Company and Finance News:

New Record-keeping Requirements under the
Canada Business Corporations Act: A Primer
Beginning June 13, 2019, private corporations regulated under the Canada Business Corporations Act ("CBCA") will be required to maintain a register of individuals who, directly or indirectly, have "significant control" over the corporation. Currently, CBCA corporations do not have to look behind the names of their registered shareholders to determine ultimate beneficial control. This new register will not be available to the public but it will be open to shareholders and creditors of the corporation. Directors and officers will have personal liability to ensure the corporation complies with the new provisions. Note that these requirements will not apply to public companies and to some other corporations exempted by regulation. The new register is consistent with initiatives in Canada and internationally to combat money laundering and terrorist financing. Lenders will find it of assistance in meeting their increasing "know your client" obligations. It is possible that similar requirements will soon be adopted under provincial legislation as well. Many CBCA companies, however, are likely to find the requirements onerous and difficult to interpret. The government intends to bring in regulations that may clarify the new obligations. There may also be an opportunity for public comment on the regulations, although a specific process has not been announced. Read the full article by Megan Filmer and Erik Thorsteinsson with DLA Piper. 

Mixed Results in British Columbia White
Collar Enforcement Proceedings
Two high-profile cases in late 2018 demonstrate both the potentially grave consequences of securities law violations and the difficulties prosecutors face in securing convictions for white collar crime. In the first, the Provincial Court of British Columbia sentenced Vancouver-resident Ayaz Dhanani to a rare prison term for securities law violations following Dhanani's guilty plea in connection with the fraudulent solicitation of investments from five British Columbia residents. In the second, the Public Prosecution Service of Canada (PPSC) stayed charges against an alleged organized crime group believed to be laundering over $1 billion per year through B.C. casinos in what was one of the largest money-laundering prosecutions in Canadian history. Read the full article by Lawrence E. Ritchie, Geoffrey Grove and Elie Farkas Osler of Hoskin & Harcourt LLP. 

The Difficulty with Raising the Dead (Company)
A recent case at the BC Supreme Court, British Columbia v. The Administrator of the Ship-source Oil Pollution Fund, demonstrates how difficult it is to make a successful legal claim against a company that was dissolved at the time the claim arose. In the proceeding at issue, the BC government sought to restore a company to the provincial Register of Companies. The company had dissolved in January of 2014, at which time it had owned a large derelict vessel moored in BC waters, the Chilcotin Princess. When the company dissolved, title to the Chilcotin Princess automatically transferred to the BC government. The BC government was not aware this had occurred, however, and assisted the Coast Guard in decommissioning the Chilcotin Princess in early 2015. As part of that process, Coast Guard employees first removed potential oil pollutants from the vessel, at a total cost of $137,680.88. Read the full article by Michael Larsen with Clark Wilson LLP. 

FICOM News
The Financial Institutions Commission of BC published the following announcements and bulletins in January:

• Letter to Pension Stakeholders – E-Filing System Updates - AIS User Authentication and Document Upload
• Letter to CEOs/General Managers, BC Authorized Credit Unions – Deadline Extension for the CUDIC Premium Structure Consultation

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

• 11-901F – BC Notice 2018/08 published on December 5, 2018 advised of amendments to the Securities Regulation to amend some fees and to add new fees for international dealers and advisers, and regulated entities such as exchanges, clearing agencies, trading repositories and alternative trading systems. The amendments are effective December 30, 2018. BC Form 11-901F Fee Checklist, which is submitted when paying a fee, has been updated to reflect the amended and new fees.
• 81-102 – Adoption of Amendments relating to Modernization of Investment Fund Product Regulation - Alternative Mutual Funds
• 11-340 – CSA Staff Notice 11-340 Extension of Comment Period  CSA Staff Notice and Request for Comment 23-323 Trading Fee Rebate Pilot Study
• BC Notice 2019/01 – Expiry of BC Instrument 32-517 Exemption from Dealer Registration Requirement for Trades in Securities of Mortgage Investment Entities and registration requirementsfor persons relying on BCI 32-517 on February 15, 2019 - Frequently Asked Questions
• 23-324 – CSA Staff Notice 23-324 Order Protection Rule: Market Share Threshold for the period April 1, 2019 to March 31, 2019

For more information visit the BC Securities website.

Energy and Mines News:

Commission Introduces New Regulations to Meet Methane Targets
OBCOGC Bulletin:
The BC Oil and Gas Commission (Commission) has introduced new regulations to reduce methane emissions from upstream oil and gas operations to meet or exceed federal and provincial methane emission reduction targets. The amendments to the Drilling and Production Regulation come into effect on Jan. 1, 2020. The impact of the new regulations is a reduction in methane emissions by 10.9 megatonnes of carbon dioxide equivalent over a 10-year period, which is like taking 390,000 cars off the road each year. Developed with input from environmental groups and industry, the new regulations address the primary sources of methane emissions from BC's upstream oil and gas industry, which are:

• Pneumatic devices
• Equipment leaks
• Compressor seals
• Glycol dehydrators
• Storage tanks
• Surface casing vents

The changes include enhancements to requirements for leak detection and repair, designed to ensure leaks are detected and repaired quickly. Additionally, robust data management and reporting requirements to ensure transparent reporting of industry actions are under development. The new regulations and methane reduction measures align with the Province's CleanBC plan. Read the full OGC bulletin. 

This Pipeline is Challenging Indigenous Law and
Western Law. Who Really Owns the Land?
With members of the Wet'suwet'en First Nation blockading a pipeline project on their traditional lands, Na'moks was standing by a crackling campfire, next to an RCMP checkpoint, drawing in the snow with his right boot. The hereditary chief of the Tsayu clan made a small circle to represent the authority of elected band councils within reserves. Outside that circle, he explained, is where Wet'suwet'en clans wield power over a vast territory. "We are hereditary chiefs," he said, "and we have control of this land." The temporary checkpoint was set up in a remote area of the BC Interior as things got tense, with RCMP officers arresting 14 protesters on Monday [January 7th] at a blockade erected last month along a logging road. The road leads to the Unist'ot'en camp on the Morice River bridge, where hereditary leaders were preventing construction workers from TransCanada Corp.'s Coastal GasLink pipeline project from passing. By Friday, the barriers were coming down, after the protesters agreed to comply with an interim court injunction to grant workers temporary access to the area. The way forward for the project, however, remains uncertain. Read The Globe And Mail article. 

Commission Launches Mediation
Service Pilot Project
The BC Oil and Gas Commission (Commission) is launching a new mediation service to provide an additional level of support for land owners in cases where land owners and companies are not able to agree on remedies for complaints and site restoration post permit. Due to a broadening of the Commission's role in engagement, the Commission has identified a need for support and processes to bridge existing services for stakeholders during the permitting process and managing differences throughout the full lifecycle of energy activities. The Commission's new pilot mediation service will aim to resolve issues between land owners and companies. Read the full BCOGC Bulletin. 

Super-Priority for Environmental Liabilities in Insolvencies – A Comment on the
Supreme Court of Canada's Decision in Redwater
On January 31, 2019, the Supreme Court of Canada released its landmark decision in Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 ("Redwater"). The question before the Court was whether the Alberta Energy Regulator and Orphan Well Association (collectively, the "Regulator") could require Grant Thornton Limited, as receiver and then trustee in bankruptcy (the "Trustee") of Redwater Energy Corporation ("Redwater"), to comply with abandonment, reclamation and remediation orders issued by the Regulator, or whether the Trustee was entitled to "disclaim" the assets subject to the orders (the "Renounced Assets") and not comply with the orders. A 5:2 majority of the Supreme Court determined that the Trustee could not disclaim the Renounced Assets, effectively elevating the environmental orders to a super-priority status. Absent an immediate response from Parliament, Redwater will have profound and potentially severe impacts on many solvent and insolvent businesses in Canada, especially in Alberta's energy sector. Read the full article by Josef G.A. Kruger, Robyn Gurofsky, Jack Maslen and Jessica Cameron of Borden Ladner Gervais LLP.

NEB Wants Marine Protection Program from
Trans Mountain Pipeline Builder
The National Energy Board would require the creation of a marine mammal protection program for the Trans Mountain pipeline in a series of draft conditions it has laid out before it considers the project. The focus of the review is to apply the Canadian Environmental Assessment Act and the Species at Risk Act to project-related marine shipping, the board says in the document. The conditions mitigate potential risks to the environment and protect the public, it says. Releasing these draft conditions and recommendations is not an indication of the board's forthcoming recommendation to the federal government to either approve or deny the project, it says. Read the full article on CBC News.

Family and Children News:

Minister of State for Child Care Legislation
The Minister of State for Child Care Expected Results for the 2019/2020 Fiscal Year Regulation has been published, specifying the performance targets set by the Treasury Board for the Minister of State for Child Care for the upcoming fiscal year. The expected results from the Minister include:

• continued implementation of initiatives supporting government's universal child care plan;
• monitoring and publicly reporting results achieved under the Multilateral Early Learning and Child Care Framework agreement with the federal government; and
• continued engagement with all levels of government, child care providers and the private and not-for-profit sectors respecting the plan for universal child care.

Contingent Fee Agreements in
Family Law Cases
The financial hurdles to accessing legal services and access to justice have been a topic of ongoing research and commentary. For example, in October 2017, the British Columbia Law Institute published a Study Paper on Financing Litigation, which reviewed various methods used by litigants to fund legal services and commented that (emphasis added):

An open and accessible justice system is one of the cornerstones of the rule of law. But access to the justice system is becoming increasingly difficult for many Canadians. This problem has grown more acute over the last decade. Studies highlight that court delays, lengthy procedures, and complex processes are some of the key factors barring access to justice in our society. The cost of litigation has also been identified as a significant barrier to accessing the justice system.

Read the full article by Magal Huberman with Pietrow Law Group and published in the recent TLABC publication the Verdict. 

The Irony of Representing Yourself in Family Law Litigation:
It Can Cost You More than Hiring a Lawyer
A wife's decision to represent herself caused the husband to incur huge legal fees over 17 years. She was ordered to pay him $150,000 There is no doubt the costs of family law litigation are simultaneously emotional and financial. One of those financial costs, the need to engage a lawyer, may cause parties to be inclined to represent themselves. While self-representation is the only option for many people due to their financial resources (a broader discussion of access to justice is beyond the scope of this article), for those with resources, the decision to self-represent may be quite costly in the end That is precisely what happened in a recent Ontario case, in which the issues arising from the separation of a couple were resolved after 17 years of litigation. In that case, the wife represented herself. The resolution was reached after a 10-day trial in which Justice Conlan of Ontario's Superior Court of Justice made a final order in respect of spousal and child support, sharing of property and the distribution of the proceeds from the sale of the parties' home. Read the full article in the Financial Post. 

1. What Are the Goals and How Does the New Regime Measure Up?
The government says it focused on these three goals:

• enhancing public confidence;
• advancing reconciliation with First Nations; and
• protecting the environment while offering clear pathways to sustainable project approvals.

Fake 'Dr. Lip Job' Gets Suspended Sentence for
Posing as a Physician
A woman who forged a medical licence so she could buy pharmaceuticals like Botox to then inject into duped customers has been given a 30-day suspended sentence and two years' probation in B.C. Supreme Court. Rajdeep Kaur Khakh's transgressions included contempt of court and passing herself off as a doctor so she could inject Botox into facial wrinkles and filler material into lips or other facial areas. Only licensed and trained doctors, dentists, registered nurses (or nurse practitioners) under the supervision of doctors, and naturopaths are allowed to perform such procedures under Health Professions Act regulations and Ministry of Health scopes of practice. Read The Vancouver Sun article. 

Ian Mulgrew: Dix Loses another Round to Private
Clinics, Accused of Ignoring Court Order
The BC government has been denied leave to appeal an injunction blocking it from enforcing tough new provisions of the Medicare Protection Act restricting access to privately provided medical services. But those engaged in the health care battle say Victoria was already ignoring the injunction by trying to compel physicians and clinics to sign "compliance statements" agreeing to not provide any private-pay surgeries. "If they refuse to sign, their access to operating room time in the public system will be restricted," their new application to the B.C. Supreme Court states. "The only possible rationale for the requirement is to effectively prohibit physicians and private surgical clinics from continuing to provide Private-Pay Surgeries by restricting access to public facilities to provide public surgeries … This is directly contrary to both the spirit and express terms of the Injunction Order." Read the full article by Ian Mulgrew in The Vancouver Sun.

Registrations Now Required for Pill Presses and
Related Manufacturing Equipment in BC
January has been an exciting month in the Regulatory world, with the SFCR (Safe Foods For Canadians Regulations) and the Pill Press and Related Equipment Control Act both coming into force on January 15, 2019. You can read our previous summary of the SFCR here. The Pill Press and Regulated Equipment Control Act is specific to the province of British Columbia and aims at restricting manufacturing equipment in an effort to combat the opioid crisis by disrupting the access to equipment used in the illicit production of opioids in BC. Those who own, possess and/or use pill presses and related equipment (such as NHP Site License manufacturers, Drug Establishment License holders, and companies that sell such equipment) must now register their equipment via the online portal at www.gov.bc.ca/pill-press. At this time, there is an exemption for health professionals (pharmacists, naturopaths, etc) who possess controlled equipment. Read the full article by Lori Hooper on the NHP Consulting website.

Local Government News:

Call for Local Government Resolutions
UBCM's annual resolutions process provides a forum for local governments from across the province to express concerns and develop united positions. Resolutions that are endorsed by the membership at our annual Convention become policy for UBCM. Local governments are encouraged to submit resolutions for consideration by regional Area Associations a their annual meetings. Resolutions endorsed by Area Associations are submitted automatically to UBCM for consideration in September. Area Association submission deadlines for 2019 are as follows:

• AVICC – February 7
• AKBLG – March 1
• SILGA – March 1
• NCLGA – March 7
• LMLGA – March 15

Read the UBCM article. 

Local Government Legislation Updates
Effective January 1, 2019, amendments made by 2018 Bill 7 to the Interpretation Act clarify provisions that establish time of day, and add definitions for Pacific Standard Time and Pacific Daylight Saving Time. Consequential amendments were also made to the Community Charter, Election Act and Local Government Act, updating references respecting calculation of time.

Miscellaneous News:

"Notice to Mediate": What Can We Learn from British Columbia?
As part of its role advising the Lord Chancellor and the Judiciary in England and Wales on civil matters, the Civil Justice Council (CJC) has published its final report on the positioning of alternative dispute resolution (ADR) within the civil justice system. The report makes a number of recommendations around awareness and availability of ADR, as well as the extent to which ADR is encouraged by government and court processes. We look here at one proposal that seeks to encourage the usage of ADR. The CJC report recognises that the court has a difficult balance to strike when it comes to ADR. On the one hand, the courts need appropriate sanctions to encourage parties to engage. On the other, compelling ADR when it is inappropriate is often counterproductive as it increases cost and delay. One approach proposed in the report is the British Columbia ("BC") quasi-mandatory "Notice to Mediate" procedure. Originally developed in 1998 to deal with personal injury actions, the procedure has been extended to a range of other actions raised in the BC courts. Read the full article by Claire Brennan of Shepphard and Wedderburn LLP.

Canadians Could Now be Charged with Drunk Driving –
Even if not Drunk, Lawyers Warn
Canadians could now face criminal charges for driving with illegal amounts of alcohol in their system, even if they were stone cold sober while behind the wheel, under tough new impaired driving laws passed by Parliament, according to criminal defence lawyers. Bill C-46, which came into effect last month, gives police wide-ranging new powers to demand sobriety tests from drivers, boaters and even canoeists. Police no longer need to have any reasonable grounds to suspect you're impaired, or driving with a blood alcohol concentration (BAC) of more than .08, which is 80 milligrams of alcohol in 100 millilitres of blood, before demanding you submit to testing. Refusing the test can result in a criminal charge. But while the government says that's not the intent of the law, even drinking within two hours after you've stopped driving or boating could now get you arrested, if your BAC rises over .08. Read the full article by John Lancaster on the CBC News website.

"Standard of Perfection" Not Needed for
Victims of Hit and Run Collisions
Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identity of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act. In [this] case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact. The Plaintiff's wife was in a separate vehicle nearby but did not notice the collision. The Plaintiff drove away from the scene and did not find any other witnesses. The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act. ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist. Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances. In addressing the required standard for victims of hit and run collisions the Court noted as follows: Read the full article by Erik Magraken on the BC Injury and ICBC Claims Blog.

CVSE Bulletins & Notices
The following notices have been posted in January by CVSE:

• CVSE1052 – District Authorizations & Notifications for Very Large Loads (October 2017)
  – List of Contacts for Use with Form CVSE1052 (January 4, 2019)
  – Information for Authorities Signing the CVSE1052

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

TSB Report Cites Fatigue in BC Tug Incident,
Says Mate Asleep while on Watch
A tugboat accident has the Transportation Safety Board repeating its calls for heightened awareness about the dangers of crew fatigue while at sea. There were no injuries or pollution spills when the lone mate on watch duty fell asleep as the Ocean Monarch touched bottom while on auto pilot in Princess Royal Channel in British Columbia, but it could have been deadly, the board's senior marine investigator, Glenn Budden, said Thursday [January 10th]. "We're talking very remote country," he said. "It could have been much, much worse. We could have had three fatalities on our hands." The Ocean Monarch was towing a barge filled with cement when the July 2017 accident occurred south of Kitimat. The tug's master and deck hand were asleep below deck and the vessel's navigational alarms were off, the board's report says. It concludes the mate likely fell asleep as a result of acute fatigue from previous night shifts, chronic sleep disruptions and the monotonous workload in the wheel house. "You basically are impaired," said Budden. "Your reaction time is slower. Your cognitive thinking is not what it should be." Read the full article by Dirk Meissner of The Canadian Press.

Housekeeping Amendments to the
Prevention Manual (OHS Policies)
The Workers Compensation Act (Act) is being reviewed by British Columbia's Office of the Legislative Counsel as part of a standard statute revision process. Changes made pursuant to the Statute Revision Act will result in editorial changes to language, as well as renumbering of sections, parts, and divisions of the Act. At issue is the consequential revisions required for the policies in the Prevention Manual, to ensure they continue to reflect the legislation. These changes would all be housekeeping in nature, meaning there is no change in the substance of the applicable law or policy. Read the full WorkSafeBC news release. 

Proposed Revisions to the
Workers Compensation Act
The BC government has proposed changes to the language and numbering of the Workers Compensation Act. Proposed changes are intended to make the Act easier to read and understand. The proposed changes include a reorganization of the Act's components, some new wording in various sections, and deletion of provisions that have been repealed or are no-longer needed. The current Act has four parts with multiple divisions, sections, and subsections. To improve clarity, the proposed changes would rearrange the Act into eight parts. Complex provisions would be split up into individual components, creating more sections and subsections. In some sections, the government has proposed minor wording revisions expected to modernize the language and help with clarity. Read the full article by Lori Guiton in the November/December edition of WorkSafe magazine.

Proposed Merits and Justice Policy Amendments
In January 2018, WorkSafeBC's Board of Directors commissioned an external compensation policy review. The resulting report, entitled Restoring the Balance: A Worker-Centred Approach to Workers' Compensation Policy, was published in April 2018 and contains a number of recommendations. Recommendation #1 is for WorkSafeBC to consider amending policy item #2.20, Application to the Act and Policies, in the Rehabilitation Services & Claims Manual, Volume II, to explicitly incorporate the requirement "the Board must make its decision based on the merits and justice of the case," as required by section 99(2) of the Workers Compensation Act. Read the full WorkSafeBC news release. 

BCLI Recommends New Legislation to
Improve Strata Governance
The British Columbia Law Institute's Strata Property Law Project Committee is calling for reforms to the Strata Property Act, the Strata Property Regulation, and the Schedule of Standard Bylaws to enhance the governance of strata corporations. The Report on Governance Issues for Stratas is the third report published in the project. It represents over two years of work by the Strata Property Law (Phase Two) Project Committee at 23 committee meetings and consideration of 290 responses to the Consultation Paper on Governance Issues for Stratas. The report examines five topics relating to strata-corporation governance: (1) bylaws and rules; (2) statutory definitions; (3) general meetings and strata-council meetings; (4) finances; and (5) notices and communications. Read the full article by By Kevin Zakreski with BCLI. 

Vancouver Home Sales Fall nearly 40 Per Cent in
January, as Prices Pull Back
Vancouver's once red-hot housing market continued to cool last month as the number of home sales fell to the lowest level seen in January in 10 years. The Real Estate Board of Greater Vancouver says 1,103 homes were sold in Metro Vancouver last month, down 39.3 per cent from the same month a year earlier. Month-over-month, January home sales were up 2.9 per cent versus December 2018. The board says last month's home sales were 36.3-per-cent below the 10-year sales average for January, and the lowest January sales figure recorded since 2009. The composite benchmark price for a property, which includes detached properties, town homes and condos, dropped 4.5 per cent from a year ago to $1,019,600. Read The Vancouver Sun article. 

Wills and Estates News:

Interest on Legacies
In British Columbia, if a legacy is not paid within one-year of the will-maker's death, the beneficiary is entitled to interest at a rate of 5% per year from the first anniversary of the date of death. This rule applies unless the will provides that no interest is payable or provides for a different rate. In my experience, most will-makers do not address this issue in their wills. The first year is sometimes referred to as the "executor's year." The notion is that an estate will be administered in about one year, but in practice estates often take longer to administer. The time is likely to be drawn-out much longer if there is litigation. This rule was considered and explained in an Ontario case, Rivard v. Morris, 2018 ONCA 181. Alexander Rivard died on October 24, 2013. In his last will, he left legacies of $530,000 to each of his two daughters and his farm land to his son. His daughters unsuccessfully challenged the will. As a result of the dispute, the two daughters did not receive their legacies until October 24, 2016. They sought interest on the legacies but the Ontario Superior Court denied interest, reasoning that it was the daughter's actions in challenging the will that caused the delay. Read the full article by Stanley Rule of Sabey Rule LLP. 

Rest Assured, a Will is not a Trust
The past few months have been quite dramatic for estate lawyers; both on the drafting and litigation end. As many of our readers know, Justice Dunphy stirred the pot in the estate world with his decision in Milne Estate (Re). To recap, in the Milne decision, a husband and wife died on the same day. They each left mirror primary and secondary wills. Each of the primary and secondary wills contained the following, typical "basket clause":

Primary Will: all property owned by me at the time of my death EXCEPT…. [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for a transfer or realization thereof.

Secondary Will: all property owned by me at the time of my death INCLUDING … [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.

The estate trustees applied for probate for the primary wills. Justice Dunphy refused to grant probate, finding multiple wills that use the typical "basket clause" above invalid. His Honour's reasoning was that a will is a trust and must therefore meet the three requisite certainties of a valid trust (i.e. certainty of intention, subject matter, and object). Justice Dunphy held that the three certainties must be satisfied at the time the trust was created (i.e. at the time the testator died). Read the full article by Anna Alizadeh published by All About Estates.