COMPANY
& FINANCE |
Company and Finance News:
The Shifting Onus of Proof under Section 171 of the Securities Act Section 171 of the Securities Act (the "Act") is a powerful provision that provides the British Columbia Securities Commission (the "Commission") with the discretion to make an order revoking or varying a decision the Commission or Executive Director has made under the Act – as long as it is not prejudicial to the public interest. In most instances, this means the affected party, or applicant, bears the onus of proving to the Commission that new evidence or a significant change in circumstances exist that warrants a change in decision. However, in light of the Commission's recent expanded powers, applicants have sought to shift the onus of proof to the Commission itself to demonstrate why their decision should continue to be upheld in support of the public interest. Read the full article by Dennis Whincup with Whitelaw Twining LLP.
Canada: Tax Directors Beware – Canadian Downward Transfer Pricing Adjustment Must Be Challenged at the Federal Court, Not the Tax Court The two decisions rendered in the context of the Dow Chemical Canada ULC ("Dow Canada") litigation warrant consideration. Not only are they of interest to tax litigators and academics; the decisions are also of practical importance to tax directors. This is so because a downward transfer pricing adjustment will need to be challenged independently at the Federal Court by way of judicial review, and not at the Tax Court of Canada ("TCC") in the context of a normal tax appeal. Read the full article by Jacques Bernier and Oluwaseun Senbore with with Baker McKenzie LLP.
Amendments To the Canada Business Corporations Act Impact Public Companies
The Canada Business Corporations Act ("CBCA")
was amended effective August 31, 2022 to require shareholders of a
public company governed by such legislation to vote "for" or "against"
directors at annual meetings of shareholders. This is a departure from
the "for" and "withhold" options previously offered to CBCA public
company shareholders. Subject to certain exceptions, the amendments also
contemplate that each director in an uncontested election (i.e., where
the number of director nominees is equal to the number of directors
positions to be filled) must receive more "for" votes than "against"
votes to be elected.Read the full article by Keith Inman of Pushor Mitchell LLP.
British Columbia Conducts Consultation on Restricted Licence Regime for Incidental Sellers of Insurance
British Columbia's Ministry of Finance is conducting a consultation on the adoption of its proposed restricted insurance agent licensing regime for incidental sellers of insurance. The proposal is similar to what is already in place in the other three western provinces (and, soon, in New Brunswick) but BC is signalling that it may consider including additional industries and additional flexibility in its regime. BC businesses that see opportunities in this area should therefore consider submitting comments, which are due on October 3, 2022.
The licensing of restricted insurance agents is provided for in s. 174.1 of BC's Financial Institutions Amendment Act, 2019, which will be proclaimed in force once details of the restricted licence regime have been finalized. Read the full article by
Stuart S. Carruthers and Andrew S. Cunningham with Stikeman Elliott LLP.
Draft Federal Tax Legislation Package Released On August 9, 2022, the Canadian federal government released a package of draft legislation to implement various tax measures, update certain previously released draft legislation, and make certain technical changes (Proposal). The draft legislation includes measures first announced in the 2022 Federal Budget, with updated versions of draft legislation released earlier this year, including the mandatory disclosure rules released in February 2022. The news release that accompanied the Proposal invites Canadians to make submissions with respect to the Proposal by September 30, 2022. The federal government also opened a consultation on potential changes to Canada's General Anti-Avoidance Rule (GAAR), first proposed in the 2020 Fall Economic Statement, and released an accompanying consultation paper. Submissions for the consultation will be accepted until September 30, 2022. Read the full article published by Osler, Hoskin & Harcourt LLP.
Slow, Unprofessional Tactics Not Enough to Revoke Securities Investigation Order: BC Court of Appeal
The British Columbia Court of Appeal has ruled that the onus to prove
that public interest will not be prejudiced by the revocation of an
investigation order issued under the Securities Act lies on the party
pushing for the revocation. In Morabito v. British Columbia (Securities Commission), 2022 BCCA 279,
Mark Morabito was executive chairman of Canada Jetlines Ltd.
(Jetlines), which came into being as a result of a reverse takeover
transaction. Read the full article by Jason Tan on the Canadian Lawyer.
No Abuse of Process in Ban of Securities Officer Involved in Market Manipulation: BC Court of Appeal
A decision to ban a litigant from acting as officer of an
exchange-listed company was made to protect public interest and was not
an abuse of process, the British Columbia Court of Appeal has ruled. In Lower v. Investment Industry Regulatory Organization of Canada, 2022 BCCA 285,
Scott Lower was working as a registered representative in the
securities industry with a Vancouver-based brokerage firm when the
Investment Industry Regulatory Organization of Canada (IIROC) began an
investigation of his alleged involvement in market manipulation and the
payment of secret commissions. At the time of the investigation in 2008,
Lower was subject to the regulatory supervision of IIROC. Read the full article by Angelico Dino on Canadian Lawyer.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
Designated Accommodation Area Tax Regulation (93/2013) |
Aug. 1/22 |
by Reg 47/2022 and Reg 142/2022 |
Judicial Officers (Legal Proceedings) Indemnity Regulation (162/2022) |
Aug. 31/22 |
by Reg 182/2022 |
National Instrument 94-101 Mandatory Central Counterparty Clearing of Derivatives (129/2017) |
Sept. 1/22 |
by Reg 104/2022 |
Provincial Sales Tax Regulation (96/2013) |
Sept. 1/22 |
by Reg 154/2022 |
ENERGY
& MINES |
Energy and Mines News:
Adjusting to BC's Increased Reclamation
Bonding Requirements The BC government is increasing its reclamation bonding requirements from mining operations. On April 8th, 2022, BC published a new interim Major Mines Reclamation Security Policy (the "interim policy"). Among other things, the interim policy seeks to reduce the difference between the mining sector's reclamation liabilities and the reclamation security held by the Province.
Background to the Policy: Recommendations and Examinations in BC's Security Reclamation Practice The interim policy was developed in response to recommendations following a 2016 audit of compliance and enforcement in the BC mining sector. The audit report found that the Ministry of Energy and Mines was not holding enough security ($0.9 billion at the time) to cover the estimated environmental liabilities at major mines ($2.1 billion at the time). The Auditor General recommended that the "…government safeguard taxpayers by ensuring the reclamation liability estimate is accurate and that the security held by government is sufficient to cover potential costs."
Read the full article by Christopher Langdon, Patrick Deutscher and Dave Nikolesjsin with McCarthy Tétrault LLP.
Mining in the Courts – Case Law Summary
In this series of blogs, we will share one of our case law summaries. In Kaban Resources Inc. v. Goldcorp Inc., 2021 BCCA 427,
the British Columbia Court of Appeal confirmed that a mining company had no legal duty to consent to a proposed financing arrangement that
differed materially from the terms of a letter agreement. Goldcorp Inc. (now Newmont Corp.) and two of its subsidiaries (Goldcorp) brought a summary trial application for an order dismissing a
claim by Kaban Resources Inc. (Kaban) alleging breach of contract. The claim arose in the context of a proposed sale of Goldcorp's rights to
the Cerro Blanco gold-silver mine in Guatemala and certain other assets. In February 2016, Goldcorp and Kaban signed a letter agreement
providing that Goldcorp would transfer these rights to Kaban in exchange for a 40% interest in Kaban, a cash payment 12 months after commercial
production, piggyback rights on an initial public offering of Kaban, and other consideration. This agreement was subject to Kaban raising C$35
million in financing. Read the full article by McCarthy Tétrault LLP's mining litigation group.
Finance Releases Draft Legislation on the Critical Mineral Exploration Tax Credit but "Critical" Details Remain Outstanding On August 9, 2022, the Department of Finance released draft legislation (Draft Legislation) to implement the 30 percent Critical Mineral Exploration Tax Credit (CMETC) that was introduced on April 7, 2022 (Budget Day).1 While the structure of the CMETC Draft Legislation is generally similar to the framework under the existing 15 percent Mineral Exploration Tax Credit (METC), there are a number of new requirements that must be satisfied in order to qualify for the CMETC. Although the Draft Legislation states that the CMETC will apply to expenditures renounced under eligible flow-through share agreements entered into after Budget Day (and on or before March 31, 2027), mining companies planning to undertake flow-through share financings in 2022 that may be eligible for the CMETC should seek guidance on these new requirements as important details are still missing from the Draft Legislation. Read the full article by Zahra Nurmohamed, Tera Li Parizeau and Neil Burnside with Cassels Brock & Blackwell LLP.
Environmental Appeal Board Upholds Mt. Polley Mine Copper Concentration Discharge Target
Imperial Metals has lost an appeal of a BC environment ministry
decision to set a target lowering the copper concentration of treated
wastewater from the Mt. Polley gold and copper mine.
The mine was allowed to begin to discharge treated wastewater directly
into Quesnel Lake in the BC Interior after it started up two years
after the catastrophic collapse of a rock-and-earth dam in 2014.
The mine is permitted to discharge wastewater from the treatment plant
at a copper concentration of 33 micrograms per litre, but the B.C.
environment ministry has also stipulated that treatment of wastewater
should target a significantly reduced copper concentration of 12
micrograms per litre. Read the full article by Gordon Hoekstra published on the Vancouver Sun.
New BCOGC Security Program Requirements June 1, 2023 – Early Consolidation Effective June 1, 2023, the new Security Management Regulation will come into force, requiring permit holders regulated by the BC Oil and Gas Commission to comply with CSA Standard Z246.1. This regulation requires permit holders to develop a Security Management Program to identify threats and risks on a continuing basis and manage them with appropriate mitigation and response measures. For your convenience, Quickscribe has published an early consolidation of this regulation.
BC Minerals Could be Key Contributors to Hitting Climate Goals
Here in BC, we've witnessed
firsthand the devastating effects of climate change: ice storms, floods,
heat domes, atmospheric rivers and wildfires have devastated
communities. Meanwhile, Europe and the United Kingdom are recovering
from an unprecedented heatwave. What does this have to do with mining? It's simple. The world must
rapidly build clean energy infrastructure to confront climate change.
This means building more wind turbines and solar farms and improving our
electricity grids. It means transitioning to electric vehicles (EVs)
and building batteries and charging infrastructure to support them. Foresight Canada and the Mining Association of BC (MABC) held a
contest, the Mining Innovation Challenge, aimed at finding ways
to reduce the use of water in mining operations. Mines use large
amounts of fresh water to move mine waste (slurry), which must
be stored in tailings ponds. Read the full article by Michael Goehring, published by BIV.
Recent BCOGC Bulletins
The BCOGC has recently issued the following bulletins:
- IB 2022-02 – Multi-Year Study to
Look at Methane Emissions
- INDB 2022-13 – Participants Sought
for Testing Well Decommissioning Submissions
Visit the BCOGC website to view this and other
bulletins.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
Petroleum and Natural Gas Royalty and Freehold Production Tax Regulation (495/92) |
Sept. 1/22 |
by Reg 117/2022 |
FAMILY
& CHILDREN |
Family and Children News:
Parentage Committee Starts Discussion on
Surrogacy and Independent Legal Advice This month, the Parentage Law Reform Project Committee focused on two issues: surrogacy and independent legal advice.
Should conception by sexual intercourse be permitted for traditional surrogacy? Section 29 of the Family Law Act
governs surrogacy. Surrogacy is when a person carries a child for
someone else. There are two kinds of surrogacy. The first is
‘traditional' surrogacy. In this case, the surrogate carries the child,
but also donates an egg (i.e., is genetically related to the child). The
second is ‘gestational' surrogacy. In this case, the surrogate carries
the child but is not genetically related.
Read the full article by Alison Wilkinson of BCLI.
Hearing Begins Challenging BC Government's Stance on Legal Aid for Low-income Women
A three-day hearing has begun in B.C. Supreme Court, with a group
challenging the provincial government's stance that it doesn't have the
capacity to take a case regarding legal aid to trial.
The Single Mothers Alliance launched the constitutional case five years
ago saying eligibility for legal aid doesn't meet the needs of
low-income women, especially those escaping domestic violence.
The alliance is being represented by West Coast Leaf, whose executive
director says eligibility requirements are problematic because single
mothers must earn about $29,000 for a two-person household to qualify
for legal aid. Read the full article published by the Vancouver Sun.
In "A Case about Everything the Parties Did Wrong to Achieve a
Particular Goal," Ontario Court Illustrates the Differences between Guardianship and Parentage
Jacobs v Blair, 2022 ONSC 3159, was a case involving a dispute between two couples over the parentage and guardianship (which consists of, in the words of Ontario's legislation, "decision-making responsibility, parenting time, contact and
guardianship with respect to children") of a young child. The case
illustrates some fundamental differences between parentage and guardianship
of children in Canadian family law. While parentage of children
conceived by sexual intercourse is (in the lion's share of cases)
determined by biological connections, courts resolve disputes over the
guardianship of a child by applying the best-interests-of-the-child
test. In this case, a couple who had cared for the child since birth
were ordered to be the child's guardians, even though they weren't the
child's biological parents. Read the full article by Kevin Zakreski with BCLI. |
Act or Regulation Affected |
Effective Date |
Amendment Information |
There were no amendments this month. |
FOREST
& ENVIRONMENT |
Forest and
Environment News:
British Columbia's Carbon Credit System Under the Climate Change Accountability Act, SBC 2007, c 42, the province of British Columbia (BC) set certain greenhouse gas (GHG) emissions reduction targets. One initiative for meeting these climate change goals is the carbon credit system governed by the Greenhouse Gas Industrial Reporting and Control Act, SBC 2014, c 29 (GGIRCA). It establishes GHG emissions reporting requirements, allows for the creation of emission standards applicable to industrial facilities, and allows for the adherence to emissions standards through earning or purchasing emissions offsets and/or credits or purchasing government-generated credits. So long as GGIRCA meets or exceeds federal carbon pricing standards as outlined in the Canadian Greenhouse Gas Offset Credit System Regulations, SOR/2022-111 and the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, BC's system will likely remain independent from the federally legislated Greenhouse Gas Offset Credit System. Read the full article by Courtney Burton, with the assistance of Jack Yuan (law student) with Dentons LLP.
WorkSafeBC Update – Proposed Improvements to the Certificate of Recognition Program
WorkSafeBC is proceeding with the next step in its gradual, phased
implementation of proposed improvements to the Certificate of
Recognition (COR) program after extensive consultation, research,
development, and testing of a new health and safety management audit
standard. Read the full article on BC Forest Safety.
Pilot Program Aims to Turn "Dead Wood" into Lumber
Deadwood Innovations, of Fort St.
James, in a joint venture with the Nak'azdli Whut'en First Nation, has a
unique, pilot-scale mill based in the former Tl'Oh Forest Products mill
in the northern B.C. community. The BC government is working
with the group to fund the development of a commercial-scale plant that,
proponents say, could turn waste wood into commercial lumber. A key source for the wood is the
thousands of trees killed by the mountain pine beetle, which caused the
closure of the Tl'Oh mill in 2014. Read the BIV article.
Pre-treaty Agreement Returns Land to
BC First Nation in Campbell River A Campbell River First Nation has signed a pre-treaty agreement that would see the return of more than 22 square kilometres of land — a "significant milestone," says its chief, in a treaty negotiation process that has taken more than two decades. The transfer of 2,276 hectares of territorial land on the east coast of Vancouver Island to the Wei Wai Kum will help boost its economic activities for its 850 members, allowing them to access the land for cultural activities and reap the benefits of the forestry harvest. Read the full article by Cheryl Chan with the Vancouver Sun. Environmental Appeal Board Decisions
The following Environmental Appeal Board decisions were made
recently:
Environmental Management Act
Water Sustainability Act
Visit the Environmental Appeal Board website for more information.
Forest Appeals Commission Decisions
The following Forest Appeals Commission decision was made recently.
Forest and Range Practices Act
Visit the Forest Appeals Commission website for more information.
|
Act or Regulation Affected |
Effective
Date |
Amendment Information |
Agrologists Regulation (10/2021) |
Sept. 1/22 |
by Reg 239/2021 |
Applied Biologists Regulation (13/2021) |
Sept. 1/22 |
by Reg 239/2021 |
Wildlife Act |
Sept. 1/22 |
by 2022 Bill 14, c. 13, sections 1 to 4 only (in force by Royal Assent), Wildlife Amendment Act, 2022 |
HEALTH |
Health News:
Re-envisioning Health Care in BC
BC communities are experiencing unprecedented challenges with the health
care system, which include the closure of emergency rooms, long wait
times for surgery, difficulties in finding a family physician, problems
with the recruitment and retention of health care professionals, and
inconsistent access to ambulance service. The plenary policy session at
UBCM's 2022 convention will explore the impacts of these challenges on
communities and consider ideas for transforming B.C.'s health care
system. The panellists for this session will include Adrian Dix,
Minister of Health.
The session will be held Tuesday, September 13, 2022, from 1:30 PM – 3:15 PM. Read the full UBCM article.
Delay in Follow-up Care Prolonged Patient's Suffering but
Didn't Worsen Injury: BC Court of Appeal
A doctor's negligence in providing follow-up care prolonged a
patient's suffering by delaying a hip replacement, but it didn't worsen
the injury to the point of liability for costs of future care, the
British Columbia Court of Appeal has ruled. In Hicks v. Belknap, 2022 BCCA 292,
Leona Belknap fractured her hip in 2014. Dr. Tracy Hicks attended to
her injury, With Belknap's consent, he performed internal reduction and
fixation surgery to repair the hip instead of replacing all or part of
it. Belknap nevertheless underwent a total hip arthroplasty two years
later in 2016. Read the full article by Jason Tan in the Canadian Lawyer.
Canada Introduces Regulatory Framework
for Supplemented Foods
Recently, the federal government introduced a Regulatory framework for supplemented foods via amendments (the "Amendments") to the Food and Drug Regulations (FDR) (the "Regulations"). The framework establishes maximum amounts per serving
for supplemental ingredients, prescribes cautionary statements and
caution identifiers to be placed on the labels of supplemented foods,
and requires display of a Supplemented Food Facts Table. Read the full article by Ingrid E. VanderElst, PhD, Dara Jospé and Eric Saragosa with Fasken.
COVID-mandate Lawsuit Tossed for
Being "Bad beyond Argument" A highly-publicized lawsuit targeting the provincial government's COVID-19 measures has been thrown out by a BC Supreme Court Justice for being so poorly crafted it is impossible to respond to. The lawsuit by plaintiffs Action4Canada, ten named individuals, three Jane Does and two corporations was filed by Rocco Galati of the Constitutional Rights Centre. The rambling 391-page lawsuit puts forward a greatest-hits of COVID-19 conspiracy claims, ranging from vaccine microchipping to allegations that the pandemic was pre-planned by the World Health Organization along with Bill Gates and others to install a New World Order. Read the full BIV article. BC Announces $118 Million for Family Doctors to Cover Overhead Costs Family doctors say the $118 million in short-term emergency funding to cover overhead costs announced Wednesday [August 24] by the province is a good first step but won't help the one million British Columbians without a physician. Health Minister Adrian Dix and the Doctors of BC said the funding of up to $25,000 per doctor is a direct response to family physicians across the province who have said they've closed their practice because the long hours, rising overhead and administration costs make the profession unsustainable. Read the Vancouver Sun article.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
Accessible British Columbia Act |
Sept. 1/22 |
by 2021 Bill 6, c. 19, sections 11 and 12 (in force by Reg 105/2022), Accessible British Columbia Act |
Dental Hygienists Regulation (276/2008) |
Sept. 1/22 |
by Reg 172/2022 |
Dental Technicians Regulation (32/2020) |
Sept. 1/22 |
by Reg 172/2022 |
Dentists Regulation (415/2008) |
Sept. 1/22 |
by Reg 172/2022 |
Denturists Regulation (277/2008) |
Sept. 1/22 |
by Reg 172/2022 |
LABOUR
& EMPLOYMENT |
Labour and Employment News:
A Narrow Job Search Can Be a Failure to Mitigate
Regulations for Paid Sick Leave
A recent BC Supreme Court case
highlights how employees have an obligation to mitigate their damages
by searching for comparable employment after termination. The case also
confirms that 24-months is the upper limit of common law reasonable
notice in BC.
Facts In Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881,
the plaintiff, Ms. Okano, was 61 years old and had been employed by the
defendant airline for almost 35 years, rising through the ranks to
manager of the Cathay Pacific's Vancouver office. She was the most
senior person in her department, and oversaw a group of 71 employees.
Read the full article by Neal Parker of Harper Grey LLP.
LaFleche v. NLFD Auto: Managing Employee's
Return to Work is Employer's Responsibility
The recent decision of LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, highlights the careful approach that employers should take when employees are returning to work after a leave of absence. In this case, involving an employee seeking to return to work after
her maternity leave, the British Columbia Human Rights Tribunal (the "Tribunal")
found that the employer had discriminated against her on the basis of
sex and family status, contrary to section 13 of the British Columbia Human Rights Code (the "Code")
and had constructively dismissed the employee by continuing to employ
her replacement, failing to return her to her past position, and failing
to communicate with her about her return to work. Read the full article by Laura DeVries and Nico Rullmann of McCarthy Tétrault.
New Accessibility Requirements for the BC Public Sector Is your organization on the right track toward accessibility, diversity and inclusion? As of June 2021, the Accessible British Columbia Act (the "Act") is law in British Columbia. The Act's intent is to make the province more inclusive, including for persons with disabilities. Earlier this year, the government released the first regulation under the Act, the Accessible British Columbia Regulation (the "Regulation"). The Regulation identifies the public sector organizations that have to comply with the Act's accessibility requirements. As of September 1, 2022, certain accessibility requirements in the Act will apply to these covered organizations. Read the full article by Cory Sully and Ryan Berger with Lawson Lundell LLP.
Types of Background Checks and Legal Considerations
When hiring, it is understandable that
employers want to know certain important information about the
background of candidates, such as their criminal, work or credit
history. However, it is important that those hiring in British Columbia
follow employment laws and, in particular, anti-discrimination
regulations when conducting these background checks. The good news is
that background checks are legal in Canada, but certain criteria must still be met for them to be acceptable. Read the full article published by Overholt Law LLP.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
Occupational Health and Safety Regulation (296/97) |
Aug. 22/22 |
by Reg 116/2022 |
LOCAL
GOVERNMENT |
Local Government News:
BC Supreme Court Quashes Vancouver Rent Control Bylaws
The BC Supreme Court recently considered the City of Vancouver's
pioneering attempt to impose rent controls between tenancies by bylaw in
single room accommodations in the City. Council passed these rent
control Bylaws as part of its efforts to improve housing affordability
and accessibility within the City, especially for low-income tenants.
Two property owners challenged the Bylaws by arguing that the City did
not have jurisdiction to pass such a regulation, given the existence of
the provincial Residential Tenancy Act ("RTA") scheme. Read the full article by Elizabeth Anderson of Young Anderson Barristers & Solicitors.
No Economic Damages from Abandonment of Subdivision Due to Conditions: BC Court of Appeal
The British Columbia Court of Appeal has ruled that conditions placed
on land subdivision because of a Regional District building officer's
input raises no reasonable cause of action by the applicants. In Kamoto Holdings Ltd. v. Central Kootenay (Regional District), 2022 BCCA 282,
Gordon and Jill Cann applied to subdivide their property in the Village
of Nakusp. The approving officer sent a subdivision plan to the
Regional District of Central Kootenay for comment. A building inspector
from the district found several issues, such as infringement of fire
safety provisions of the Building Code, which led to the approving
officer placing conditions on subdivision. Read the full article by Jason Tan in the Canadian Lawyer.
Special Committee to Review the Freedom of Information and Protection of Privacy Act: Transparency, Modernization and Risk Management
The British Columbia provincial government tabled a series of significant amendments to the Freedom of Information and Protection of Privacy Act (the "Act")
that received royal assent on November 25, 2021 and which were intended
to update this legislation to keep pace with technological and
structural changes in the ways that public bodies in the province
interact with and handle information. Read the full article by David Giroday of Civic Legal LLP.
New Procurement Trade Requirements for Local Governments
from UBCM: New Procurement Trade requirements will come into force effective
September 23, 2022. The Province has been working with the Federal
government to meet BC's trade reporting obligations under the Comprehensive European Trade Agreement (CETA). Read the UBCM article.
Canadian Municipalities Increasingly Support Climate
Change Litigation Against Oil and Gas Companies
Vancouver City Council recently passed a motion to fund a proposed
class action against various oil and gas companies to recover costs
associated with climate change. The motion follows a growing international trend whereby local
governments (particularly in the United States and Europe) are
commencing litigation seeking to hold fossil fuel companies responsible
for the costs associated with climate change. We examined one such
lawsuit brought by the City of Baltimore in our insight Win for American Energy Companies Facing Climate Change Litigation. By contrast, Canadian climate change litigation is still in its early stages, as discussed in our previous insights: Are Climate Change Claims Based on Charter Rights Justiciable? Canadian Courts Render Conflicting Decisions and Climate Change Litigation Comes to Canada. Read the full article by Laura M. Gill, Michael P. Theroux, Cheryl M. Wooding and Rebecca Taylor with Bennett Jones LLP.
Bylaw Adjudication Program Update from UBCM:
The Province has issued a memorandum
advising local governments that, effective October 3, 2022, the
Ministry of Attorney General's Tribunals, Transformation and Independent
Offices Division (TTIOD) will assume all responsibilities for the Bylaw
Adjudication Program. Previously, duties were shared with the Court
Services Branch. Read the UBCM article.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
Agricultural Land Reserve Use Regulation (30/2019) |
Aug. 31/22 |
by Reg 36/2022 |
Private Training Regulation (153/2016) |
Sept. 1/22 |
by Reg 122/2021 and Reg 217/2021 |
MISCELLANEOUS
|
Miscellaneous News:
BC Supreme Court Considers the Insurance Act's
Dispute Resolution Process In King v. Aviva Insurance Company of Canada, 2022 BCSC 973, the BC Supreme Court (the "Court") held that Ms. Paula King (the "Insured") could not opt out of the mandatory dispute resolution process ("DRP") she had commenced pursuant to section 12 of the Insurance Act, RSBC 2012, c 1 (the "Act"). Specifically, the Court dismissed the Insured's application to terminate the DRP and transfer the proceeding to the Court. Read the full article by Caitlin VanDuzer and Baljinder Bains with Miller Thomson LLP. How the West is Liened: A Comparison of Builders Lien Legislation in British Columbia and Alberta Every Canadian province and territory has its own builders lien act meant to ensure that contractors and workers who contribute to improvements on land are paid for their services and materials. These acts are complex and can cause confusion, particularly where construction companies do business in multiple provinces. On August 29, 2022, Alberta is set to introduce the Prompt Payment and Construction Lien Act (the PPCLA). This new act will amend some of the builders lien rules that stakeholders in the construction industry have become accustomed to while working in Western Canada. In this article, we set out some of the key differences between the British Columbia Builders Lien Act (the BC BLA) and Alberta's new PPCLA. Read the full article by Karen Martin, Q.C., Alex Barr-Gusa and Chelsea A. Wilson with Dentons.
Using Contempt to Force Party into "Discussion" Is Professional Misconduct: BC Court of Appeal
The British Columbia Court of Appeal has upheld a ruling that a
lawyer committed professional misconduct when he refused to correct a
draft order despite a judge's memorandum and transcript showing
corrections and filed a contempt proceeding against another lawyer to
force a discussion about her complaint against him. In McLeod v. Law Society of British Columbia, 2022 BCCA 280,
the Law Society of British Columbia's discipline committee issued a
citation against lawyer Donald McLeod over several acts amounting to
professional misconduct. The complainant was an opposing counsel in a
pension division case. Read the full article by Jason Tan in the Canadian Lawyer. BC First Nations to Decide Fate of Open Net-Pen Feedlots Three First Nations in British Columbia will decide the fate of feedlots operating in their territories later this year – only months after learning the Department of Fisheries and Oceans (DFO) suppressed research into a virus threatening wild salmon populations. Read the full article published by MLT Aikins.
Case Comment: Procedural Requirements for Relief under the Builders Lien Act
We have previously reported on decisions that have been released by our
courts this summer regarding the importance for lien claimants to follow
proper procedure when seeking to assert a builders lien claim for
unpaid materials and services provided to an improvement. The recent
decision of the BC Supreme Court Metro-Can Construction (PE) Ltd. v. Escobar et al., 2022 BCSC 1042 gives a reminder that it is just as important for owners and general contractors to strictly follow the provisions of the Builders Lien Act when seeking relief such as discharge of a lien or discharge of liability. Read the full article by Rosalie A. Clark with Clark Wilson LLP.
Practic Direction 62 –Sealed Bid Process for Foreclosures and Other Matters Involving Sales of Land August 12, 2022: Chief Justice Hinkson has issued Practice Direction 62 – Sealed Bid Process for Foreclosures and Other Matters Involving Sales of Land and
has rescinded COVID-19 Notice No. 31. This Practice Direction sets out
the process for submitting sealed bids to the Court for foreclosures
and other matters involving the sale of land. Seller's counsel is
responsible for providing this Practice Direction to the listing agent
for distribution to any interested buyers. Please be reminded that, effective August 15, 2022, the Court will
be returning to hearing chambers matters in person, unless the Court
otherwise orders or directs. Please see COVID Notice No. 50 for more information.
Credit Unions Retain 5-dollar Overdraft Fee, Must Return
Amount over Legal Limit: BC Court of Appeal
The British Columbia Court of Appeal has found that a lower court
should have reduced a credit union's overdraft charges per transaction
to be in line with the Criminal Code limit. In Community Savings Credit Union v. Bodnar, 2022 BCCA 263,
the defendant credit unions imposed overdraft fees that exceeded $5 per
transaction until 2003. At the time, they did not know about s. 347 of
the Criminal Code, which considered credit union overdraft charges
exceeding $5 per transaction to be interest. Read the full article by Bernise Carolino with the Canadian Lawyer.
Lawsuit of the Week: Jehovah's Witnesses Ramp Up Court Battle with BC's Privacy Commissioner
A pair of congregations of Jehovah's Witnesses is
taking the Information and Privacy Commissioner of British Columbia to
court, claiming an order to release confidential religious records under
the Personal Information Protection Act (PIPA) is unconstitutional.In a petition filed on August 2 in BC Supreme
Court, the Coldstream and Grand Forks Congregations of Jehovah's
Witnesses, the Watch Tower Bible and Tract Society of Canada and elders
John Vaboulas and Paul Sidhu, claim the commissioner wrongfully ordered
disclosure of records related to requests made under PIPA by two former
adherents to the faith, respondents Gabriel-Liberty Wall and Gregory
Westgarde. Read the BIV article.
|
Act or Regulation Affected |
Effective
Date |
Amendment Information
|
Accident Claims Regulation (233/2018) |
Sept. 1/22 |
by Reg 147/2022 |
Civil Resolution Tribunal Act |
Sept. 1/22 |
by 2022 Bill 9, c. 6, sections 2, 5, 9 and 11 to 14 only (in force by Reg 147/2022), Attorney General Statutes Amendment Act, 2022 |
MOTOR
VEHICLE & TRAFFIC |
Motor Vehicle and Traffic News:
Roadside Breath Demand Refusal Not Excused by Interference of Right to Counsel: BC Court of Appeal
Interference by police of the right to counsel is not reasonable
excuse to refuse to comply with a formal roadside breath demand, the
British Columbia Court of appeal has ruled. In Gordon v. British Columbia (Superintendent of Motor Vehicles), 2022 BCCA 260,
Jason Gordon was arrested by the Vancouver Police Department. Gordon
was unsteady on his feet and his breath smelled of alcohol. Upon arrest,
Gordon invoked his Charter 10(b) rights and said he wanted to speak to a lawyer. Read the full article by Jason Tan in the Canadian Lawyer.
Ton Containers for the Transportation of
Dangerous Goods (CAN/CGSB-43.149)
The Canadian General Standards Board (CGSB) has released the draft of
Safety Standard CAN/CGSB-43.149 for a 60-day consultation period. Safety
standard CAN/CGSB-43.149 sets out the requirements for designing,
manufacturing, maintaining, qualifying, inspecting, marking, selecting,
and using ton containers. The standard also lays out the requirements
for the quality management system and its applicability, and the
registration of facilities performing manufacture, inspection,
maintenance, or qualification of ton containers. Visit Transport Canada's webpage for more information.
EV, Hydrogen Retrofits in BC Offer Alternate
Route to Emissions Reduction New business models aim to get more zero-emission vehicles on the road in BC. As British Columbians were fuelling up with pricey petrol and taking
to the roads for August holidays, the province kicked off the month
boosting rebates up to $1,000 for zero-emissions vehicles (ZEV). The
heightened effort to encourage ZEV purchases comes as both the province
and Ottawa have mandated 100 per cent of new passenger vehicle sales to
be ZEVs by 2035. But the future for medium- and heavy-duty vehicles (MHDVs) remains
less settled as private industry faces exponentially higher costs
transitioning to ZEVs. Rather than investing in new MHDVs, a growing
number of BC companies are pushing organizations to consider
retrofitting fleets to help meet emissions targets. Read the full article by Tyler Orton with BIV. Out-of-court Statements Must Be Necessary and
Reliable to Be Admissible: BC Court of Appeal
The British Columbia Court of Appeal has ordered a new trial for a
personal injury action because the lower court judge improperly assessed
the reliability of an out-of-court statement made by a witness. In Davis v. Jeyaratnam, 2022 BCCA 273,
Garett Davis, a professional mixed martial arts (MMA) fighter, was
riding his bicycle along Broadway in Vancouver when he collided with a
vehicle driven by Navaratnaraja Jeyaratnam. Davis strongly denied that
he had been cycling on the sidewalk, as prohibited by the Motor Vehicle
Act. Jeyaratnam, on the other hand, denied having struck Davis. Read the full article by Angelico Dino with Canadian Lawyer.
CVSE Bulletins & Notices
The following documents were posted recently by CVSE:
For more information on these and other items, visit the CVSE website.
Passenger Transportation Board Bulletins
The following updates were recently published by the BC
Passenger Transportation Board:
Industry Updates & Advisories
- Final Deadline to Activate Additional
Taxis
The Board is issuing a final activation deadline of December
31, 2022. Licensees will have until this date to activate
additional vehicles, or they will no longer be valid.
- Vancouver Cruise Ship Schedule for TNS and Taxi Operators
As the 2022 cruise season commences in Vancouver, TNS and Taxi
Licensees are reminded to review their terms and conditions of licence
and the cruise schedule. The Board will continue its
efforts to ensure that any changes or amendments are posted in
the Weekly Bulletin and on the website.
- TOPs Processing Reminder
With grad and summer fast approaching, licensees planning to
apply for a Temporary Operating Permit (TOP) should do so well
in advance and not wait until the day before or the day of the
requested TOP start date. Processing cannot be guaranteed in
this short a time period. To learn more about TOPs (including
Peak Season and Regular), please see Reference Sheet 17.
Applications Received
- 15479-22 – OB Hotels GP Ltd. (Oak
Bay Beach Hotel)
- 15717-22 – Evergreen Taxi LTD.
- 15344-22 – Penticton Eco Taxi Ltd.
- 15741-22 – Transfer from Wescan
Transport Inc. to Bluebird Cabs, Ltd.
Application Decisions
Visit the Passenger Transportation Board website for more information.
|
Act or Regulation Affected |
Effective Date
|
Amendment Information |
Insurance (Vehicle) Regulation (447/83) |
Sept. 1/22 |
by Reg 147/2022 |
Lien on Impounded Motor Vehicles Regulation (25/2015) |
Sept. 1/22 |
by Reg 180/2022 |
Passenger Transportation Act |
Sept. 1/22 |
by 2022 Bill 13, c. 10, sections 1 to 5 only (in force by Reg 168/2022), Passenger Transportation Amendment Act, 2022 |
Passenger Transportation Regulation (266/2004) |
Sept. 1/22 |
by Reg 168/2022 |
OCCUPATIONAL HEALTH AND SAFETY |
Occupational Health & Safety
News:
New Rules for Work Refusals in BC Take Effect
A new rule strengthening the rights of workers in British Columbia to refuse unsafe work has come into effect. The new section 3.12.1 under the Occupational Health and Safety
Regulation (OHSR) states that if a worker refuses work, the employer
must not require or permit another worker to do the refused work unless
the matter has been resolved, or the employer informs the worker of the
following:
- the refusal
- the unsafe work reported
- the reasons why the work would not create an undue hazard to the health and safety of the other worker or any other person
- the right of the other worker under section 3.12 to refuse unsafe work
Read the full article by Jim Wilson with Canadian Occupational Safety.
Workers' Compensation Schemes Cannot Recover Other Benefits Paid to Claimants, Court Rules
In a straightforward ruling, with two sets of reasons delivered, the
Alberta Court of Appeal said that a statutory interpretation of a
section of Alberta's Insurance Act
does not preclude — in this case, WorkSafeBC — from bringing a
subrogated action against an estate to recover the amounts of workers'
compensation benefits paid to two claimants. Read the full article by Christopher Guly on The Lawyer's Daily.
Regulatory Amendment: A Primer on
Refusing Unsafe Work
Amendments to the Occupational Health and Safety Regulation
took effect on August 22, 2022, including changes related to refusing
unsafe work. This primer outlines the changes, and describes the
requirement for employers to provide written notice of the work refusal
before allowing or permitting any other workers to perform the refused
work. Read the WorkSafe article.
WorkSafeBC Issues Orders after Attack that Injured Workers in BC Psychiatric Hospital
WorkSafeBC has issued two orders to a
psychiatric hospital in British Columbia following an attack that left
three workers injured inside the workplace. The incident happened last month, when one patient attacked the
workers at the Forensic Psychiatric Hospital in Coquitlam, B.C. This
happened inside the kitchen in a ward at the facility. The incident left two workers with concussions and one with back pain.
Nearly two-thirds (63 per cent) of healthcare workers experienced physical violence,
and 53 per cent reported an increase in violence targeting them or a
co-worker during the COVID-19 pandemic, according to a previous survey
from the Canadian Union of Public Employees (CUPE). Read the full article by Jim Wilson with Canadian Occupational Safety.
Understanding Roles and Responsibilities in Workplace Safety
When it comes to preventing workplace
accidents in British Columbia, a great deal of responsibility falls on
employers. Their policies as well as their follow-through will often be
thoroughly examined if a worker is hurt. However, they are not the only
ones with obligations when it comes to safety. Here is a general
overview of the responsibilities different parties carry to keep a workplace safe. Read the full article published by Overholt Law LLP.
OHS Policies/Guidelines – Updates
Guidelines – OHS Regulation:
August 22, 2022
The following guideline was revised, consequential to the
August 22 amendments to the OHS Regulation:
- Part 3 Rights and Responsibilities
Housekeeping changes were also made to the following
guidelines:
Policies – OHS Regulation:
August 22, 2022
Housekeeping changes were made to the following policy items
to reflect amendments to the OHS Regulation.
Visit the WorkSafeBC website to explore previous OHS
updates.
|
Act or Regulation
Affected |
Effective Date |
Amendment Information |
Accessible British Columbia Act |
Sept. 1/22 |
by 2021 Bill 6, c. 19, sections 11 and 12 (in force by Reg 105/2022), Accessible British Columbia Act |
Occupational Health and Safety Regulation (296/97) |
Aug. 22/22 |
by Reg 116/2022 |
PROPERTY
& REAL ESTATE |
Property and Real Estate News:
Property Law Amendment Act, 2022 – In force January 2023 (Early Consolidation) In March 2022, Bill 12, Property Law Amendment Act, 2022, was introduced. The bill amends the Property Law Act by protecting residential homebuyers by giving them the right to rescind a contract of purchase and sale by serving written notice to the seller within 3 days after the offer is accepted. The intent of this "cooling off period" is to provide homebuyers with peace of mind and will allow time for the buyer to arrange an inspection and secure funding. The new legislation will come into force on January 1, 2023 by B.C. Reg 175/2022. For your convenience, Quickscribe has published an early consolidation of the Property Law Act as it will read when these changes come into law. Note sections 42 and 43.
"Problematic" Order for Contribution to Undefined
Future Expenses Set Aside by BC Court of Appeal
The British Columbia Court of Appeal has set aside an order requiring
the commercial section to contribute to undefined future expenses of
the Strata Corporation since the claim that contribution was barred by
contract or estoppel was not addressed. In Thurlow & Alberni Project Ltd. v. The Owners, Strata Plan VR 2213, 2022 BCCA 257,
the owners of a high-rise building in Vancouver called Strata Plan VR
2213 (the Strata Corporation) found deficiencies in the building's
exterior insulation and finish system (EIFS) that had been installed
about 30 years earlier. It sought to impose a special levy to repair the
deficiencies through a special resolution at its 2019 annual general
meeting. Read the full article by Jason Tan in the Canadian Lawyer.
BC Man's Constitutional Challenge to
Property Tax Law Rejected The B.C. Supreme Court has rejected an unusual constitutional challenge that sought to invalidate the law that governs the assessment of property values in the province. The challenge to the Assessment Act came in the form of three "stated cases" arising from appeals to the Property Assessment Appeal Board by property owner Sheldon Goldberg. The appeals involved three separate properties, located in Vancouver, New Westminster and Surrey, respectively. Each one ended with the appeal board confirming the assessed value after rejecting requests from Goldberg for an in-person hearing and for confirmation that board members had taken an oath of impartiality, independence and honesty. Read CTV article.
Case Summary: Realtor's Appeal of
Suspension Backfires
Behroyan v. Ontario (Financial Services Tribunal), [2022] B.C.J. No. 1285, 2022 BCSC 1190, British Columbia Supreme Court, July 14, 2022, N.P. Kent J.
Mr. Behroyan, a real estate agent, brought a judicial review of a
decision of the Discipline Committee of the Financial Services Tribunal
(FST) imposing a penalty revoking his license following findings of
professional misconduct related to misrepresentation, non-disclosure,
deceptive dealing, among other things. The procedural history in this case is convoluted, involving multiple
decisions by both the Real Estate Council and the FST. The original
discipline and penalty decisions resulted in a suspension of Mr.
Behroyan's license for 12 months, a fine and payment of enforcement
costs. The Superintendent of Real Estate filed an appeal of the penalty
decision and Mr. Behroyan filed an appeal of both discipline and penalty
decisions. The appeals were joined in a bifurcated hearing of the
discipline matter and the penalty matter. Read the full article by Roshni Veerapen of Harper Grey LLP.
Condo Smarts: Bylaw Updates and Election Laws There is no value in homegrown bylaws that end up being unenforceable or result in your community being dragged into the courts or tribunal complaints. After 10 years, our strata corporation of 118 units is undertaking a bylaw review. We realized many of our bylaws are out of date resulting from changes in legislation, decisions in the courts and in the tribunal. Is there a "one place fits all" or publications that catch all these changes to cross reference for updates? Read the full article published in The Province.
BC Tribunal Upholds $200 Strata Fine for Improper Recycling
BC's Civil Resolution Tribunal
has dismissed a complaint from a strata tenant who claimed he was
inappropriately fined for putting recyclables in the wrong collection
box. The complaint was brought forward by Leonardo de Azevedo Rossi, a strata lot tenant in a Metro Vancouver strata corporation. Read the BIV article. The Cullen Report on Money Laundering in BC: Implications for the Real Estate Sector
The Final Report of Public Inquiry into Money Laundering in British
Columbia was delivered and commissioned by Mr. Austin Cullen (the "Commissioner", and the "Report", respectively). The Report outlines
concerns with money laundering in British Columbia. Specifically, the
Commissioner describes the current regulatory framework across multiple
sectors, outlined weaknesses that allow for money laundering, and
provided recommendations for fortifying loopholes. Read the full article by Sara Shuchat and Gillian Haggett with Whitelaw Twining.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
There were no amendments this month. |
WILLS
& ESTATES |
Wills and Estates News:
Can the Personal Representative of a Deceased Separated Spouse
Start a Claim Against the Surviving Former Spouse?
In a decision released on February 25, 2022, the British
Columbia Court of Appeal confirmed that the personal representative of a
deceased separated married spouse may bring a family law claim against the
surviving spouse if they had not divorced. The case is Weaver Estate v. Weaver
2022 BCCA 79. Lani Jo Weaver and Albert Russell Weaver married in 1993 and
separated in 2005. They did not divorce, sign any separation agreement or bring
any family law proceedings against each other. Read the full article by Stan Rule with Sabey Rule LLP.
Executor Relies upon Presumption of Due
Execution to Prove Validity of Will
When there is a challenge to the validity of a will on the basis that
(1) the will-maker lacked testamentary capacity, or (2) the will-maker
did not have knowledge and approval of the contents of the will, the
person seeking to prove the validity of the will (the "propounder") is
assisted by the presumption of due execution. The presumption of due execution provides that if a will is properly executed in compliance with the Wills, Estates and Succession Act ("WESA"),
then it is presumed that the will-maker had knowledge and approval and
testamentary capacity, subject to evidence of suspicious circumstances.
It then falls on the person challenging the validity of the will to
rebut the presumption. Read the full article by James Zaitsoff, posted on the BC Estate Litigation Blog.
Supreme Court of BC Declares Deceased Woman's Will
Invalid Due to Lack of Testamentary Capacity
The Supreme Court of British Columbia has invalidated a will of a
deceased woman due to the presence of suspicious circumstances
surrounding its execution. In Jung Estate v Jung Estate,
2022 BCSC 1298, the testatrix is the late mother of two adult sons –
the plaintiff and the defendant. When she executed her will, she owned a
property in Vancouver. In her will, the testatrix made a specific
bequest of the property to the defendant and only gave the plaintiff the
residue of her estate. The parties later agreed that the residue of the
estate would be fully spent, and there will be no funds to be
distributed to the plaintiff. Read the full article by Katrina Eñano with the Canadian Lawyer. BC Case Comment – Update: On Appeal, Surviving Business Owner Still not Entitled to Receive Partnership Property by Right of Survivorship
Estate litigation issues do not just arise as between family members
of the deceased (although that is most common). A death may also result
in disputes with respect to the deceased's business dealings and
partnership holdings. This is why a fulsome estate plan that addresses
all interests, personal and business, is key. In a previous post found here,
I discussed what happens when your business partner dies, in particular
when the assets of the business are held jointly. I considered this in
the context of the decision of the B.C. Supreme Court in Garland v. Newhouse 2021 BCSC [1291]. Read the full article by James Zaitsoff, posted on the BC Estate Litigation Blog.
|
Act or Regulation Affected |
Effective Date |
Amendment Information |
There
were no amendments this month. |
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