Company and Finance News:

Federal Government Releases Draft 
"Underused Housing Tax" Legislation
The federal government provided its 2021 Economic and Fiscal Update on December 14, 2021. Amidst numerous new legislative measures introduced was the newly-proposed underused housing tax (the "UHT"). Draft legislation, in the form of a new Underused Housing Tax Act (the "UHTA"), was released after a consultation process that occurred in August and September 2021. Each follows a brief backgrounder provided in the 2021 Federal Budget. The UHT forms a part of the federal government's stated efforts to counter speculative transactions and undesired vacancy in Canadian residential real estate. Certain provinces and municipalities have implemented legislative measures aimed at curtailing real estate speculation and vacancy over the past six years. However, the UHTA is the first federal statute aimed at vacant homes and foreign owners. The following is an overview of the draft UHTA and a comparison to similar existing provincial and municipal measures. Read the full article by Zheting Su with Thorsteinssons LLP.

A Relief But Not a Reprieve: The CRA Postpones the
New Federal Trust Reporting Rules
On January 14, 2022, the Canada Revenue Agency (the "CRA") announced the postponement of the new federal trust reporting regime that was set to come into effect for the taxation year ending on December 30, 2021. This news likely comes as a relief to many trustees who were grappling with the onerous new filing and disclosure requirements ahead of the upcoming T3 filing deadline for trusts with a December 2021 year-end. With this announcement, trustees can now safely file their 2021 T3 tax returns in accordance with the current rules and without any additional reporting obligations. However, this deferral should not be taken as a warrant to become complacent.  Read the full article by Michael Scott, TEP and Jessica Dorfmann of Clark Wilson.

Amendments to the Societies Act
[For your convenience, Quickscribe has published a red text early consolidation of the Societies Act as it will read when Bill 19 comes into force.]

On October 28, 2021, Bill 19 – 2021: Societies Amendment Act, 2021 ("Bill 19") received royal assent in British Columbia, introducing amendments to the Societies Act (British Columbia) (the "Act"). This post outlines some of the notable changes. As at the date of this post, many of the amendments are not yet in force and will come into effect by regulation. The government of British Columbia has indicated that it will provide a notice period for upcoming changes. Bill 19 introduces the following changes in respect of a society's directors or senior managers: Read the full article by Shannon Tseng and Paul Jon of Alexander Holburn Beaudin + Lang LLP.

How Long Is Too Long? BC Court of Appeal Interprets the 
Meaning of "Commercially Reasonable Best Efforts" in
Obtaining Regulatory Approval
Contracts of purchase and sale for land are often conditional on obtaining regulatory approval. Such contracts will often include language requiring a party to use "best efforts" or "reasonable commercial efforts" to obtain the required approvals. Courts will apply different standards when assessing a party's efforts, depending on the specific language used in the contract. Parties, and their counsel, therefore, ought to carefully consider the contractual language they choose to describe such obligations. The need for careful drafting and prompt performance was recently highlighted by the BC Court of Appeal in Sutter Hill Management Corporation v. Mpire Capital Corporation. At issue was the interpretation of a purchaser's contractual obligation to use "commercially reasonable best efforts" to obtain regulatory approvals "as soon as possible". The Court found that, in the context, the purchaser had breached that obligation as a result of a delay of a matter of weeks, attributable to the purchaser's counsel. Read the full article by Kate Macdonald and Luke Morassut with McCarthy Tétrault.

New Amendments to Auditor Oversight
Rules Require Access to Audit Working
Papers of Component Auditors
Changes to National Instrument 52-108 Auditor Oversight and its Companion Policy (the Amendments) require auditors that perform a significant portion of a reporting issuer's audit work to provide the Canadian Public Accountability Board access to audit working papers, particularly in foreign jurisdictions.

• The Amendments introduce the concept of the "significant component auditor", which is a component auditor that meets certain specified significance thresholds (as outlined below).
• A reporting issuer will be required to give notice in writing to a significant component auditor permitting the provision of access to the Canadian Public Accountability Board (CPAB) to its audit work if requested by CPAB.
• A reporting issuer will also be required to give notice in writing to a significant component auditor providing permission to enter into an agreement with CPAB governing access to its audit work (a CPAB access agreement) if this access is not voluntarily provided to CPAB upon its request.

Read the full article published by Stikeman Elliott LLP.

New BC Rules for Contaminated Sites May
Significantly Impact Businesses
On February 1, 2021, amendments to British Columbia's Environmental Management Act and Contaminated Sites Regulation [came] into force, changing the process for identifying contaminated sites in B.C. The changes will capture more contaminated sites and will impose more requirements on those who own or operate on contaminated land, including an automatic site investigation and reporting requirement. In this bulletin, we highlight the more significant changes and flag upcoming additional changes to the soil relocation regime that are expected later this year. Read the full bulletin by Tony Crossman, Paulina Adamson and David Hillier, Articling Student of Blakes.

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

• 51-107 – CSA Notice and Request for Comment Proposed National Instrument 51-107 Disclosure of Climate-related Matters
• 81-101 – Adoption of Amendments Reducing Regulatory Burden for Investment Fund Issuers – Phase 2, Stage 1
• 52-108 – CSA Notice of Publication Amendments to National Instrument 52-108 Auditor Oversight and Changes to Companion Policy 52-108 Auditor Oversight
• BC Notice 2022/01 – New Email Address for the Commission Hearing Office
• 81-334 – CSA Staff Notice 81-334 ESG-Related Investment Fund Disclosure
• 81-105 – Multilateral CSA Notice of Amendments to National Instrument 81-105 Mutual Fund Sales Practices and Related Consequential Amendments relating to Prohibition of Deferred Sales Charges for Investment Funds
• 93-101 – CSA Notice and Third Request for Comment: Proposed National Instrument 93-101 Derivatives: Business Conduct – Proposed Companion Policy 93-101 Derivatives: Business Conduct
• 41-101 – CSA Notice and Request for Comment Proposed Amendments to National Instrument 41-101 General Prospectus Requirements, National Instrument 81-101 Mutual Fund Prospectus Disclosure, and Related Proposed Consequential Amendments and Changes and Consultation Paper on a Base Shelf Prospectus Filing Model for Investment Funds in Continuous Distribution
• 94-101 – CSA Notice of Publication – Amendments to NI 94-101 Mandatory Central Counterparty Clearing of Derivatives and Changes to CP 94-101
• 24-318 – Preparing for the Implementation of T+1 Settlement

For more information visit the BC Securities website.

Energy and Mines News:

BC Supreme Court Dismisses Aboriginal Rights-based
Claim Against Private Owner of Historic Dam
In its January 7, 2022 decision in Thomas and Saik'uz First Nation v. Rio Tinto Alcan Inc., the British Columbia Supreme Court (Court) affirmed the plaintiffs' Aboriginal right to fish but denied their claim for relief against the private owner of a hydroelectric dam because it was constructed and operated strictly in accordance with applicable laws and permits. This case will have significant implications for owners and operators of historic infrastructure in Indigenous territory across Canada. Read the full article by By Roy Millen, Sam Adkins and Caolan Lemke with Blake, Cassels & Graydon.

First Nations Staking Claim over Mining in BC
When the Association of Mineral Exploration (AME) annual Roundup conference convenes next week, a good deal of oxygen may get be taken up by what First Nations in BC are demanding: a complete overhaul of mining and minerals acts to give First Nations more regulatory control over mining. The First Nations Energy and Mining Council (FNEMC), backed by the Union of BC Indian Chiefs and BC Assembly of First Nations, issued a report Thursday [January 27] with 25 recommendations that, if implemented, would require a complete overhaul of BC Mines and Mineral Tenure Act to conform to the United Nations Declaration on the Rights of Indigenous People (UNDRIP) and BC's own enabling act, the Declaration on the Rights of Indigenous Peoples Act (DRIPA). Read the BIV article. 

Skagit Park "Donut Hole" to be Closed
The BC government has reached an agreement with Imperial Metals (TSX:III) not to exercise its mineral exploration rights in an area between two provincial parks, commonly known as the Skagit "donut hole." The hole is an exclusion zone between Skagit and Manning Parks, where both logging and mineral exploration were permitted. It was left out of Class A park designation when the Skagit Valley recreation area was declared a provincial park in 1996. Skagit Valley Provincial Park merges with E.C. Manning Provincial Park, except in the donut hole area. In 2019, the Wilderness Committee raised concerns about logging in the area by BC Timber Sales, and mineral claims held by Imperial Metals. The Silverdaisy and Skagit watersheds are important habitat for salmon. Read the BIV article.

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

• INDB 2022-01 – Date Change for Methane Leak Detection and Repair Submissions
• INDB 2022-02 – Montney Well Fluid Analyses Available
• INDB 2022-03 – Lanching New Complaince Management Information System
• IB 2022-01 – Results of the Commission's 2021 Aerial Leak Detection Survey

Visit the BCOGC website to view this and other bulletins.

Family and Children News:

BC Judge Declines to Order COVID Travel
Restrictions in Family Law Case
Despite a spike in COVID-19 cases arising from the spread of the Omicron variant, a B.C. judge has declined to place restrictions on a mother planning to travel with her son to Jamaica. The mother, who is not identified in a provincial court ruling, wants to take her son with her for a trip to an all-inclusive resort in Montego Bay in the Caribbean country so that the family can gather with her father, who is gravely ill. She told the court that it was important for her son to spend time with his grandfather, siblings and extended family, and said that she would take all the necessary precautions to address any COVID issues. Read the Vancouver Sun article.

Upcoming Changes to SC Family/Civil Rules – April 4
On April 4, 2022, a number of amendments to the Supreme Court Civil Rules, B.C. Reg. 168/2009, and Supreme Court Family Rules, B.C. Reg. 160/2009, will come into force. For a summary of these important changes, please refer to news article published in the Quickscribe Latest News section, located on the Home Page.

Recent BC Court Decisions Highlight Benefits of
Resolving Parenting Disputes Out of Court
What happens if two parents or guardians, now separated, share decision-making authority over their child but cannot agree on what is the best decision for the child? In situations where guardians reach an impasse, many believe that their only remedy to these issues is through the courts. While the courts can step in as needed, it is important to note that resolving family issues through the courts should be the last resort and that there are better options available to families navigating conflict. Read the full article by Chantal M. Cattermole, Caroline Camp with Clark Wilson LLP.

Visit the Environmental Appeal Board website for more information.

Health Canada Finally Restores
Access to Psychedelics
After much anticipation in the industry, the regulatory amendments restoring access to restricted drugs under Health Canada's Special Access Program (the "SAP") finally came into force. The Regulations Amending Certain Regulations Relating to Restricted Drugs (the "Amendments") were published on January 5, 2022 and came into force on the same day, generating much excitement in the healthcare space. Read the full article by Jean-Raphael Champagne (Partner) and Sirena Reslan Ramadan (Summer Student) with Fasken Martineau DuMoulin LLP.

B.C. Supreme Court Declines to Strike Province's  
Class Action Claims to Recover Healthcare Costs 
and Damages Related to Opioid Epidemic
In August 2018, the Province of British Columbia (Province) commenced a class action on behalf of itself and other provincial and federal governments against approximately 50 pharmaceutical manufacturers, wholesalers, and distributors of opioid-related products (defendants). Through a variety of statutory and common law causes of action, the Province seeks to recover healthcare costs and damages since 1996 that resulted from the opioid epidemic – which the Province alleges was created by the defendants' wrongful conduct in their manufacture, marketing, distribution, or sale of opioid-related products in Canada. On January 4, 2022, the British Columbia Supreme Court (Court) in British Columbia v Apotex Inc, 2022 BCSC 1 dismissed the defendants' various motions to strike the Province's claims (with some exceptions). The Court also granted the Province's motion to further amend its pleadings (which generally sought to clarify or provide further particulars to its existing claims, add the new claim of public nuisance, and add several new defendants). Read the full article by Jie Fei (Christina) Pan With Smart & Biggar LLP.

BCCDC Changes Guidance of Self-isolation and
Managing COVID-19
The agency made sweeping changes to its COVID-19 guidance this week. The BC Centre of Disease Control (BCCDC) is clarifying new guidance on its website regarding self-isolation recommendations and how to manage COVID-19 illness after its amendments created widespread confusion. On Wednesday (Jan. 19), the BCCDC quietly updated its advice on close contacts and self-isolation recommendations regarding vaccinated and unvaccinated individuals. Read the Business in Vancouver article.

Local Government News:

• a new requirement for local governments to consider developing or updating codes of conduct,
• the enabling of local governments to determine specific notice methods for public notice requirements, and
• streamlining the development approvals process.

BC Launches Watershed Security  
Strategy Engagement
The BC Government launched engagement on a new provincial Watershed Security Strategy and Fund on January 25, and has prepared a discussion paper to provide background information and enable input on a broad range of watershed security related themes. The themes include watershed governance, data and science, reconciliation, drinking water, land use planning, supply and demand, and funding. Read the UBCM article.

Miscellaneous News:

Upcoming Changes to SC Family/Civil Rules – April 4
On April 4, 2022, a number of amendments to the Supreme Court Civil Rules, B.C. Reg. 168/2009, and Supreme Court Family Rules, B.C. Reg. 160/2009, will come into force. For a summary of these important changes, please refer to news article published in the Quickscribe Latest News section, located on the Home Page.

Changes to BC's Public Sector Privacy Legislation
In November 2021, the Government of British Columbia enacted Bill 22 to make significant changes to the Freedom of Information and Protection of Privacy Act, which governs how public bodies in British Columbia collect, use, disclose and retain personal information. Some changes present new opportunities, while other changes impose new obligations and potential liabilities. Public bodies and their service providers should take steps for compliance with the legislative changes. Read the full article by Bradley Freedman, Allison Foord, Katherine M. Stanger, Danielle Windt with Borden Ladner Gervais S.E.N.C.R.L., S.R.L. 

BC Court Dismisses Class-action Lawsuit against
Facebook over Data Collection
A class-action lawsuit against Facebook by two Canadians who claim the social media giant scraped Messenger data has been dismissed by BC Supreme Court. In dismissing the class-action application, Justice Ronald Skolrood said in his Jan. 27 decision the fatal flaw in the plaintiff's case was "the absence of any evidence to indicate that Facebook used, or misused, the plaintiffs' information for its own benefit." Read the BIV article. 

Port of Vancouver Delays Start of Program to
Eliminate Older Trucks from Drayage Fleet
A controversial Port of Vancouver program to remove older, more polluting trucks from its drayage operations has been postponed beyond its original Feb. 1 start date, but proponents are confident the delay will be minor. The Rolling Truck Age Program, a part of the port's updated licensing system for trucks operating there, originally called for trucks whose model years are 10 years old or older to be phased out starting Feb. 1. The goal was to have only trucks from model year 2012 onward at the port by June 1 (with some exceptions). Read the BIV article. 

Passenger Transportation Board Bulletins
The following updates were recently published by the BC Transportation Board:

Industry Updates & Advisories

• Board directs Registrar to commence review of Taxi and TNS licensees
  On January 14, 2022 the Passenger Transportations Board sent a direction notice to the Registrar of Passenger Transportation to immediately commence a review on the status of all existing transportation network services (TNS) approved licensees and those taxi companies that were part of the COVID-19 deferral program.
• Deadline Extended to Activate Additional Taxis
  In light of the ongoing impact of the COVID-19 pandemic, the Board is further extending the deadline to activate additional taxis until May 12, 2022. This extension applies to Taxi Modernization vehicles or additional vehicle decisions made by the Board after March 2020 and the vehicles were not activated due to COVID-19. The Board previously issued advisories granting extensions until August 2021 and February 2022.

Applications Received

• 13974-21 – Transfer of Licence: PDVA (Taxi)
• 13854-21 – Green Coast Ventures Inc. (Whistle!)
• 13913-21 – Transfer to Bluebird Cabs, Ltd. from Akouri, Therese Hayek
• 13773-21 – Transfer to Bluebird Cabs, Ltd. from Gill, Joginder Singh

Application Decisions

• 7992-19 – Joyage Tours Corporation [Refused]
• 10336-20 TNS – Swiftsure Taxi Co. Ltd., Duncan Taxi Ltd., Comox Taxi Ltd., Oceanside Taxi Ltd. [Refused]
• 11721-21 – Blackcomb Taxi & Limousine Service Ltd. [Refused]
• 13591-21 – REHFELDT, Herbert Ernst (Coast Taxi) [Approved]
• 13590-21 – Rehfeldt, Herbert Ernst [Approved]
• 11605-21 – Top Choice Limousine Services Ltd. [Approved in part]
• 12616-21 TNS – Cloudamart Inc. [Refused]

Visit the PT Board website for more information.

CVSE Bulletins & Notices
The following notice was posted recently by CVSE:

• Notice 01-22 – Oversize and Overweight Restrictions for Hwy 1 Between Hope and Spences Bridge
• Notice 06-21 – Oversize Permit Restrictions for Travel on Hwy 3, Hwy 1 and Hwy 5A
• Commercial Transport Procedures Manual – Commercial Transport Procedures Manual has been updated

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

What Happened?
The worker was employed as a warehouse production worker commencing November 20, 2018. She was also the on-site occupational first aid attendant. On January 4, 2019, one of the owners of the company advised the worker that some of the warehouse staff were not correctly shutting down the machinery, including closing off the nitrogen cylinder safety valves. After this discussion, the worker suspected that her recent symptoms of burning eyes and a sore throat could be due to an exposure to nitrogen gas. On January 8, 2019, the worker reported her concerns to her supervisor and exercised her right to refuse unsafe work due to a potential nitrogen gas leak. She subsequently left the workplace as she felt unsafe.

• Gatherings and Events – January 27, 2022 (PDF, 571KB)​
  • Medical Reporting Form: COVID-19 Vaccine Medical Deferral – January 19, 2022 (PDF, 636KB)
• Workplace Safety – January 20, 2022 (PDF, 383KB)
• School Staff Member Vaccination Status Information Reporting – January 17, 2022 (PDF, 401KB)
• Food and Liquor Serving Premises – January 17, 2022 (PDF, 482KB)
• Regulated and Unregulated Health Professionals SARS-CoV-2 Immunization Order – January 9, 2022 (PDF, 467KB)
• Emergency Medical Assistants SARS-CoV-2 Immunization Order – January 9, 2022 (PDF, 295KB)
• Medical Reporting Form: COVID-19 Vaccine Medical Deferral – January 19, 2022 (PDF, 636KB)
• Medical Reporting Form: COVID-19 Vaccine Medical Deferral – January 19, 2022 (PDF, 636KB)
• Food and Workplace Safety – January 20, 2022 (PDF, 383KB)

Guidance:

• Indoor Exercise, Fitness, & Dance Class Facility COVID-19 Guidance – January 27, 2022 (PDF, 370KB)
• Guidance for Courthouse Users During the COVID-19 Pandemic – January 14, 2022 (PDF, 384KB)

OHS Policies/Guidelines – Updates
WorkSafeBC recently issued the following OHS Updates:

WorkSafeBC's Board of Directors ordered the deletion of the the following policy items to reflect amendments to the Occupational Health and Safety Regulation. These deletions are effective February 1, 2022.

• R16.25-1 Operation and Maintenance (Fuel Tank Filler and Vent Outlet Locations) [deleted]
• R16.33-1 Protective Structures (Hydraulic Excavators) [deleted]
• R16.34-1 Rollover Protective Structures (Pipe Layers) [deleted]
• R16.36-1 ROPS Certification (Sweep Arms) [deleted]

Guidelines – Workers Compensation Act:

Published on January 1, 2022

The following guideline has CPI adjustments effective January 1, 2022, as well as an editorial revision to align with amendments to the OHS Regulation:

• G-P2-94-1 OHS citations

Published on January 17, 2022

Editorial revisions were made to the following guidelines.

• Part 3 - Rights and Responsibilities
• G3.16 First aid assessment

• Part 7, Division 2 - Vibration Exposure
• G7.11-2 Exposure limits - Whole-body vibration
• G7.13 Exposure control plan

The following policies were updated to reflect CPI adjustments, effective January 1, 2022:

• P2-94-1 - OHS Citations
• P2-95-4 - Non-Exclusive Ways to Impose Financial Penalties
• P2-95-5 - OHS Penalty Amounts
• P5-251-1 - Claims Costs Levies

BC Government Provides Guidance on
LOTA Interpretation
The BC Government ("Government") recently provided updated guidance for interpreting the Land Owner Transparency Act, SBC 2019, c. 23 ("Act"), which came into force on November 30, 2020. Under the Act, any person or entity that will acquire an "interest in land" will need to make a disclosure filing called a transparency declaration, identifying whether the registered owner of the interest in land is a "reporting body". If the registered owner is a reporting body, it will be required to file a transparency report in addition to the transparency declaration, which will include certain information about the registered owner and the "interest holders," which are the individuals that are the indirect or beneficial owners of the interest in land. Alternatively, any person or entity that is a "reporting body" and already owns an "interest in land" will only need to file a transparency report disclosing the applicable interest holder information by November 30, 2022. For more information, see our article on the Act coming into force or our article on the public Land Owner Transparency Registry. Read the article by Matthew Singerman, Dani Marshall, Juan Pablo Mendez Campos and Kim Brown with Clark Wilson LLP Clark Wilson.

What Happens When a Party to a Contract 
Involving Real Estate Dies?
What happens when an individual buyer or seller dies prior to the completion of a transaction involving real estate? This blog post discusses the complications that can arise in real estate transactions where there is a piece of land under contract and the individual seller or buyer dies prior to the completion of the transaction. At common law, a contract may be discharged or set aside on the ground of frustration where an unforeseen event renders the contract physically or commercially impossible to fulfill. Courts have considered whether the death of a party to a contract for a real estate transaction amounts to frustration of the contract, but have held that the contract will only be frustrated if there is some personal aspect of the deceased that was central to the contract. In a 1996 case called Butterfield v Todd Estate, the deceased had entered into an agreement with the plaintiff to jointly purchase a property and share the mortgage and maintenance payments. Read the full article by Jisoo Vis, Meaghan Partridge, Peter J. Roberts, QC with Lawson Lundell LLP.

Can't Have Your Cake and Eat It Too: The Importance of
Following Your Construction Contract Terms
It is all too often during a construction project that issues will arise with respect to delays or extras. Conwest Contracting Ltd. v. Crown and Mountain Creations Ltd., 2021 BCSC 2116, ("Conwest") affirms the importance of developers and contractors following their contracts to the letter in navigating these issues. If parties do not strictly follow the terms of the contract and disputes arise, courts may rely on party conduct as an interpretive guide – including pre-contract conduct that a party may not have fully considered when signing the contract. Read the full article by Denny Chung and Buck Hughes with Clark Wilson LLP.

Wills and Estates News:

Unconscionable Procurement:
Pinsonneault v. Courtney
The doctrine of unconscionable procurement is a helpful tool in challenging gratuitous transfers if the person benefiting has been actively involved in procuring property from the transferor. When it applies, the person who receives the benefit has the burden of demonstrating that the transferor had a sufficient level of understanding of the nature and effect of the transfer for it to be upheld. To succeed in a claim of unconscionable procurement, it is not necessary to show that the transferor did not have the mental capacity to make the transfer, or that she was subject to undue influence. This doctrine is not new, but many of the cases are older, and the concept appears to be enjoying a renaissance in Canada. Read the full article by Stan Rule with Sabey Rule LLP.

Court Clarifies Costs of Estate Litigation in
Complex Family Dispute
This Vancouver estate litigation between siblings over their father's estate – and the costs of the estate litigation itself – lasted nearly a decade. The BC Court of Appeal's ruling in in Hollander v. Mooney, 2017 BCCA 238, leave to appeal ref'd [2017] S.C.C.A. No. 356 clarified important principles for awarding costs in estate litigation. Litigation in the Hollander matter began in 2009 as a dispute among three siblings about a committeeship application concerning the estate planning of their father, Eldon Mooney. In 2008, Eldon executed a will and documents that resulted in most of his property being transferred into joint tenancy to himself and his two younger children, Gina and Mark. Read the full article by Onyx Law Group.