Company and Finance News:

Chartered Professional Accountants Act Now in Force
On June 24, 2015, B.C. Reg. 114/2015 brought into force the Chartered Professional Accountants Act, SBC 2015, c. 1. This Act unifies the three accountancy bodies, the Chartered Professional Accountants of British Columbia, the Certified Management Accountants Society of British Columbia, and the Certified General Accountants Association of British Columbia, into a single organization aiming to modernize the regulation of the accounting profession in BC.

Be Careful of Predatory Financial Advice
Most financial advisors provide exactly the kind of service you would expect: they provide you options for investing your money and inform you of the risks and rewards involved with choosing an investment vehicle or personal financial restructuring. Those looking for financial advice to plan for their future place trust in the advice they are receiving. Rarely, as was the case in Connor Financial Services International Inc. v. Laughlin, financial advisors fail to keep their clients' best interests in mind and, instead, seek to use their position to benefit themselves at their clients' expense. In Laughlin, the plaintiffs, the "Connor Group", were suing the defendants, the Laughlins, for money allegedly owed further to a series of contracts the Laughlins had signed with the Connor Group. By way of background, in 2000 when the Laughlins met with the Connor Group, they were unsophisticated in financial matters and had gotten into some financial difficulty by having overused their credit cards, racking up in excess of $22,000 in credit card debt. The Laughlins had a home with a mortgage and modest investments in RSPs. The Laughlins had seen an advertisement by the Connor Group concerning an RSP investment in what was described as a "Working Opportunity Fund". The Laughlins were interested and met with the Connor Group's principal, Gerry Connor. Read the full article by Jeremy Burgess with Pushor Mitchell LLP. 

New Rules Ease "Canadian Wrapper" Requirements for Private
Placements in Canada of Non-Canadian Securities
Effective September 8, 2015, certain private placements of non-Canadian securities made to Canadian institutional investors that qualify as "permitted clients" will no longer require a "Canadian wrapper".

Key Conditions to New Rules
The new rules require that certain conditions be satisfied:

• the offering must be conducted primarily in a non-Canadian jurisdiction;
• a concurrent distribution of the securities must be made by the issuer to investors in the U.S.;
• the securities must either be
  • issued by a non-Canadian issuer that is not a reporting issuer in Canada and has its head office outside Canada and a majority of its executive officers and directors ordinarily resident outside Canada; or
  • issued or guaranteed by the government of a non-Canadian jurisdiction;
• the Canadian clients must be "permitted clients" as defined in NI 31-103;
• the offering document delivered to Canadian clients must comply with applicable U.S. disclosure requirements and federal securities laws;
• certain prescribed notices must be provided to Canadian clients either in the offering document, accompanying the offering document, or, in advance of an offering, on a one-time basis.

Read the full article by Cristian Blidariu, Andrew Parker and Rene Sorell with McCarthy Tétrault LLP. 

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

• 23-101 – CSA Notice and Request for Comment Proposed Amendments to the Companion Policy to National Instrument 23-101 Trading Rules: Application of the Order Protection Rule to Marketplace Imposing Systematic Order Processing Delays
• 41-101 – Mandating a Summary Disclosure Document for Exchange-Traded Mutual Funds and its Delivery
• 21-101 & 23-101 – CSA Notice of Approval – Amendments to National Instrument 21-101 Marketplace Operation and National Instrument 23-101 Trading Rules.
• 33-105 – CSA Notice of Amendments to National Instrument 33-105 Underwriting Conflicts
• 45-308 – CSA Staff Notice 45-308 Guidance for Preparing and Filing Reports of Exempt Distribution under National Instrument 45-106 Prospectus Exemptions (Revised)

For more information visit the BC Securities website.

Energy and Mines News:

First Nation Launches Court Action against Pacific NorthWest LNG
Victoria says progress with Gitga'at being made on $36-billion project
as it locks in compensation in the event of industry-specific changes
As the B.C. government on [July 7] continued to put the pieces in place for a much-promoted first LNG project, another First Nation threw up a roadblock, challenging the leading $36-billion Pacific NorthWest LNG project in court. The Gitga'at First Nation is seeking a judicial review from the B.C. Supreme Court over a B.C. Environmental Assessment Office decision they say does not recognize the Gitga'at as being one of the Tsimshian First Nations entitled to full consultation on the project near Prince Rupert in northwest B.C. Read The Vancouver Sun article. 

Federal Government Introduces Prince Rupert Port Authority
Liquefied Natural Gas Facilities Regulations
On June 20, 2015, the federal Department of Transportation published the proposed Port of Prince Rupert Liquefied Natural Gas Facilities Regulations (Regulations) with respect to proposed liquefied natural gas (LNG) facilities to be built at Prince Rupert, British Columbia. The Regulations are issued under federal authority by virtue of the Canada Marine Act, which regulates Canadian ports. At present, there are four proposals for LNG facilities to be located at Prince Rupert, two are to be located wholly on federal port lands and two are to be located largely on provincial lands, with small portions on federal port lands. The Regulations implement a regulatory regime for the design, construction, operation, and maintenance of LNG projects proposed on federal lands, and in particular at the Port of Prince Rupert (Port). The Regulations have the following stated objectives:

• to establish a federal regulatory regime for LNG projects at the Port that applies, with some modifications, the existing British Columbia provincial regulatory regime;
• to create legal certainty authorizing the British Columbia Oil and Gas Commission (OGC) to administer regulatory oversight at the Port with respect to construction and operation of LNG facilities on behalf of the federal government while preserving the regulatory role of the Port with respect to navigation, shipping, and management of Port lands;
• to provide certainty and confidence for investors, developers, and the public that there is a clear regulatory regime in place to adequately regulate proposed LNG projects at the Port; and
• to promote consistency in the regulation of LNG projects in British Columbia, whether on federal or provincial lands.

The Regulations are designed to parallel provincial laws and regulations and to rely on the expertise of the OGC in administration and enforcement. Read the full article by Paul Cassidy, Monika Sawicka and Connor Bildfell with McCarthy Tétrault LLP. 

Family and Children News:

It's Hammer Time: Provincial Court Exercises Extraordinary
Enforcement Powers to Jail Litigant
British Columbia's Family Law Act improves over the old Family Relations Act in many ways, including by giving the Provincial Court the power to enforce its own orders, which is exactly what the Honourable Judge Bond did in the recent case of J.R.B. v J.H.F. Under the old legislation, the power of the Provincial Court to enforce its own orders was very limited. If you lipped off the judge, you'd get into some trouble for sure, but enforcing orders about guardianship, custody and access was very difficult – you actually had to commence a private prosecution under the Offence Act, a complicated process that hardly anyone ever attempted – and the court could not make costs orders. At least the Family Maintenance Enforcement Program more or less took care of enforcing support orders. The new legislation, however, comes with some pretty sharp teeth, especially s. 231 which allows the court to imprison a person for up to 30 days if it is satisfied that "no other order" under the act "will be sufficient to secure the person's compliance." (The section also allows the court to make peace officer enforcement orders in respect of parenting time and contact, which [is] discussed elsewhere.) The decision in J.R.B. concerned the variation and enforcement of a number of orders made at trial, including a publication ban and a protection order intended to prevent all contact between the father and the mother and her family. Read the full article by John-Paul Boyd published on JP Boyd on Family Law. 

Supreme Court Family Rules Amended
Effective July 1, 2015, B.C. Reg 104/2015 amended the Supreme Court Family Rules, B.C. Reg. 169/2009. Included in the changes is a new subrule under Rule 15-1, the revision of Rule 20-5 (1) and the addition a new form, Form F51.1 – Order Made at Judicial Case Conference.

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decisions released in the month of June:

Wildlife Act

• Tristan A. Galbraith v. Deputy Regional Manager, Fish and Wildlife [Final Decision – Appeal Dismissed]

Water Act

• Jason Horst v. Assistant Regional Water Manager, Kootenay Boundary Region [Consent Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Allowing Complex Surgeries at Private BC
Clinics Could Take up to 24 Months
A provincial proposal to shrink surgical waiting times by letting private surgery clinics do more complex operations could take up to two years to implement, says the registrar of the College of Physicians and Surgeons of BC. That's because of changes to legislation that may be required to allow private facilities to keep patients for up to three nights and other changes to ensure they are more like hospitals, with security guards, full meals, a variety of health professionals, labs, imaging suites and even intensive-care units. Read the The Vancouver Sun article. 

Employees and Independent Contractors:
The Changing Nature of Employment
Organizations are increasingly retaining the services of individual contractors rather than hiring employees in order to increase the organization's flexibility and obtain special expertise on an as-needed basis. Historically, organizations have been subject to statutory and common law duties in relation to their employees which have not been applied when organizations retain independent contractors. Case law over the past ten years suggests that the classic distinction between employees and independent contractors is becoming blurred. The distinction between an employee and an independent contractor is not as clear as it once was. Even where an organization enters into an agreement that explicitly contemplates that the individual is an independent contractor, courts have increasingly found that it is the substance of the relationship, and not the parties' intentions, that determines whether an individual is an employee or an independent contractor. Not only does this make it difficult for an organization to know what obligations it owes to an individual, but it exposes an organization to liability in circumstances where it characterizes an individual as an independent contractor and is subsequently found to be wrong by a court or tribunal. Two recent cases bring these concerns to light: Braiden v La-Z-Boy Canada Ltd and Rennie and VIH Helicopters Ltd, Re. Read the full article by Richard J. Nixon & Jennifer Saville with DLA Piper. 

Results of Functional Capacity
Evaluation Can Be Overturned
When an accident occurs, things can change for a person in an instant. Depending on the circumstances surrounding the incident there are various ways that someone might seek compensation for their injuries. If the accident occurred at one's workplace, workers' compensation benefits could be available. Unfortunately, these benefits are not always easy to secure. A British Columbia worker is well aware of this. He recently secured a ruling in his favour regarding his ability to do an alternate job following a workplace accident that left him permanently partially disabled. Following a workplace injury that results in a worker being unable to do the job he or she previously held, an assessment will be conducted to determine what jobs they are qualified to do. In this particular case, after he was stuck by a falling log, the man was no longer able to drive trucks. A functional capacity evaluation conducted by an occupational therapist determined that with restrictions, one of the jobs he could do was dispatcher. The restrictions placed on the dispatcher position by that occupational therapist include sitting for only one hour at a time and the utilization of a headset. Read the full article by Preston Parsons of Overholt Law. 

Local Government News:

Challenging Zoning Decisions: Proper and Improper
Considerations by Municipal Councillors
What makes a municipal Councillor's vote "bad"? Where do we draw the line between proper considerations and malicious misuse of power? The British Columbia Supreme Court examined these issues in a recent ruling in Rodgers v. Sechelt (District), 2015 BCSC 687.

The Bistro and the Liquor Store
In 2005, Mr. Brock Rodgers applied to the District of Sechelt to re-zone certain lands in West Sechelt to permit the construction of a bistro. Mr. Rodgers intended the bistro to operate with a liquor-primary license – a license typically issued for pubs, bars and other facilities engaged primarily in the sale of liquor. Together with the bistro, Mr. Rodgers wished to open a liquor store on nearby Sechelt Indian Band lands (the "Band Lands"). The bistro was crucial for this purpose: pursuant to the liquor laws in place at the time, the Liquor Control and Licensing Branch ("LCLB") would only issue the liquor store license to Mr. Rodgers if he also held a concurrent liquor-primary license. The District initially supported the rezoning bylaw which would allow the bistro (the "Bylaw"). However, after the public hearing, Council resolved that the bistro would be permitted only with a food-primary license – a license typically issued to restaurants. This, of course, would thwart Mr. Rodgers' plan to open the liquor store on the Band Lands (which required a bistro operating pursuant to a liquor-primary license).

Read the full article by Olga Rivkin and Erika Lambert with Bull Housser LLP.

Medical Marijuana: Farm Use under the
Agricultural Land Commission Act
The Agricultural Land Reserve Use, Subdivision and Procedure Regulation (the "Regulation") was amended on May 7, 2015 to identify federally licensed medical marijuana production under the Marihuana for Medical Purposes Regulations (Canada) (the "MMPR") as a farm use in the Agricultural Land Reserve (ALR). This amendment will allow local governments to regulate, but not prohibit, licenced medical marijuana production within the ALR. Following the coming into force of the MMPR in 2013, many local governments in BC introduced bylaw amendments to regulate medical marijuana production in their communities and also sought direction from the provincial government on whether medical marijuana could be prohibited in the ALR. In June of 2014, the BC government issued a release clarifying that medical marijuana production in the ALR is allowable. The BC government has now formalized its position by amending the Regulation to recognize federally licensed medical marijuana production as a farm use in the ALR. This amendment recognizes and respects the federal government's policy and legislation regarding medical marijuana production while also providing consistent rules for communities throughout British Columbia. Read the full article by Edward Wilson with Lawson Lundell LLP. 

Audit Council says BC Justified for Ousting
Local Government Attorney General
A five-member oversight panel in British Columbia is justifying its recommendation that the provincial government fire its former auditor general for local government, citing a string of broken promises, reports of unprofessional behaviour and an unwillingness to work collaboratively. Through documents filed in the province's supreme Court, BC's audit council fired back after former auditor general Basia Ruta filed a lawsuit against the group alleging wrongful dismissal. In its response, the council said that it recommended Ruta's removal only after it "had lost all confidence" in her ability to act "effectively and credibly." Read more at The Vancouver Sun. 

Miscellaneous News:

Be Warned: Online Forum Selection Clauses
May Oblige You to Litigate Abroad
The decision in Douez v. Facebook, Inc., provides some comfort to online businesses that rely upon forum selection clauses in their online contracts. For providers and users of international online services and social media, the Facebook decision serves as a useful reminder that online terms and conditions must be taken seriously and the users may be bound by foreign laws and have to litigate in foreign courts.

Background
Ms. Douez was a resident of BC and member of facebook.com. When she signed up for her Facebook account, she accepted Facebook's Terms of Use which included a unilateral forum selection clause in favour of the courts of Santa Clara, California. Ms. Douez alleged that her name and portrait were featured in "sponsored stories" without her consent and commenced an action against Facebook in the B.C. Supreme Court, relying on a statutory tort created by the Privacy Act, R.S.B.C. 1996, c. 373. She alleged that Facebook violated users' privacy by using their names and images in paid advertisements without their consent. Facebook responded seeking a stay of the proceedings and relied upon the forum selection clause in the Terms of Use. Facebook took the position that the dispute should be heard in California. The trial judge accepted that the forum selection clause was valid, clear and enforceable but declined Facebook's application to stay the BC proceedings because the BC Privacy Act "overrides" the forum selection clause and Ms. Douez had shown strong cause to not enforce the forum selection clause.

Read the full article by Scott E. Foster with Gowlings LLP. 

Court Finds ICBC Under No Legal Duty to Inform
an Insured of Hit and Run Claim Obligations
Reasons for judgement were released [June 15] by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision. In [this] case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision. After speaking with the at-fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene. The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act. At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist. The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC. Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists. Read the full article by Erik Magraken on BC Injury Law blog. 

BC Considers Tougher Crackdown against Distracted Drivers
The BC government is considering impounding the vehicles of drivers caught texting or talking on cellphones while behind the wheel, says Justice Minister Suzanne Anton. The government is also mulling stiffer fines and licence suspensions for distracted drivers, similar to the immediate roadside prohibitions given to impaired drivers, she said. Anton made the comments as she updated reporters on the results of a public discussion of the issue at gov.bc.ca/distracteddriving. The website has received nearly 12,000 visits in two weeks, rivalling public interest in the ministry's consultation on provincial liquor laws, she said. There have been more than 36,000 responses to nine questions. Read The Vancouver Sun article. 

CVSE Bulletins & Notices
A number of important bulletins and notices have been posted by CVSE in June. These include:

• CVSE1014 – LCV Operating Conditions & Routes
• CVSE1052 – An updated List of Contacts for Use with Form CVSE1052 is now available. The CVSE1052 form is used for District Notifications and Authorizations for Very Large Loads (over 6.0 m wide or over 4.88 m high), as part of the Extraordinary Load Approval process.
• Circular 03-14 – Inspection Station/Weigh Scale Bypass Policy for Ministry of Forests, Lands and Natural Resource Operations (FLNRO), Wildfire Management Branch – Initial Attack Fire Suppression Vehicles
• CT Notice 05-14 – Clarification regarding Compliance Circular 07/11 Steer Axle Weight Limits (July 1, 2011)
• Important Notice Re: Highway 5 at Othello Road, 6 km north of junction with Highway 3
• CVSE1011 – Highways with Restrictive Load Limits
• CVSE1001 – Routes Pre-Approved for 5.0 m OAW
• CVSE1000S – Supplement for Structures

For more information on these and other items, visit the CVSE website. 

Property and Real Estate News:

Protecting Security Deposits From Insolvency Risk:
The Implications of Alignvest PDL v Surefire Industries
The recent decision of the Alberta Court of Queen's Bench in Alignvest Private Debt Ltd v Surefire Industries Ltd, 2015 ABQB 148 ("Alignvest") raises important issues for landlords to consider respecting the provisions in a lease that deal with security deposits. In particular, Alignvest provides guidance on how landlords can protect their rights to a security deposit in the event of a tenant's insolvency, and illustrates the risk of failing to do so. The case arose from a sale and lease back transaction between York Realty Ltd., as purchaser-landlord ("York"), and Surefire Industries Ltd., as seller-tenant ("Surefire") which closed on February 15, 2013. The lease entered into between York and Surefire included a $3,187,500 security deposit, which was held by York as an adjustment to the purchase price for the property. Read the full article by Reilly Pollard with Lawson Lundell LLP. 

Duty To Defend After Policy Expiration: The Court Interprets
the Reasonable Expectations Of A Homeowners Policy
In Canadian Northern Shield Insurance Company v. Intact Insurance Company, 2015 BCSC 767, the British Columbia Supreme Court considered whether an insurer has a duty to defend an insured with respect to claims arising from damage that occurred outside the policy period. In 2005, unusually heavy rainfall caused a landslide in North Vancouver. The landslide originated from a property situated at the top of an escarpment and caused substantial damage to the property situated below the escarpment. One of the inhabitants of the lower property died. Lawsuits were brought against the former and present owners of the property at the top of the escarpment. Canadian Northern Shield (CNS) was the insurer of the current owners of the upper property. Intact Insurance had issued a policy to the former owners of the upper property, but the policy had expired three months before the landslide. The North Vancouver District retained an engineer to survey the upper property in 1980. The engineer recommended removal of debris from the property, control of vegetative growth and periodic inspection of drainage and slopes for signs of distress, improved property drainage, and removal of abandoned septic tanks. The owners at the time, who eventually sold the property in 2004, did not follow these recommendations. The parties agreed at trial that this failure contributed materially to the landslide of January 2005. Read the full article by Mallory Hogan with Alexander Holburn Beaudin + Lang LLP. 

Wills and Estates News:

Changes to Probate Rules and Forms
Effective July 1, 2015
Changes to the Probate Rules and Forms were brought into effect on July 1, 2015. [The online consolidated Supreme Court Civil Rules have been updated on Quickscibe Service Ltd. to include these changes.] There is a significant change to the procedure for making applications relating to estate grants in Rule 25-14. Under the rules as they stood before the amendments, many types of applications would be commenced by either a notice of application, if an estate file is already opened, or by requisition if nothing has been filed in relation to the estate. The types of proceedings to which this applies includes some potentially very contentious disputes such as passing over an executor. A requisition is a request to the court, and there are no rules saying who must be served, what they file to oppose it, or how long they have to file. Starting a contested proceeding by requisition doesn't make sense. Read the full article by Stan Rule.

The Will as a Planning Tool
From CLEBC website – Practice Points This paper from Estate Planning for Blended Families (May 2015), Genevieve Taylor offers guidance on how to minimize disputes when planning wills for blended families.

Does the Court Have Power to
Cure a Defective Will?
The Wills, Estates and Succession Act ("WESA") implements a variety of changes. One of the most significant changes is to empower the Court to order that a record, document, writing, or marking on a Will or document is fully effective as a Will even though the formal requirements for the format and execution of the Will have not been met. There have been a few reported cases of the Court's curative power under section 58 of WESA. The most recent judgment on this issue was just released on June 30, 2015.In Re Yaremkewich Estate, the Deceased died leaving documents that did not comply with the statutory execution requirements. Prior to her death, the Deceased executed a pre-printed will template form titled "Last Will and Testament" (the "Template"). The Deceased filled out the Template by appointing executors, setting out burial arrangements, directing certain expenses and taxes to be paid from her estate, and providing a number of gifts to relatives, friends and charities. Read the full article by Lauren Liang with Clark Wilson LLP.