fee. The new rules will apply to employers who use the International Mobility Program, which includes senior managers, workers who come to Canada through NAFTA provisions, intra-company transfers and reciprocal agreements with other countries, such as working holiday visa programs. Until last year, these groups were included with agricultural labourers, caregivers and fast food workers in the controversial Temporary Foreign Worker Program. Read The Vancouver Sun article. 

BC Liberals Introduce New Workplace Safety Laws
Legislation will add enforcement tools for WorkSafeBC, including on-the-spot fines The BC Liberals introduced legislation [on February 11^th] to increase workplace safety following recommendations that resulted from two deadly 2012 sawmill explosions.

The legislation [Bill 9, Workers Compensation Amendment Act, 2015] adds enforcement tools for WorkSafeBC, the province's chief safety agency. They include on-the-spot fines of up to $1,000, wider discretion to stop work deemed unsafe and the ability to take more forceful action against egregious, wilful and repeat offenders.

The new legislation also expands the court's authority to bar the worst offenders from operating in an industry, and shortens time frames in which companies must conduct investigations into significant workplace incidents.

Based on consultation, the BC government decided not to give WorkSafeBC the ability to penalize workers with on-the-spot fines for failing to wear protective gear such as hard hats and steel-toed boots. Read The Vancouver Sun article.

Federal Court of Appeal Decision Overturns Longstanding Views
about "Unjust Dismissal" under the Canada Labour Code
In a decision last month in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal dealt with an employee covered by the Canada Labour Code who had been terminated without cause, but who had been offered reasonable severance pay. This case is significant for all federally regulated employers. An adjudicator had been appointed to hear the case under the Canada Labour Code and ruled the fact that the employee had been terminated without cause meant this was an "unjust dismissal" under the Code. As such, the termination would qualify for the "unjust dismissal" remedies, including possible reinstatement in his position, awarding damages, or making other orders "to remedy or counteract any consequences of the dismissal". This view of the law has been the prevailing interpretation of this part of the Code for decades. Although not all adjudicators had adopted that interpretation, it was widely accepted as a correct interpretation of the Code. Read the full article by Larry Page with Davis LLP.   

The Continuing Evolution of Workplace Disability Law: Two Provincial Courts
at Odds on the Deductibility of Disability Benefits from Severance Pay
Workplace disability poses many practical and legal challenges for employers. Employers must balance their own business interests with an employee's right to be accommodated and treated fairly and with respect. For many employers, there is a great deal of uncertainty surrounding their right to terminate an employee on disability leave and the legal consequences that follow. Adding to the complexity of these issues are the 2014 British Columbia decision Morris v. ACL Services Ltd. and the 2015 Ontario decision Ciszkowski v. Canac Kitchens. The BC and Ontario courts in these cases took two different approaches on whether disability benefits can be deducted from severance pay when an employer terminates an employee who is already receiving disability benefits.

Background
The Supreme Court of Canada considered this issue in 1997 in Sylvester v. British Columbia. In that decision, the Court established that the deductibility of disability benefits from a damages award depends on the employment contract and whether the parties intended that the employee would receive both disability benefits and damages in lieu of adequate notice of termination.

Local Government News:

Building Act Phases Out Local Building Standards
After more than a decade of consultation the Province has introduced a new Building Act. The Act modifies the current building regulation scheme established by the Community Charter and Part 21 of the Local Government Act and applies everywhere in British Columbia except the City of Vancouver. The government's announcement of the new legislation promises "a more streamlined and modern building regulatory system". For local governments, it will bring some significant changes to the enactment and administration of building standards.

Even more plainly than the predecessor Local Government Act and Community Charter provisions, the Act aims to eliminate any local variations in building regulation (outside of Vancouver). The sections of the Act that work toward this goal reinforce provincial control over building regulation for the sake of uniformity throughout the province. Section 3 empowers the responsible minister (currently the Minister of Natural Gas Development and Minister Responsible for Housing) to establish one or more building codes and regulate building activities generally, including by prescribing requirements for site safety, building design, inspection, and record keeping. A provincial building regulation will continue to have the same force and effect as a bylaw enacted by a local government, and to the extent that any local building requirement relates to a matter that is the subject of a provincial building regulation, or "prescribed by regulation as a restricted matter", the local requirement will have no effect. Read the full article by Guy Patterson and Bill Buholzer with the law firm Young Anderson LLP.

New Supreme Court of Canada Decisions on Collective Bargaining, the Right to
Strike and Communications by Employers During Union Organizing Activities
In January the Supreme Court of Canada released three decisions that will have significant impacts upon labour relations across the country.

In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Court concluded that the freedom of association entrenched in s. 2(d) of the Charter of Rights and Freedoms "protects the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals." The Court reasoned that a meaningful process of collective bargaining gives employees meaningful input into the selection of their collective goals, and a degree of independence from management sufficient to allow members to control the activities of the association, having regard to the industry and workplace in question. However, meaningful collective bargaining is not about the outcome, but rather a form of labour relations process.

In Meredith v. Canada (Attorney General), 2015 SCC 2 the Court held that the Federal government's Expenditure Restraint Act, which froze public sector wages to 1.5 % increases for the years 2008 to 2010, did not substantially interfere with the labour relations process so as to infringe RCMP members' freedom of association. The Court specifically held that since the wage freeze was consistent with other public sector negotiated collective agreements, was time-limited and still permitted the RCMP to negotiate, it did not impact on the right to collectively bargain. Read the full article by Susan Beach with the law firm Stewart McDannold Stuart.  

Court Sides with Developer in Battle
over Future False Creek Park
The BC Supreme Court says the City of Vancouver did nothing wrong in allowing Concord Pacific to continue using a future park on False Creek for commercial purposes.

In a ruling issued [March 4^th], Justice Robert Sewell dismissed an application by the False Creek Residents Association to overturn the extension of temporary development permit the city gave to Concord Pacific while it completes adjacent developments.

He also ruled against the FCRA's application for a declaration that any use of the area, known as Sub-area 9, must conform to its zoning, which restricts uses to park and ancillary uses.

In his ruling Sewell said he believes the city has the jurisdiction to relax the provisions of the zoning bylaw that governs the park area. He concluded that city planning director Brian Jackson's decision to allow Concord Pacific to use the park for a sales centre "falls within a range of possible, acceptable outcomes given the relevant facts and law." Read The Vancouver Sun article.

Firefighter Training Linked To Service Level
Under new Provincial policy, local governments that are responsible for a fire department, volunteer or full-time, will be expected to establish the service level for the fire department. The level of service will determine the training requirements that the firefighters will need to have.

Local government, as the Authority Having Jurisdiction (AHJ) for the provision of fire services in the community, will need to carefully assess the needs of the community (i.e. exterior and/or interior firefighting) and establish in a bylaw or policy outlining the level of firefighting training that is required to deliver the level of service. Local government as a result of the policy change may face additional firefighting training costs depending on the level of service chosen for the community. Read the UBCM article.  

Miscellaneous News:

What is a SLAPP and Does BC Need a Law?
Recent lawsuits have revised the debate over "strategic lawsuits against public participation" in BC. Yet many of the cases that some call SLAPPs would not be covered by typical SLAPP laws in the U.S. and elsewhere. Society's rich and famous, from Oprah Winfrey and Jay Leno to the shareholders of Louis Vuitton, are among the many around the world who have been faced with so-called SLAPP lawsuits.

But while the wealthy have the financial means and often helpful laws to fight a "strategic lawsuit against public participation," targets of alleged SLAPPs in BC have a limited ability to defend themselves.

SLAPP suits are typically based on weak legal grounds and are intended to silence critics rather than to win a hefty judgment. And more often than not they're aimed at those who can't afford a drawn-out legal battle.

Two recent cases have set off a new debate over whether BC should revisit Liberal premier Gordon Campbell's 2001 decision to scrap a months-old anti-SLAPP law. The law had been passed during the dying days of the New Democratic Party government. Read The Vancouver Sun article.  

Legislation Strengthens Private Career-training Sector
The Government of British Columbia [on February 11] introduced Bill 7, the Private Training Act, to strengthen education quality, streamline administrative and approval processes, and improve public confidence in the private career training sector domestically and internationally.

"The private career training sector is an important and vibrant part of the post-secondary system in British Columbia," said Advanced Education Minister Andrew Wilkinson. "Private career training institutions provide Canadian and international students with a wide selection of education and training options. New legislation positions the sector for success by strengthening quality assurance, providing greater support to private career training institutions and continuing to protect students."

The Private Training Act will replace the Private Career Training Institutions Act, dissolve the Private Career Training Institutions Agency (PCTIA), and transfer its authorities and functions to the Ministry of Advanced Education later this year.

Government has consulted private training institutions, sector representatives and other stakeholders about the proposed changes. Feedback from the consultations helped shape the new model for the private career training sector. Read the full government news release.  

Do Governments Have a Duty to Consult First Nations
about Proposed Legislative Amendments?
New Practice Point Paper Published by CLEBC
This paper from the Aboriginal Law Conference 2014 (November 2014) poses the question: is there a legal duty that requires the Crown to consult First Nations about proposed amendments? James Hickling of Donovan & Company considers case law along with a cautionary tale in his answer to this question. Click here to view a pdf version of the paper.

Motor Vehicle and Traffic News:

BC to Give Police Power to Penalize "Left Lane Hogs"
Slow drivers who clog up the left lane on BC highways could face stiffer penalties under upcoming new legislation.

Transportation Minister Todd Stone said [March 2] he'll introduce a bill this spring that will boost police powers to penalize drivers who back up traffic and cause accidents by driving slowly in the left passing lane without switching to the right lane of the highway.

"We know from a variety of data sources, whether it be ICBC, collision information, or RCMP traffic reports, that failure to keep right except to pass is actually a cause of a lot of collisions across British Columbia," said Stone. "It can lead to driver frustration and so forth, so we're committed to strengthening the language in the act to give law enforcement better tools so they can crack down on left-lane hogs." Read The Vancouver Sun article.

Passenger Found 40% at Fault for Riding
in Over-Crowded, Speeding Vehicle
Reasons for judgment were released [recently] by the BC Supreme Court, Victoria Registry, largely rejecting a personal injury claim from a Plaintiff who sustained modest injuries in a 2009 roll-over collision.

In today's case (Wormald v. Chiarot) the Plaintiff was 15-year-old passenger in the Defendant's vehicle at the time of the collision. The Defendant had a Novice licence and had 9 passengers in her vehicle "far exceeding its designed capacity". The vehicle's passengers encouraged the driver to speed, who did so and ultimately lost control of the vehicle, rolling several times [and] coming to a stop in a ditch.

The Plaintiff sued for damages arguing she suffered serious injuries and sought approximately $250,000 in damages. The Plaintiff's claim was largely rejected with the Court noting that the Plaintiff's evidence was not entirely reliable.

The Court assessed damages for the Plaintiff's scars, bruises, scrapes and cuts at $8,000 and then reduced these by 40% due to the Plaintiff's contributory negligence. Read the full article by Erik Magraken on his BC Injury Law blog. 

New Rules Intended to Regulate the Industry and
Crack Down on Illegal Drinking
– Passenger Transportation Regulation
All limousines operating with perimeter seating – including stretch SUVs and party buses – will now need special authorization from the Passenger Transportation Board. Minister of Justice Suzanne Anton said the new rules will also help police crack down on illegal drinking in the vehicles.

"Drinking alcohol on a party bus, limo, SUV or any other vehicle continues to be illegal and police will continue to enforce this law on B.C.'s roads," said Anton.

The changes will eliminate the competitive advantages limousine operators had that allowed them to set rates, work anywhere in the province, and add vehicles to their fleet at any time, said B.C.'s Minister of Transportation Todd Stone on [February 26^th] in Victoria. Read the CBC article. 

Property and Real Estate News:

BCLI Recommends New Approach to Terminating a Strata
In its just-published Report on Terminating a Strata, BCLI is calling on British Columbia's legislature to amend the Strata Property Act, reforming how that act deals with cancelling a strata plan and winding up a strata corporation.

"Owners in BC's oldest stratas could soon be facing some difficult decisions," noted Patrick Williams, chair of BCLI's Strata Property Law (Phase Two) Project Committee. "Should they spend money that may be needed to renew and upgrade their stratas? Or should they consider termination, leaving the underlying land available for redevelopment? The time is now to ensure that the act contains a streamlined and well-balanced termination process."

The report contains 21 recommendations for reform. Its major recommendation would see the act move from requiring the unanimous consent of owners and holders of registered charges on the strata to authorize termination to a supermajority requirement. Under this supermajority requirement, at least 80 percent of the strata's owners would have to consent to its termination. In order to ensure that the process gives adequate protection to any owners or registered chargeholders who dissent from the decision to terminate, the report recommends that (unless the strata has fewer than five strata lots) a strata be required, after it garners the support of at least 80 percent of its owners, to apply for a court order authorizing termination as being in the best interests of the strata. Read the full article on the BCLI website. 

Nuisance and the Rule of Law
Does the conduct of your neighbour adversely affect the use and enjoyment of your property? Is your neighbour immune to reasonable requests to moderate his behaviour to lessen that impact? Are the local authorities unwilling to assist you in resolving the problems? This can be very frustrating and detrimental to the welfare of you and your family. If the matter is of little monetary value, it is often uneconomic to pursue, but it can nonetheless be a constant aggravation. This type of conduct is not supposed to happen in a civilized country and, if it does, the rule of law should prevent it. Sadly, it often is not for one reason or another.

However, there is an answer in the law of nuisance. Where a nuisance is proven, the courts will help prevent unlawful conduct, even if the local authorities will not. A recent example of the court providing such assistance involved a couple taking their neighbour to court over the nuisance he was creating on their property. It is a good lesson in both the law of nuisance and in the ability of individuals to seek justice. The neighbour was by most reports a vindictive man. For years, he insisted on burning wood and garbage in his fireplace for the purpose of having the smoke drift onto his neighbours' property and causing them great discomfort. The wood being burned was of all sorts, including waste and painted wood which created an acrid smoke. This prevented many nearby owners from being able to go into their yards. Entreaties to stop or to burn clean wood went unheeded. Read the full article by Peter Roberts with Lawson Lundell LLP. 

Wills and Estates News:

WESA – New Annotation
Stanley Rule, a new contributor to QS Online, has published a new annotation on to the Wills, Estates and Succession Act. The annotation draws attention to a reported case allowing the court to give effect to a document or other record as a will even though it does not comply with the formal signing and witnessing requirements for a valid will. This curative provision is section 58 of the new Wills, Estates and Succession Act. A reminder that you can view all of the recent annotations published on the WESA by clicking the "View Annotations for this Law" button located on the top menu bar once you are in the Act itself. You can also receive alerts whenever Stan posts new annotations to the site by clicking "follow" next to Stan's name. You must be logged into your personal account in order to take advantage of these features.

Capacity to Make a Will: Medical Evidence
Is Not Always the Last Word
In matters of mental capacity, the evidence of doctors is often conclusive. It is not often that the opinion of a lawyer about mental capacity trumps that of a doctor, and rightly so, since doctors applying scientific diagnostic criteria and experience have the expertise to properly answer questions about mental capacity. However, in some situations, a Court may prefer non-expert evidence of capacity to the extent it is focused on a particular issue, supported by outside evidence, and benefits from a particular legal test for mental capacity.

In Moore v. Drummond, handed down by the British Columbia Supreme Court in November of last year, this is exactly what the court did. The deceased, Ms. Drummond, had made a will very near the end of her life. She left everything to her neighbours, and nothing to her son. Read the full article by Joni Metherell and Allan Elliott with Pushor Mitchell LLP.  

Caregivers Must Give Effect to Patients' Wishes
in the "Here and Now": Decision in Bentley v.
Maplewood Seniors Care Society Upheld
On March 3, 2015 the British Columbia Court of Appeal dismissed the appeal in Bentley v. Maplewood Seniors Care Society, upholding the chambers judge's decision.

The only issue on appeal was whether or not the chambers judge had erred in failing to make a declaration that the "prompting" of Mrs. Bentley to eat or drink by touching her lips with a spoon or glass constitutes a battery. The appellants did not appeal the chambers judge's other central findings in the case: that neither of Mrs. Bentley's written statements of wishes were sufficiently clear; that Mrs. Bentley was indeed consenting to the act of being fed; and, finally, his interpretation that the relevant legislation required her caregivers to continue to offer her food and liquids and did not permit substitute decision-makers to consent to the withdrawal of personal care such as oral feeding that would lead to her death.

Madam Justice Newbury (with Mr. Justice Lowry and Mr. Justice Chiasson concurring) summarized all the relevant findings of the chambers judge and held that he had found at various points throughout his reasons that Mrs. Bentley is consenting to being given food and water and that meant there was no battery. Read the full article by Penny A. Washington and Elizabeth Allan with Bull Housser LLP.

Power of Attorney Act Amendments
The government recently introduced Bill 6, Justice Statutes Amendment Act, 2015, which proposes amendments to the Power of Attorney Act. The intent of these proposed amendments is to remove unnecessary language to ensure consistency with the Family Law Act. This amendment also updates wording to better reflect that an enduring power of attorney ends upon separation of spouses.

Trusts: Common Attacks on their
Validity and How to Avoid Them
An inter vivos trust (such as a family trust) is created when an individual (called the settlor) transfers property to a trustee to be held for the benefit of the beneficiaries of the trust. After the property is transferred to the trust, the settlor no longer owns the property and on death, the property will not form part of the settlor's estate. This also applies to the extent that any additional property is transferred to the trust after the trust is settled (from the settlor or another contributor). There are several indirect benefits for the settlor (or contributor) that flow from this. Since the trust property is outside of the settlor's estate, the assets are not subject to the probate regime or to a wills variation claim under the Wills, Estates and Succession Act. The trust structure may also result in overall tax savings if any income or gain on the trust property can be taxed in the hands of beneficiaries with a lower marginal tax rate than the settlor.

Because of this, trusts are often targets for creditors and disinherited family members who may have had a claim to the settlor's assets had those assets remained part of the settlor's estate. Those looking to challenge trusts may seek to invalidate the trust by arguing that the trust was not properly constituted and therefore never came into existence. It is important for anyone involved in setting up a trust to be familiar with these arguments in order to reduce the risk of the trust's validity being questioned. Read the full article by Areet Kaila with Clark Wilson LLP.