Company and Finance News:

Taxable Dispositions and Deferrals
– from CLEBC website – Practice Points
This paper, authored by Genevieve N. Taylor and Jeffrey Bichard, of Legacy Tax + Trust Lawyers, Vancouver, provides practical advice on taxable dispositions under the Income Tax Act, including: how dispositions can be avoided, specific circumstances in which a taxable disposition may occur in the estate context, and commonly used strategies for deferring tax on dispositions. Click here to view a pdf version of the paper.

Kellogg Canada Agrees to $60,000 Fine for
Alleged Anti-spam Violation
Kellogg Canada is the latest company to be hit under Canada's Anti-Spam Law, ordered by the CRTC to pay $60,000 as part of a settlement for alleged violations that took place over a relatively short period of time. A statement issued by the CRTC on Sept. 1 indicated Kellogg Canada Inc. "…voluntarily entered into an undertaking with the chief compliance and enforcement officer of the Canadian Radio-television and Telecommunications Commission, in relation to an alleged violation of paragraph paragraph 6(1)(a) of the Act: From 1 October 2014 to 16 December 2014, inclusively, messages were sent by Kellogg and/or its third party service providers during the period of 1 October 2014 to 16 December 2014 to recipients without consent of their recipients." Pursuant to section 21 of the Act, Kellogg Canada Inc. agreed to the monetary payment of $60,000 and to comply with, and ensure that any third party authorized to send a commercial electronic message on its behalf complies with, the Act and regulations, and to review and update its compliance program. The compliance program will be reviewed and updated by Kellogg Canada Inc. with the goal to promote compliance with the Act and regulations. More specifically, the program will cover elements such as revising written policies and procedures regarding compliance, training programs for Kellogg employees, tracking of commercial electronic message complaints and subsequent resolution, and implementing updated monitoring and auditing mechanisms to assess compliance. Read the full article by Jennifer Brown and published on the Canadian Lawyer Magazine. 

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

• 24-101 – Notice and Request for Comments: Proposed Amendments to National Instrument 24-101 Institutional Trade Matching and Settlement and Proposed Changes to Companion Policy 24-101 Institutional Trade Matching and Settlement and CSA Consultation Paper 24-402 Policy Considerations for Enhancing Settlement Discipline in a T+2 Settlement Cycle Environment
• 96-503 – Notice of adoption of BC Instrument 96-503 – Exemption from derivatives reporting requirements in Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting for certain derivatives reported to certain trade repositories
  The British Columbia Securities Commission has approved an exemption from reporting requirements in Multilateral Instrument 96-101 – Trade Repositories and Derivatives Data Reporting for participants reporting certain derivatives through certain data centres. This exemption is effective August 4, 2016 and expires on August 15, 2016. For more information visit the BC Securities website.

For more information visit the BC Securities website.

Energy and Mines News:

Liquefied Natural Gas (LNG) Regulation
in British Columbia
This publication [published by McCarthy Tétrault] is intended as an overview of liquefied natural gas (LNG) regulation in British Columbia. Specific advice should be sought in respect of particular projects. In an increasingly competitive global market for natural gas, the race to export LNG to Asia is on. With continued demand for LNG in Asia, Canada is vying with the United States, Australia, Russia and countries in East Africa and the Middle East to rapidly build the infrastructure required to move LNG to key markets in Japan, Korea, Taiwan, China and India. By positioning the LNG industry in BC as a key driver for economic and job growth over the next few years, the BC government is sending a clear message: The time to act is now. Not long ago, declining supplies of conventional natural gas meant that the North American marketplace was focused on LNG imports from other jurisdictions. However, advancements in technologies for recovering shale gas (natural gas produced from the fractures, pore spaces and physical matrix of shales) and for horizontal drilling, as well as an increase in hydraulic fracturing, have shifted the market to LNG exports. Read more of this publication. 

Petronas' $11 Billion BC Gas Plan
Buoyed by Aboriginal Vote
Petroliam Nasional Bhd.'s proposed $11 billion liquefied natural gas export plant in BC is getting a boost as an aboriginal community signals openness to the project amid speculation that the location may be changed. The Lax Kw'alaams Band, which opposes the current venue in British Columbia, is optimistic that it will be moved, said Mayor John Helin, whose community members endorsed talks on compensation for impacts on their traditional lands. The group is set to meet in the coming days with officials from the Pacific NorthWest LNG project and provincial and federal governments. While the developer says the proposal hasn't been altered, an online message circulated among Lax Kw'alaams members this month states that the terminal would be placed at one of two sites farther north than now envisioned. Local politics also are shifting with Helin's election in November after the band rejected C$1.15 billion in compensation in May 2015, citing environmental concerns. In March, Helin offered conditional support to Pacific NorthWest LNG in a letter to regulators. Read The Vancouver Sun article. 

Family and Children News:

No news items under this category for this issue.

BC Agrees to Fund Lawyer for Mentally
Ill Woman Held in Hospital
The provincial government has agreed to pay for a legal-aid lawyer to defend a woman detained against her will under the Mental Health Act. The decision Monday [August 16^th] came after the 39-year-old woman, identified only as Z.B., filed a petition in BC Supreme Court for the right to have a publicly funded lawyer represent her at an upcoming review of her detention in hospital. Kate Feeney, a staff lawyer for the BC Public Interest Advocacy Centre, said BC has agreed to provide the lawyer for the woman's hearing Aug. 23, but it doesn't signal that other people detained under the Mental Health Act will get lawyers paid for by the state. "This does not change their overall approach. There hasn't been any agreement about their overall approach," Feeney said. For years lawyers and critics have said the province does not adequately fund legal aid, particularly for mentally ill people who are involuntarily detained under the Mental Health Act. As little as $1 million would be needed to provide adequate legal aid for the mentally ill, according to Leonard Krog, the NDP critic for Justice and Attorney General. Read The Vancouver Sun article. 

Legislation in Effect to Regulate E-cigarettes
Laws around the sale, promotion and use of e-cigarettes are now in effect. The Tobacco and Vapour Products Control Act is designed to protect youth from the unknown effects of e-cigarette vapour and from becoming addicted to nicotine, which is why it treats e-cigarette use exactly the same as tobacco, with the same bans and restrictions. There are no restrictions on adults buying e-cigarettes. The Tobacco and Vapour Products Control Act was introduced as an amendment in spring 2015 to help stop the growing use of e-cigarettes by young people in British Columbia. Prevalence of e-cigarette use is highest among young people: one in five youth in Canada have tried an e-cigarette. The act, as amended, requires retailers to ensure e-cigarettes are sold only to adults aged 19 years and older, and to ensure that no retail displays are seen by youth. As well, no retail advertising for e-cigarettes should be shown where youth could see it. An exception on the indoor-use restriction was made so that a small number of customers in adult-only stores could learn how to use vapour products or to test products that they may wish to buy. Read the official government news release. 

Death, Bankruptcy and Longer Wait Times: Ottawa
Warned about More Private Health Care
Private facility at centre of BC case disputes
new report's claims and feds' intervention
Justin Trudeau's government is gearing up for its first big battle against for-profit health care and it's armed with some dire warnings. They come from an expert report commissioned by the federal government for a court case in British Columbia in which the government sought and received intervener status. The report, which was obtained by CBC News, lists many potential negative consequences if there were to be more access to private health care in Canada, including greater income inequality, more people in dire financial straits, and even doctors encouraging longer wait times in the public system in order to nudge patients into the private system. At the centre of the case is Vancouver's Cambie Surgery Centre, which describes itself as the only free-standing private hospital in Canada. The centre's operators are fighting provincial regulations that ban private insurance for medically necessary services. Dr. Brian Day, medical director at the Cambie Surgery Centre, disputes the federal government's report and says more private care would actually decrease wait lists in the public system. (Chuck Stoody/Canadian Press) Cambie's legal challenge is scheduled to begin Sept. 6 in B.C. Supreme Court. It pits the facility and several patient plaintiffs against the Medical Services Commission of B.C., the provincial Ministry of Health and the B.C. attorney general. Read the CBC article. 

Local Government News:

Building Act Update for Local Governments
In June, the Office of Housing & Construction Standards released the document Changes for Local Governments Under Section 5 of the Building Act, which includes an explanation of restricted and unrestricted matters under the Act. The following issues have been classified as unrestricted matters. This means that local governments have the authority to set their own building requirements in bylaws.

• Fire access route design
• Matters that fall under the local government's land use and planning authority (parking spaces for people with disabilities and development permit areas)
• District energy systems and connections 

In addition, the document includes a list of temporarily unrestricted matters. It appears that these matters are still under review by the Province, and will no longer be unrestricted once the matter is addressed by a provincial requirement. Read the UBCM news release.

BC Municipalities Seek Share of Marijuana
Taxes to Cover Costs of Regulation
BC municipalities are appealing for a share of future taxes to help cover the costs of regulating pot dispensaries, as marijuana looks set to become legal in Canada by next spring. The cities of Duncan, Nelson and Prince George have each put forward resolutions to the Union of BC Municipalities convention next month, suggesting the UBCM petition the federal government to provide local governments with a portion of future federal or provincial tax collected through marijuana sales and distribution. Duncan's resolution also suggests the tax-sharing concept be forwarded to the federal task force set up to design the new regulatory framework for marijuana. "We want to make sure there aren't negative impacts for municipalities. Different communities are dealing with it in different ways. It's quite a mess out there right now," Duncan Mayor Phil Kent said. Read The Vancouver Sun article. 

Central Saanich Mayor Calls on Ottawa to
Lift Protection from Non-Migratory Geese
Farmers in Saanich are in the thick of a war against Canada Geese, and the central region's mayor has his sights set on the federal government for a helping hand. Hordes of geese have been feasting on crops throughout the region before farmers have a chance to harvest them. The battle has been fought with a cull, more hunting licences being issued, and even lasers, but Central Saanich mayor Ryan Windsor thinks the real solution might be lifting federal protections on non-migratory Canada geese. All Canada geese are currently protected by the Migratory Birds Convention Act which prohibits people from harming the birds, except under very specific conditions. Read the CBC article. 

LTSA Announces Availability of ParcelMap BC –
Full Provincial Coverage Expected in Mid-2017
The Land Title and Survey Authority of BC (LTSA) is pleased to introduce ParcelMap BC, British Columbia's first and only electronic map of all active titled parcels and surveyed provincial Crown land parcels in BC, to myLTSA users. An extensive, multi-year project, ParcelMap BC will have full province coverage by mid-2017, accounting for over two million active titled and surveyed provincial Crown land parcels. ParcelMap BC provides the following benefits:

• Supports faster and more accurate real property transactions
• Improves the speed and efficiency of land-related research, planning and business decisions through the current spatial representation of a given parcel and its relationship to adjacent parcels
• Facilitates the ability to search parcels by civic address
• Minimizes possible data discrepancies and confusion by reducing the need to consult separate spatial systems in BC

At present, available regions to search include the local government areas bounded by the regional districts of Nanaimo, Cowichan Valley, Capital, Bulkley-Nechako, Fraser-Fort George, Kitimat-Stikine, Skeena-Queen Charlotte, Cariboo and Central Coast. This represents nine of 29 regional districts to be compiled. Read the LTSA news release.

Miscellaneous News:

British Columbia (Director of Civil Forfeiture) v. Violette,
2016 BCSC 1314 ("Violette")
Part 9 of the Supreme Court Civil Rules provides an array of tools to dispose of a case (or slices of it) before trial. One of the more obscure of these is a special case under Rule 9-3. In British Columbia (Director of Civil Forfeiture) v. Violette, 2016 BCSC 1314 ("Violette"), Davies J. denied applications for a special case pursuant to Rule 9-3 by various members of the Hells Angels in which they sought orders that would allow them to dispose of their clubhouses that are targets of civil forfeiture proceedings and effectively conclude the proceedings. In Violette applications for a special case pursuant to Rule 9-3 were heard in the context of two actions in which the Director of Civil Forfeiture (the "Director") seeks the forfeiture of three clubhouses. The Director alleges the clubhouses are likely to be used by the Hells Angels as "instruments of unlawful activity" as defined by the Civil Forfeiture Act, S.B.C. 2005, c. 29. Read the full article authored by Joel Morris and Ted Murray [of Harper Grey LLP]. 

Canada's Human Rights System: Reform on the Way?
Its budget has been flat for the better part of a decade. Its mandate was trimmed by the federal government, with the axing of s. 13 of the Human Rights Act. Its former chair was described as workplace tyrant, and was accused of spying on and harassing staff. Even so, reforms to the Canadian Human Rights Tribunal won't be undergoing any major changes soon. The Tribunal, which is mandated to resolve cases passed onto it by the Canadian Human Rights Commission, only renders a handful of decisions per year. Those decisions, however, are not without impact. This year, the Tribunal found that Canada's welfare system on First Nations reserves receives more than a third less funding than the system for off-reserve populations. It ordered the federal government to "cease the discriminatory practice and take measures to redress and prevent it." In 2013, it ruled that the Canadian Border Services Agency – and, indeed, all federal departments – must try to accommodate new parents in carrying out their parental obligations. Read the full article by Justin Ling and published in the CBA National Magazine. 

Court Finds It is an Abuse of Process for ICBC to
File Inconsistent Pleadings From Single Collision
Interesting reasons for judgement were released [recently] by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other "where there are no facts to distinguish the two". In today's case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers. One sued and fault was admitted and ultimately settlement reached. The second sued but fault was denied. In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability. Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent. Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff. In reaching this result Madam Justice Gropper provided the following reasons: Read the full article by Erik Magraken on the BC Injury Law blog. 

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

• Circular 05-16 B-Train Overall Length Increased to 27.5 m
• Circular 06-16 Increase to the Length of Aerodynamic Devices Fitted to the Rear of Trucks, Trailers and Semi-Trailers
• Circular 07-16 – Financial responsibility for out-of-province operators
• VI Notice 03-16 – Changes to e-Form System and Salvage Vehicle Inspection Endorsement Verification
• Workplan Status Report – New West Partnership Consultation – Workplan Status Report
• Opportunity for Comment New West Partnership Consultation – Opportunity for Comment

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

Proposed Canadian Regulations: PFDs
Must Be Worn on Seaplanes
Canada has the highest volume of seaplane operations in the world. The Transportation Safety Board of Canada ("TSB") estimates that in the Vancouver Harbour alone, about 300,000 passengers travel on about 33,000 seaplane flights each year (see link). The Canadian Aviation Regulations ("CARs") currently require that a personal floatation device ("PFD") for each passenger be carried onboard the aircraft. However, occupants are not required to wear the PFD during the flight. Additionally, commercial seaplane pilots are not required to have underwater egress training, which teaches potentially life-saving strategies for exiting a submerged aircraft. In November 2009, the pilot of a commercial seaplane initiated a left hand turn shortly after take-off from Saturna Island, British Columbia. During the turn, given the prevailing atmospheric conditions and bank angle, an aerodynamic stall resulted in the left wing dropping and nose pitching down. The aircraft descended rapidly and collided with the water, causing the floats to collapse. Read the full article by Michael Dery with Alexander Holburn Beaudin + Lang LLP. 

BC's New Strata Laws Mean Some
Owners May Be Forced to Sell
Signy Wilson's ground-level apartment has high ceilings, hardwood floors, a fireplace, a big arched living room window, and a back door onto a private garden where she and her neighbours can gather when the weather is good. Just off Oak Street, she's close to transit and shops. It's ideal living in a city where it's increasingly hard to find community-oriented housing. Her five-unit condo building was built in the 1930s, so the rooms are unfashionably spacious and designed for long-term living. But Ms. Wilson's four neighbours have decided to work with a real estate broker who says he can put together a land assembly with the apartment building next door, which is already for sale. The broker, says Ms. Wilson, has told them it will be listed for $6-million, which she figures would land her about $400,000 more than what her unit would sell for if she sold it separately. But Ms. Wilson does not want to sell. She loves her apartment, and she questions whether she will ever find another place like it. When she attended the initial meeting with her neighbours, she was shocked to discover the changes to BC's law governing strata – or multifamily – housing that went into effect this past month. The new Strata Property Act allows the termination of a strata with only 80 per cent of residents in agreement instead of a unanimous vote. Read The Globe And Mail article. 

BC Liberals Must Pull Off Balancing Act on
Real Estate: Observers
Public outcry over British Columbia's sizzling real estate market pushed the province's Liberal government to introduce a foreign-buyers' tax last month, but uncertainty around the policy leaves little room for political manoeuvring before next year's election, once the impact of the tax is better understood, experts say. Max Cameron, a political scientist at the University of British Columbia, said the prospect of housing affordability turning into an election issue is "undoubtedly" what motivated the Liberals to step in with the tax. "Their gamble is that it's better to look like you're doing something than to appear indifferent or tone deaf to the issue," Cameron said. "This is a government that is very single-minded about its electoral calculations. That's what drives its policy making." On Aug. 2, the provincial government began levying a 15-per-cent tax on all non-Canadians purchasing property in Metro Vancouver. It justified the surprise move as a bid to boost affordability for citizens looking to enter the housing market. Cameron said the BC Liberals' strategy appears aimed at depriving the Opposition New Democrats of fodder to accuse them on the campaign trail of inaction on housing. Read The Vancouver Sun article. 

Property Disclosure Statements:
Buyer Beware (Still)
In virtually all standard contracts of purchase and sale, the parties agree that the vendor will provide a property disclosure statement ("PDS") and that the representations made in the PDS will survive the completion of the contract. Where vendors and purchasers frequently get into disputes after closing is when purchasers form the belief that vendors misrepresented the state of the property through a PDS. In Nixon v. MacIver, 2016 BCCA 8, the Court of Appeal neatly summarized the legal principals concerning property disclosure statements. In Nixon, the purchasers were buying a home that they understood to be 5 or 6 years old and received a PDS which indicated that the roof was 6 years old. The headnotes of the case state that the residence had been constructed by incorporating a cabin from elsewhere into a newly constructed foundation and lower level. The purchasers discovered that the roof of the cabin had not been replaced and, as such, the roof was not 6 years old as indicated in the PDS. In the result, although the PDS incorrectly stated the age of the roof, the vendors had not experienced problems with the roof and had assumed that a new roof had been placed on the entire structure. In other words, the vendors didn't know that their understanding of the facts was incorrect. Read the full article by Jeremy Burgess OF Pushor Mitchell LLP. 

Strata-lot Owner Held Responsible to Pay Strata Corporation's
Insurance Deductible in Leaky-Toilet Case
In a case decided late last month, the Provincial Court of British Columbia (Small Claims) has held a strata-lot owner responsible to pay the strata corporation's insurance deductible. The case is the latest example of how courts are handling the legal issues that arise when strata-property law and insurance law intersect. Strata Plan VR360 v Jauhar, 2016 BCPC 238, involved water damage apparently resulting from an overflowing toilet. The claimant was the strata corporation; the defendant was the owner of a strata lot on the third floor. The claimant called evidence from plumber who had attended at the site. He testified that a "foot" was "lodged inside" the toilet: The "foot" for clarity is a bumper which attaches to the underside of the toilet seat and rests on the top rim of the bowl. It was approximately 2 inches long by 1/2 inch wide and 1/4 of an inch in depth. The inside of the toilet trap is not finished and is rough in texture and as a result objects can get stuck on imperfections. The "foot" caused a blockage, which resulted in "water flowing from the 3rd floor down into the parking garage." Read the full article published on the British Columbia Law Institute website. 

Wills and Estates News:

Committeeship Applications: the Uragi Case
A growing area in estate litigation is committeeship applications. A committee is a person or institution who is appointed to make personal, medical, legal and/or financial decisions for an adult person (the patient) who is mentally incapable and cannot make those decisions for him or herself. The first stage in the application process is determining on the medical evidence whether the person is incapable. The second stage concerns who ought to be appointed as the person's committee. The need for a committeeship may be limited where proper advanced planning is done. Various documents may be prepared by a capable adult in the event that he or she becomes incapable. These documents include an enduring power of attorney ("POA"), representation agreement ("RA") and an advance directive. As well, a nomination of committee ("Nomination") can potentially assist the Court when determining who should be committee. In the recent case of Uragi, 2016 BCSC 1517, there was no dispute that Mrs. Uragi was incapable based on the medical evidence. Thus, Mrs. Uragi was a patient. The main issue concerned the selection of the committee and the Court was called upon to decide who ought to be appointed as Mrs. Uragi's committee of person and estate – her longtime friends, the Itos, or her niece from Japan, Ms. Yoshimura. Read the full article by Raman Johal of Clark Wilson LLP. 

A History of Constructive Trust
The BC Court of Appeal in BNSF Railway v Teck Metals Ltd, 2016 BCSC 350, delivered the following brief summary of the history of constructive trust as an equitable remedy:

Academic writers seem to agree that this type of trust developed in an ad hoc fashion from the 17th century. D.W.M. Waters, M.K. Gillen and L.D. Smith, the authors of Waters' Law of Trusts (4th ed., 2012), note that the types of obligations enforced by means of this trust "reflected the whole spectrum of remedies that were available in the equity jurisdiction", although they were mainly concerned with what we would call fraud (very broadly defined), mistake and fiduciary relationships. (At 480.) Such trusts were invoked, for example, where necessary to preclude employees from retaining secret profits made by abusing their positions; to prevent the Statute of Frauds from being used to effect a fraud; or for ensuring that a stranger who intermeddled with a trust or assisted in a breach of trust would be required to account for any profits so obtained. The authors go on to state:

 Effectively … English courts did not seriously examine what the constructive trust as a concept was for, and, without the direction that this inquiry would have given, they fell into describing what the position of a person is like, who is vested with property the benefit of which he is obligated to hold for another. It was like the express trust; there was a trustee and a beneficiary, there was trust property and duties with regard to that property which fell upon the trustee. The name, constructive trust, described the existence of an independent obligation; it neither created that obligation, nor was it itself a remedy. This was the approach taken to the constructive trust and it has survived to the present day in the more traditional common law jurisdictions of the Commonwealth. [At 481.]

Read the full article by by lawyer Trevor Todd and published on his site: Disinherited – Estate Disputes and Contested Wills. 

Single Mom in Financial Need Awarded 100% of Her
Mother's Estate – Court Stepped in and Varied Will
Hagen-Bourgeault v. Martens Estate, 2016 BCSC 1096
The Plaintiff, the 25 year old daughter of the deceased, brought an application, by way of summary trial under Rule 9-7, seeking an order varying the will of her mother. Her mother had left the residue of the estate, consisting of annuity payments under structured settlement, to her husband with intention that he would provide for her daughter out of the residue at his discretion. The deceased had passed away June 1, 2013, prior to Part 4 of the new Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] coming into force. Therefore, the court's power to vary the will derived from the former provisions of the Wills Variation Act, R.S.B.C. 1996, at ss. 2 and 5. The deceased's daughter was a single mother with two young children. The daughter had a close relationship with her mother, but sadly her mother's will made no direct provision for her.

HELD: Action allowed – the will was to be varied in favour of the daughter. The court found the daughter had a strong moral claim against her mother's estate.

Read the full article by the Wills Various Group of the law firm MacIsaac & Company LLP.