Company and Finance News:

"All the Time in the World": Canadian Securities Regulators
Adopt Fundamental Changes to Take-over Bid Regime
The Canadian Securities Administrators (CSA) have announced the final adoption of fundamental changes to the take-over bid regime in Canada. These changes are substantially similar to a draft version of the amendments that the CSA published on March 31, 2015, previously reviewed. The new rules will come into effect on May 9, 2016 (except that implementation may be delayed in Ontario until the applicable legislation is proclaimed into force). They represent the most significant changes to Canada's take-over bid regime in decades, and the consequences will be numerous and significant.

The three main changes to the take-over bid rules

• The most significant changes to the take-over bid rules are the following three requirements, which will apply to all non-exempt take-over bids:

Read the full article by Don Collie, Robert Black, Derrick Auch of DLA Piper LLP. 

The Regulator Knows Best: British Columbia Court of Appeal
Upholds Bylaws Prohibiting Customer Incentive Programs
In Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41, the British Columbia Court of Appeal determined that it was reasonable for the College of Pharmacists to prohibit pharmacists from using "customer incentive programs." In September 2013, the British Columbia College of Pharmacists introduced bylaws prohibiting "customer incentive programs" that encouraged patients to use particular pharmacies or pharmacists. Prohibited incentives included money, gifts, discounts, rebates, refunds, customer loyalty schemes, coupons, goods or rewards. Sobeys West Inc. challenged the College's bylaws. Initially, on judicial review, the British Columbia Supreme Court held the bylaws to be overbroad with a net effect that was "harmful to the public interest in obtaining pharmacy services and prescriptions at the lowest price." As a result, the bylaws were held to be unreasonable. On appeal, the British Columbia Court of Appeal found that the judicial review judge had considered evidence that should not have formed part of the "record" in the judicial review and that the judge had improperly applied the standard of reasonableness. Read the full article published by Jason Kully & Gregory Sim of Field LLP.

Mutual Fund Dealers Association Propose
Amendments to Power of Attorney Rules
The Mutual Fund Dealers Association of Canada (MFDA) has proposed amendments to its rules dealing with general powers of attorney from a family member of a Member or an Approved Person. MFDA Rule 2.3.1 provides that no Member or Approved Person may accept or act upon a general power of attorney or other similar authorization from a client. There is an exception to this rule for spouses, parents and children of Approved Persons. In order to rely on the exemption certain conditions have to be met including that the account be transferred to another Approved Person. Read the full article published on the Canadian Securities Law site by Stikeman Elliott LLP. 

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

• BCN 2016/01 – Notice and Request for Comment – Proposed Amendments to Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting and related documents
  This notice describes proposed amendments to Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting and related documents. The comment period for this proposal expires on April 24, 2016.
• 11-102 – CSA Notice of Publication – Multilateral Instrument 11-102 Passport System and Multilateral Instrument 11-103 Failure-to-File Cease Trade Orders in Multiple Jurisdictions
  The CSA provides advance notification of the amendments to Multilateral Instrument 11-102 Passport System (passport rule) and the adoption of new Multilateral Instrument 11-103 Failure-to-File Cease Trade Orders in Multiple Jurisdictions (MI 11-103). The amendments expand the passport rule to cover applications to cease to be a reporting issuer, and under new MI 11-103, if a regulator issues a failure-to-file cease trade order against the securities of a reporting issuer, trading in those securities is automatically prohibited in every jurisdiction that has adopted MI 11-103 and where the issuer is reporting. Subject to obtaining required ministerial approval, the amendments to the passport rule and new MI 11-103 will come into force on June 23, 2016.

For more information visit the BC Securities website.

Energy and Mines News:

From Social License to Class Action – Climate Change Litigation
Has Come to Canada, Project Proponents Beware
The bold move towards climate change litigation is progressing in Canada as seen in last year's Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), 2015 BCSC 471 ("VTACC"). Examples of similar litigation in other jurisdictions around the world are outlined below. The Alberta Environmental Law Center noted that at the end of 2013, there were 420 climate change cases in the United States and 173 in the rest of the world out of which approximately 10 cases are in Canada. It has been observed that some of the cases are brought pursuant to common law tortious causes of actions while others challenge decisions of regulatory authorities pursuant to specific legislation and are aimed at driving the course of climate change regulation. Further, some of the cases arise in the context of specific project approvals and others are petitions affecting a particular industry sector. While climate change litigation in Canada is in its infancy and, as in other jurisdictions faces significant legal challenges to its success, it poses a tangible risk to development projects. Read the full article by Chidinma Thompson and Sandi Shannon of Borden Ladner Gervais LLP. 

McCarthy Tétrault Releases Fifth Annual Mining in the Courts
The firm McCarthy Tétrault recently published Mining in the Courts, Year in Review, which provides an overview of legal developments and case law updates on matters that impacted the mining sector in the past year. In this publication, the firm provides perspective and insights on issues important to the mining sector, and is ideal for mining executives and in-house counsel looking to understand the impact of recent decisions on their business and investment strategies.

Family and Children News:

Asked & Answered:
How do I apply for a restraining order -
Peace Bonds and Family Protection Orders
Asked & Answered is a collection of answers to tricky legal research questions, written by Courthouse Libraries staff. Search Asked & Answered here.

Go to Part 1: What is a Protection Order?
In BC there are two types of orders that might be referred to as a Restraining Order, though they are properly called Protection Orders. A Family Protection Order is used to protect family members from "family violence" and can only be obtained against a person you share a family relation with, which can include partners and guardians. A Peace Bond is meant to protect you, your family or your property from someone who you fear means to do you harm. Peace Bonds can be obtained against anyone. Read the full article by Roman Lanzarotta, with Courthouse Libraries BC. 

Legislation Changes Will Allow BC Seniors to
Live More Independently: Advocate
Health Minister Terry Lake says he wants British Columbia's seniors to have more flexibility to live independently before their only option is full-time residential care. Lake said amendments introduced [in March] to the Community Care and Assisted Living Act aim to allow seniors opportunities to stay longer in their homes through part-time assisted living arrangements. The Liberal government announced in its recent throne speech that it will modernize community care and assisted living. A BC Seniors Advocate report last year concluded many seniors have been transferred to residential care facilities sooner than necessary because of existing rules. "It's important that people are competent and able to keep themselves out of danger," Lake said. "But if someone just needs a little extra home support on a regular basis, let's provide that as assisted living rather than bumping it up to residential care." Current legislation means seniors who required two or more of six prescribed services offered in assisted living were expected to move to a residential care home. Read The Vancouver Sun article. 

HIV Disclosure Laws Endanger Women
Says BC Civil Liberties Association
Canada's HIV disclosure laws are dangerous for women, especially those in abusive relationships or who have been sexually assaulted, says a lawyer with the BC Civil Liberties Association. Michael Vonn, the civil rights group's policy director, says a lack of awareness of the law can lead people – mostly women, but not exclusively – to disclose their HIV positive status in situations where that information can be used against them. "Women who are HIV positive, if they are in abusive relationships, are often essentially "disciplined" with the threat of [revealing their status]," Vonn told Early Edition host Rick Cluff. Read the CBC article. 

PTSD Bill a "Matter of Life and Death," Paramedic Says
Paramedic Lisa Jennings found herself living in her 2003 Ford hatchback for 10 days this year. Times have been tough, mentally and financially, since June 24, 2014 – the day Jennings says she experienced post-traumatic stress disorder on the job. Her initial claim for compensation from WorkSafe B.C. was rejected. That decision is under appeal. But even in dire straits, Jennings – who has since found accommodation – has not lost her drive to change BC legislation to make it easier for emergency first responders to have PTSD covered by WorkSafe. In February, the BC legislature gave first reading to a private member's bill, sponsored by NDP labour critic Shane Simpson, that would recognize PTSD among police, fire and ambulance members as a work-related hazard for compensation. "Under this legislation, if a first responder is suffering from an incidence of post-traumatic stress disorder, it will be deemed to be as a result of their occupation, unless there was evidence of contrary," Simpson said in the house. "This will remove hurdles and ensure timely support for those public servants who need treatment." The bill passed unanimously, but private member's bills rarely get past first reading. Simpson said he has discussed the need for the change with Shirley Bond, BC's minister responsible for labour, over the past year and hopes his bill adds pressure on the province to adopt such legislation on its own. PTSD statistics show "pretty definitive evidence of a crisis" when it comes to first responders, he said. See more at the Times Colonist website. 

Local Government News:

Off-Road Vehicle Act – What it Means
for Local Governments
As implementation moves forward on the new Off-Road Vehicle Act (ORV Act), UBCM seeks member direction on the potential application of the new Act to private lands owned by local government. First, any authority granted to local governments under section 4(3) and (4) of the Motor Vehicle (All Terrain) Act ended when this Act was repealed with the new ORV Act. This means that any local government bylaws relying on the old Act ceased to have any legal authority, and the bylaws are no longer effective. Second, the ORV Act and ORV Regulation applies to prescribed classes of ORVs used or operated on provincial Crown land and prescribed private lands. Crown land includes resource roads and leased lands. There are no prescribed classes of private land at this time. Read the UBCM article. 

BC Court of Appeal Sides with City on
Managed Forest Lands Taxation
On Jan. 29, 2016 the BC Court of Appeal issued its judgment on TimberWest Corporation's appeal of the BC Supreme Court decision upholding the City's 2014 Tax Rates Bylaw. In its ruling, the BC Court of Appeal unanimously dismissed TimberWest's argument that the City did not have the authority to raise the tax rate on managed forest lands within City boundaries. The 60-day period for TimberWest to appeal to the Supreme Court of Canada expired on March 29 without such an application, meaning the BC Court of Appeal's ruling is final.

"We are pleased to hear that the BC Court of Appeal has upheld the City's 2014 Tax Rates bylaw," says Mayor Andy Adams. "The decision to raise property taxes in 2014 on managed forest lands simply brings the tax rates on TimberWest's properties in Campbell River to the provincial average over a three-year phase-in period. The City recognizes TimberWest as a valued taxpayer and are happy this court case is behind us."

The BC Court of Appeal found that the Supreme Court correctly interpreted the relevant legislation, and upheld the City's position that the Province, through section 14 of the Local Government Act and other taxing legislation, provides specific authority to local governments to set separate tax rates within the same property class where, as in this case, there has been a municipal boundary extension approved through legislation. Read the full news release. 

Building and Safety Standards Branch Issues
Building Act Update for Local Governments
This bulletin is intended to provide local governments with preliminary information about:

• Upcoming changes under section 5 of the Building Act;
• Amending or repealing building requirements in bylaws;
• Other aspects of the implementation of the Building Act; and
• The updated timeline for building official qualifications.

1. Section 5 of the Building Act
One of the key objectives of the Building Act is to bring greater consistency to building requirements across the province. Section 5 is intended to achieve this objective. Under section 5, only the Province can establish enforceable "building requirements"; that is, technical requirements for construction methods, materials, etc. for buildings that are being constructed, altered, repaired or demolished. Most provincial building requirements are found in Division B of the BC Building Code, but they can also be found in other provincial building regulations such as the Solar Hot Water Ready Regulation. Section 5 changes the authority local governments had prior to the Building Act to set local building requirements within their jurisdictions. Section 5 makes local building requirements enacted in bylaws of no legal force when those requirements regulate a "matter"; that is, a subject, theme, or topic regulated in the Building Code. For example, accessibility is a subject for which the Building Code has established requirements; therefore, under section 5, local governments cannot enact enforceable requirements for accessibility in or about a building.

Read the full bulletin here. 

Who Says It's Clean Enough? Municipality Appeals Ministry
Decision to Issue Certificate of Compliance
An appeal due to come before the Environmental Appeal Board (the "Board") may address questions about the intersection between the provincial Ministry of Environment (the "Ministry") and municipalities relating to the standards to be applied to remediation of contaminated land. In October 2016, the City of Burnaby is appealing the Ministry's decision to issue a Certificate of Compliance to Suncor Energy Inc. in respect of lands in Burnaby which include portions of two roads owned by the City. The Certificate of Compliance (issued in December 2015 under the Environmental Management Act) confirms that the lands have been remediated to the required standard using, among others, a risk-based approach. Risk-based approach to remediation is generally more economically efficient and less invasive than a numerical approach. It mandates a number of risk controls which must be implemented by the responsible person to prevent the risk of harm to the public, instead of requiring the responsible person(s) to remediate the land to specific numerical standards. Read the full article by Kinji Bourchier of Lawson Lundell LLP. 

Miscellaneous News:

Attorney General's Statement on Civil Tariffs
Attorney General and Minister of Justice Suzanne Anton has issued the following statement regarding Order-in-Council 196 related to proposed increases to civil tariffs, which are the amounts awarded to a successful party in a civil action to help cover legal costs and expenses. "Our government has taken steps to provide further time for consultation on changes to the civil tariff recommended by the Supreme Court Rules Revision Committee in order to better understand their potential financial impacts on consumers. "While I respect the recommendation made by the committee, as Attorney General, I have the responsibility of ensuring that the rules we adopt serve the citizens of British Columbia. This is why I have recommended that government not proceed with any changes to the civil tariff until we have allowed time for further consultation and analysis. It is important to understand how the proposed changes affect all stakeholders. Read the official government news release. 

How Civil Forfeiture Laws Got Out of
Control, and How to Rein Them in
Civil forfeiture laws in eight Canadian provinces began with the best of intentions. The idea was that organized crime and major drug dealers would face not just criminal sanctions, but also the loss of the properties and vehicles used to run their criminal enterprises. But far too often, as investigations by the Globe's British Columbia bureau have shown, these laws are now being used to punish people who don't look like organized criminals, or criminals at all. In some provinces, civil forfeiture often looks like a cash grab rather than an act of justice. Sometimes, the person whose property is seized by the state has not even been found guilty of anything. The Globe has reported on cases in BC where people not convicted of a crime had property seized, and other instances where someone not even charged has had property confiscated. For example, landlords have had property taken because of offences committed by tenants. All of which goes against a fundamental principle of our justice system: the right to be presumed innocent, and treated as such, until found guilty by a court of law. Read The Globe And Mail article. 

What Are Our Rights Worth? Quantifying
Damages for Human Rights Violations
– from CLEBC website – Practice Points
In this paper from the Human Rights Conference – 2015, Susanna Quail provides a reasoned approach to quantifying damages for injury to dignity, feelings, and self-respect, so that parties, advocates, and decision-makers may better anticipate and justify these quantums. Click here to view a pdf version of the paper.

Beyond Cellphones: How Far Should Distracted Driving Laws Go?
Feedback provided to provincial review of driving laws includes
calls for ban on hand-free devices
It's sad to think that only a high-profile tragedy is going to change attitudes towards distracted driving. Intellectually, we all know we shouldn't talk on a smart phone, check email or text behind the wheel. But anyone who has spent more than about 10 minutes in traffic has seen it happen, despite all the warnings, despite all the laws. And how many of us have made exceptions to our own "zero-tolerance" policies when faced with a buzzing device and a needy child, anxious partner or impatient boss on the other end? The comparison gets made to impaired driving all the time. And statistics suggest distracted driving has now – in fact – surpassed drunken driving in BC as a leading cause of car crash fatalities. But can you imagine a situation in which someone with more than a dozen impaired driving charges is still allowed on the road? Read the CBC article. 

Insurance Corporation of BC Wants Supreme Court of Canada to Hear
Appeal Arising from Intoxicated Passenger Grabbing Steering Wheel
A dispute between the Insurance Corporation of British Columbia and a woman seriously injured in a vehicle crash, arising from an intoxicated passenger grabbing the steering wheel, may reach the Supreme Court of Canada. In September, 2015, the B.C. Court of Appeal ruled against ICBC, the crown corporation with a monopoly on basic auto coverage in the province. Marnetta Felix had been awarded damages of nearly $800,000, plus costs, after suing the estate of Kevin Hearne. She sought to have ICBC indemnify the estate of Hearne, as passenger of the vehicle she was driving who had grabbed her steering wheel. The resulting accident killed Hearne and seriously injured Felix. Felix was initially unsuccessful. In a ruling released Feb. 3, 2014, Mr. Justice Anthony Saunders of the B.C. Supreme Court ruled in favour of ICBC. But in 2015, the province's appeal court overruled Justice Saunders. Read the full article published on the Canadian Underwriter. 

BC Court of Appeal Affirms "Foundational Democratic Principles"
at the Heart of the Strata Property Act
15 March 2016 – In an important decision on strata-property governance, the Court of Appeal for British Columbia has grappled with whether legislation respecting a court-appointed administrator of a strata property "permits a court to abrogate a right which lies at the very core of a strata corporation's constitutional structure: the owners' democratic right to vote." In Norenger Development (Canada) Inc v The Owners, Strata Plan NW 3271, 2016 BCCA 118, the court overturned an earlier decision of the British Columbia Supreme Court, concluding that, despite the administrator's "well-meant attempt to put an end to the perceived dysfunction of the Strata Corporation," the "foundational democratic principles that pervade the Act cannot be sacrificed to expediency absent clear statutory direction." Read the full article published on the BC Law Institute website. 

Strata Rental Laws Partly to Blame for High Housing Prices, Says Analyst
Strata laws that restrict renters "prejudicial," says real estate analyst
Strata laws that restrict rentals do more to raise housing prices than shadow flipping or foreign buyers, says one real estate analyst. Both the BC government and opposition party last week signalled their support for legislation aimed at cooling the province's housing market, including the BC NDP's suggestion of having buyers pay property transfer taxes at the agreement of sale and of imposing a two per cent tax on vacant homes. But one analyst says the Lower Mainland's vacant homes are partly the result of strata councils who are unwilling to allow more than a certain number of renters into the condo building. "You've got these small little groups of three or four people in each of these condo buildings saying, 'You know what, no rentals – we don't like renters,' " said Don Campbell, a senior analyst at the Real Estate Investment Network. Read the CBC article. 

Don't Stress with Distress: A Landlord's Distress Remedy in
Delane Industry Co. Ltd. v. PCI Properties Corp.
Determining the most appropriate remedy in response to a tenant's failure to pay rent can be a difficult decision for a commercial landlord. Exercising distress is one such available remedy.

Introduction
Determining the most appropriate remedy in response to a tenant's failure to pay rent can be a difficult decision for a commercial landlord. Exercising distress is one such available remedy. The British Columbia Court of Appeal's decision in Delane Industry Co. Ltd. v. PCI Properties Corp., 2014 BCCA 285, highlights the need to proceed with good legal advice and caution. The decision also clarifies the legal demarcation between a landlord's distress remedy and its right to terminate.

Facts and Decision
The landlord, PCI Properties Corp., leased retail space in the Vancouver Convention Centre to the tenant, Delane Industry Co. Ltd. A dispute arose between the parties and the tenant withheld rent for over a year. After months of unpaid rent accrued and informal demands by the landlord went unrectified, the landlord wrote a formal demand letter on April 18, 2013 demanding payment of the outstanding rent in excess of $100,000. The landlord threatened to exercise its rights and remedies under the lease, including its right to terminate. On May 13, 2013, the landlord issued a distress warrant, seizing the goods of the tenant. Shortly thereafter, on May 14, 2013, while the distress was underway, the landlord issued a notice of default to the tenant, demanding full payment of the arrears within five days.

Read the full article by Brennan M. Carroll and D. Ross McGowan of Borden Ladner Gervais LLP. 

Wills and Estates News:

S. 52 WESA-Undue Influence Presumption re Dependence
S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using this position of authority to unduly influence the will maker, the onus of proof is then placed on the party seeking to uphold the gift to establish that the will did not result from undue influence. Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of feeble mind. Elder Estate v Bradshaw, 2015 BCSC 1266, involved a contested court action re the validity of the deceased's will as a result of allegations of lack of mental capacity and undue influence. Read the full article by Trevor Todd and published on Disinherited Estate Dispute and Contested Wills. 

WESA Curative Provisions to the Rescue!
Court Cures Will with New Powers
(Re) Smith Estate, 2016 BCSC 350
The deceased passed away on January 5, 2015 with her spouse, Jack Mulliner, passing away several hours earlier. Jack did not have any children, but lived with the deceased in a common law relationship for approximately 35 years until they married in 2012. As a child, the applicant, Justine Jenkins (granddaughter), was very close to the deceased and lived with her for a period of time. As an adult, she remained close and involved with her grandmother and often spoke to her several times a day. The deceased had advised that she drafted three documents and signed them. She then asked the applicant if she would be executrix of her will. The applicant agreed. The deceased informed her that she had prepared a funeral box that contained her will, all the relevant documents and the information needed to perform her duties. Upon the death of her grandmother, the applicant searched for any testamentary documents in all places she thought they might reasonably be found, including the funeral box. The applicant found clipped and stapled together a copy of a 2008 document, an original 2011 document, and an original "funeral arrangements" document. Read the full article by the Wills Variation Group of Macisaac & Company. 

Kish v. Sobchak Estate: Standard of Appellate Review of
Findings of Fact in Wills Variation Summary Trial
In the recent decision in Kish v. Sobchak Estate, 2016 BCCA 65, a five-judge panel of the British Columbia Court of Appeal considered how much deference the Court of Appeal is required to give a Supreme Court Judge's finding of facts in a wills variation case decided on the basis of affidavit evidence, as opposed to a conventional trial where witnesses testify in person. (This is my second post on this case. I reviewed the facts and the judgement in my previous post.) An appeal is different from a trial. It is not a rehearing. Rather the appellant has to persuade the appellate court that the trial judge made an error, and that the error was of a nature such that the appellate court should interfere by either changing the decision or ordering a retrial. The amount of deference the appellate court is required to give the trail judge's decision may vary depending on the nature of the alleged error. It may be one of a question of law, a finding of fact, an inference of fact or it may involve the exercise of discretion. Some findings are said to be a mixed questions of law and fact. Read the full article by Stan Rule and published on his blog, Rule of Law.