Company and Finance News:

Private Member's Franchise Bill
Introduced in British Columbia
Franchisors offering franchises in British Columbia should already be aware that the province is considering introducing franchise legislation. The BC government has undergone an extensive consultation process with the British Columbia Law Institute and industry stakeholders, and the current Liberal government has indicated that it may introduce franchise legislation in the fall.

In a surprising move, BC's Official Opposition presented draft legislation on May 13, 2015, in the form of a private member's bill titled "M219 – Franchise Act, 2015" (the Bill). The Bill is modelled on the Uniform Franchises Act (prepared by the Uniform Law Conference of Canada) and, similar to the franchise legislation in Ontario, Alberta, Manitoba, New Brunswick and Prince Edward Island, would impose certain rights and obligations on franchisors and franchisees operating in BC including, among other things, the duty of fair dealing, the franchisee's right to associate with other franchisees without interference by the franchisor, and disclosure obligations of the franchisor prior to entering into a franchise agreement with prospective franchisees. The draft legislation also mirrors the 60-day rescission and two-year rescission remedies for non-compliance with disclosure obligations that are found in the franchise statutes in the other regulated provinces, along with the same right of action for damages for misrepresentation. Read the full article by the law firm Osler – Osler's Franchise Group. 

Significant Changes Proposed to Canada's Take-Over
Bid Laws: Advantage Shifts to Target Companies
The highly anticipated amendments to the take-over bid regime in Canada have now been released by the Canadian Securities Administrators (CSA). The CSA had previously outlined the general nature of these proposed changes in a notice released on September 11, 2014, which [was] reviewed in a previous bulletin.

Proposed Amendments
The proposed new amendments require that all non-exempt take-over bids meet the following conditions:

• Minimum Tender Condition: There is to be a minimum tender condition of more than 50% of the outstanding securities of the class that are subject to the bid. The more than 50% tender will exclude securities beneficially owned, or over which control or direction is exercised, by the bidder or by any person acting jointly or in concert with the bidder. So, for example, if the bidder wishes to make a bid for all of the issued and outstanding common shares of Company A and the bidder already owns 25% of the common shares of Company A, more than 50% of the remaining 75% of the common shares must be tendered to the bid before the bidder can take up and pay for the shares. The more than 50% minimum tender condition will also apply to partial bids, so that more than 50% of the securities of the class that are subject to the bid will have to be tendered and the offeror will be obliged to take up the deposited securities pro rata to complete the partial bid.
• 120 Day Bid Period: The bid must remain open for a minimum deposit period of 120 days. However, there are two important exceptions to this rule:

Read the full article by Sarah Bode, Robert Black, Don Collie and Derrick Auch with DLA Piper.

When Business Relationships Change,
Temptations and Tensions Rise
Small corporations, where two or three family members and/or friends incorporate a company and go into business together, are the bread and butter of our community's vibrant and diverse business community. Unfortunately, sometimes the relationships between shareholders and their contributions to a business (or lack thereof) can change over the years, often in ways that the founders of a company didn't foresee when they went into business together. These changing roles can lead to breakdowns in communication and can often be at the heart of serious disputes between shareholders.

The recently decided case of Moon Dancer Fishing v. Tryon, is demonstrative of what can occur when shareholders don't periodically take the time to measure their roles in a small corporation and to discuss fairly dealing with how those roles may have changed over time.

Moon Dancer concerned two gentlemen, "Mr. M" and "Mr. T", who were friends for over 35 years. In 2000 Mr. M and Mr. T decided to go into the clam and mussel culturing business together and incorporated a company. The company was jointly owned by a holding company solely owned and operated by Mr. M on the one hand and a second holding company solely owned and operated by Mr. T. In effect, Mr. M and Mr. T were equal owners of their shared company. The terms by which the parties went into business together were part of a "handshake deal" the terms of which became central issues before the Court. Read the full article by Jeremy Burgess with Pushor Mitchell LLP. 

AMF and BCSC Publish Crowdfunding Guides for
Funding Portals, Businesses and Investors
By Stikeman Elliot and published on the Canadian Securities Law website:

Last week, the Autorité des marchés financiers and the British Columbia Securities Commission published guidance on crowdfunding. The guidance comes primarily in the form of user-friendly guides that provide an overview of the crowdfunding prospectus and registration exemptions published in Multilateral CSA Notice 45-316 on May 14, 2015. The guides are respectively tailored to specific audiences – funding portals, businesses and, in BC, investors – and reflect the securities regulators' intention that the crowdfunding exemptions exist for the purpose of benefitting start-up and early stage businesses. For further information, please consult the guidance on crowdfunding published by the AMF and the BCSC. Link to Stikeman Elliot article [archive]: https://web.archive.org/web/20170617062100/http://www.canadiansecuritieslaw.com/2015/05/articles/selfregulatory-organizations/amf-and-bcsc-publish-crowdfunding-guides-for-funding-portals-businesses-and-investors/

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

• 25-201 – CSA Notice of Adoption of National Policy 25-201 Guidance for Proxy Advisory Firms
• 45-106 – Adoption of Amendments to National Instrument 45-106 Prospectus and Registration Exemptions Relating to the Accredited Investor and Minimum Amount Investment Prospectus Exemptions
• 45-106 – Adoption of Amendments to National Instrument 45-106 Prospectus and Registration Exemptions Relating to the Short-term Debt Prospectus Exemption and Short-term Securitized Products
• 45-316 – Multilateral CSA Notice 45-316 Start-up Crowdfunding Registration and Prospectus Exemptions
• 45-304 – CSA Staff Notice 45-304 (Revised) - Notice of Local Exemptions Related to National Instrument 45-106 Prospectus Exemptions and National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations
• 31-341 – CSA Staff Notice 31-341 – Omnibus/Blanket Orders Exempting Registrants from Certain CRM2 Provisions of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations
• BCN 2015/04 – Adoption of BC Instrument 13-504 Interim relief for issuers listed on Aequitas NEO Exchange Inc. from the requirements pertaining to venture issuers

For more information visit the BC Securities website.

Energy and Mines News:

No Aboriginal Title Required: BC Court of Appeal Allows
First Nations' Civil Claim Against Alcan to Proceed
On Wednesday, April 15, 2015, the BC Court of Appeal released its decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc. In its decision, the court allowed the claims of the plaintiffs Saik'uz First Nation and Stellat'en First Nation (Saik'uz and Stellat'en) to proceed despite the fact that they are, in part, based upon unproven assertions of Aboriginal title. This precedent-setting decision could make litigation more attractive to First Nations unsatisfied with the results of consultation and accommodation.

Rio Tinto Alcan Inc. (Alcan) operates the Kenney Dam, located near the geographic centre of British Columbia, to power Alcan's aluminum smelter near Kitimat, BC. In 2011, Saik'uz and Stellat'en commenced an action against Alcan alleging the company's operation of the dam created a nuisance and breached the First Nations' riparian rights within an area over which they claimed Aboriginal title. Neither Saik'uz nor Stellat'en holds a treaty and neither First Nation has proven aboriginal title. In response, Alcan sought an order to, among other things, have the court strike out the First Nations' notice of civil claim. Read the full article by Jason Fisher, R.P.F. and Jeff Waatainen with DLA Piper. 

LNG Industry in BC Threat to Environment
and Energy Security: Study
BC's liquefied natural gas industry threatens to harm the environment and erode Canada's energy security, says a new analysis.

Geoscientist David Hughes, in a study for the Canadian Centre for Policy Alternatives, warns that LNG is far from the clean fuel that the BC government portrays it to be. Water filling the equivalent of nearly 22,000 Olympic-sized swimming pools a year would be required in the industry's fracking process in drilling for natural gas in northeast British Columbia, he said.

"Almost all of BC's future gas production is expected to involve fracking, which requires much more water and produces much more greenhouse-gas emissions than conventional drilling," Mr. Hughes said in his 50-page report to be released [May 26^th]. "A major public concern is the amount of water and the chemicals and other additives used in the fracking process, as well as the potential for contamination of surface water through surface casing failures and improper disposal of fracking waste water." View the full article on The Globe and Mail website.

Exports Won't Hurt Canada's Energy
Security, LNG Sector Says
The lobbying arm of BC's liquefied natural gas industry has rejected suggestions that Canada doesn't have enough natural gas to support large-scale exports.

The criticisms, in a geologist's report released [May 26^th] by the Canadian Centre for Policy Alternatives, focused on how the production levels of proposed LNG plants would outpace the sector's ability to supply them from current, known gas fields.

However, the critique doesn't take into account the amount of gas that is becoming surplus because of dropping exports to the United States, David Keane, president of the BC LNG Alliance, said on [May 27^th]. Nor, he said, does it factor in the continued pace of new gas discoveries.

"I think that the author is cherry-picking some of the facts," Keane said. "And I think when you look at the amount of gas resources available in British Columbia, there is a tremendous amount of resource available for production and export." Read more at The Vancouver Sun. 

Family and Children News:

Saudi-Born Dad Named "Guardian" of Adopted-Out
Daughter: BC Court of Appeal
British Columbia's highest court has granted guardianship rights to a Saudi man whose infant daughter was put up for adoption by her drug-addicted mother.

The fight over the five-year-old girl caps a lengthy legal battle that one judge said may be the first time guardianship provisions under BC's new Family Law Act have come before B.C. Appeal Court.

In the 2-1 ruling released online [May 19^th], Justice Mary Newbury said the case may be also part of a societal shift that is seeing more custodial claims by fathers against unmarried mothers.

The father, identified as M in the ruling, took the province's director of adoption to court in February 2011 to gain sole custody of his daughter, identified as O.

The father lost in a lower court, with the judge ruling he was not a guardian under the law because he did not regularly care for the child and it was not in the girl's best interests to make him a guardian. Read the full article reported by Canadian Press and published on FindLaw. 

Forest and Environment News:

Cumulative Effects Framework Being
Implemented throughout BC
Over the past 18 months, government has been working on a cumulative effects framework as part of its commitment to sustainable natural resource development, Forests, Lands and Natural Resource Operations Minister Steve Thomson said [May 26^th].

He made the comment in response to today's release of the auditor general's report, Managing the Cumulative Effects of Natural Resource Development in B.C., given that the recommendations are consistent with the direction government is taking.

Cumulative effects are defined by the Province as changes to environmental, social and economic values caused by the combined effect of past, present and potential future activities and natural disturbance events.

If not managed, these changes to the environment can compound and eventually harm the environment. Considering the potential of cumulative effects is an effective and environmentally sustainable way to manage natural resource development. Read the full government news release. 

Private Parties Not Liable for
Public Interest Costs
Courts are becoming increasingly resistant to attempts by third parties, specifically environmental non-governmental organizations ("ENGOs"), to insert themselves in permitting processes and judicial reviews where they are not directly involved and add no relevant expertise. The recent British Columbia Supreme Court decision in Gagne v. Sharp is a further example of this trend. This case included the additional wrinkle of an attempt by the ENGOs involved to have their court costs covered by the private company on the basis that they were acting in the "public interest".

Background
In Gagne, several individuals and ENGOs applied for standing before the Environmental Appeal Board (the "EAB") to appeal a permit amendment granted to Rio Tinto Alcan Inc. The EAB denied the petitioners standing because they were not persons aggrieved within the meaning of s. 100(1) of the Environmental Management Act, S.B.C. 2003, c. 53 (the "EMA"). The petitioners sought a judicial review of that decision, which resulted in the issue being sent back to the EAB for reconsideration. The EAB again denied the petitioners standing. That decision was itself judicially reviewed. The judicial review was dismissed and the parties were ordered to bear their own costs of that application.

Environmental Appeal Board Decisions
There were three Environmental Appeal Board decisions released in the month of May:

Wildlife Act

• Andrew Rushton v. Regional Manager, Recreational Fisheries and Wildlife Program [Final Decision – Appeal Dismissed]

Water Act

• Ellen Weir, Greg Whynacht; D'Arcy Lubin, Ian R. Poyntz; Catherine Willows Woodrow; Michael Dix (on behalf of himself and the Cowichan Lake Recreational Community Inc.) v. Deputy Comptroller of Water Rights [Final Decision – Appeals Dismissed]
• Comet Investments Ltd., Inc No. 69349 and P.G. Realty & Insurance Agency Ltd., Inc. No. 63919 v. Assistant Regional Water Manager [Consent Order – Appeals Dismissed]

Visit the Environmental Appeal Board website for more information.

Fisheries Act Private Prosecution Goes Ahead
In December 2014, Marilyn Burgoon received approval to bring a private prosecution against Executive Flight Centre Fuel Services and the Province of British Columbia for violations of the Fisheries Act related to a large fuel spill into a sensitive creek. The province took no enforcement action relating to the spill, likely because of its own role in causing it.

One or the other senior levels of government usually take over private environmental prosecutions, but, as of May 19, 2015, the federal government was still dithering on this one. The entire burden of prosecuting this case may therefore fall on the public-spirited Ms. Burgoon, without help from any level of government.

The case was before Justice Richard Hewson of the BC Provincial Court on May 19. Reportedly, the federal prosecutor told Justice Hewson that the federal government had not yet decided whether it would take over the prosecution. Read the full article by Dianne Saxe with Saxe Law Office – Environmental Law.

Recent Audits Reveal Wildfire Act Issues
From Forest Practices Board:
A review of forest and range practice audits from 2013 and 2014 finds about half the audits had no issues and half had non-compliance with legislation or areas requiring improvement, according to a report released [June 2^nd]. Of the problems found, one-third involved problems with wildfire prevention.

"We published 23 audit reports and 12 of those found 24 practices that either didn't comply with provincial forestry legislation, or were not considered good practice," said board chair Tim Ryan. "Of most concern is the trend we are seeing in problems related to the Wildfire Act and the requirements to prevent wildfires on logging sites." Read the full article published by the FPB. 

Forest Act Amendments
Bill 25, Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2015, was granted Royal Assent on May 26^th. The intent of the bill is to make it easier to regulate and manage low-impact community, recreational, industrial and commercial activity on Crown lands, streamline fees for transactions under the Land Title Act and allow non-Canadians to register as land surveyors. Sections of the bill now in force include amendments to the Forest Act affecting provisions with respect to timber sale licences, tree farm licences, forestry licences to cut, and pulpwood agreements.

Health News:

BC May Go Private for More Complex Surgeries
Critics says money should be go to opening some of many unused hospital operating rooms
The BC government is considering expanding the types of surgeries it funds at private clinics, as critics demand it instead spend that money on opening unused operating rooms in public hospitals.

The Health Ministry said in a policy paper that it is considering allowing private clinics to do surgeries that require up to three days of post-operative in-patient care, using public money. Currently, the government only allows day surgeries at private facilities, when no public operating room is available.

"Improved access to surgical services may include performing select surgical procedures which have length of stay up to three days, in private surgery centres, using public funds," reads the document. It says this will require changes to the law. Read The Vancouver Sun article. 

Medical Care and Children: Law,
Ethics and Emotions Collide
While I imagine that being a judge is never easy, some situations and cases present more difficult decisions than others. And I imagine that the most troubling rulings a judge must make are those which may be expected to lead directly to the death of another person. While Canada does not have the death penalty – and thus, such decisions are not usually made in the realm of criminal law – judges are nonetheless sometimes call upon to address disputes having to do with the provision of medical care and the fatal results if that care is not given or continued.

In this article I want to address two situations where these very difficult issues arise. Both involve cases of children in need of medical care, where the court has the power to intervene and to make decisions for children when no other person is in a position to properly do so. The first scenario I will address is where medical treatment is necessary to keep the child alive, but is being declined, either by the parents or the child herself. The second is the reverse of the first: where doctors are of the opinion that further medical treatment is pointless and as a result, propose to end their efforts to prolong the life of a child who is by then in a permanent vegetative state. Read the full article by Charles Davison and published on Law Now. 

Tobacco Companies Ordered to Pay $15B in Damages
Quebec Superior Court rules against 3 tobacco companies in historic class-action lawsuit
Three tobacco companies have been ordered to pay $15 billion in damages after losing a historic court case.

Judge Brian Riordan on Monday [June 1^st] ruled in favour of two groups representing Quebec smokers, ordering Imperial Tobacco, Rothmans Benson & Hedges and JTI-MacDonald to pay for punitive and moral damages.

"It's a big day for victims of tobacco, who have been waiting for about 17 years for this decision. It was a long process – but arrived at the destination and it's a big victory," said Mario Bujold, executive director of the Quebec Council on Tobacco and Health. Read the CBC article. 

Labour and Employment News:

New Pension Benefits Standards Act to Come
into Force September 30, 2015
The Province's new Pension Benefits Standards Act (PBSA), which accommodates alternative pension plan designs and improves plan governance, will come into force on September 30, 2015. The new legislation modernizes the existing policy and regulatory framework for BC's occupational pension plans by replacing the current legislation. It has been largely harmonized with Alberta legislation to streamline the operation of pension plans with members in both provinces. Key benefits of the PBSA include greater access to financial hardship unlocking, enabling the establishment of target benefit plans, and enhanced disclosure and governance of pension plans. For your convenience, Quickscribe made available an early consolidation of this Act as it will read when it comes into force on September 30^th. Please be aware that section 133(4) was originally published as coming into force at the same time as the other sections; however, we now know that this section will not come into force at this time. An annotation is made in reference to this adjacent to the section itself with a convenient link to the full text of 133 (4) as it will read when it eventually comes into law at a later date.

Maternity Leave Was No Reason to Reduce Bonus
The recent decision of the BC Supreme Court in Sowden v. Manulife Canada Ltd. is noteworthy for its interpretation of a written agreement regarding bonus payments, and the court's reluctance to allow an employer to use an employee's maternity leave as a reason to reduce her bonus payment.

Janice Sowden was a regional marketing director for Manulife Canada Ltd. ("Manulife"). Her remuneration was made up of a base salary plus a variable bonus, calculated partly on her success in recruiting new financial advisors to work for Manulife. In essence, the more valuable the assets brought to Manulife by Ms. Sowden's recruits, the higher her bonus. Ms. Sowden had worked for Manulife for 20 years when she was dismissed in a corporate reorganization. In an earlier decision, the court had determined that Ms. Sowden was owed damages for wrongful dismissal based on a notice period of 20 months. This case concerned the calculation of those damages, especially her bonus for the 2012 year. Read the full article by Laura DeVries with McCarthy Tetrault. 

Age Discrimination, Inclusive Design,
and Older Workers
From CLEBC website – Practice Points
This paper from Employment Law Conference 2015 (May 2015) explores opportunities presented by an aging population, as well as age-related dynamics, ageism and age discrimination. This would be of particular interest to lawyers practicing in the area of employment and human rights law.
Authors: Krista James, National Director, Canadian Centre for Elder Law, Vancouver, BC; Rachel Kelly, Research Lawyer, British Columbia Law Institute, Vancouver, BC; and Alexandre Blondin, Staff Lawyer, British Columbia Law Institute, Vancouver, BC

Local Government News:

Bill 29 Expands Tax Exemptions
for Independent Schools
The BC Legislature has given first reading to 2015 Bill 29, the Property Taxation (Exemptions) Statutes Amendment Act, 2015 ("Bill 29"). If it becomes law, Bill 29 will repeal and replace the language of subsection 220 (1) (l) of the Community Charter, and subsection 15 (1) (o) of the Taxation (Rural Area) Act. In its current form, the language of those sections only provides tax exemption for the building comprising an independent school, and the land on which the building sits. Read the full article by Michael Hargraves with Stewart McDannold Stuart. 

Grand Forks Votes to File Court Petition for
Removal of Council Member
Grand Forks, BC City Council voted in favour of filing an application to the court for declaration of disqualification against Councillor Julia Butler. The petition was filed pursuant to Section 111 of the Community Charter; Application to court for declaration of disqualification and pursuant to section 110, restrictions on participation in conflict. Council further determined that Councillor Butler is in breach of her oath of office. Council moved forward with the petition to protect the best interests of the organization and will proceed with the filing of the application to the Supreme Court immediately. Although Council will not be able to speak further to this, as the petition will be filed with the courts, council wanted to be respectful of the process and let the citizens of Grand Forks be aware of the situation. View the full story published on CivicInfo. 

Federal-Provincial Equivalency Agreement
on Wastewater: Update
Since 2012, the federal and provincial governments have been working towards the development of an equivalency agreement on wastewater effluent regulations. An equivalency agreement would see the federal regulations stand down in favour of a provincial regulatory system, as long as the provincial system has been deemed to be equivalent in effect.

The Province has issued an update on anticipated changes to wastewater discharge authorizations in BC. The proposed changes are being made in order to facilitate the implementation of the equivalency agreement. Read the full article published by UBCM. 

Community Association of New Yaletown v. Vancouver (City)
- A Roadmap for Complex Developments
In order to meet the challenges posed by modern urban development, municipalities and developers increasingly consider complex projects. The BC Court of Appeal's decision in Community Association of New Yaletown v. Vancouver (City), 2015 BCCA 227 ("New Yaletown"), clarifies public hearing and disclosure requirements for such projects.

The Court of Appeal's decision in New Yaletown sets out three key points with respect to complex developments which are:

1. The scope of the public hearing is restricted to the site being rezoned, even if the project as a whole involves development of another site.
2. If the project includes a land exchange between a municipality and a developer, the municipality has no obligation to open the land exchange agreement to public examination.
3. The municipality has no obligation to make technical information disclosed to the public easily understandable.

Read the full article authored by Kathleen T. Higgins and Articled Student, Ian Hardie with Bull Housser. 

Miscellaneous News:

Bill C-59 Will Make Document Destruction
Retroactively Legal
On Monday [May 25^th], Bill C-59, the federal government's latest omnibus bill containing budget implementation measures, passed second reading and was referred to standing committees for discussion. This bill is controversial for many reasons – first of all, nobody but the government presenting them likes omnibus bills, which tend to contain a variety of legislation that has nothing to do with the ostensible matter at hand. This one contains measures to allow the government to change civil servants' sick leave provisions, bypassing collective bargaining which is currently underway; and also contains legislation that would serve to erase evidence that the RCMP had destroyed information in contravention of the Access to Information Act, to protect the Mounties from possible criminal charges. Bill C-59 would make the following changes, among others, to the Ending the Long-gun Registry Act. Read the full article published on the CBA National.

The Indian Act: Can it be Abolished?
Two simple observations are made so often about the Indian Act as to amount to clichés: That the 1876 Act is still with us, and that it should be "abolished." The first of these is technically false; the 1876 Act was repealed in 1951, and replaced with the Act we have today, though it has been amended countless times. The more interesting question is, to what extent does the Act of today resemble that of 1876 (the implication of critics being that there has been little if any change since 1876)? The question of abolition, known to drafters as "repeal," is even more complex in its ramifications.

A recent example is from an article by Michael Den Tandt, a national columnist with Postmedia papers, writing on Sir John A. Macdonald: "The bigotry in Macdonald's speeches is reflected in the 1876 Indian Act, in many places almost word for word. And the Indian Act remains the law of the land in 2015. Though no political party claims to like it, none has made an urgent matter of its abolition. How can that be, if we're as evolved as we like to imagine?"

The Act of today is not Macdonald's Indian Act, any more than, say, the original Criminal Code of 1893 is still in force. In 1951, a complete redrafting of the Indian Act was undertaken, the 1876 Act fully repealed and replaced by a statute thoroughly modernized by the standards of the day. Read the full article by John Edmond and published on Law Now. 

Motor Vehicle and Traffic News:

Off-Road Vehicle Act Now in Force (June 1st)
Certain sections of the Off-Road Vehicle Act, SBC 2014, c. 5, have now come into force as of June 1, 2015. The ORV Act replaces the 40-year-old Motor Vehicle (All Terrain) Act and is intended to provide specific rules governing British Columbia's growing off-road sector, and helps ensure these vehicles are driven in a safe and environmentally responsible manner. The following sections come into force as of June 1, 2015: sections 1, as it enacts the definitions of "Crown land", "prescribed private land" and "private land", 17, 21 to 25, 26 (1) (f), (2) (e), (3), (5) (e) and (10), 28, 29, 30 (2) (b), (d), (j) to (m) and (o) to (s), 31 to 34 and 41.

Motorcyclists in BC Want the Right to
Ride between Cars in Traffic
As California gets set to legalize the widely accepted practice of "lane-splitting," BC says there's not a chance motorcyclists will be allowed to weave through and around traffic here. Motorcyclists say they're lobbying the BC government for a change that would allow them to drive up the middle between lanes of vehicle traffic in slow-moving traffic jams.

But the transportation ministry says it's a no-go and it has no plans to change the law because "lane splitting can be dangerous." But Harley Davidson enthusiast Ron Szoczei of Delta said the practice, which he calls "lane filtering," makes driving in traffic jams safer for motorcyclists.

"The best reason for lane filtering is for the safety of the motorcyclist, instead of having them stuck in traffic and getting rear-ended, which has happened to myself and my wife," Szoczei said.

And he and other proponents say allowing motorcyclists the opportunity to bypass lineups would speed traffic flow for vehicle drivers. Lane filtering would allow motorcyclists to drive between two lanes of cars as long as the bikes don't travel more than 10 km/h faster than the traffic flow and the traffic isn't going more than 35 km/h, according to the BC Coalition of Motorcyclists.

The practice is legal in 26 countries, including Ireland, Sweden and Singapore, and California is set to become the first state to legally formalize "lane splitting," which allows the manoeuvre at even higher speeds. A vast majority (86 per cent) of the 200 people responding to the BC coalition's online poll were in favour of the change. The coalition resubmitted in the fall a revised 2011 proposal for the change to BC's transportation ministry and has been told it's under review, according to coalition spokeswoman Tara Borgstrom.

The law now in BC prevents vehicles from passing other vehicles on the shoulder of the road or squeezing between two lanes of traffic. Read the Times Colonist article. 

Property and Real Estate News:

Tax Court Concludes that Zoning Costs for a
Rental Property are Deductible
A recent decision of the Tax Court of Canada will be of interest to those who hold rental property for the long term and who incur expenses related to the zoning of that property. The Tax Court found that such expenses were deductible for tax purposes, and were not required to be capitalized to the cost of the property.

Background
The Income Tax Act ("Act") distinguishes between payments which are on account of income and those which are on account of capital. The distinction is not clear, and there has been considerable commentary and litigation on the subject. Payments on account of income are, very generally, deductible provided that they meet the requirements of the Act. A key requirement is that the payments are incurred for the purpose of earning income from a business or property.

Payments on account of capital, in contrast, are not deductible unless there is an applicable exception in the Act. Paragraph 20(1)(cc) of the Act is relevant to re-zoning expenses. It states that a taxpayer can deduct from business or property income the cost of making representations to a municipal body for the purpose of obtaining a licence or permit relating to the business carried on by the taxpayer. Canada Revenue Agency has, in the past, indicated that this includes a rezoning application. Unfortunately, for certain taxpayers, holding rental property may not involve sufficient activity to constitute a "business".

Read the full article by Gareth Williams and Laura Peach with Lawson Lundell LLP.

When is a Hedge a "Fence" and Why does it Matter:
Section 36 of the Property Law Act
Whether a hedge is a fence matters because it can mean the difference between relief under the Property Law Act and the end of your ability to use a neighbour's land. You might seek relief under the Property Law Act where you discover after many years, for example, that part of your drive way is actually on your neighbour's property. Your neighbour now wants you to stop trespassing. You have been using the driveway for years and there is really no other access. What can you do?

Well, if you cannot reach agreement on a formal easement, one step is to seek an order from the court declaring that you are entitled to buy or use the disputed land. That authority is found in section 36 of the Property Law Act. However, such relief is only available if either "a building encroaches . . . on adjoining land" or "a fence has been improperly located so as to enclose adjoining land". So, if your driveway is discovered to be over the property line, you will need to persuade the court it was "fenced" off from your neighbour if you are going to get a court ordered easement or transfer. Read the full article by Peter Roberts with Lawson Lundell LLP. 

BC Finance Minister Suggests Speculation
Tax Wouldn't Control Prices
BC Finance Minister Mike de Jong is dumping cold water on Vancouver's call for a real-estate speculation tax, saying it could simply fill government coffers without controlling soaring property prices.

"You have got to be careful about how you use the tools of taxation and you have to be clear about what your objective is," Mr. de Jong told reporters in Victoria on [May 25^th].

"In other jurisdictions, under the guise of trying to regulate property values, all you have really seen is governments taking in a lot more revenue and not having any impact on housing affordability." The minister was responding to Vancouver Mayor Gregor Robertson's call for a speculation tax to dampen property flipping. Read The Globe and Mail article.

Wills and Estates News:

Does a Person with a Medical Condition Affecting his
Mind Have the Mental Capacity to Make a Will?
One of the grounds for challenging the validity of a Will is that the person who made the Will did not have the mental capacity to understand his actions. With an aging population and higher rates of medical conditions, such as Dementia and Alzheimer's Disease, which may affect a person's memory and other mental functions, questions about testamentary capacity arise more frequently.

In a recent case Bull Estate v. Bull, the Supreme Court of BC provided further guidance on the issue of testamentary capacity. In Bull Estate, the deceased made a Will in 2010 leaving more assets to her daughter than her son. The deceased died in September 2012. Her son challenged the Will on the basis that, amongst other things, the deceased's progressive dementia made her incapable of making the Will. Read the full article by Lauren Liang with Clark Wilson LLP. 

Fargey v. Fargey
If you want to ensure that your child or grandchild (or any other beneficiary) will not have control over an inheritance from you until he or she attains a more mature age than nineteen, the age of majority in British Columbia, then it is important that your will be drafted to avoid that beneficiary from being able to terminate the trust you create in your will for him or her. One way you may accomplish this is by providing that if the beneficiary dies before the age at which you wish to give the beneficiary control, his or her children will receive the funds held in the trust. But simply saying that a trustee will hold a beneficiary's share until the beneficiary attains the age of say twenty-five will not do.

[Stan Rule has] written before about the rule in Saunders v. Vautier (1841), 41 E.R. 482, allowing a beneficiary with legal capacity to terminate a trust if the beneficiary's interest has fully vested, but the principle has been applied recently in British Columbia. The case is Fargey v. Fargey, 2015 BCSC 721. Read the full article by Stan Rule and published on his blog, Rule of Law.