Company and Finance News:

New Exempt Market Disclosure Obligations –
Impact on Investment Funds
The new harmonized Form 45-106F1 Report of Exempt Distribution (the New Report) that came into effect on June 30, 2016 imposes new disclosure obligations, including specific requirements applicable only to investment funds. As previously discussed, on April 7, 2016, the Canadian Securities Administrators (the CSA) announced amendments to National Instrument 45-106 Prospectus Exemptions (NI 45-106) which introduce the New Report. As was the case for the prior form of report, the New Report applies to all types of public and private issuers in all Canadian jurisdictions and, as a new requirement, is to be filed electronically. Read the full article by Anne Ramsay and Laura Levine of Stikeman Elliott LLP. 

Tonn v. Sears Canada Inc: Dismissing Class
Certification with Instructions for Future
The recent British Columbia case of Tonn v. Sears Canada Inc., 2016 BCSC 1081, is an example of a trend in Canadian cases where courts are conditionally certifying class proceedings despite a plaintiff's failure to define the class as required or dismissing the application with substantial guidance for re-application. In Tonn, a group of former employees sought to certify a class action against Sears for allegedly terminating their employment without proper severance. In March 2013, Sears sold a division of its business to another company. The majority of the employees in this division obtained employment with the purchasing company and were not paid severance by Sears. Within a year of the sale, the purchasing company went out of business, which resulted in the termination of employees' jobs. Read the full article by Alexandra Cocks and Leah Whitworth of McCarthy Tétrault LLP and published on Lexology. 

Canadian Securities Commissions Consider First Tactical Private
Placement Under Canada's New Take-Over Bid Regime
Since Canada's new harmonized take-over bid regime (New Bid Regime) came into effect earlier this year, there's been a lot of talk about whether tactical private placements will become the new poison pills. For more information on the New Bid Regime see our previous article, Canada's New Take-Over Bid Rules Seek to Level the Playing Field. A "tactical private placement" occurs when a target company issues securities to a friendly party in response to an unsolicited take-over bid in order to make it more difficult and/or more expensive for the hostile bidder to complete a take-over of the target company. This outcome is particularly important to target companies under the New Bid Regime for two key reasons. First, as a consequence of the New Bid Regime, shareholders rights plans are largely irrelevant in deterring hostile bids because such offers must remain open for at least 105 days (rather than 35 days under the old rules). Second, the New Bid Regime contains a mandatory condition that a minimum of more than 50% of all outstanding target securities owned or held by persons other than the bidder and its joint actors be tendered and not withdrawn before the bidder can take up any securities under the take-over bid. While the Canadian securities regulators had considered the use of private placements several times in the context of a take-over bid, regulators had not, until the Dolly Varden hearing, had the opportunity to respond to a claim by a bidder operating under the New Bid Regime that a target company had used a private placement as an inappropriate defensive tactic. Read the full article by David E. Woollcombe, Shane C. D'Souza and Heidi Gordon of McCarthy Tétrault LLP. 

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

• BCN 2016/06 – Notice of Approval – Proposed Multilateral Instrument 91-101 Derivatives: Product Determination and proposed Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting and related documents
• 81-327 – CSA Staff Notice 31-327 – Next Steps in the CSA's Examination of Mutual Fund Fees 
• 45-319 – Multilateral CSA Notice 45-319 Amendments to Start-up Crowdfunding Registration and Prospectus Exemptions
• 45-106 – Adoption of Amendments to National Instrument 45-106 Prospectus Exemptions relating to Reports of Exempt Distribution
• 23-101 – Adoption of Amendments to the Order Protection Rule – Amendments to National Instrument 23-101 Trading Rules and Companion Policy 23-101CP to National Instrument 23-101 Trading Rules
  The amendments will come into force on July 6, 2016, except as related to the market share threshold. The amendments related to the market share threshold will come into force on October 1, 2016. The amendments address some of the inefficiencies and costs that have resulted from implementing the order protection rule (OPR). Further, the amendments add OPR-related guidance to 23-101CP to address circumstances where a marketplace has introduced an intentional order processing delay. 
• 51-514 – BC Instrument 51-514 Exemption from the requirement to send financial statements and related disclosure to securityholders during a disruption in postal service
• 81-517 – BC Instrument 81-517 Exemption from the requirement to send financial statements and related disclosure to securityholders during a disruption in postal service
• 45-320 – CSA Staff Notice 45-320 Exemptions for Certain Foreign Issuers from the Requirement to Identify Purchasers as Registrants or Insiders in Reports of Exempt Distribution
• 95-401 – CSA Consultation Paper 95-401 – Margin and Collateral Requirements for Non-Centrally Cleared Derivatives
• 31-103 – CSA Notice – Notice and Request for Comment on Proposed Amendments to National Instrument 31-103 Registration Requirements, Exemptions And Ongoing Registrant Obligations, National Instrument 33-109 Registration Information and to related policies and forms.
• 51-346 – CSA Staff Notice 51-346 Continuous Disclosure Review Program Activities for the fiscal year ended March 31, 2016
• 11-331 – CSA Staff Notice 11-331 Extension of Consultation Period Consultation Paper 33-404 Proposals to Enhance the Obligations of Advisers, Dealers and Representatives toward their Clients
  In the attached notice, the CSA announces an extension to the comment period for CSA Consultation Paper 33-404 Proposals to Enhance the Obligations of Advisers, Dealers and Representatives Toward their Clients. The comment period will now end on September 30, 2016.
• BCN 2016/07 Specification of forms required to be filed under Multilateral Instrument 96-101 – Trade Repositories and Derivatives Data Reporting
• 91-101 – Notice of Adoption – Multilateral Instrument 91-101 Derivatives: Product Determination and related documents
• 96-101 – Notice of Adoption – Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting and related documents
• 96-501 – Notice of adoption of BC Instrument 96-501– Exemption from certain derivatives reporting requirements in Multilateral Instrument 96-101 – Trade Repositories and Derivatives Data Reporting
• 96-502 – Notice of adoption of BC Instrument 96-502 – BC Instrument 96-502 – Exemption from derivatives reporting requirements in Multilateral Instrument 96-101 – Trade Repositories and Derivatives Data Reporting for certain electricity-based derivatives

For more information visit the BC Securities website.

Energy and Mines News:

AMEBC Issues News Release on
Transboundary Waters
The Association for Mineral Exploration issued a news release on its website to address concerns about mineral exploration and development projects and transboundary water quality concerns in Northwest BC. Environmental and community. The news release states:

AME is monitoring and strategically engaging with our members, government and community representatives about mineral exploration and development projects and transboundary water quality concerns in Northwest BC. Environmental and community concerns have been raised about transboundary waters that originate in BC and flow into Alaska. In particular, there are several rivers – Stikine, Unuk, Tulsequah and Taku – that are considered transboundary, or shared, waters. Both BC and Alaska recognize the importance and care about these shared rivers that support salmon runs and communities in both jurisdictions. As good neighbours and allies, Canadian mineral explorers and developers understand and respect these concerns. Northwest BC is one of the most biophysically and culturally diverse areas, and importantly has some of the most prospective and strategic mineral development potential in Canada. This region attracts a significant portion of the annual total mineral exploration and development expenditures in BC. Recent developments include the Red Chris Mine, the province's newest gold and copper mine. In addition there are some very promising mineral exploration projects in the region that have the potential to become operating mines, pending positive investment decisions and extensive environmental permitting processes.

Read the full news release by AMEBC. 

Federal Approval for Site C Sparks Outrage from
First Nations, Advocacy Groups
First Nations, landowners and environmental groups are accusing Justin Trudeau of reneging on promises made during last year's election campaign as the federal government quietly authorizes construction to ramp up for a controversial hydroelectric dam proposed for northeastern British Columbia. In a permitting document issued without fanfare late Friday [August 1^st] before the August long weekend, the Department of Fisheries and Oceans and Transport Canada authorized B.C.'s power utility to move ahead with Site C. This includes building the actual kilometre-long earthfill dam, along with the spillways, drainage tunnels and generating stations and, ultimately, permission to divert the Peace River and flood what will become an 83-kilometre reservoir. Site C is a $9-billion megaproject that BC Hydro says will provide British Columbia with clean, renewable electricity for more than a century starting in 2020, though the proposal faces steadfast opposition from various groups over its environmental impact and a lack of consultation. "If this were the Harper government, I wouldn't be surprised at all," said Ken Boon of the Peace Valley Landowner Association, adding that he was both shocked and disappointed by the news. Read The Vancouver Sun article. 

Family and Children News:

Social Media Evidence in Family Law Proceedings
from CLEBC website – Practice Points
This paper, authored by Master Heather M. MacNaughton, Supreme Court of British Columbia, provides an overview of the role of social media in family law cases and includes cautionary notes and consequences to introducing social media into evidence. Click here to view a PDF version of the paper

BC to Stop Charging Welfare Recipients for Methadone Treatment
Facing a class action suit, province will stop $18.34-a-month
deductions from social assistance cheques
Faced with a potential class-action lawsuit, the B.C. government has ended its practice of deducting money from the welfare cheques of recovering addicts receiving treatment from private methadone-dispensing clinics. Legal documents received by the plaintiff's lawyer from the provincial government indicate the Ministry of Social Development has changed its policy and, beginning next week, will pay any additional clinic fees for affected clients on income or disability assistance. It's the latest development in a legal challenge launched last November aimed at stopping the government from allowing private clinics to take $18.34 from clients' social-assistance cheques in exchange for methadone treatment, as well as compensating those already affected by the policy. "The government's change of heart is [its] way of acceding to the inevitable," said Jason Gratl, lawyer for the proposed representative plaintiff. "In the future, the $18.34 will remain in the pockets of the most desperate, the most disadvantaged in our province" Gratl said. Read the CBC article. 

Local Government News:

Identification of Contaminated Sites – Changes in
Store for Local Governments
The Ministry of Environment has extended the period for stakeholder comments on its Intentions Paper regarding Identification of Contaminated Sites. Comments should be directed to margaret_shaw@shaw.ca. Local governments and approving officers, including those who have opted out of the contaminated sites identification process under existing legislation, are encouraged to review the Intentions Paper if they have not already done so, to see whether the proposed changes to the site profiles regime warrant comment on their behalf. From a local government perspective the following changes seem particularly significant:

• Local governments and approving officers will no longer be able to opt out of the site identification process
• Subdivision, soil removal, and demolition permit applications will no longer trigger contaminated site identification
• Building permit applications will trigger contaminated site identification
• Zoning amendment, development permit and development variance permit application triggers for contaminated site identification will remain in place
• Compliance with remediation requirements resulting from contaminated site identification will be policed by local governments at the final building inspection or occupancy permit stage of redevelopment

Read the full article by Bill Buholzer of Young Anderson Barristers and Solicitors. 

Court Orders End to Homeless Encampment
On July 5, 2016, the Honourable Chief Justice Hinkson released his decision in British Columbia v. Adamson, 2016 BCSC 1245, following a renewed application by the Province for an interim injunction to end the "Tent City" encampment beside the Victoria Courthouse. Chief Justice Hinkson found in favour of the Province, ordering the dismantling of the encampment to coincide with the availability of additional shelter options for the campers.

Background
Beginning in the fall of 2015, several members of the homeless community in Victoria began setting up tents on an area of lawn on the eastern side of the Courthouse property. This land belongs to the Province and is not subject to the City of Victoria's bylaws that allow homeless persons to take overnight shelter in City parks, nor are there any provincial enactments that apply to prohibit camping on the land.

Read the full article by Marie Watmough of Stewart McDannold Stuart LLP. 

Report on Agriculture's Connection to Health
– from UBCM website
The Provincial Health Services Authority has released a new report on agriculture's connection to health, together with resources that highlight potential roles for local governments in supporting health through evidence-based planning. The report details connections between agriculture and health, and addresses:

• Local food safety and nutrition;
• Agriculture in public settings (e.g. farm-to-institution initiatives);
• Food self-sufficiency;
• Agriculture and water quality; and
• Agriculture and climate change.

Read the UBCM article. 

Miscellaneous News:

Trans Activist Says Humans Rights Code Amendment Will Go Far
Province recently moved to amend B.C.'s Human Rights Code
to explicitly protect gender identity or expression
A Vancouver trans activist says new legislation introduced in B.C. to amend the province's Human Rights Code to explicitly protect gender identity or expression will go far in educating people and institutions. "Pretty soon, in a few years, everybody who's gone through school will have learned about gender identity and gender expression because that will have been taught as part of the Human Rights Code," said Morgane Oger, who chairs the Trans Alliance Society and sits on the B.C. NDP executive. The B.C. Liberals introduced the legislation in the B.C. legislature on July 25, days before the Pride festivities kicked off in Vancouver. Vancouver-West End New Democrat MLA Spencer Chandra Herbert, who tried to have protection for gender identity added to the B.C. Human Rights Code for several years, previously told CBC News he plans to support the government legislation. Read the CBC article. 

TRU Law Students Challenged to Create next Uber
By joining the ranks of cutting-edge thinkers considering the future of the legal profession, Thompson Rivers University Law School (TRU) in Kamloops, BC hopes to offer its students an advantage in the volatile world they'll enter as new lawyers. Lawyering in the 21^st century, a third year elective course taught by Assistant Professor Katie Sykes, seems likely to do just that. After studying law at the University of Toronto, Harvard, and Dalhousie, clerking at the Supreme Court of Canada, and working in New York for a large international law firm, Professor Sykes recognized the need to prepare students better for practice in today's fast-changing society. The goal of Lawyering in the 21st century is to help students develop the necessary vision and skills to anticipate and adapt to change. Professor Sykes says, "The students are at the cusp of change. They know their future in the practice of law involves uncertainties. They seem relieved to discuss the challenges they face openly, to confront them and identify the opportunities they create." Read the full article published on the Provincial Court of British Columbia website. 

Report of Another ICBC Rate Hike
Causes Ruckus in Legislature
Drivers in B.C. will soon see an increase in their car insurance rates, according to transport minister Todd Stone. During an interview on Radio NL in Kamloops on Wednesday [July 29^th], Stone said ICBC can seek an increase of between four and seven per cent to basic insurance rates, which is within the rate-smoothing framework. The last rate increase was 5.5 per cent. "We're going to do everything that we possibly can to apply as much downward pressure on rates so that we're closer to four per cent versus a higher number. But look, the pressures on rates at ICBC is significant," Stone told the station. The corporation will submit its application for a basic insurance rate increase to the B.C. Utilities Commission by Aug. 31. ICBC won't divulge how much rates will be increased until then. The rate hike kicked off a firestorm in Question Period this week, with the Opposition accusing the minister of turning ICBC into a government "slush fund" because the corporation is projected to transfer $150 million in dividends per year for the next three years to the government. Read The Vancouver Sun article. 

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

• Circular 04-16 Fender-less Vehicle Regulation – This purpose of the circular is to advise that on July 4, 2016, by Order in Council (OIC) 1004/58, amendments to Motor Vehicle Act Regulation (MVAR) Division 7.01 were enacted to allow for 1940 and earlier model year vehicles to operate on highway without fenders, mudguards or mudflaps as required by MVAR Division 7.06 under specific conditions.
• VI Notice 04-16 Amendment of Vehicle Fender / Mudflap Vehicle Inspection Criteria

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

New Rules on Terminating Strata in Force
New rules on terminating a strata came into force on 28 July 2016. At that time, order in council 592/2016 was adopted. The order in council brought into force the termination provisions of Bill 40, Natural Gas Development Statutes Amendment Act, 2015. These provisions amended part 16 of the Strata Property Act, which deals with cancelling a strata plan and winding up a strata corporation. OIC 592/2016 also contained changes to the Strata Property Regulation and the Bare Land Strata Plan Cancellation Regulation. The most noteworthy change in the new legislation is the lowering of the voting threshold to authorize termination. That threshold previously required a unanimous resolution. Now, it requires a resolution passed by an 80 percent vote. To protect the interests of any dissenting owners, the legislation also requires that the strata corporation apply to the supreme court after a termination resolution has been passed, to obtain an order confirming that the decision to terminate is in the best interests of the owners and is not significantly unfair to an owner, a registered charge holder, or a creditor. Read the full article by the BCLI. 

New Penalties for Property Transfer Tax Avoidance
– FICOM (Industry News Alert)
The Superintendent of Real Estate is warning developers that under new Property Transfer Tax legislation they face significant fines and/or imprisonment if they provide incorrect information intended to avoid the tax changes. The Province is introducing and will be enforcing stringent non-compliance penalties. Under the legislation, any individual who fails to pay the additional tax, or who participates in providing incorrect information to avoid the tax could be liable for fines of up to $100,000 and/or two years in prison. The legislation introduced by government earlier this week provides for an additional Property Transfer Tax of 15% effective August 2, 2016, on residential property transfers to foreign entities in the Greater Vancouver Regional District. Read the full FICOM alert bulletin. 

BC Tenant Laws Need Overhaul to
Protect Renters, say Advocates
Officials with TRAC say there are currently too many loopholes allowing landlords to raise rents substantially at the end of a lease, and not enough recourse for renters who get kicked out so landlords can list their units on sharing sites like Airbnb. A report released by Vancity yesterday found that renting is no longer a viable alternative to home ownership for working millennials in Vancouver. Jane Mayfield, acting executive director of TRAC, spoke with host Rick Cluff on the CBC's The Early Edition [recently].

Rick Cluff: We're hearing stories where landlords are saying "every time you sign a lease we're considering you a new renter, which allows us to put the rent up." Is that legal?

Jane Mayfield: We're hearing a lot of that lately. It's a bit of a grey area. The legislation and policy isn't quite clear, because it is true that rent can be set at any amount for a new tenant.

Read the CBC article. 

The Report of the Independent Advisory Group on the
Real Estate Industry in BC
On June 28, 2016, the Independent Advisory Group ("IAG") issued its Report on the conduct and practices in the Real Estate Industry in BC. The IAG investigated the real estate industry and the existing regulatory regime, in the context of the current extra-ordinary real estate market and reports of inappropriate practices. The Province announced that it will end the industry self-regulation in the real estate industry and overhaul governance, oversight, transparency and accountability of the sector. The Province accepted the recommendations of the IAG and announced it will:

• Establish a dedicated superintendent of real estate, who will take over the Real Estate Council's regulation and rule-making authority to carry out the changes required to restore public confidence.
• Reconstitute the Real Estate Council with a majority of public-interest, non-industry members.
• Implement the recommended penalties, as well as increased fines for unlicensed activity and other offences.
  Allow for commissions from licensees engaging in misconduct to be taken back to the council.
• Make the managing broker responsible for ensuring the owner of the brokerage does not engage in the business of the brokerage if the owner is not a licensee.
No longer permit licensees to offer dual agency representation. The IAG Report made 28 recommendations with right to regulatory changes, which have been accepted by the Provincial Government.

Read the full article by Edward Wilson of Lawson Lundell LLP.

BC Property Law Vulnerable to Challenge, says Prominent Lawyer
A prominent lawyer on constitutional and tax law is planning to challenge B.C.'s new tax on foreign homebuyers. "There's a huge problem with this legislation," Toronto lawyer Rocco Galati said Thursday [July 28^th]. "It's clearly offensive on its face." Galati, a former tax specialist in the federal Department of Justice, has developed a public profile on cases such as the successful challenge of the former Conservative government's appointment of Marc Nadon to the Supreme Court of Canada. Galati expects to be supplied clients for a test case by Vancouver immigration lawyer Larry Wong, who said B.C.'s 15-per-cent foreign buyers' tax comes from the same mindset that has fuelled Donald Trump's drive for the presidency. "The new normal is the Donald Trump new normal of taking action according to one's feelings – 'Oh, these foreigners, their money is not clean,' based on their feeling that, 'How could one make so much money or pay for such overvalued real estate?'" Wong said. "I think the tax shows disrespect. Foreign buyers who buy Vancouver properties are not criminals." Galati said the law is a violation of section 15 of the Charter of Rights and Freedoms, which prohibits discrimination on the basis of, among other things, national origin. In most instances, Canadian jurisprudence supports the requirement that foreign nationals be treated the same as Canadian citizens and permanent residents when they are in Canada, he said. Read The Vancouver Sun article. 

Wills and Estates News:

BC Court of Appeal Clarifies Rights of
Joint Accountholders
Can one owner of a joint bank account withdraw all of the funds for their own purposes? Does the other joint accountholder have any right to claim against the withdrawn funds? The British Columbia Court of Appeal tackled such questions, as well as many others, in the recent decision of Zeligs Estate v. Janes, released on 29 June 2016. This case involved a house on the University of British Columbia Endowment Lands owned by Mrs. Burnett and her daughter Diana as joint tenants. In 2010, when Mrs. Burnett was 102 years old and living in a care facility, Diana used her authority as co-owner and as Mrs. Burnett's attorney (pursuant to an enduring power of attorney) to sell the UBC house for $2.7 million. Mrs. Burnett was mentally incapable at the time. Diana deposited the net sale proceeds into a bank account at CIBC, held in the joint names of herself and Mrs. Burnett. Within a few weeks, Diana withdrew the entire sum for her own purposes. Mrs. Burnett died later that year, leaving a will that divided her estate equally between her daughters Diana and Barbara. Diana, as executor, took the position that the sale proceeds from the UBC house belonged to her by right of survivorship, and did not form part of the estate. According to Diana, all that remained in the estate was a balance of $126,000. She sent Barbara a cheque for $63,000. Read the full article by Kerwin, Scott of Borden Ladner Gervais LLP. 

Marley v. Rawlings
– by Stan Rule
As I wrote in my most recent post, Fuchs v. Fuchs, I am looking at cases in other jurisdictions dealing with rectification of wills for a paper I am working on. I am not aware of any cases in British Columbia interpreting our new provision allowing for rectification of a will, section 59 of the Wills, Estates and Succession Act. Accordingly, I am looking elsewhere. Fuchs is an Alberta case. England has had legislation permitting rectification of wills for longer than either Alberta or British Columbia. Section 20 of the Administration of Justice Act, 1982, c. 53 is similar, but section 20 (1) is worded somewhat more narrowly than section 59 (1) of the WESA. Section 20 (1) provides:

Read the full article by Stan Rule of Sabey Rule LLP.