Company and Finance News:

Superintendent of Bankruptcy Changes Designation to
Licensed Insolvency Trustee
Individuals able to provide debt relief services under the Bankruptcy & Insolvency Act (BIA) in Canada are licensed by the federal government through the Office of the Superintendent of Bankruptcy (OSB). In December of 2015, the OSB announced a significant change in the designation of these professionals from Trustee in Bankruptcy to Licensed Insolvency Trustee or LIT. This change takes place effective April 1, 2016, although firms and individuals may choose to use the new designation immediately if they notify the OSB of their intention to do so in writing.

The OSB has been reviewing trustee advertising and designation directives for some time. The primary reason was to reduce the amount of confusion for consumers as to who was licensed to provide the full range of debt restructuring services available to consumers under the BIA. Those services include not only personal bankruptcy, but also a debt settlement option called a consumer proposal. Currently, almost half of all insolvency filings in Canada by individuals are a consumer proposal. Read the full article by J. Doug Hoyes and published in Law Now. 

FIC Bulletin – Extension of Amendment Filing Deadline
Source: Financial Institutions Commission
British Columbia's Pension Benefits Standards Act (PBSA) and Regulation were proclaimed effective September 30, 2015, and amendments required to comply with the legislation were to be filed with the Superintendent of Pensions by December 31, 2015.

The Superintendent of Pensions has extended the deadline for filing amendments with respect to the PBSA and Regulation to March 31, 2016. Similarly, the deadline for having a funding policy (benefit formula provisions), a participation agreement (non-collectively bargained multi-employer plans), and a governance policy in place is also extended to March 31, 2016. View official bulletin. 

Defensive Tactics in Canadian Take-over Bids: Private
Placement Upheld by BC Securities Commission
There continue to be ongoing debates in the Canadian capital markets about the range of defensive tactics available to the boards of target companies that are faced with a hostile take-over bid. There are often difficult judgment calls that have to be made when the fiduciary duties of directors potentially come into conflict with the business realities and choices facing a target company subject to a take-over bid. The Canadian Securities Administrators (CSA) has recently seemed reluctant to wade back into this debate, as the CSA did not address the topic of defensive tactics in the latest round of amendments to the Canadian take-over bid regime proposed earlier this year, discussed in our May 2015 bulletin.

The recent decision of the British Columbia Securities Commission (BCSC) in Re Red Eagle Mining Corporation, however, sheds new light on the thinking of Canadian securities regulators regarding certain defensive tactics and in particular "friendly" private placements made in the context of a hostile take-over battle.

Private placement financings like this may be done by a target company as a way of increasing the share position of a friendly "white knight" bidder. This can make it easier for the white knight's competing offer to prevail, and conversely more difficult for the hostile bidder. Read the full article published by the law firm DLA Piper LLP.

Notary Fraud Case Causing Legal Waves in BC Courts
A lawsuit that resulted from an $8-million notary fraud case is rippling through BC's legal community over the question of whether it sets a precedent in trust relationships between parties in real estate transactions.

In the case, Hsui-Wen Lin and Min Sheng Tang hired notary Agatha Chung in 2013 to handle a refinancing of the mortgage on their home.

According to court documents, Lin and Tang sought financing from CIBC, which hired its own notary, Timothy Ko, to handle its half of the transaction.

However, when Chung disappeared with the money forwarded to her to pay out the previous mortgage, along with more than $8 million from 41 other clients, it touched off a legal battle over who holds the loss, Lin and Tan as borrowers, or their lender, CIBC, and whose insurance should cover it.

On Dec. 18, the BC Court of Appeal upheld the trial decision of B.C. Supreme Court Judge John Steeves that the loss belonged to CIBC. Read The Vancouver Sun article. 

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

• CSA Notice – Notice of Approval NI 24-102 Clearing Agency Requirement and 24-102CP to NI 24-102 Clearing Agency Requirements and Notice and Request for Comments Proposed Amendments to 24-102CP to NI 24-102 Clearing Agency Requirements
  This notice provides advance notification of the adoption of National Instrument 24-102 Clearing Agency Requirements and related documents. This Instrument imposes requirements on clearing agencies
• BCN 2015/08 – Notice of Amended and Restated Memorandum of Understanding concerning oversight of the Ombudsman for Banking Services and Investments (OBSI)
• BCN 2015-09 – Notice of Memorandum of Understanding Respecting the Oversight of Clearing Agencies, Trade Repositories and Matching Service Utilities
• 45-106 – Adoption of Amendments Relating to Rights Offerings to National Instrument 45-106 Prospectus Exemptions, National Instrument 41-101 General Prospectus Requirements, National Instrument 44-101 Short Form Prospectus Distributions, and National Instrument 45-102 Resale of Securities and Repeal of National Instrument 45-101 Rights Offerings
• 81-102 – CSA Notice and Request for Comment – CSA Mutual Fund Risk Classification Methodology for Use in Fund Facts and ETF Facts – Proposed Amendments to National Instrument 81-102 Investment Funds and Related Consequential Amendments
• CSA Staff Notice 13-315 (Revised) – Securities Regulatory Authority Closed Dates 2016

For more information visit the BC Securities website.

Energy and Mines News:

2015 Year in Review: Top 10 Legislative, Regulatory and Policy
Changes of Import to the Canadian Oil and Gas Industry
In 2015 politics drove policy. With new federal and Alberta governments, last year ushered in unprecedented changes for the Canadian oil and gas industry. There is more to come. Greenhouse gas regulation and a revised royalty regime are poised to be two of the sector's leading business challenges in 2016 – along with stubbornly low price – as energy companies determine the impact to their bottom lines.

There are significant transitions happening to Canada's energy economy. Pipelines remain elusive. M&A activity is nascent and waiting for further price and policy clarity. International oil supply, buoyed by an end of year U.S. policy shift to permit crude exports, continues to be robust. Green energy and renewable sources will play a larger role in the country's energy mix. As the year progresses, companies with strong balance sheets and a low cost of capital are likely to be some of the biggest winners in 2016.

Canada's oil and gas sector looks ahead to not only the implementation of provincial carbon initiatives, but also the federal government pursuing its own climate change agenda. Read the full article by Alan Ross, Michael A. Marion, Michael G. Massicotte, Karen A. Salmon, Rick Williams and Lorelle Binnion of Borden Ladner Gervais LLP. 

Proposed BC Mine Plans to Reduce Water Content in
Waste but Still Use Tailings Dams
KGHM International's proposed Ajax copper and gold project will be one of the first tests of the BC government's approval of waste storage for large open pit mines after the Mount Polley mine dam failure in 2014.

The company, whose parent is Polish company KGHM Polska Miedz SA, plans to submit its project application early this month for review by the BC government. It will kick off an 180-day environmental assessment.

The $795-million project is controversial and has met with community resistance, in part, because of its proximity to Kamloops.

KGHM proposes to reduce water quantities in its mine-waste facility – and entirely buttress the large dams with rock – to increase safety at the planned mine.

However, it will not be using the dry-stacking technique to store mine waste as planned in its initial design. That method recommended by an engineering panel appointed by the BC government to investigate the Mount Polley failure. Read The Vancouver Sun article. 

BC Takes Action on Chief Inspector of Mines' Recommendations
Source: Canadian Occupational Safety Magazine
In response to the findings and recommendations of the chief inspector of mines' investigation into the tailings storage facility at Mount Polley Mine in August 2014, the British Columbia government is introducing new regulations and requirements for tailings storage facilities.

"We've learned from this investigation that in the case of Mount Polley, the allowable margin of risk around the design, construction and management of the tailings storage facility was too narrow to allow for an unknown factor, the layer of unstable soils below the dam embankment," said Energy and Mines Minister Bill Bennett. "We've also learned that weak practices on the mine site increased the risk of dam failure and exacerbated environmental consequences from the breach. This is unacceptable."

The report found, as did the Independent Expert Panel in January 2015, that the dam failed because the strength and location of a layer of clay underneath the dam was not taken into account in the design or in subsequent dam raises. The chief inspector also found other factors including the slope of the perimeter embankment, inadequate water management, insufficient beaches and a sub-excavation at the outside toe of the dam exacerbated the collapse of the dam and the ensuing environmental damage.

While the breach would not have occurred had it not been for the undetected glaciolaucustrine layer of soils, the consequences of the breach were made worse by the other factors, said the government. Although operations on the mine site were not in contravention of any regulation, the chief inspector found the mine failed to operate using best available practices.

The chief inspector of mines investigation team conducted approximately 100 interviews and reviewed over 100,000 pages of documents going back to 1989. This is the largest and most-complex investigation and analysis ever done in BC. Read the Canadian Occupational Safety Magazine article.

BC Mulls Rescue as Miners Struggle
Energy and Mines Minister Bill Bennett rang in 2016 with thoughts of a potential rescue package for BC's beleaguered mining industry on his mind to ward off potential shutdowns.

Options for assistance to mining companies struggling with low commodity prices could include deferrals on payment of power bills and delayed payments on mineral taxes, Bennett said in an interview. There are real potential consequences if the province can't offer any help.

"There's urgency to this," Bennett said. "If we don't find something to do that will help in early January, then by mid-January, I think you're going to see some mining companies go down. You're not going to see bankruptcies, but you're going to see closures, and we're talking about thousands of jobs."

BC mines in 2014 directly employed 9,954 British Columbians, according to the latest industry survey by accounting and consulting firm PwC, down from 10,720 a year earlier. See more here. 

Good Faith Efforts to Understand – Supporting a Balanced Approach to Constitutional and
Procedural Fairness Obligations in Environmental Assessment in British Columbia
From CLEBC website – Practice Points: This paper, authored by Becky Black with the Ministry of Justice reviews the purposes of the environmental assessment ("EA") process and surveys the legal requirements that frame the relationship between the Crown and proponents and the Crown and First Nations. Click here to view a PDF version of the paper.

Family and Children News:

Responding to Children's Refusal to
Visit after Separation – Part 3
– by JP Boyd
In the first part of this article, I wrote about the research on children who refuse to visit a parent after separation and how children's relationship with a parent can sometimes break down for reasons other than the interfering actions of the other parent. In the second part, I talked about the warning signs that suggest a child is at risk of becoming alienated from a parent, about how few claims of alienation are actually proven in court and about how the courts tend to respond to alienation claims that are proven. In this, the final part of my article, I'll talk about the options that are available when alienation is suspected or established, and offer some suggestions for how cases involving claims of alienation and estrangement should be handled when they go to court. Read the full article by JP Boyd and published in Law Now. 

How to Prepare Financial Documents
for Family Court
Judges must make decisions based only on the evidence (what you say in the witness box, documents, photographs, etc.) presented during a trial, so be sure to bring ALL the documents that you want the judge to see with you to court on the day of your hearing or trial. As a general rule, when you are required to provide any documents for court bring the original document plus three copies (four sets in total). When you talk about the document during the trial or hearing you'll hand two copies to the court clerk (one to be made evidence and marked as an exhibit, and one for the judge to use), keep one copy for yourself, and give one to the other party. If your matter includes issues of child support or spousal support you will likely need to fill out a financial statement using Form 4. You can obtain it from a Court Registry or online. Form 4 gives the court details about your income and financial circumstances. Please note that the form asks you to provide financial information for each of the three most recent taxation years. Be sure to include full copies of all of the attachments required by the form. Read the full article published on the Provincial Court of BC eNews website. 

Forest and Environment News:

BC Lumber Trade Delegation to Asia
Encouraged by Response
Climate-change policies could steer China and Japan toward use of more value-added wood products
It sounds a bit contradictory to call the province's recent forestry trade mission to Japan and China a success when British Columbia's lumber shipments into the region are on the slide.

For industry officials, however, the trip at the end of November was about maintaining their presence, even during a slowdown in those countries, and to "move up the value chain" in those markets toward higher-value forest products and away from plain lumber, said industry representative Rick Jeffrey.

In that sense, "it was quite a successful mission," he said. Read The Vancouver Sun article. 

Greater Community Consultation = Better Forestry Decisions
Is your community troubled by mill closures, lay-offs or forest stewardship plans that don't clearly articulate what is actually happening on the ground in your area? If yes, then the UBCM's Community Economic Development (CED) Committee wants to hear from you. Please provide feedback by completing UBCM's Forestry Survey.

At the November CED meeting, Councillor Brian Frenkel, UBCM's appointment to the Minister's Forests and Range Practices Advisory Council, advised that the Council is interested in hearing from communities on forest policy matters. Specifically, the Council would like communities to identify what specific policy decisions would be better served by greater community consultation.

Acknowledging that communities are more than just stakeholders, Councillor Frenkel has been advocating to his Advisory Council colleagues for greater community consultation prior to forestry decisions being made. By undertaking the forestry survey, UBCM is seeking to provide Councillor Frenkel with the quantitative and qualitative information necessary to encourage the Advisory Council to respond to local government concerns. Read the UBCM article.

Legal Case Study: The Latest Word from the BC Court of
Appeal on Cost Recovery under the EMA
On November 20, 2015, the British Columbia Court of Appeal issued reasons for judgment in the much-anticipated decision of J.I. Properties Inc. v. PPG Architectural Coatings Canada Ltd., 2015 BCCA 472, the latest major case dealing with key aspects of the cost recovery regime under the Environmental Management Act, S.B.C. 2003, c. 53 (the "EMA"). The plaintiff, J.I. Properties Inc. ("JIP"), obtained judgment against the defendant, PPG Architectural Coatings Canada ("PPG"), in the amount of $4,750.000, respecting the reasonable costs of remediation incurred by JIP in investigating and remediating James Island (the "Property"), located between the Saanich Peninsula and Sidney Island, BC. A detailed summary of the reasons of the trial judge can be found in [the] previous article here. PPG, formerly known as ICI Canada Inc. ("ICI"), owned the Property from 1954 to 1988 and undertook remediation of part of the Property from 1968 to 1988. At the time when ICI undertook its remediation efforts, there were no legislated standards for contaminants in BC. As such, in conjunction with the BC Ministry of Environment (the "Ministry"), ICI and the Ministry collectively agreed on the criteria to apply to its remediation. Following a completion of remediation, ICI obtained a letter from the Ministry confirming that it had remediated to the standards agreed and that no further environmental concerns existed, based on the existing land use (commercial and industrial) (the "Comfort Letter"). A restrictive covenant was registered on title that gave notice to successors in title that portions of the Property were previously used for manufacturing explosives and batching chemicals, and that there was a risk of contamination. Read the full article by Adam Way, Harper Grey LLP and published on the BCEIA website. 

BC Forestry Watchdog Finds Timber Companies
Have Too Much Power
Change recommended so public interest can be protected by district managers
The BC government has given away so much power to timber companies that district forest managers no longer have the authority to stop suspect harvesting practices in the public good, a Forest Practices Board report reveals.

The independent provincial watchdog says that in recent years it has seen "situations arise where forestry development was putting local environmental and community values at risk, yet district managers could do little to affect the development and protect the public interest."

The board adds that "conflicts between resource users could have been avoided if district managers had the authority to intervene to ensure operations would meet local management objectives and respect tenured interests." Read The Vancouver Sun article. 

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

Environmental Management Act

• Emily Toews; Elisabeth Stannus v. Director, Environmental Management Act [Final Decision – Appeal Dismissed]

Water Act

• Harrison Hydro Project Inc.; Fire Creek Project Limited Partnership; Lamont Creek Project Limited Partnership; Stokke Creek Project Limited Partnership; Tipella Creek Project Limited Partnership; Upper Stave Project Limited Partnership v. Comptroller of Water Rights [Final Decision – Appeals Dismissed]

Visit the Environmental Appeal Board website for more information.

Health News:

MSP Rate Increase
Effective January 1, 2016, B.C. Reg. 154/2015 amended the Medical and Health Care Services Regulation (426/97) by increasing BC Health Care premiums by 4 per cent. MSP rates have risen 39 per cent since 2009.

Advisory Group on Physician-assisted Dying Issues Recommendations
As reported in the [CBA National] Winter issue, consultations continue on an appropriate legislative response to the Carter decision on physician-assisted suicide. [Recently], the Provincial/Territorial Expert Advisory Group on Physician-Assisted Dying issued its recommendations. Here are some highlights:

• All provinces and territories should ensure access to physician-assisted dying, including both physician-administered and self-administered physician-assisted dying.
• Provincial/territorial governments should publicly fund physician-assisted dying.
• Provinces and territories should request that the federal government amend the Criminal Code to explicitly protect those health professionals who provide supporting services during the provision of physician-assisted dying.
• Provinces and territories should request that the federal government amend the Criminal Code to allow the provision of physician-assisted dying by a regulated health care professional (registered nurse or, if applicable, physician assistant) acting under the direction of a physician, or a nurse practitioner.

Read the full CBA National article. 

Labour and Employment News:

A Lesson in How Not to Conduct a
Workplace Investigation
When an employee is terminated without good legal reason, the employee will generally be entitled to damages for wrongful dismissal. An assessment of these damages would include considering the employee's age, tenure, job responsibilities and the prospects of future employment.

However, courts also have the authority to award aggravated or punitive damages in certain circumstances. A recent BC Supreme Court case provides a very good example of when this type of compensation may apply.

Facts
Mr. Lau is 30 years old and was an employee of major Canadian bank from 2007 until 2012. In 2011 Mr. Lau became licensed to sell mutual funds and worked as an account manager. By all accounts, Mr. Lau appears to have been an exceptional employee.

In January 2012, an elderly client of the bank made an appointment with Mr. Lau to discuss a maturing GIC. Upon reviewing the client's file, Mr. Lau contacted Mr. Tse, one of the bank's Investment Retirement Planners, to be included in the client meeting and to advise the client on investment options. According to Mr. Lau, he and Mr. Tse met with the client in his office, where with the client's consent, they transferred some of her investments into short-term mutual funds.

Read the full article by Devid Brown of Pushor Mitchell LLP. 

Canadian Privacy 101: Employers Be Aware! Part I
If you work for a U.S.-based company with Canadian operations, your organization probably understands its obligations to comply with Canadian employment and tax laws. But is your company up to date on the protection of privacy and protection of personal information under Canada's Personal Information Protection and Electronic Documents Act (PIPEDA)? Moreover, many provinces have their own legislation governing data privacy and protection that accompanies PIPEDA. Although prudent employers should be aware of data privacy and protection laws in each of the provinces in which they do business, the good news is that PIPEDA does not apply to a company which operates wholly within a province that has legislation deemed substantially similar to the PIPEDA, unless the personal information crosses provincial or national borders. For example, Alberta, British Columbia and Quebec have general private-sector legislation that has been deemed substantially similar, and therefore PIPEDA would not apply.

The Personal Information Protection and Electronic Documents Act
PIPEDA, enacted in 2001, generally governs how private-sector organizations, engaged in commercial activities, collect, use or disclose personal information in the course of doing business throughout Canada. PIPEDA is enforced by the Office of the Privacy Commissioner of Canada, which maintains a website including helpful guidance for companies subjected to its requirements. Read the full article by Nicholas Beermann, Danielle Urban of Fisher & Phillips LLP and published on JD Supra Business Advisor.

The Only Constant Is Change: Yet More Amendments
to BC's Workers Compensation Act
On October 7, 2015, we wrote about numerous changes that were being made to BC's Workers Compensation Act (WCA) pursuant to Bill 9 (see Recent Amendments to the Workers Compensation Act give WorkSafeBC Enhanced Compliance Powers). The amendments that came into force under Bill 9 greatly enhanced WorkSafeBC's powers with respect to the enforcement of occupational health and safety compliance. These amendments brought significant change; but more was on the way. Further amendments to the Act are being introduced under Bill 35. Bill 9 included new obligations for employers when investigating incidents and some of the amendments under Bill 35 take these obligations even further. Read the full article by Jennifer A. Miller QC, Simon Foxcroft and Odessa O'Dell of Bennett Jones LLP. 

Local Government News:

Revised Local Government Act – New Replotting Act
The newly revised Local Government Act, RSBC 2015, c. 1, came into force, effective January 1, 2016. The purpose of the revision is to improve the readability of the Act, by renumbering and eliminating gaps between repealed sections and decimal numbers. Updated concordances can be used to compare the old and new versions of the Act. These concordance files can also be located via the left navigation: Local Government Act Tables of Concordance. It is worth noting that not all parts of the Local Government Act, RSBC 1996, have been revised. The unrevised portion retains "Part 28 – Replotting Schemes", as well as sections 693.01 and 797.1 (6) (under Parts 21 and 24, respectively). These unrevised provisions are retitled as the "Municipal Replotting Act", and maintain the numbering as they read under the old title. This Act is accessible on Quickscribe.

The Power of Section 219 Covenants
On September 17, 2015 the Supreme Court of British Columbia demonstrated the deference that courts give to Section 219 covenants. Section 219 of the Land Title Act, RSBC 1996, c 250 permits the registration of a covenant in favour of a municipality in respect of the use of land or buildings on land, the subdivision of land, and the preservation of land.

In the decision of Natura Developments Ltd. v Ladysmith (Town), 2015 BCSC 1673, the petitioner Natura Developments Ltd. ("Natura") owned property in the Town of Ladysmith ("Ladysmith") and proposed a residential development project in Ladysmith. Ladysmith planning officials advised Natura that the proposed development was inconsistent with a Section 219 covenant that was registered against the title to the property. In general terms, the covenant had the effect of limiting the density of development on the property to 15 multi-family townhouse units in accordance with plans and specifications approved by Ladysmith.

Natura sought an order that the covenant registered against the property be cancelled. Natura relied on s. 35(2) of the Property Law Act, RSBC 1996, c 377 (the "Property Law Act") and, in particular, that the covenant was: Read the full article by Kathleen Higgins of Bull, Housser & Tupper LLP.

Exceptions to Conflict of Interest Rules –
What is too "Remote or Insignificant"?
The recent decision of the Ontario Court of Appeal in Ferri v. Ontario, 2015 ONCA 683, has expanded on one of the statutory exceptions to conflict of interest rules for local government officials. Though the Ferri case addresses an exception found in s. 4 (k) of the Ontario Municipal Conflict of Interest Act, a near identical exception exists in s. 104 (1) (d) of the Community Charter. As such, it is likely that BC courts will consider the way Ontario courts have interpreted s. 4 (k) when conducting their own s. 104 (1) (d) analysis. Read the full article by Sean Smith, UVic Law Co-Op Student published on the Stewart McDannold Stuart website.

New Sections of the Building Act
Come into Force
Several sections of the Building Act came into force on December 15, 2015. The sections include:

• Section 5 – This section specifies that local government building requirements have no legal force to the extent that they relate to a matter covered by a provincial building regulation (such as the BC Building Code). This is a key element of the effort to bring greater consistency to building requirements in BC.
• Section 7 – This section allows local governments to apply for a variation from the building requirements in provincial building regulations such as the BC Building Code. Under the Act, the building requirements in an approved request for variation would be enacted through a provincial building regulation and not through a local government bylaw.
• Section 9 – This section enables the Province to engage or retain technical experts for the review of a request for variation by a local authority or person.
• Section 43 – This section states that Section 5 will not apply until two years after it comes into force (i.e., it will not apply until December 15, 2017). 

Section 5 has a significant effect on local governments and other local authorities. Read the full article posted on the UBCM website. 

Streamlined Bylaw Dispute Handling
to Save Time, Money
Local residents involved in minor bylaw infractions can now take their disputes to an independent adjudicator – helping to save them time, money and stress – instead of going to court.

By joining BC's bylaw adjudication program, the City of Enderby has become one of more than 70 local governments contributing to more efficient use of provincial court resources by eliminating the roles of the court and court registries in administering and hearing these disputes.

The program allows local governments to manage most bylaw violations at the local level, using screening officers and independent adjudicators instead of court resources. This approach saves both local and provincial taxpayers time and money. As well, citizens typically can choose to dispute in person, in writing or by phone. Read the Ministry of Justice news release. 

Miscellaneous News:

Human Rights Protection Added for
Transgender Identity
A trans-identified, transgender or transsexual person is someone who feels they were born in the wrong body (for example, someone born either with female anatomy who feels male, or with male anatomy who feels female, on a deep, psychological and emotional level) and therefore has a gender identity that is different from their birth gender. Gender identity is separate from sexual orientation, which is the descriptor of a person's overall attraction to people of the same sex, the opposite sex, or either sex. Read the full article by Linda McKay-Panos and published on Law Now. 

Canadian Court Nixes Class Action for Patent Abuse
The British Columbia Court of Appeal (BCCA), in Low v. Pfizer Canada Inc., has held that Canada's Patent Act provides a complete code that forecloses civil actions by consumers centred on breaches of the statute.

Background
The decision relates to an application to certify a proposed class action, commenced by a representative plaintiff, Britton Low, against various Pfizer companies, alleging that Pfizer unlawfully abused the patent system with the result that purchasers of the drug VIAGRA were overcharged. The proposed class consists of BC purchasers of VIAGRA during the period of January 1, 2006 to November 30, 2012.

Mr. Low relied on the fact that Pfizer's patent for VIAGRA had been held to be invalid for insufficiency by the Supreme Court of Canada and the Federal Court. He therefore alleged that Pfizer's actions in enforcing its patent so as to prevent generic versions of VIAGRA from being marketed prior to the declaration of invalidity of the Pfizer patent constituted actionable torts.

More particularly, Mr. Low pleaded that Pfizer's actions constituted unlawful interference with economic relations and unjust enrichment.

Read the full article by Anthony Prenol and James Sullivan of Blake, Cassels & Graydon LLP.

New Practice Directions
Source: Supreme Court of BC website
Chief Justice Hinkson has issued

• PD - 49 – Applications by Requisition & Supporting Letter pursuant to Supreme Court Civil Rules 5-1(3), 5-2(3)(a), 5-2(3)(b), 12-2(4) and 23-5(4) and
• FPD - 13 – Applications by Requisition & Supporting Letter pursuant to Supreme Court Family Rules 7-1(4), 14-3(4) and 22-6(4).

Both practice directions provide directions for the information to be included in a requisition filed in accordance with the above noted Supreme Court Civil Rules or Supreme Court Family Rules.

Motor Vehicle and Traffic News:

BC Court Eases Rules for Appealing
Roadside Suspensions
Says B.C. superintendent of motor vehicle has the power to consider new evidence
The BC Liberal government's much-ballyhooed, tough-as-nails approach to drunk driving has again run afoul of the BC Supreme Court.

In a 29-page decision, Justice Peter Voith sharply scolded the superintendent of motor vehicles for wrongly interpreting the law to prohibit drivers from introducing fresh evidence during an appeal of an immediate roadside prohibition.

"Let us assume, for the moment, that the new evidence secured by the petitioner unequivocally established that the approved screening device used to secure a breath sample from him had been defective," he said. "The position of the superintendent would still, necessarily, be that the superintendent lacked the means or jurisdiction to reconsider the decision. That position would be unnecessarily rigid and give rise to real injustice."

Vancouver lawyer Kyla Lee, a specialist in the pioneering, heavy-handed legislation, hailed the ruling because drivers have only a brief period to challenge a suspension and scant time to gather evidence. Read The Vancouver Sun article. 

BC Court of Appeal Confirms Negligence for
Passing Vehicle Blanketing Others in Snow
Reasons for judgement were released [recently] by the BC Court of Appeal confirming that a motorist can be negligent by passing others in poor conditions thereby blanketing the other vehicles in snow.

In [this] case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when "the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle" following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

At trial the Defendant vehicle was found at fault for the collision. ICBC's appeal was dismissed with the BC Court of Appeal finding negligence can exist in these circumstances. The Court provided the following reasons: Read the full article by Erik Magraken and published on BC Injury Law. 

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

• Circular 02-15 – Deadline for Planned Trailer Axle Weight Reductions Extended to December 31, 2017 for Affected Vehicles
• CT Notice 02-15 – 90-Day Notice of changes to CVSE Forms 1002 and 1003
• Notice NSC 02-15 – Temporary Changes to Profile Status Thresholds – Effective December 1, 2015

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

Property and Real Estate News:

BC Supreme Court Issues Ruling in
Strata-Property Smoking Dispute
In a judgment released on Christmas Eve, the Supreme Court of British Columbia has once again ruled in a strata-property case involving second-hand smoke. Andrushko v The Owners Strata Plan KAS 1041 McIntosh Grove, 2015 BCSC 2445, will be of interest to strata councils and their advisors, who are increasingly being called upon to manage these kinds of disputes.

The case involved "an 80-unit strata complex for residents aged 55 and older" located in Salmon Arm. The strata property was made up of two three-storey buildings and an underground parking lot. Each strata lot had a balcony "designated as limited common property to be used exclusively by the owner or resident."

The petitioner lived on the second floor of one of the strata buildings. He had "repeatedly complained" to the strata council about second-hand smoke from his upstairs neighbor, smoking on her balcony. Read the full article published on the BCLI website.

Home Owner Grant Threshold Raised after
Spike in BC Property Assessments
The BC government has raised the threshold for the Home Owners Grant to $1.2 million after a spike in the assessed value of thousands of Metro Vancouver properties.

The announcement comes after BC Assessment figures released [recently] showed thousands of home owners would no longer qualify for the grant because of a huge increase in property values in Metro Vancouver.

The previous threshold had been $1.1 million. Homes in Metro Vancouver, Fraser Valley and Victoria regional districts are eligible for up to $570, while those in the rest of the province are eligible for up to $770. Some of those above the threshold are still eligible for a partial grant, which is reduced by $5 for every $1,000 of assessed value in excess of the threshold. Read the CBC article. 

BC Condo Language Dispute Sparks
Human Rights Complaint
Four Richmond, BC condo owners have filed a human rights complaint against their strata council for conducting official business in Mandarin only, which legal experts say is allowed under the current Strata Property Act in the province.

The English speakers say they feel unwelcome and are being "racially discriminated against" by the new council elected in July, which conducts the business of managing the building in Mandarin only.

"It feels like you are an outsider," Andreas Kargut, owner of one of the 54 units in Wellington Court on Heather Street in Richmond. "We are in Canada I hope we are all equals," he said. Read the CBC article. 

Wills and Estates News:

McKendry v. McKendry
[Since I posted this post, the B.C. Court of Appeal has overturned the trial judge's decision. You may read the reasons for judgment in the Court of Appeal here.]

The presumption of resulting trust is a presumption that arises when someone gratuitously transfers property to another. The presumption is that the person making the transfer did not intend a gift, and the person receiving the property holds it in trust for the transferor. This presumption applies both to a transfer into the sole name of another or into a joint tenancy with another. Because it is a presumption, it is open to the person receiving the assets to prove that the transferor did intend a gift, in which case the presumption is rebutted.

The court will generally attempt to determine what the transferor's actual intention was at the time of the transfer. If it cannot be determined then the presumption applies to most relationships, including a transfer from a parent to her adult child. Although the court may consider things that either the transferor or the recipient say or do after the date of the transfer in determining the transferor's intent, the court will need to be satisfied that the evidence is sufficient to determine the transferor's intention at the time of the transfer. Read the full article by Stan Rule on his blog Rule of Law. 

Why the New 2016 Rules for Trusts and Estates in Canada May Surprise
You and Why the Department of Finance May Reconsider
January 1, 2016 will bring many significant changes to the taxation of trusts and estates in Canada. These changes were passed into law in December 2014, after being announced as part of the 2014 federal budget.

Most people are totally unaware of how their wills, estates and trusts are affected by these changes and they may be in for a surprise. If you have a will in place it should be reviewed to see how it is affected under the recent legislation. The drafting of a new will or the establishment of a trust may require a different perspective given the amended rules. This bulletin outlines certain key areas of changes, and what you can do to prepare. Read the full article by Mark A. Potechin and Héloïse Renucci of DLA Piper LLP. 

What is a Marriage-like Relationship?
Over the last number of decades, families and relationships have become increasingly more complicated, often making estate matters more complex and litigious. For example, when a person claims to be the spouse of a deceased, and the family, or other beneficiaries, either do not recognize them as a spouse or were not aware of a relationship at all, frequently litigation will be the result. Litigation will often take the form of a wills variation claim by the person alleging to be a spouse.

Under s. 60 of the Wills, Estates and Succession Act (WESA), children and spouses of the deceased can bring a claim for variation if proper maintenance and adequate provision was not made for them in the will of a deceased. The first hurdle for these parties is to establish themselves as a "spouse", entitling them to make such a claim. Under WESA, and the former Wills Variation Act, a spouse is defined as someone who was married to the deceased or had been living with the deceased in a "marriage-like relationship" and lived in that relationship for at least 2 years. How the law determines what is "marriage-like" therefore becomes quite important.

On November 30, 2015 the BC Court of Appeal released their decision in Weber v. Leclerc. The Court considered the factors that define a "marriage-like" relationship to determine a spouse under the Family Law Act. Read the full article by Mark Weintraub of Clark Wilson LLP.