Company and Finance News:

Federal Government Releases Draft Legislation to 
Amend Wage Subsidy and Rent Subsidy Programs
On February 24, 2021, the Department of Finance released draft legislative proposals (the "Proposals") to amend the Canada Emergency Wage Subsidy ("CEWS") and the Canada Emergency Rent Subsidy ("CERS") to, inter alia:

1. provide applicants with additional flexibility in determining their revenue decline for Period 11 (i.e., December 20, 2020 to January 16, 2021); and
2. ensure that landlords with non-arm's length tenants who are subject to a "public health restriction" are not precluded from accessing the lockdown support subsidy of the CERS ("Lockdown Support") due to a drafting issue.

Brief details of these relieving Proposals are provided below. The draft legislative proposals can be found here and the related Government Backgrounder and news release can be found here and here. Read the full article by Stephanie Morand, Jeremy Ho and Brendan Festeryga with McCarthy Tétrault LLP.

Tax Court Reaffirms Legitimacy of "Straddle"
Transactions and Source of Income Test
In Paletta Estate v The Queen, 2021 TCC 11, the Tax Court of Canada allowed the taxpayer's appeal in respect of "straddle" transactions undertaken in the early-2000s. In doing so, the Court expressly held that commercial activities undertaken solely in order to generate tax losses constitute a source of income or loss for tax purposes. Read the full article by Tyler Berg with Thorsteinssons LLP.

Wastech and Discretion: The Supreme Court of Canada on the
Duty to Exercise Contractual Discretion in Good Faith
Good faith requires a party to exercise contractual discretion reasonably, and not in a manner unconnected to the purposes for which it was granted – even when the contract on its face provides for unfettered discretion. So said the majority of the Supreme Court of Canada (the SCC) in Wastech Services Ltd v Greater Vancouver Sewerage District (2021 SCC 7). (Wastech was heard alongside a companion case, which Osler commented on here.) In Wastech, the SCC sought to clarify the scope of the duty to exercise contractual discretionary powers in good faith previously recognized in Bhasin v. Hrynew (2014 SCC 71). In dismissing the appeal, the SCC held that the defendant did not breach the duty of good faith, even though the defendant's actions effectively deprived the plaintiff of profits under the contract, because the impugned conduct fell within the scope and purpose of the discretion bargained for by both parties. The majority of the SCC held: Read the full article by Nancy Roberts, Jacqueline Code, Lindsay Rauccio, Mary Angela Rowe, Kai Sheffield with Osler, Hoskin & Harcourt LLP.

iAnthus Decision Changes the Landscape for Corporate Plans of
Arrangement under the BCBCA by Permitting Third-Party Releases
In two decisions rendered less than one week apart, Justice Gomery of the Supreme Court of British Columbia held that third-party releases may be incorporated into plans of arrangement made under the British Columbia Business Corporations Act (the "BCBCA"). According to the rulings in iAnthus Capital Holdings, Inc. et al. (Re), now upheld by the Court of Appeal for British Columbia, third-party releases may be acceptable so long as they are incidental and supplemental to an order sanctioning the plan of arrangement, and necessary to ensure the arrangement is fully and effectively carried out. Significantly, the ruling means that the BCBCA now offers an attractive option to companies looking to undergo a plan of arrangement containing third-party releases. Read the full article by Jeffrey Levine, James Munro and Tushara Weerasooriya with McMillan LLP.

Cameco: Supreme Court Dismisses CRA Leave
Application in Transfer Pricing Case
[On February 18th], the Supreme Court of Canada dismissed the Minister of National Revenue's ("the Minister") application for leave to appeal in the matter of Canada v. Cameco Corporation, 2020 FCA 112. This is a case of significant importance as it involved the interpretation of the transfer pricing recharacterization rules in paragraphs 247(2)(b) and (d) of the Income Tax Act (Canada) ("Recharacterization Rules"). Read the full article by Anthony Campione, Raj Juneja, Kim Brown, and Fred Purkey with McCarthy Tétrault.

Client Focused Reforms: What You Need to Know!
Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (Rule) and its Companion Policy, known as the Client Focused Reforms (CFR), are required to be implemented by registrants starting June 30, 2021. The Canadian Securities Administrators (CSA) developed the CFRs based on the concept that the interests of the client should come first in the client-registrant relationship. The enhanced compliance requirements that arise as the CFRs take effect apply to all registered dealers and advisers (and registered investment fund managers under certain circumstances). Amendments came into force on December 31, 2019 with a phased implementation plan beginning on December 31, 2020. The CSA published relief orders providing registrants with additional time to comply with the CFRs, acknowledging operational and compliance challenges resulting from pandemic-related disruption to their businesses, which we wrote about here. To assist registrants as they prepare, the CSA have published guidance in the form of Frequently Asked Questions (FAQ), last updated on December 18, 2020. The Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association (MFDA) were involved in the development of the CFR amendments and will also be amending their rules, policies and guidance. Read the full article by Alix d'Anglejan-Chatillon and Kenneth G. Ottenbreit with Stikeman Elliott LLP.

Corporations Canada Holds Public Consultations on
Proposed CBCA Amendments
Corporations Canada has launched public consultations on proposed regulations under the Canada Business Corporations Act (CBCA) related to recent amendments to the CBCA regarding executive compensation and the well-being of employees, retirees and pensioners.
Read the full article by Kristopher Hanc, Will Osler, Matthew Cunningham and Kate McGrath with Bennett Jones LLP.

Lower Thresholds for Both Competition Act and
Investment Canada Act in 2021
The Canadian government has lowered the 2021 thresholds for both pre-merger notification under the Competition Act and for pre-closing net benefit review of foreign investments under the Investment Canada Act. The pre-closing thresholds under both the Competition Act and Investment Canada Act have been reduced for 2021, as a result of a decline in Canadian GDP in 2020. This post by Stikeman Elliott's Competition & Foreign Investment Group was written with the assistance of Irma Shaboian, articling student at law with Stikeman Elliott LLP.

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

• 23-328 – CSA Staff Notice 23-328 Order Protection Rule: Market Share Threshold for the Period April 1, 2021 to March 31, 2022
• 33-109 – Proposed Amendments to National Instrument 33-109 Registration Information, 31-103 Registration Requirements, Exemptions And Ongoing Registrant Obligations, and related companion policies
• 51-102 – Adoption of Amendments to National Instrument 51-102 Continuous Disclosure Obligations and Changes to Certain Policies Related to the Business Acquisition Report Requirements and Revocation of BC Instrument 51-518 Temporary Exemption from Certain Business Acquisition Report Requirements
• 45-328 – CSA Staff Notice 45-328 Update on Amendments relating to Syndicated Mortgages 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
• 51-362 – CSA Staff Notice 51-362 – Staff Review of COVID-19 Disclosures and Guide for Disclosure Improvements

For more information visit the BC Securities website.

BCFSA News
The BC Financial Services Authority recently published the following announcements:

• Advisory to all CEOs/General Managers/CFOs of British Columbia Credit Unions – Review & Comment on the Proposed DPS
• Guideline – Information Security Guideline
• Media Release – Statement in support of legislative change to create a single, modern, effective financial services regulator
• Advisory to all BC credit unions, trust companies, insurance companies and pension plan administrators – Information Session on Draft Information Security Guideline

Visit the BCFSA website for more information.

Energy and Mines News:

Canadian Power – British Columbia Regional Overview
2020 marked a year of unprecedented challenges for the BC power sector. The Province continued to review and assess the longer-term structure of its energy sector amid the immediate impacts of the COVID-19 pandemic, uncertainty regarding the Province's last large-scale hydroelectric project, and a surprise fall provincial election. With substantially all power procurement activities suspended indefinitely, independent power producers ("IPPs") and other industry participants await a number of key developments, including the completion by the provincial government of Phase 2 of its comprehensive review of BC Hydro, public consultations for the preparation of BC Hydro's long-awaited integrated resource plan, now due in late 2021, and the outcome of a review of the Site C hydroelectric project following concerns raised by BC Hydro regarding project risks, construction delays and rising costs. In the face of these developments, the provincial government continued to pursue its CleanBC climate strategy while facing criticism of its efforts to achieve related emission-reduction targets. Read the full article published on McCarthy Tétrault's Canadian Energy Perspectives blog. 

British Columbia Introduces CleanBC Industrial Electrification
Rates and the Facilities Electrification Fund
On January 28, 2021, the Government of British Columbia announced that BC Hydro will offer discounted electricity rates to innovative industrial customers seeking to use clean electricity in qualified "green" operations, as well as industrial customers who convert their operations to be powered by electricity instead of fossil fuels. In addition to rate discounts, British Columbia will also provide financing to encourage electrification projects through a new $84.4-million CleanBC Facilities Electrification Fund. Read the full article by Sharon Singh, David Bursey, Duncan McPherson, Vivek Warrier and Kenryo Mizutani with Bennett Jones LLP.

Commission Advances Orphan Site Restoration
The BC Oil and Gas Commission (Commission) has decommissioned over half of British Columbia's 770 orphan well sites. It's a key step on the path to full restoration of orphan sites, which requires multiple stages. In addition to the planned $30 million collected from levies on oil and gas operators to restore orphan sites, BC received $15 million from the federal government's COVID-19 stimulus package in April 2020 to address orphan site restoration. All orphan work is required to be performed by qualified service providers that are registered in BC. The Commission is supporting the communities where the majority of energy development occurs by using service providers based in northeast BC. Read the BCOGC news release.

A Pipeline Runs through It: Coastal GasLink Is Crossing
Hundreds of Waterways in Northern BC
Environmental violations on waterways flagged during pipeline construction
A major BC pipeline will cross about 625 streams, creeks, rivers and lakes, many of them fish bearing, during construction of one of the largest private sector projects in Canadian history, according to the company building it. The $6.6-billion pipeline is designed to carry natural gas, obtained by hydraulic fracturing – also known as fracking – in northeastern BC, to a $40-billion LNG terminal on the province's North Coast for export to Asia. Read the CBC article.

Canadian Energy Oil and Gas: Top 20 of 2020 –
Legislative developments
Without question, the top story over the last year has been the COVID-19 pandemic and its tremendous ongoing effects felt across Canada and the world.This time has had a significant impact on Canada's energy industry and many of the changes and developments that took place in 2020 will continue to influence trends, business decisions and the future growth of Canada's energy industry in 2021. As we look back at 2020, we have highlighted the Top 20 industry developments and decisions made throughout the year in four key areas: Judicial decisions, regulatory decisions, legislative and policy developments, and transactions and trends. In this article, we analyze the top five legislative and policy developments of the last year and how these decisions may affect your business in 2021. Read the full article by Alan Ross, Jonathan Cocker, Chidinma B. Thompson, Rick Williams, Bradon Willms, Steven Lumbala, Heidi Rolfe of Borden Ladner Gervais LLP.

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

• INDB 2021-03 – Changes to the EMA and CSR
• INDB 2021-04 – Commission Recommends Operators Review Site and Systems Security Practices
• INDB 2021-05 – Adoption of Local Magnitude Determination
• INDB 2021-06 – Commission Staff Receive New Habitat Officer Designation
• INDB 2021-07 – Updates to the Application Management System
• INDB 2021-08 – Release of New Light Control Best Practices Guideline
• INDB 2021-09 – Regulation Changes – Consultation and Notification Regulation; Service Regulation; Fee, Levy and Security Regulation
• INDB 2021-10 – A new Oil and Gas Processing Facility Regulation (OGPFR) has been approved

Visit the BCOGC website to view this and other bulletins.

Gas Utility Act

Family and Children News:

Summary of the Changes to the Divorce Act
Today, March 1, 2021, marks the coming into force of significant changes to the Divorce Act. These changes were originally to come into effect on July 1, 2020, however they were delayed to March 1, 2021 due to the COVID-19 Pandemic. A more detailed summary of the changes can be found on the Department of Justice website found here. The below is a brief summary of some of the more material changes.

Custody/Access v. Decision-making/Parenting Time
The language under the "new" Divorce Act will align with British Columbia's Family Law Act, replacing "custody" and "access" with "decision-making", "parenting time" and "contact". This is an easy shift for family law practitioners in BC!

Read the full article by the Family Law Group with Clark Wilson LLP. 

Divorce Act Amendments and Revised
Supreme Court Family Forms
From Supreme Court of BC: The new amendments to the Divorce Act take effect on March 1, 2021. Some changes to the Supreme Court Family Rules and Forms will also come into effect on March 1, 2021 to reflect the amendments to the Divorce Act. More information about the new forms will be available on the Ministry of Attorney General's website. Effective March 1, 2021, the Registry staff will only accept the new Supreme Court Family Forms. Visit the Supreme Court website to view this and other announcements.

Grieving Families Say Their Lost Loved Ones Are
"Worthless" under BC Law, Call for Changes
New public service announcement aims to educate people about BC's Family Compensation Act and spark change. It's been four months since Ann Forry's 29-year-old daughter Natasha died from an undiagnosed staph infection, despite repeated visits to Lions Gate Hospital. "It's still shocking that she's even gone, and every night I go to sleep knowing that I won't see my daughter tomorrow or even be able to talk to her. It's indescribable, the loss," said Ann Forry. What makes it even harder is the lack of legal recourse and accountability, she said. Forry has filed a complaint with the College of Physicians and Surgeons of BC but legally, there is little she can do. In BC, claims under the Family Compensation Act are limited to "pecuniary loss" — basically income loss and expenses incurred. Since Forry's daughter, Natasha, did not have dependents or a mortgage, the family will not be able to get any damages. Read the CBC news article.

Family Practice Directions and
Family Law Resources
– from Supreme Court of BC
Chief Justice Hinkson has issued two family practice directions:

• FPD 16 – Return Applications under the 1980 Hague Convention on the Civil Aspects of International Child Abduction – Procedural Requirements, effective March 1, 2021. This practice direction has been updated for clarity. FPD 16 rescinds and replaces FPD 9.
• FPD 17 – Divorce Applications, effective March 1, 2021. This practice direction has been updated and includes changes to reflect the amendments to the Divorce Act. FPD 17 rescinds and replaces FPD 15.

The following family law resources have been updated and include changes to reflect the amendments to the Divorce Act:

• Supreme Court Family Order Picklist;
• Litigants' Guide to Judicial Case Conferences; and
• Judicial Case Conference Case Management Form.

Visit the Supreme Court website for these and other announcements.

Interjurisdictional Support Orders Act

BC COVID-19 Vaccine Plan: Seniors 80-plus
Can Get Vaccinated Starting March 15
Vaccinations for people between the ages of 60-79 will begin in mid-April, while those under 59 can get their shots between July and September. The province is extending the gap between the first and second doses of the COVID-19 vaccine to 16 weeks, or 112 days, with the goal of providing all adults with their first dose before the end of July. The move was announced Monday [March 1st] as the government released more details of the province's mass vaccination plan for the public, which will begin with seniors over age 80 and Indigenous people over 65 this month. Read the Vancouver Sun article. 

People Detained in BC Psychiatric Wards Lack Legal Protection
Due to "Uniquely Problematic" Law: Experts
Legislation around involuntary status and deemed consent for treatment needs review, advocate says
A peer-support worker who helps youth with mental health challenges says being involuntarily detained in a psychiatric facility half a dozen times has given him insight into the lack of legal protections for vulnerable patients in British Columbia. Rory Higgs said he first sought treatment in hospital at age 18 during a difficult time in his life, but did not know he could be kept there, medicated against his will and placed in a seclusion room. Read the CBC article.

BC Court of Appeal Rules against Patient Suffering
Nerve Pain after Wisdom Tooth Extraction
The Court of Appeal for British Columbia has dismissed the appeal of a patient who experienced debilitating nerve pain following a wisdom tooth extraction because the patient would have consented to the surgery even if sufficiently apprised of the risk. In Warlow v. Sadeghi, 2021 BCCA 46, the appellant suffered from a painful toothache and facial swelling in her lower right jaw. An emergency dentist recommended that the appellant undergo surgery to have her impacted lower right wisdom tooth extracted. Read the full article by Bernise Carolino published in the Canadian Lawyer.

Senate Passes Amended Version of Assisted
Dying Bill after Days of Debate
Senators overwhelmingly approved Wednesday [February 17] a bill to expand access to medical assistance in dying – with amendments that would relax access even more than the government has proposed. A revised version of Bill C-7 was passed in the Senate by a vote of 66-19, with three abstentions. The bill is intended to extend eligibility for assisted dying to people whose natural deaths are not reasonably foreseeable, in compliance with a 2019 Quebec Superior Court ruling. But senators approved five amendments, two of which would expand access even more. One amendment would allow people who fear losing mental capacity to make advance requests for assisted death. Another would impose an 18-month time limit on the bill's proposed blanket ban on assisted dying for people suffering solely from mental illnesses. Read the CBC article.

BC Human Rights Tribunal Makes Record-Shattering
Award for Injury to Dignity
On January 28, 2021, the B.C. Human Rights Tribunal (the "Tribunal") ordered the Government of British Columbia to pay a total of $974,167 – including a record-shattering $176,000 in compensation for injury to dignity, feelings and self-respect – for discriminating and retaliating against a BC Corrections Officer, contrary to sections 13 and 43 of the BC Human Rights Code (the "Code"). Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 (the "Remedy Decision"), is the latest chapter in a 9-year saga between Levan Francis, a former BC Corrections officer, and the BC Ministry of Justice, North Fraser Pre-Trial Centre ("North Fraser"). In 2012, Mr. Francis filed a human rights complaint alleging that his employer, North Fraser, had discriminated against him on the basis of race and colour, contrary to section 13 of the Code. Mr. Francis also alleged that North Fraser had retaliated against him contrary to section 43 of the Code by treating him with hostility after learning that he had filed a human rights complaint. Read the full article by Laura DeVries and Heather Mallabone with McCarthy Tétrault LLP.

Impact of COVID-19 on the Duty to Mitigate: Early
Indications in BC Supreme Court Decision
Following termination of employment, employees who are seeking damages for wrongful dismissal have a duty to mitigate their losses by taking reasonable steps to find comparable work. Employers considering issues related to common law reasonable notice in recent months should consider whether and to what extent the COVID-19 pandemic will affect the notice period. In Mohammed v. Dexterra Integrated Facilities Management, 2020 BCSC 2008, the British Columbia Supreme Court addressed the issue of mitigation where a dismissed employee asserted that the COVID-19 pandemic restricted his ability to find new work. Read the full article by Donovan Plomp and Jordan Chu with McCarthy Tétrault.

Facts
A sales associate for Aurora Biomed alleged that the founder, Dr. Liang, made comments about her appearance that made her feel uncomfortable and degraded. Comments included calling the sales associate "beautiful girl" or "beautiful lady" instead of using her name, and telling her to smile more. During her employment, the sales associate complained to her supervisor, Dr. Liang's daughter, about Dr. Liang's actions and that his conduct "could come across" as sexual harassment. A meeting later that month was held between the sales associate, her supervisor, and Dr. Liang. In that meeting, Dr. Liang accused the sales associate of defaming him and asked her to sign a statement affirming that he had not assaulted her. Following this meeting the sales associate was fired.

Local Government News:

New Local Elections Legislation Introduced
On March 3, the government introduced Bill 9, Local Elections Statutes Amendment Act, 2021. According to the government, the proposed legislation will strengthen local election campaign financing rules and will more closely align the Local Elections Campaign Financing Act. These changes include:

• establishing a pre-campaign period that increases the length of time election advertising is regulated from 29 days to 89 days;
• limiting sponsorship contributions to $1,200 to match the provincial campaign contribution limit set in 2017;
• requiring elector organizations to register with Elections BC; and
• providing Elections BC with new investigative tools to support investigations and additional penalties to fine people who do not comply with the new campaign financing rules.

The amendments to the Local Government Act, School Act and Vancouver Charter include changes to ensure that candidates have access to residential properties, such as strata properties, to canvass voters and distribute candidate information; address the disenfranchisement of some individuals by removing the requirement that individuals must have been a resident of their community for at least 30 days in order to vote; and ensure constituency among the choices that a court has when declaring an election invalid to improve efficiency for local governments.

New Federal Handgun Legislation to Impact
Local Governments – Early Consolidation
Quickscribe has published an early consolidation of the Criminal Code as it will likely read once Bill C-21 amendments come into law. Among other changes, the newly introduced federal legislation will give municipalities (with permission from the provincial government) the authority to draft bylaws prohibiting handguns within their borders. The mayors of Surrey and Vancouver have already expressed their intent to take advantage of this new legislation in an effort to curb the recent gang-related shootings. As of February 26, Bill C-21 is currently at 2nd reading and, if passed, will come into force by Royal Assent. For more information and background on Bill C-21, visit the Public Safety Canada website.

Bill C-21: Municipal Bylaws and Regulation of Firearms
Gun violence is a significant issue. Currently, pursuant to section 8(5) of the Community Charter, a municipal council may, by bylaw, regulate and prohibit in respect to the discharge of firearms within municipal boundaries, and such bylaws are common throughout BC. On February 16, 2021, Bill C-21 received first reading in the House of Commons. Bill C-21 is an Act to amend certain Acts and to make certain consequential amendments in respect to firearms. Bill C-21 will amend the Criminal Code, Firearms Act, Nuclear Safety and Control Act, and Immigration and Refugee Protection Act. Bill C-21 proposes to add section 58.01 to the Firearms Act, which will be of particular interest to local governments. Read the full article by Kathleen Higgins and Sarah Strukoff with Young Anderson Barristers & Solicitors.

New Firearm Violence Prevention Act
On Wednesday, March 3rd, the government introduced Bill 4, Firearm Violence Prevention Act. According to the government, the new legislation is intended to provide police with new tools to address the misuse of firearms, and particularly the use of firearms by gangs and organized crime to perpetrate violence. The legislation closes gaps in the existing federal and provincial firearms schemes by introducing new prohibitions and measures that will enhance the safety of British Columbians. The Act will create a new offence for drivers who transport a prohibited gun and will allow police to impound vehicles that flee officers or transport these firearms. Also included are restrictions around imitation and low velocity firearms (projectile velocity under 152.4 metres per second – such as BB guns and airsoft guns), including the ban on selling these firearms to youth. The legislation will also provide protection for social workers and health-care workers who breach client confidentiality by reporting to police about guns. Quickscribe intends to publish an early consolidation of this Bill as it will read when it comes into force by regulation at a future date.

New Legislation Intends to Centralize
Homeowner Grant Program
On Tuesday, March 2nd, the government introduced the Home Owner Grant Amendment Act, 2021, which proposes amendments to the Home Owner Grant Act. The primary purpose of the bill is to centralize the homeowner grant program, allowing the province to take over administration of the program from municipalities. It is also intended to ensure that homeowners have access to online application, phone-based support, and quicker application processing, as well as receiving the full amount they are eligible for.

Snow and Ice Clearing Bylaws Do Not Make Adjacent Private Property Owners
Liable to Slip-and-Fall Claimants but May Insulate Local Governments
Many local governments in BC have adopted bylaws that require property owners to clear snow and ice from the sidewalks adjacent to their properties. Questions have been raised whether the imposition of this responsibility in a bylaw also makes the property owner legally liable in negligence if a person were to be injured after slipping and falling on uncleared snow or ice on an adjacent sidewalk. In Der v. Zhao, 2021 BCCA 82, the BC Court of Appeal recently conducted a thorough negligence analysis on this question and found that residential property owners do not owe a duty of care to pedestrians passing by on sidewalks adjacent to their properties that are owned by municipalities, even where a bylaw makes them responsible for snow and ice clearing. The Court found that the local government remains the "occupier" of the public sidewalk and that a breach of a bylaw requirement by the adjacent residential property owner does not give rise to the sufficient proximity required to establish a duty of care to persons passing on the sidewalk. Read the full article by Josh Krusell of Stewart McDannold Stuart.

Private Property Rights, the Common Law and
Land Use Regulation
On January 22, 2021, the BC Court of Appeal issued its judgment in Fonesca v Gabriola Island Local Trust Committee, 2021 BCCA 27, which overturned the trial decision from 2018. The Court of Appeal's decision centres on the relationship of private property rights and a local government's statutory authority to regulate land use. In the lower court decision, the BC Supreme Court had reasoned that a local government did not have authority under its zoning power to infringe on a private owner's "common law riparian right to protect their property where it bounds at sea" absent a clear legislative intent. The Gabriola Island Local Trust Committee (the "Island Trust") appealed this decision and the private landowners cross appealed. The Court of Appeal disagreed with the Supreme Court's reasoning with respect to the restriction on the riparian rights and allowed the appeal. Read the full article by Heidi Boudreau with Stewart McDannold Stuart.

$100-million Fund to Help Local Governments  
Tackle Homelessness During Pandemic
A new $100-million fund will provide grants to local governments and First Nations to tackle homelessness. The grants will fund initiatives such as expanding shelter capacity, building temporary facilities and creating outreach teams to connect people to resources. The announcement Thursday [February 18] comes as communities around B.C. — including Victoria and Nanaimo — have been struggling with how to deal with growing populations of people without homes, many of whom have mental health and addiction problems. Read the Times Colonist article.

New Aquaculture Act under Development
The federal government, through the Department of Fisheries and Oceans (DFO), has issued a discussion paper to seek feedback on the establishment of an Aquaculture Act. Read the full UBCM article. 

Miscellaneous News:

Allowing Accused Criminals to Appear Remotely among
Proposed Justice System Changes
[Quickscribe has published an early consolidation of the Criminal Code as it will read if Bill C-21 and Bill C-22 come into law]
A series of permanent changes to Canada's criminal justice system spawned from the COVID-19 pandemic could be on the way if a new federal bill passes, including allowing accused individuals to appear remotely for certain criminal proceedings. Justice Minister David Lametti tabled the legislation late Wednesday [February 24]. It sets out a series of changes to the Criminal Code and Identification of Criminals Act, and makes related changes to a dozen other laws. The government says the amendments are meant to address some of the effects COVID-19 is having on criminal courts and their inability to function at full capacity under ongoing public health restrictions. Read the CTV news article.

British Columbia Court of Appeal Confirms a Strict Two-year
Limitation Period to Commence Third-party Claims
The Court of Appeal in Sohal v. Lezama, 2021 BCCA 40 ("Sohal") recently held that a court does not have the discretion to permit a third-party notice for contribution and indemnity ("contribution") if the limitation period has expired under the current limitation act. In 2012, the new Limitation Act, SBC 2012, c 13 (the "New Act") came into effect, replacing the old Limitation Act, RSBC 1996, c 266 (the "Old Act"). Questions still lingered around the effect of limitation periods on third-party contribution claims. In Sohal, the appellants, Graham Lezama ("Lezama") and Enterprise Rent-A-Car ("Enterprise") (collectively, the "defendants") sought leave to file a third-party notice for contribution against Lezama's employer. This case considered whether the Old Act or the New Act applied to the appellants', potentially time-barred, third-party claims. Read the full article by Fareeha Qaiser and Derek Odgers with Miller Thomson LLP. 

BC Privacy Commissioner Says Privacy Laws Alone Can't
Restrain Big Tech's "Predatory Behaviour"
Governments will have to use more than updated privacy laws if they want to stop technology companies from leveraging disinformation and lies for profit, says British Columbia's information and privacy commissioner. "I do worry the current approaches we are pursuing have already gone beyond their best before date," Michael McEvoy said Friday [February 5th] in an online keynote speech during the Victoria Privacy and Security Conference. "It's evident to me that privacy laws alone cannot sufficiently restrain the predatory behaviour of technology companies, particularly the giants among them." Read the IT World Canada article.

New Rural Licensee Retail Store Licences
On February 26, 2021, the Liquor Control and Licensing Regulation was amended to set out the requirements for granting Rural Licensee Retail Store (RLRS) licences. The Rural Licensee Retail Store licence authorizes a general store to sell packaged liquor (beer, wine, coolers, cider and spirits) to patrons in the service area under the licence and to sell or serve samples of liquor in the service area to patrons. Rural Agency Stores (RAS) authorized under the Liquor Distribution Act to sell liquor on behalf of the Liquor Distribution Branch (LDB) may have had their RAS authorization converted to an RLRS licence, having met liquor licensing requirements under the Liquor Control and Licensing Act. This handbook outlines the requirements of the Liquor Control and Licensing Act, Liquor Control and Licensing Regulation and terms and conditions that relate to the operation of RLRSs. RLRS licensees are responsible for ensuring they operate in compliance with these rules. Read the full handbook on the BC government website.

Provincial Court: Revised Court
Operations During COVID-19
From March 1, 2021:
The Provincial Court has released a revised version of NP 19 Court Operations During COVID-19. See full notice: NP 19 Court Operations During COVID-19. Source: Courthouse Libraries BC.

New Relationship Trust Act

E-bikes that Look Like Motorcycles Take Another
Hit in BC Court of Appeal Decision
Appellant's lawyer says his client relied on Motorino XMr for affordable transportation
The British Columbia Court of Appeal has upheld a B.C. Supreme Court ruling that e-bikes designed to look and function more like mopeds or scooters do not meet the province's definition of a motor-assisted cycle and therefore require a driver's licence, registration and insurance. The case was brought forward by Ali Ghadban, who was issued a ticket in Surrey, BC, in 2018 for riding his Motorino XMr without a driver's licence and insurance. He said he wasn't able to obtain them from the provincial insurer, ICBC. Two of the three Appeal Court justices assigned to the case agreed with the B.C. Supreme Court judge's decision from May 2020 that found although the Motorino XMr is outfitted with pedals, limited power and a maximum speed of 32 km/h, it doesn't qualify as a motor-assisted cycle because it's not designed to be operated primarily by human power. Read the CBC article.

ICBC Tribunal Partly Unconstitutional:
B.C. Supreme Court
B.C. Supreme Court March 1 struck down sections of B.C.'s Civil Resolution Tribunal Act dealing with ICBC reforms as unconstitutional. Chief Justice Christopher Hinkson ruled it is unconstitutional for Victoria to simply reassign determination of accident claims out of the courts and to its own online tribunal. Attorney General David Eby, minister in charge of ICBC, said the decision has already been accounted for in the provincial insurances finances and won't affect the COVID-19 rebates or reductions in rates effective May 1. Read the BIV article.

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

• CVSE 1052 Contacts – Notice to industry that the List of Contacts for use with Form CVSE1052 has been updated (February 16, 2021)
• CVSE 1014 – Additional Routes Added for LCVs in the Okanagan/Lower Mainland Area
• CT Notice 03-20 – Increased Steer Axle Weight and Changes to the Permitting Process for 9-Axle Logging Trucks Approved for Permits Under Letter of Authorization
• VI Bulletin 01-21 – Ex-Military Utility Vehicle Inspections
• CVSE 1040 – Firetruck Application for Municipalities

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

Motor Vehicle Act

Standardized Faller Inspection Form
for Industry
During field visits around the province in the last few years, one of the widespread patterns the Falling Safety Advisors (FSA's) observed was the inconsistent use of supervisor inspections being performed on hand fallers. The importance of proper supervision of hand fallers cannot be overstated. As per OHS regulation 26.22.1(2), the supervisor must keep a record of every inspection. The FSA's noticed that there was a wide variety of falling inspection forms being used. Some were very detailed, multiple page inspection documents and some were very simple, one-page documents. I believe it is very important for the field inspection document to cover each part of the BC Faller Training Standard (BCFTS). I also believe the document does not need a numbered scoring system. Read the full article by Scott Rushton, BCFSC Lead Safety Advisor, in the March 2021 Edition of the Forest Safety Newsletter.

WorkSafeBC Launches New Workplace Health and
Safety Awareness Campaign amid Pandemic
WorkSafeBC is launching a province-wide, multi-language campaign focused on several specific actions workers and employers need to take to keep workplaces safe from COVID-19. "Our campaign is urging employers to revisit and update their COVID-19 safety plan as conditions change, and make sure it addresses risks in all areas of the workplace, including lunch rooms, hallways and meeting areas," said Al Johnson, head of prevention services for WorkSafeBC. "For workers, our campaign is emphasizing the importance of understanding and abiding by their employer's safety plan. This includes asking questions and sharing safety concerns with their employer, completing a daily health check with their employer before entering the workplace, and staying home when feeling sick." Read the full article by Jim Wilson, published on Canadian Occupational Safety.

WorkSafe BC Updates Guidelines – (February 11)
– from WorkSafeBC:
A number of Occupational Health and Safety regulation guidelines were updated in February. These include:

Guidelines – Occupational Health and Safety Regulation

• Part 8 Personal Protective Clothing and Equipment
• G8.33(2)-1 Approved respirators (revised)
• Part 12 Tools, Machinery and Equipment
• G12.20 Reach distance to overhead power transmission parts (revised)
• G12.28(3) Emergency stopping devices (revised)
• G12.29 Power presses, brake presses, and shears (revised)
• G12.56 (and 4.3(1)&(2)) Powder actuated tools – Use and service in accordance with manufacturer's instruction (retired)
• G12.120 Reverse gas flow and flashback prevention (revised)
• Part 20 Construction, Excavation and Demolition
• G20.123 Alternate acceptable standard (new)

• Regulated and Unregulated Health Professionals SARS-CoV-2 Immunization Order – February 23, 2021 (PDF, 401KB)
• Emergency Medical Assistants SARS-CoV-2 Immunization Order – February 23, 2021 (PDF, 295KB)
• Gatherings and Events – February 10, 2021 (PDF, 450KB)

New Legislation Intends to Expand
Protection to Renters
On Monday, March 1st, the government introduced the Tenancy Statutes Amendment Act, 2021. This bill includes proposed amendments to the Manufactured Home Park Tenancy Act and the Residential Tenancy Act. The new legislation will continue the freeze on rent increases for the remainder of 2021. According to the government, the other amendments intend to improve safety and fairness for renters and rental housing providers by:

• stopping renovictions by having landlords apply to the residential tenancy branch prior to ending a tenancy for renovations;
• expanding the RTB's ability to review director's decisions and to initiate a review on the director's initiative;
• clarifying language around the Manufactured Home Park Tenancy Act park rules;
• clarifying that the monetary limit for claims under the Small Claims Act applies only to claims for debt or damages;
• clarifying when the director does not have jurisdiction to resolve a dispute;
• clarifying the director's authority to compel records and information related to an investigation and providing regulation-making power to establish procedures to object to a director's demand for records;
• allowing the director to order a person to pay an administrative penalty if the person commits fraud in a dispute resolution proceeding or an administrative penalty investigation or hearing or fails to comply with the demand for records;
• creating review consideration grounds that are specific to administrative penalties;
• ensuring that the director must grant a monetary order for unpaid rent, along with an order of possession of a tenant dispute, so notice to end tenancy for unpaid rent that is dismissed by the director and the notice is upheld.

Minor changes to regulation-making power will ensure that government can implement a process that will allow landlords to apply for an additional rent increase for capital expenditure.

New Legislation Intends to Transition Regulation of
Real Estate to B.C. Financial Services Authority
On Tuesday, March 2nd, the government introduced the Finance Statutes Amendment Act, 2021, which includes proposed amendments to the Real Estate Services Act to enable the transition to a single regulator of real estate under the BC Financial Services Authority. This is intended to improve efficiency over the current co-regulator model where the office of the superintendent of real estate and the Real Estate Council of B.C. share responsibility for regulating real estate in the province.

Evicting BC Condo Owners Who Repeatedly Violate
COVID-19 Orders Not Simple: Experts
What can be done about problematic condo owners who repeatedly break COVID-19 rules? This question is being raised after a Vancouver man was arrested Sunday [January 31st] when police attended his penthouse, which was allegedly being run as a makeshift nightclub in recent months. There are steps property owners in a building can take against other owners but, it isn't all that simple. Tony Gioventu with the Condominium Home Owners Association says some buildings in downtown Vancouver have hired security guards — but if you want to kick an owner out of a building — it's complicated. Read the News 1130 article.

Keeping It Together: How Strata Corporations Can Keep Electronic
Meetings on the Books When Ministerial Order M114 Is Repealed
On April 15, 2020, the BC Minister of Public Safety and Solicitor General issued Ministerial Order M114 under the Emergency Program Act enabling all strata corporations to hold their meetings electronically. This Order dispensed with the ordinary requirement that communities wishing to conduct their meetings electronically needed to have a bylaw in place to enable that form of attendance. The purpose of the Order was to assist strata corporations with conducting their business in accordance with public health orders and physical distancing requirements while reducing the risk of COVID-19 transmission in the community.
[…]
On February 16, 2021, the province passed Order in Council 81/2021 which will repeal the ability of strata corporations to hold electronic meetings without a bylaw as of July 10, 2021. In other words, absent a future legislative amendment or Order giving strata corporations the same allowances provided under Ministerial Order M114, communities wishing to continue conducting electronic meetings will need to have a bylaw in place prior to July 10th in order to validate this form of meeting. So where does this leave strata corporations if this meeting allowance is not extended? Read the full article by Lisa Mackie with Alexander Holburn Beaudin + Lang LLP.

Wills and Estates News:

Using Two Wills to Minimize British Columbia Probate Tax 
In British Columbia when a will is probated, or in other words proved, the personal representative is required to pay probate tax. The legislation imposing this tax is called the Probate Fee Act, but the fees are really a tax. The tax is calculated on the value of the estate, at a rate of approximately 1.4 percent (I am simplifying a little). If the will maker was ordinarily resident in British Columbia at his death, then the tax applies to real estate and tangible property in British Columbia (such as cars, furniture and art), and his worldwide intangible assets (such as money, stocks and bonds). There are various techniques used to avoid or minimize probate fees, some of which are well thought out, and some of which are ill advised. Many of these techniques centre around minimizing the wealth that is dealt with under a will, so that the value of the estate is small. For example, spouses may hold their house, bank accounts and investment accounts jointly with a right of survivorship, so that on the death of one, the survivor becomes the sole owner, and the will of the first to die either does not need to be probated, or if the will is probated, the jointly held assets do not need to be listed as part of the estate, and may be excluded form the calculation of probate tax. Trusts are also employed to minimize probate tax. One technique that has become more popular in British Columbia since changes in our succession legislation in 2014 is the use of two wills dealing with British Columbia. The idea is for the will maker to have two wills, one governing assets for which a grant of probate is necessary for the will-maker's executor to deal the assets, and the other governing assets for which no grant of probate is required. Read the full article by Stan Rule of Sabey Rule LLP.

A Tale of Two Spouses: Boughton v. Widner Estate 
In a recent decision, the British Columbia Supreme Court grappled with an estate dispute where a deceased was survived by two spouses. This unique decision, involving a deceased who was the victim of homicide, gave the Court an opportunity to consider whether the Wills, Estate and Succession Act [WESA] gave both spouses legal status in respect of the Estate, and whether doing so would "condone polygamy". In Boughton v. Widner Estate, 2021 BCSC 325, the Deceased left what Justice Duncan described as "a complicated legacy". He was survived by Sabrina, to whom he had been married, and by Sara, with whom it was acknowledged that he had been in a marriage-like relationship of at least two years. Read the full article by Polly Storey with Clark Wilson LLP.

Enforcing a Judgment Against a Beneficiary of a
Trust Against Lands Held in the Trust
Can a judgment against a beneficiary of a trust be registered and enforced against land held in the trust? As illustrated by the decision in Clarke v. Braich, 2021 BCSC 121, in British Columbia the answer depends on the nature of the beneficiary's interest in the trust. If the beneficiary does not yet have the right to the property held in trust, then a judgment may not be registered against the land. Read the full article by Stan Rule published on his Blog Rule of Law.