Company and Finance News:

COVID-19 Tax Update: CRA to Commence Audits of CEWS, CERB, and
CESB Payments to Detect Non-compliance and Fraud
The CRA is expected to soon commence audit activities to review payments made pursuant to three of Canada's COVID-19 relief programs: the Canada Emergency Wage Subsidy ("CEWS"), the Canada Emergency Response Benefit ("CERB"), and the Canada Emergency Student Benefit ("CESB"). The CRA's National Business Resumption Plan ("NBRP") indicates that the CRA planned to launch a CEWS "post payment compliance project" on a date to be determined. The National Post recently reported that the CRA confirmed it will launch a small-scale audit pilot project by the end of the summer. Through this pilot project, the CRA says it intends to audit payments made to a "statistically valid" sample of corporate CEWS recipients to determine the extent of non-compliance with the program's eligibility criteria. The CRA will then use the information gathered to better allocate resources when it launches a larger-scale audit project in the fall. The CRA did not specify how many audits it will conduct during the pilot project phase or how it will select which corporations will be audited. Read the full article by Jennifer Flood with Thorsteinssons LLP. 

New ATM Rules Come Into Force
Amendments to the "at-the-market" distribution (ATM) regime come into force on August 31, 2020 and will ease the ATM offering process for reporting issuers in Canada. As previously discussed, a significant liberalization of the ATM regime was announced by the Canadian Securities Administrators (CSA) on June 4, 2020 and will come into force on August 31, 2020. By way of amendments to National Instrument 44-102 Shelf Distributions (NI 44-102), reporting issuers will no longer need to obtain exemptive relief from certain prospectus offering technical requirements (delivery obligations, withdrawal and rescission rights and forms of certificates) in order to undertake an ATM. Read the full article published by Stikeman Elliott LLP. 

BC Securities – Policies & Instruments
The following policies and instruments were recently published on the BCSC website:

• 45-106 – CSA Notice of Amendments to National Instrument 45-106 Prospectus Exemptions and National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and Changes to Companion Policy 45-106CP Prospectus Exemptions and Companion Policy 31-103CP Registration Requirements, Exemptions and Ongoing Registrant Obligations relating to Syndicated Mortgages, including local amendments to BC Rule 45-501 Mortgages
• 21-101 – National Instrument 21-101 Marketplace Operation 
• 11-342 – CSA Staff Notice 11-342 Notice of Local Amendments and Changes in Certain Jurisdictions
• 51-102 – CSA Notice of Amendments to National Instrument 51-102 Continuous Disclosure Obligations and Changes to Certain Policies Related to the Business Acquisition Report Requirements
• 31-359 – CSA Staff Notice 31-359 OBSI Joint Regulators Committee Annual Report for 2019
• 44-102 – CSA Adoption of Amendments to National Instrument 44-102 Shelf Distributions and Change to Companion Policy 44-102CP Shelf Distributions relating to At-the-Market Distributions 

For more information visit the BC Securities website.

Energy and Mines News:

Site C Still Scaling up Construction to Meet Important 
Milestone while Project Remains up in the Air 
Site C's $10.7 billion budget is under pressure due to geological issues that require additional shoring up of the dam's foundation. Tractor trucks are continuing their short nighttime trips from Fort St. John to B.C. Hydro's Site C project, delivering penstock sections for the dam powerhouse as contractors scramble to make up for lost time. Those deliveries are complicated and time-consuming journeys to navigate gigantic, 10-metre-diameter sections of steel tubes to the work site, and were on the list of tasks put on hold during a COVID-19 related slowdown of construction. Read the Vancouver Sun article. 

BC Delays Carbon Tax Increase to
Help with COVID-19 Recovery
The BC government is hitting pause on a scheduled increase in the carbon tax, as residents and businesses continue to struggle financially because of the COVID-19 pandemic. The province announced Wednesday [September 2] that it has officially pushed back the next jump in price to April 2021, a full year after the change was supposed to happen. Until then, the carbon tax rate will remain at $40 per tonne of carbon dioxide equivalent (tCO2e.) "This change will give businesses and families more time to recover from the COVID-19 pandemic, while still meeting the required federal carbon-pricing backstop rate of $50 per tCO2e by 2022," the finance ministry said in a press release. Read CBC article. 

Recent BCOGC Bulletins
The BCOGC has recently issued the following bulletins:

• INDB 2020-19 – New BC Production Data Now Available
• IB 2020-06 – Geothermal Application Process Streamlined
• IB 2020-07 – Reminder of Methane Leak Detection and Repair Requirements
• INDB 2020-20 – Oil and Gas Road Regulation Amended
• INDB 2020-21 – Fiscal 2020/2021 Orphan Site Restoration
• IB 2020-08 – Dam Emergency Response Plan Composition and Submission
• INDB 2020-22 – Process Change for Proposed Activities Located within Established s. 16/17 Land Act Dispositions
• INDB 2020-23 – Updates to Hydraulic Fracture Data Submission

Visit the BCOGC website to view these and other bulletins.

Family and Children News:

Family Law Arbitration
On September 1, the new Arbitration Act came into force, introducing a new division to the Family Law Act that allows family law arbitration to now be governed separately under the Family Law Act. The transfer of the provisions from the Arbitration Act acknowledges the important differences inherent in family law arbitration from civil litigation and commercial arbitration, while maintaining the underlying policy of family law arbitration practice.

Newly Completed Amalgamations Reduce Number of
BC's Health Regulatory Colleges from 21 to 19
British Columbia now has 19 health regulatory colleges following two amalgamations completed this week. On August 31, 2020, the College of Physicians and Surgeons of British Columbia amalgamated with the College of Podiatric Surgeons of British Columbia. The amalgamated colleges will continue under the name: College of Physicians and Surgeons of British Columbia (CPSBC). September 1, 2020 marked the establishment of the BC College of Nurses and Midwives (BCCNM), created by amalgamating the BC College of Nursing Professionals and the BC College of Midwives. BCCNM is now Canada's first nurse and midwife regulator and western Canada's largest health professional regulator. Read the full article published on the BC Health Regulators website. 

Four Late-stage Cancer Patients Granted Legal Exemption to
Use Magic Mushrooms for Therapy
Federal Minister of Health Patty Hajdu has approved the application by four terminal Canadian cancer patients to use psilocybin, commonly known as magic mushrooms or shrooms, for their end-of-life therapy. The patients' application invoked s. 56 (1) of the Controlled Drugs and Substances Act, SC 1996, c 19, which gives the federal health minister the power to grant an exemption from any provision of the legislation upon the belief that the exemption is needed for a medical or scientific purpose or is in the public interest. Read the full article by Bernise Carolino, published in the Canadian Lawyer Magazine. 

Success with MAID
CBA Advocacy scored a win on the subject of medical assistance in dying with the help of the Quebec Superior Court. In September 2019, the court ruled in Truchon that the criteria of "reasonably foreseeable death" contained in the federal MAID legislation, as well as "end of life" in the Quebec legislation, was unconstitutional. The Quebec Superior Court said the federal legislation violated sections 7 and 15 of the Charter, while the provincial legislation violated section 15. The court initially gave both levels of government six months to amend their respective legislation – this grace period has since been extended to December 2020. The CBA's End of Life Working Group has long advocated for the MAID legislative framework to be consistent with the principles established by the Supreme Court in Carter. The restriction around "reasonably foreseeable death" was incompatible with that framework. In October 2019, the CBA and CBA Quebec Branch joined forces to pursue a common position. The CBA End of Life Working Group wrote to the federal Justice Department while CBA-Quebec wrote to Quebec's Deputy Justice Minister to express support for the Quebec Superior Court decision and to urge the federal and provincial governments to work together. Read the full article by Kim Covert, published in the CBA National Magazine. 

E-Health (Personal Health Information Access and Protection of Privacy) Act

Pharmaceutical Services Act

Local Government News:

Ministerial Order 314 & Order in Council 485
Sole Sourcing Acceptable?
On August 20 and 21, 2020, the Province made the following orders:

• Ministerial Order M314: M314 referentially incorporates the earlier Gathering And Events Order of the provincial health officer ("PHO Order"). It also creates new offences related to gatherings.
• Order in Council No. 485: This amends the COVID-19 Related Measures Act to incorporate M314, which allow for penalties for breaches of the PHO Order, and it amends the Violation Ticket Administration and Fines Regulation to penalize breaches of the new offences in M314.

These orders give police officers powers to enforce the PHO Order by incorporating the PHO Order into the COVID-19 Related Measures Act. Police officers can now issue $2,000 fines for breaches of the PHO Order and $200 fines for breaches of M314. Read the full bulletin issued by the law firm Lidstone & Company. 

Supreme Court of Canada Greenlights Appeal of
Municipal Snow Clearing Case
On August 20, 2020, the Supreme Court of Canada granted leave to hear a future appeal in the matter of Marchi v. City of Nelson. This case arose from an incident in Nelson, BC in January 2015. The City was experiencing a heavy snowfall and on the early morning of January 5 sent out City crews to plow the main downtown area. The plowing created snowbanks along the curb and onto the sidewalk of the streets. On January 6, 2015, Ms. Marchi parked her car along Baker Street in downtown Nelson and attempted to make her way to the sidewalk. Seeing no other convenient way of getting to the sidewalk, she attempted to walk over the snowbank left by the City's work crews, which was approximately 2' high, 2-3' wide, and appeared to run the length of the block. As Ms. Marchi attempted to cross the snowbank, her right foot sunk deep into the snow and she suffered a serious injury to her leg. Ms. Marchi sued the City, alleging it was negligent in leaving the snowbanks along the road without spaces for pedestrians to cross from their car onto the sidewalk. Read the full article by Andrew Buckley with the law firm Stewart McDannold Stuart. 

Exceptional Risk Requirement for Foul Ball Failure to
Warn: Rivers v. North Vancouver (District)
In Rivers v. North Vancouver (District) et al, 2020 BCSC 1050, the plaintiff's action for personal injuries was summarily dismissed against all defendants, including the various sports leagues and the District of North Vancouver. In dismissing the actions against the sports' leagues, Justice Tammen gave important insight into the definition of "occupier" under the Occupiers Liability Act, RSBC 1996 c.337 (the "Act") and the exceptional risk test that is required in order to impose a duty to warn on an occupier. The plaintiff, a 58 year old man, was watching his 16 year old son's baseball game at Inter River Park in North Vancouver. While focussed on the game, he was unfortunately struck on the head by a foul ball from another nearby baseball diamond and suffered injuries as a result. The plaintiff sued the District of North Vancouver as well as Little League Baseball Canada and the "League Defendants" (including Mount Seymour Little League Association and West Vancouver Little League Society). Read the full article by Romany Benham-Parker with Whitelaw Twining LLP.   

New Funding for Active Transportation Planning
A new Active Transportation Planning program was launched this week. Local governments with populations up to 25,000 can now submit applications. The goal of the program is to support local governments to incorporate or enhance active transportation components of formal planning documents, including research, consultation, and policy development. Read the UBCM article. 

Case Summary: City's Unreasonable Decision to Void a Building Permit on the
Basis that no Construction Activities had Occurred
The petitioner's building permits were declared void by the City of Richmond on the basis that it performed no construction activities for a period of time, as it was required to under the Bylaw pursuant to which the permits were issued. However, the petitioner had undertaken significant excavation, soil densification and preload activities in order to prepare the site for construction of the residence, but no actual building construction had started. The City said these site preparation and preload steps were not construction activities within the meaning of the Bylaw. The court disagreed and quashed the decision. Read the full article by Adam Way with Harper Grey LLP.

Assessment Act

Miscellaneous News:

BC's New Vaping Regulations May Breach Charter Rights:
Canadian Constitution Foundation
The Canadian Constitution Foundation has called attention to the potential constitutional issues arising from the recently announced amendments to BC's vaping regulations. The new vaping legislation, which amends BC's Public Health Act and the Tobacco and Vapour Products Control Regulation, will impose a limit on nicotine concentrations to 20mg/ml for products sold in retail locations, will call for plain packaging for vaping substances, will ban the sale of flavoured vapour products except in age-restricted specialty stores, will restrict advertising in spaces where youth may be present and will require vaping substances for sale to be packaged with a skull-and-crossbones health hazard symbol and a health warning. Read the full article by Bernise Carolino, published in the Canadian Lawyer Magazine. 

Privacy Commissioner Reaffirms Original
Position on Transborder Transfer of Data
Confusion over the legality of outsourcing personal information under the Personal Information Protection and Electronic Documents Act (PIPEDA) has now been clarified in a new report from the Office of the Privacy Commissioner of Canada (OPC). In its wake, organizations across the country are breathing a collective sigh of relief. "It's a great signal that in order to outsource personal information you don’t need individual consent," said Daniel Michaluk, a partner with Borden Ladner Gervais LLP in Toronto. Read the full article by Donalee Moulton published in The Lawyers Daily. 

Provincial Court Operations Back in Full Swing!
In March 2020, the Provincial Court of British Columbia responded to the COVID-19 pandemic by limiting court operations to urgent matters. Since then the Court has gradually expanded its operation while modifying both court procedures and physical spaces to protect the health of court users and reduce the number of people gathering in courthouses. By July 13, 2020, the BC Provincial Court had resumed all types of proceedings and was again accepting new filings. The last four months have been a time of intense activity for the Court. The Chief Judge and the Court's administrative team made hard decisions to reduce court operations. Then they developed and implemented alternate procedures to deal with urgent cases. At the same time, they planned and implemented strategies to not only resume operations safely and manage COVID-related backlog but to create lasting improvements. Read the full article published by the Provincial Court of BC. 

BC's Arbitration Act: New Legislation Aims to Modernize and
Streamline Domestic Arbitration
On September 1, 2020, in a development aimed at modernizing and streamlining the domestic arbitration regime, the Arbitration Act, S.B.C. 2020, c. 2 (the Act) will come into force in British Columbia, repealing and replacing the Arbitration Act, R.S.B.C. 1996, c. 55 (the old act). The Act more closely aligns BC's domestic arbitration legislation with its International Commercial Arbitration Act, R.S.B.C. 1996, c. 233, as well as with the standards contained in the UNCITRAL Model Law on International Commercial Arbitration. In so doing, the Act advances the objective of achieving greater uniformity in modern arbitration laws across Canada. Below, we highlight some of the most significant changes and updates brought about by the Act, including elements that contracting parties and arbitration practitioners should keep in mind going forward. Read the full article by Martin J. Valasek, Alison G. FitzGerald, Cara Dowling and Erica Grant with Norton Rose Fulbright Canada LLP. 

Economic Stabilitzation (COVID-19) Act
Now in Force
On August 14, the Economic Stabilitzation (COVID-19) Act came into force by Royal Assent. The Act aims to provide financial support to people and businesses impacted by COVID-19. Some of the supports include:

• authorizing filing and payment deferrals for employer health tax, provincial sales tax, hotel tax, carbon tax, motor fuel tax and tobacco tax to September 30, 2020;
• postponing the date that late payment penalties apply for certain commercial properties to October 1, 2020;
• allowing municipalities to keep school taxes and the police tax collected for the Province until January 2021;
• requiring municipalities to remit taxes collected for TransLink in July 2020 to ensure its continued operation, as well as allowing other municipalities to continue to make their service payments to BC Transit;
• providing a tax-free, one-time $1,000 payment for BC residents whose ability to work has been affected.

Guide Dog and Service Dog Act

TDG Advisory Update – Effects of Additives in Anhydrous 
Ammonia Nurse Tanks or Delivery Tanks
This safety advisory is for anyone who uses or works with dangerous goods delivery tanks or nurse tanks to transport or spray anhydrous ammonia on farm fields. Anhydrous ammonia may be used as a fertilizer and is classified as a Class 2 dangerous good under the TDG Regulations. Some users add additives to anhydrous ammonia to improve crop yields, which is becoming more common due to the many different additive options now available. Read the full article posted on the Transport Canada website. 

Bill 9 Changes to Expert Reports
and Disbursements
Revolution has come to motor vehicle litigation in British Columbia. The most obvious example of this is the BC government's announcement that effective May 1, 2021, BC's motor vehicle insurance system will change to a "no-fault" model. Consistent with its overall aim of reining in motor vehicle litigation costs, the Province has also introduced legislation – Bill 9 – which limits the number of expert reports parties may rely upon and which also caps the amount of disbursements payable by the unsuccessful litigant in motor vehicle personal injury litigation. Last year, BC's Attorney General announced a change to the BC Supreme Court Rules, Rule 11-8, which limited the number of expert reports litigants could rely upon in personal injury lawsuits arising from a motor vehicle collision. Rule 11-8 was successfully challenged by the plaintiff's personal injury bar. In the decision Crowder v. British Columbia (Attorney General), 2019 BCSC 1824, Rule 11-8 was found unconstitutional because, as BC Supreme Court Chief Justice Christopher Hinkson wrote: Read the full article by Eric Lundberg with Alexander Holburn Beaudin + Lang LLP. 

CVSE Bulletins & Notices
The following bulletins and notices were posted recently by CVSE:

• Circular 03-20 – Non-Resident Single Trip and Quarterly Third Party Liability Changes
• CT Notice 04-20 – Notification of Transportation Permit System (TPS) Down Time

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

Amendments Made to the Workers Compensation Act Impact BC
The Workers Compensation Amendment Act, 2020 ("Bill 23") received Royal Assent on August 14, 2020, bringing its amendments to the Workers Compensation Act, RSBC 2019, c. 1 (the "Act") into force. Bill 23 made 34 changes to the Act. These changes address COVID-19, worker benefits entitlement, regulatory compliance and the collection of unpaid assessments. Effective immediately, Bill 23 fast-tracks WorkSafeBC's July 22, 2020 resolution of its Board of Directors providing a presumption of workplace causation of infections caused by communicable pathogens, including COVID-19, that are subject to:

1. A notice given under section 52(2) of the Public Health Act;
2. A state of emergency declared under section 9(1) of the Emergency Program Act;
3. A state of local emergency declared under section 12(1) of the Emergency Program Act; or
4. An emergency declared under section 173 of the Vancouver Charter.

For the presumption to be applicable, the worker must be working in a process or industry in the geographic area and time subject to the above where there is a risk of exposure to a source or sources of infection significantly greater than that to the public at large. Read the full article by Richard Savage with Fasken Martineau DuMoulin LLP. 

WorkSafe BC Discussion Paper: Consequential Policy Amendments to
Implement the Workers Compensation Amendment Act, 2020 (Bill 23)
The Workers Compensation Amendment Act, 2020 (Bill 23) received Royal Assent on August 14, 2020, immediately bringing into effect 32 legislative changes to the Workers Compensation Act (Act). To implement these changes, WorkSafeBC must amend our policies to reflect the legislation. Two changes to the Act with respect to benefits will come into effect on January 1, 2021. Consultation on these changes will take place in the fourth quarter of 2020. This current consultation is on proposed changes to policy in the Prevention Manual, Rehabilitation Services & Claims Manual, Volume II, and Assessment Manual to ensure our policies are consistent with the amendments to the Act now in effect. For more information, including a link to the discussion paper, visit the WorkSafeBC website. 

New Residential Construction Safety
Guidelines in British Columbia
WorkSafeBC recently announced updates to safety protocols for residential construction work. It released a new publication - entitled Safe Work Practices for Residential Construction - as well as a Notice of Project (NOP) postcard. The aim of these measures is to improve health and safety standards and limit preventable workplace accidents in British Columbia. According to WorkSafeBC, wood-framed constructions pose significant hazards. Over 1,200 work-related injuries and deaths occurred on such projects over the past five years. Therefore, the new publication contains many safety guidelines specific to wood-framed construction. These include safety protocols related to:

• Planning
• Site preparation
• Construction
• Tool and equipment safety
• Working at high elevation

Read the full article by Overholt Law. 

Workplace Safety is a Two-way Street and Can
Warrant Employee Discipline or Discharge
An employee purposely coughing on another would result in cause for termination — and could even lead to criminal charges. September marks the opening of most remaining workplaces as well as schools across this country. With greater social contact comes greater risk of COVID-19 transmission, and the concomitant increased need for employees to follow safety rules. I have been fielding calls from employer clients since the beginning of the pandemic, explaining their obligations to keep employees safe and their corresponding rights to refuse unsafe work. But too little attention has been paid to workers' obligation to keep themselves and their coworkers safe. Read the Financial Post article by Howard Levitt.

OHS Guidelines Revised
Guideline on maintenance and inspection of self-contained breathing apparatus revised to accept an alternative standard. Visit the WorksafeBC site for details. 

Strata Corporations Required to Report Material Changes
in Insurance Coverage to Strata-lot Owners
Earlier this month [August], an amendment to the Strata Property Act came into force, requiring strata corporations to "inform owners and tenants as soon as feasible of any material change in the strata corporation's insurance coverage, including any increase in an insurance deductible." This amendment implements one of the 11 recommendations found in BCLI's Report on Insurance Issues for Stratas. The amendment came into force on 14 August 2020, which was the date on which Bill 14 received royal assent. Read the full article by Kevin Zakreski with BCLI. 

Negotiating Caps for Operating Costs in Commercial Leases
Beginning in the fall of 2019, many strata owners in British Columbia saw their insurance premiums jump between 50% and 700% from the previous year, along with similar increases in their insurance deductibles. Although garnering less attention than the insurance crisis in the residential strata market, commercial landlords and tenants are also seeing significant insurance premium increases. In Greater Vancouver, the vast majority of commercial leases are triple-net, meaning landlords pass the costs of the property's municipal taxes, insurance and maintenance costs through to their tenants, who accordingly assume the risk of such costs increasing. Such costs, together with a variety of other costs, are often called "operating costs" or "common area maintenance costs". The amount of operating costs tend to fluctuate from year to year over a lease's term. Typically, the operating costs are estimated at the beginning of a lease year, resulting in a fixed monthly amount; then, at the end of the lease year, once the amount of actual costs is known, a landlord will reconcile the amount paid by its tenants based on the estimate with the actual amount paid by the landlord. Read the full article by Jack Yong, Timothy H. Law, Desmond Wang with Lawson Lundell LLP. 

Framework Gives Renters until July 2021 to Repay Arrears
Details on the new repayment framework for renters with outstanding rent from April to August 2020 are available on the Residential Tenancy Branch (RTB) website, with the moratorium on evictions for non-payment of rent ending ahead of Sept. 1. As announced on July 16, renters will be expected to pay rent in full on Sept. 1, 2020, as the moratorium on evictions for non-payment of rent will end on Aug. 18. Renters in arrears from rent due during the specified period of March 18 to Aug. 17 will have until at least July 2021 to pay back any rent they owe, with the first repayments not starting until October at the earliest. The rental framework will protect renters by ensuring they cannot be evicted for a missed or late rent payment from March 18 to Aug. 17, unless a renter defaults on their repayment plan. Read the government news release. 

Wills and Estates News:

Separation Revokes a Testamentary Gift to a Spouse, Unless
There Is Good Evidence of a Contrary Intention
Subject to a contrary intention appearing in your will, a gift to your spouse made in your will is automatically revoked upon a separation (Section 56(2) of the Wills, Estates and Succession Act S.B.C. 2009, c. 13 ("WESA")). If you still wish to benefit your ex-spouse in your will (it does happen!), then you should update your will post-separation to make clear that you intend to make a gift to them despite the separation. But what if you are named as a beneficiary in your ex-spouse's will that was made prior to your separation? What if your ex-spouse wasn't aware that a separation revokes a gift to a spouse, your spouse mistakenly believed that the gift to you in their will was still valid, and you have evidence that your spouse wanted to continue to benefit you upon their death despite your separation? Read the full article by James Zaitsoff with Owen Bird Law Corporation and published on the BC Estate Litigation Blog.