|COMPANY & FINANCE
Company and Finance News:
Registered Retirement Accounts are Fair Game: Enhanced
Tools forSecurities Regulators to Fight White-collar Crime
In November 2020, the British Columbia Securities Commission (the "Commission") dismissed an application brought by Earle Pasquill for an order to revoke a preservation order made under the British Columbia Securities Act (the "Act") that prohibited Pasquill from withdrawing or transferring funds from his registered retirement income funds. In 2014, the Commission found that Pasquill and Michael Lathigee, who jointly directed and controlled the Freedom Investment Club group of companies ("FIC Group"), perpetrated a fraud by misleading investors and misusing investment funds. In one of British Columbia's largest frauds, Pasquill and Lathigee raised $21.7 million from nearly 700 Canadian investors without disclosing important facts about FIC Group's financial circumstances. Read the full article by Jordan Deering and Adrienne Wong with DLA Piper LLP.
New T4 Reporting Requirements for Employers
Employers completing T4 slips and summaries for 2020 should be aware of new reporting requirements related to the completion of these tax documents. All Canadian employers who issue T4s to employees must report certain employment payments related to Covid-19, regardless of whether they have applied for Covid-19 related government programs or not. This additional information is intended to validate payments made to individuals under the Canada Emergency Response Benefit, Canada Emergency Student Benefit and payments made to employers under the Canada Emergency Wage Subsidy (CEWS). Read the full article by Tara Benham with Grant Thorton.
You Can Run but You Can't Hide (Your Assets): American Appellate Court
Upholds Enforceability of Canadian Securities Disgorgement Order
In May 2019, a district court of Nevada recognized a CAD$21.7 million disgorgement order issued by the British Columbia Securities Commission (the "BCSC") against Michael Lathigee, a Canadian national residing in Nevada. Lathigee appealed the district court's decision and on December 10, 2020, the Supreme Court of Nevada upheld the Nevada district court's decision, marking the first time an American court has recognized an order issued by a Canadian securities regulator. Read the full article by Adrienne Wong with DLA Piper.
Honesty is the Best Policy: The Supreme Court of Canada Seeks to
Clarify the Duty of Honest Contractual Performance
Don't mislead your contracting counterparties about matters linked to the performance of a contract. That is the apparently simple message from the Supreme Court of Canada in CM Callow Inc v Zollinger. Applying the organizing principle of good faith and, specifically, the duty of honest contractual performance (recognized in Bhasin v Hrynew) to a case involving a right to terminate an agreement on notice for convenience, Callow seeks to clarify the circumstances in which the duty of honest performance may require a contracting party to provide information to its counterparty about a matter involving the performance of a right under the contract. The Court held:
- All contractual rights and obligations – even apparently absolute ones – must be exercised in line with the duty of honest performance, which cannot be expressly or implicitly excluded under the contract.
- Even if a party complies with the letter of a contract, the way it exercises a right or performs an obligation may still breach the duty of honest performance.
- Although there is no positive obligation of disclosure, a contracting party cannot engage in "active deception" and, where the facts disclose dishonest conduct, may be required to correct a false impression created by its own actions.
- A breach of the duty of honest performance may give rise to a claim for expectation damages to put the innocent party in the same position as if the contract had been performed.
Read the full article by Nancy Roberts, Jacqueline Code, Lindsay Rauccio and Mary Angela Rowe with Osler, Hoskin & Harcourt LLP.
Does Your Company Incentive Plan or Stock Option
Use the Term "Actively Employed"?
On October 9, 2020, the Supreme Court of Canada ("SCC") decided in Matthews v Ocean Nutrition Ltd., that a dismissed employee while still in their termination period is entitled their employment bonus. In 1997, David Matthews began his employment with Ocean Nutrition Canada Limited ("Company") as a chemist and went on to hold various senior executive roles in the organization until his resignation in June of 2011. Matthews was eligible to participate in the Company's Long Term Incentive Plan (LTIP). Under the program, a "Realization Event", such as the sale of the Company, would trigger payments to participating employees. The relationship soured, and ultimately Matthews left the Company. He did not allege constructive dismissal at the time of his departure. After 13 months of Matthew's departure, the Company was sold for $540 million triggering an LITP payment for employees. Matthews would have been entitled to a payout of approximately $1.1 million. Read the full article by David Turner and Joyce Pong with Edwards Kenny & Bray LLP.
Home Office Expenses – New Simplified Deduction Methods,
New Taxable Benefit Exception, and Employer Obligations
On November 30, 2020, Deputy Prime Minister and Minister of Finance Chrystia Freeland released Supporting Canadians and Fighting COVID-19: Fall Economic Statement 2020 (the "Fall Economic Statement"). The Government's news release in respect of the Fall Economic Statement 2020 is here. The text of the Fall Economic Statement 2020 is here. The Fall Economic Statement contained a commitment to allow employees working from home in 2020 due to COVID-19 to deduct up to $400 in home office expenses without the need to obtain a Form T2200 from their employers certifying certain conditions in section 8 of the Income Tax Act (Canada) ("ITA") had been met. On December 15, 2020, the Canada Revenue Agency ("CRA") released details of the simplified home office expense deduction. An explanation from the CRA of the changes can be found here. For 2020, the measures allow employees to choose one of two methods to deduct home office expenses: a simplified method (referred to by the CRA as the "new temporary flat rate method") and a detailed method. Read the full article by Stefanie morand, Fred Purkey, Kate McNeill-keller, Kim Brown and Kabir Jamal with McCarthy Tetrault LLP.
BC Securities – Policies & Instruments
The following policies and instruments were recently published
on the BCSC website:
- 25-403 – CSA Consultation Paper
25-403 – Activist
- 13-315 – CSA Staff Notice Securities
Regulatory Authority Closed Dates 2021
- 55-317 – CSA
Staff Notice 55-317 Automatic Securities Disposition
Notice 2020/07 – Launch of BCSC Fintech Advisory Forum
– BC Instrument Temporary Exemption from Delivery of
Fund Facts and ETF Facts Documents For NoTrailing-Commission
For more information visit the BC Securities website.
The BC Financial Services Authority published the following in December:
- Regulatory Statement –
Plan Termination Requirements and Checklist
- Pension Plans –
2020 Report on Pension Plans
Registered in British Columbia
- Media Release –
BCFSA Released Final Report into British Columbia's Unhealthy Strata Property Insurance Market
- Regulatory Statement –
Target Benefit Provision for Adverse Deviation Exemption and Related Amendments
- Advisory –
Liquidity Requirement Regulation Amendments and Related Reporting Changes
- Media Release –
BC Acts on Rising Strata Insurance Premiums, Eliminates Best Terms Pricing
Visit the BCFSA website for more information.
|Act or Regulation
|Budget Transparency and Accountability Act
||by 2020 Bill 3, c. 22, sections 1 and 2 only (in force by Royal
Assent), Finance Statutes Amendment Act, 2020
|Eligible Port Property Description Regulation (309/2010)
||by Reg 280/2020
|Financial Administration Act
||by 2020 Bill 3, c. 22, section 3 (in force by Royal Assent), Finance Statutes Amendment Act, 2020
|Liquidity Requirement Regulation (332/90)
||by Reg 279/2020
|National Instrument 31-103 Registration Requirements,
Exemptions and Ongoing Registrant Obligations (226A/2009)
||by Reg 288/2019
|Port Land Valuation Regulation (304/2010)
||by Reg 276/2020
|ENERGY & MINES
Energy and Mines News:
Canadian Government Releases
Draft Clean Fuel Regulations
The development of a Canada-wide clean fuel standard took a major
step forward on December 19, 2020, with the federal government's release
of draft Clean Fuel Regulations which, once finalized, will come into
force in December 2022. The Clean Fuel Regulations will apply to producers or importers of
gasoline, diesel, kerosene and light and heavy fuel oils (referred to as
"primary suppliers"). Each fuel type is assigned a lifecycle carbon
intensity value, expressed in grams of carbon dioxide equivalent per
megajoule of energy (gCO2e/MJ), which is meant to represent
the emission intensity of such fuel throughout its entire lifecycle. The
carbon intensity values serve as a baseline, against which primary
suppliers will be required to make annual reductions. Beginning in 2022,
each primary supplier must reduce the carbon intensity of the fuels it
produces or imports by a minimum amount that increases each year,
starting at 2.4 gCO2e/MJ in 2022 and culminating in a 12 gCO2e/MJ reduction requirement in 2030. Read the full article by Thomas McInerney, Shawn Munro, Sarah Gilbert, Sharon Singh, Dylan Gibbs and Kenryo Mizutani of Bennett Jones LLP.
FortisBC fee Increase in January
On December 8, the BCUC approved the application by FortisBC to move ahead on rate increase of 6.59% effective January 1, 2021. According to the BCUC press release, in an effort to reduce the impact on rate payers, the 2020 rates have been largely mitigated by drawing down accumulated credits from previous years. Since these accumulated credits will be fully depleted by the end of 2021, the BCUC strongly encourages FEI to focus on mitigating cost pressures to moderate rates for customers, particularly in light of the potential impacts from the COVID-19 pandemic. Read the full press release.
Disputes Involving Regulated Utilities
The oil and gas industry can be divided into two main
segments: upstream and downstream. Most of the writing about
energy arbitration relates to the upstream, as that is where the
exploration and development takes place. This sector is
dominated by governments that control the rights to the assets
in the ground, and the multinational oil companies that extract
the oil and move it to market. This is the world of
investor-state arbitration. The attention the segment receives
is not surprising. Investor-state arbitrations are the product
of the rapid growth of treaties designed to protect the
interests of investors – multilateral treaties such as the
Energy Charter Treaty and approved by the North American Free
Trade Agreement (NAFTA) – but also a wide array of bilateral
treaties between specific countries. However, for every one of
the investor-state cases, there are 10 significant commercial
arbitrations in the downstream energy sector. Here, the centre
of gravity is not London, Stockholm or Paris, but Houston or
Calgary. More than 90 energy companies have head offices in
Calgary – and Houston has three times that number. Read the full article by Gordon Kaiser with Energy Arbitration Chambers.
Recent BCOGC Bulletins
The BCOGC has recently issued the following bulletin:
- IB 2020-09 – AMS Payment to be Renamed
- IB 2020-10 – Disposal Well Near Hudson's
- IB 2020-11 – Results of the Commission's
2020 Aerial Leak Detection Survey
- INDB 2020-26 – Changes to Submission
Process for As-Drilled Survey Plans
- INDB 2020-27 – Revisions to the Dormancy
and Shutdown Regulation
- INDB 2021-01 – Online Submissions for
Corporate Financial and Reserves Information Launched
Visit the BCOGC website to view this and other
|Act or Regulation Affected
|Direction to the British Coumbia Utilities Commission Respecting
|see Reg 295/2020
|Dormancy and Shutdown Regulation (112/2019)
||by Reg 288/2020
|Pipeline Regulation (281/2010)
||by Reg 289/2020
Family and Children
Spotlight on Child Protection:
Party Status for Children
BCLI is running a public consultation (closing date: 15 January 2021) on child protection. It is asking for public input into its proposed changes to the Child, Family and Community Service Act. For information on how to participate in the consultation please visit the Modernizing the Child, Family and Community Service Act Project webpage. This post is part of a series that spotlights issues discussed in the Consultation Paper on Modernizing the Child, Family and Community Service Act. Read the full article by Kevin Zakreski on the BCLI website.
What to Do About Duplicate Divorce Filings?
It sometimes happens … estranged spouses, who are not
in communication with one another, each go to a family law
lawyer and each lawyer prepares and files court documents to
obtain a divorce. So what happens if your lawyer files first,
and the next day, a second Notice of Family Claim is filed,
seeking a divorce. Or what about if both spouses file for
divorce on the same day … it's been done before, and that's why
the Divorce Act tells us what to do …
Section 3(2) states:
"Where divorce proceedings between the same spouses are
pending in two courts that would otherwise have jurisdiction
under subsection (1) and were commenced on different days and
the proceeding that was commenced first is not discontinued
within thirty days after it was commenced, the court in which
a divorce proceeding was commenced first has exclusive
jurisdiction to hear and determine any divorce proceeding then
pending between the spouses and the second divorce proceeding
shall be deemed to be discontinued."
Read the full article by Georgialee Lang, published on Lawdiva's
|Act or Regulation Affected
|Provincial Court (Family) Rules (417/98)
||by Reg 236/2020
Forest and Environment News:
Impending Changes to British Columbia's Contaminated
New Obligations to Take Effect February 1, 2021
The Environmental Management Amendment Act,
2019 ("EMAA"), which became law in May of 2019,
seeks to address a number of purported weaknesses in the
current contaminated site regime and streamline the
contaminated site identification process by simplifying the
trigger conditions and the submission procedures. Both the Environmental Management Act
("EMA") and Contaminated Sites Regulation ("CSR")
have been modified by the EMAA and a complimentary Order in Council made by the provincial
cabinet. These changes take effect on February 1, 2021. [For
your convenience, Quickscribe has published an early
consolidation of the EMA and the CSR as they will read on February 1st]. Since 1997, a "site profile" process has been used to identify
potentially contaminated sites in BC. Where required by the
EMA or CSR, a person must fill out a site profile form that
contains a basic description of the site together with present
and historical uses. Several identified gaps have resulted in
the Ministry of the Environment and Climate Change Strategy
replacing the site profile with a new screening process. Some
of the weaknesses noted by commentators include: Read the full article by Lana Finney, Ryan McNamara and Eric Yao (Articling
Student) with DLA Piper.
The Role of Precedent at the Forest Appeals Commission
Deference to judicial precedent is foundational to the Canadian justice system. It promotes certainty and security of legal rights; a critically important objective of our legal system. The rule (otherwise known to law students as "stare decisis") is that once a court determines a principle of law is applicable to particular facts, equivalent or lower levels of court are bound to apply that principle in future cases that arise on substantially the same facts. For this reason, litigators will often go on at length as to whether the circumstances before a court are "distinguishable on the facts" from previous decisions of the court. Given the importance of precedent in our judicial system, the fact that the Forest Appeals Commission is not bound to follow its own previous decisions may come as a surprise to some. The Practice and Procedure Manual of the Commission states that while "the Commission is bound by the decisions of certain courts, it is not required to follow … its past decisions." The surprise is potentially magnified given that the Commission does appear to routinely follow its own "precedents." For example, as discussed in this space previously, over a period of two decades the Commission consistently and repeatedly followed its previous decisions holding that the "Kienapple Rule" (developed to prevent multiple convictions for the same wrongful conduct in criminal proceedings) does not apply to administrative proceedings under BC's forestry legislation. Then, one day in its 2018 decision in Forest Practices Board v. Government of British Columbia, the Commission held that the Kienapple Rule should apply to prevent multiple administrative findings of contravention under the Wildfire Act. Read the full article by Jeff Waatainen in the Winter 2021 issue of the BC Forest Professional Magazine
All of the Above: Canada Reveals $15 Billion
Plan to Accelerate Decarbonization
On Dec. 11, 2020, the federal government unveiled its latest
comprehensive plan to address climate change (the "Climate
Plan"). Entitled "A Healthy Environment and a Healthy
Economy", Canada's federal Climate Plan comprises 64 policies,
programs, and investments intended to support post-pandemic
economic recovery while accelerating Canada's climate goals.
The Climate Plan aims to exceed Canada's 2030 emissions
reduction target and achieve a net-zero emissions economy by
2050. Containing $15 Billion in investments, the Climate Plan
offers significant opportunities for a variety of industries.
When considered together with the Canadian Infrastructure
Bank's (the "CIB") recently-released Growth Plan, the Climate Plan is
especially good news for Canada's clean energy sector.
Although some of the Climate Plan's features will be put into
action right away, others will require stakeholder
consultation. As a consequence, industry and community
stakeholders need to stay carefully tuned-in and be ready to
engage as plans and policy choices evolve. Read the full article by Thomas Timmins, Chris
Hummel and Shamus Slaunwhite with Gowling WLG.
Biodiversity at risk in Prince George
Natural Resource District
An investigation of a complaint about the management of biodiversity in the Prince George Timber Supply Area (PG TSA) has found that biodiversity, as it relates to old growth forest, may be at risk in the TSA. While forest licensees are complying with legal requirements for biodiversity protection in the PG TSA, the investigation identified several concerns with how government and licensees are managing old forest. Read the full report published by BC Forest Practices Board.
Environmental Appeal Board Decisions
There was one Environmental Appeal Board decision in the
month of September:
Visit the Environmental Appeal Board website
for more information.
|Act or Regulation Affected
|Climate Change Accountability Act
||by 2019 Bill 38, c. 43, sections 8 and 10 only (in force by
Royal Assent), Climate Change Accountability Amendment Act,
|Greenhouse Gas Emission Reporting Regulation (249/2015)
||by Reg 294/2020
Ministry of Health Not Required to Disclose
Location of COVID Cases
A decision last week by BC's Information and Privacy Commissioner,
Michael McEvoy, confirms that the positive duty to disclose information
under section 25(1)(a) of the Freedom of Information and Protection of Privacy Act prevails over the Public Health Act.
The decision, Order F20-57, also affirms the approach to interpreting
and applying the positive duty, under section 25(1)(a) of FIPPA, to
disclose information about a risk of significant harm. Order F20-057
also illustrates how the COVID-19 health emergency is affecting public
bodies' responsibilities under FIPPA in new ways. Read the full article by Amy O'Connor and Alexandra Greenberg of Young Anderson, Barristers & Solicitors.
Broader Access to Medical Assistance in
Dying ("MAID") on the Horizon
The federal government is drawing closer to amending provisions regarding medical assistance in dying ("MAiD") to allow access to individuals whose deaths are not reasonably foreseeable, with Bill C-7 completing its First Reading at the Senate as of December 10, 2020. This blog post from September 2019 offers a concise review of the case that prompted our legislators to take action, and this post sets out the current eligibility requirements. Following a Supreme Court of Canada decision from 2015 that found the prohibition on MAiD to be unconstitutional, Parliament proceeded to amend the Criminal Code to decriminalize it, but mandated that the person's natural death must be "reasonably foreseeable" for them to be eligible. This means that individuals who lived with intolerable suffering due to grievous and irremediable medical conditions, but who were not dying, could not access MAiD. Read the full article by Emma Ferguson and Emma Waterman with Alexander Holburn Beaudin + Lang LLP.
Therapists Say "Now's the Time" for Professional
Regulation, Make Formal Request to Adrian Dix
After nearly 3 decades of unsuccessful lobbying, group says the risk of serious harm is too high to wait. A group representing 6,000 BC counsellors and therapists submitted a formal application to Health Minister Adrian Dix, calling on him to regulate their profession and protect vulnerable patients. The 38-page submission to Dix from the Federation of Associations for Counselling Therapists in BC (FACTBC) asks him to declare regulation to be in the public interest. The application under the Health Professions Act comes after nearly three decades of unsuccessful campaigning for the creation of a college that would set standards and develop a disciplinary protocol for counsellors and therapists. Read the CBC article.
"Liquid Nose Jobs" Outlawed for BC Naturopaths over
Concerns about Blindness and Skin Death
Naturopaths in BC have been banned from performing liquid rhinoplasty, a procedure marketed as a quick and relatively painless alternative to surgery that nonetheless can cause serious complications. The College of Naturopathic Physicians of BC announced Tuesday [December 22] that the ban will go into effect on Jan. 1. "The college has a legal mandate to protect the public," registrar Howard Greenstein said in a notice to all BC naturopaths. Read the CBC article.
Amendments to the Patented Medicines Regulations
Delayed by 6 Months, until July 1, 2021
The coming-into-force date of the Regulations Amending the Patented Medicines Regulations ("the Amendments") has been delayed by 6 months until July 1, 2021. What does this mean? Assuming the final PMPRB Guidelines do not change, Appendix F requires grandfathered and gap medicines to comply within two reporting periods (i.e. July 1, 2022). All other medicines will have one reporting period to comply (i.e. January 1, 2022). What is impacted? First published in the Canada Gazette, Part II in August 2019, the Amendments introduced three major changes to the PMPRB's regulatory framework: Read the full article by John Norman, PhD, Alex Gloor and Jenny Thistle with Gowling WLG International Limited.
COVID-19: Outbreaks Declared at
Several Large Hospitals in BC
The virus has been detected this week at St. Paul's, Chilliwack, and the University Hospital of Northern BC in Prince George. Several large hospitals in BC have declared COVID-19 outbreaks, including one in Prince George, Chilliwack, and in Vancouver. Northern Health said this week there is an outbreak on the Rehabilitation Unit at the University Hospital of Northern BC in Prince George, following a single, lab-confirmed, patient case of COVID-19. Read the Vancouver Sun article.
|Act or Regulation
|Assisted Living Regulation (189/2019)
||by Reg 189/2019
|COVID-19 (Limits on Actions and Proceedings) Regulation
|by Reg 277/2020
|COVID-19 Related Measures Act
||by Reg 301/2020
|Information Management Regulation (74/2015)
||by Reg 74/2015 (as amended by Reg 115/2016 & Reg 97/2018)
|Laboratory Services Regulation (52/2015)
||by Reg 52/2015
COVID-19 Vaccinations and Workplaces
Labour and Employment News:
2020 presented unprecedented challenges for workplaces, requiring
employers to be creative and strategic in responding to the significant
changes required by the COVID-19 pandemic. The close of 2020 brought
with it the approval of two vaccines, with more on the horizon. These
vaccines will hopefully assist in putting the pandemic and all the
resulting restrictions behind us. For employers and workplaces in
particular, the vaccines mean a potential return to normal operations, a
return to full capacity and a return to the normal workplace. But that
will only happen if workers are vaccinated, or the COVID-19 pandemic
resolves itself. For employers that raises a myriad of questions, most
significantly, can they require employees to get vaccinated and can they
require employees to provide information with respect to whether or not
they have been vaccinated? Read the full article on the Workplace – Law Strategies Blog by Rose Keith, QC, of Harper Grey LLP.
Howard Levitt: Why Employment Contracts Are
Now Being Rewritten all over the Country
The most dramatic and fundamental change to employment law in 2020 is the unenforceability of longstanding employment contracts. Virtually
no employment contracts from early 2020, either limiting dismissal
damages or stipulating that employees will forfeit remuneration (such as
bonuses, commissions, pension vesting, etc.) that would have accrued
during the period of notice following their dismissal are enforceable
any longer. This is a result of a combination of the Matthews v. Ocean Nutrition
Canada Ltd. decision by the Supreme Court of Canada, which has had more
impact on this field than any case in the last 20 years (and in which I
acted for the successful party) and a series of decisions by the Court
of Appeal for Ontario. The Supreme Court, among other things, made
clear that if there is a clause in a contract that detracts from
employees' rights, it cannot be buried in the contract but must be
brought clearly to the employee's attention. Read the full article by Howard Levitt in the Financial Post.
Landmark Employment Law Ruling
Made by Canada's Supreme Court
On behalf of Overholt Law LLP posted in employment law on Friday, January 1, 2021. Employers in British Columbia and other provinces in Canada might be interested in a recent Supreme Court ruling in connection with the rights of dismissed employees to bonuses under employment law. The ruling followed a case that involved an employee who claimed benefits and bonus pay after he was forced to resign. The plaintiff employee was an experienced chemist employed by a manufacturer of nutritional supplements from 1997 through 2011. As part of the company's management, the employee was a participant in a long-term plan, making him eligible for an incentive bonus pay-out in the event of the company going up for sale. The former employee claimed to have resigned in 2011 due to mistreatment by managers, alleging a hostile work environment forced him to leave. This happened more than a year after the sale of the company to a competitor. Read the full article published by Overholt Law LLP.
|Act or Regulation Affected
|Employment and Assistance Regulation
||by Reg 270/2020
||by Reg 268/2020 and Reg 278/2020
Assistance for Persons with Disabilities Regulation (265/2002)
||by Reg 270/2020
||by Reg 268/2020 and Reg 278/2020
|Pension Benefits Standards Regulation (71/2015)
||by Reg 287/2020
|Salary Range Regulation (152/2017)
||by Reg 274/2020
||by Reg 285/2020
|Temporary Foreign Worker Protection Act
||by 2018 Bill 48, section 10 only (in force by Reg 231/2020), Temporary Foreign Worker Protection Act
|Temporary Foreign Worker Protection Regulation
||by Reg 231/2020
|Workers Compensation Act
||by 2020 Bill 23, c. 20, sections 17 and 18 only (in force by
Royal Assent), Workers Compensation Amendment Act, 2020
Local Government News:
Federal Gas Tax Fund Annual Expenditure Report
Mandatory Vaccinations (Local Governments)
UBCM has prepared its annual expenditure report
on the federal Gas Tax Fund. This program is distributing over $3
billion for local government infrastructure and planning priorities
during the current 10-year administrative agreement. Read the UBCM article.
Several local governments have asked if they can refuse service or access to members of the public who are not vaccinated for COVID-19. As employers, local government administrators have also asked whether they can require employees to be vaccinated or implement a mandatory vaccination policy. As always, the answer is "it's complicated" and "it depends". As a local government employer, the answer may be even more complicated given that governments are subject to the Canadian Charter of Rights and Freedoms. Legal Context: In Canada, policies requiring vaccination as a condition of service or employment must comply with employment and labour law, human rights codes and the Charter. Read the Lidstone & Company bulletin published by Andrew Carricato.
Vancouver Pushes Plastic Bag Ban, Disposable Cup Fee to 2022
Due to COVID-19 Pressure on Businesses
Businesses in Vancouver will be able to give out plastic bags and free disposable cups for another year. Council passed a motion delaying previously approved changes on those items until Jan. 1, 2022, instead of the original Jan. 1, 2021. "The pandemic has changed things," said Coun. Lisa Dominato. "I think there's many businesses that aren't in a state of readiness." The new rules, which have not changed, include:
The BC government has already approved civic bylaws banning single-use plastics in several municipalities, and has signalled provincewide regulations for some items are coming. Read the CBC article.
- Banning plastic shopping bags (with exceptions for shopping bags used to transport large bulky items).
- A minimum fee of 15 cents for paper shopping bags — going up to 25 cents after one year – with at least 40 per cent recycled content.
- A minimum fee of 25 cents on disposable cups (with exceptions for charitable food services, hospitals and community care facilities).
Provincial Audit of Johnson Street
Bridge Project Won't Go Ahead
A provincial audit of the $105-million Johnson Street Bridge replacement project will not be completed before the auditor general for municipalities closes permanently in 2021. The Office of the Auditor General for Local Government said in February it would review the project at the city's request, but on Friday [December 18], the office issued a statement saying the audit had been affected by the pandemic and would not be done before the office closes around March 2021. Mike Furey, acting auditor general for local government, said the audit was initially on track to be finished before the office closure, but pandemic-related travel restrictions delayed the work. The normal procedure for an audit involves being physically in the office that's under investigation, he said. Some documents can be examined if they're in electronic format, but Furey said not all the necessary documents would have been available electronically. Read the Times Colonist article.
BC, Cowichan Tribes Enter One-year Cannabis Agreement
The Government of British Columbia and Cowichan Tribes have entered a time-limited agreement under section 119 of the Cannabis Control and Licensing Act (CCLA). Under the one-year agreement, Cowichan Tribes will be able to participate in cannabis retail and production. The CCLA generally restricts businesses from operating in both the cannabis production and retail sectors in order to ensure the BC retail market is not dominated by a small number of larger producers. Read the government news release.
Housing Supply Panel Report
The bilateral Expert Panel on Housing Supply and Affordability has released an interim "What We Heard" report following initial stakeholder consultations. The Panel is now accepting feedback on the report until January 15, 2021 and will deliver a final report to Canada and BC in the Spring of 2021. The federal and provincial governments established the Expert Panel
following an announcement in the 2019 Federal Budget, allocating $9
million over 2 years for consultations and modelling. While the primary
focus of the Expert Panel was to examine housing supply, its scope also
encompassed the identification and evaluation of measures that could be
taken to deter unwanted demand including reducing speculative market
behaviour and money laundering. The interim report is structured
around three areas focused on all orders of government: governance;
diversity of housing; and accelerating supply. Read the full UBCM article.
|Act or Regulation Affected
|Depreciation of Industrial and Electrical Power Generating Power
Generating Facility Improvements Regulation (53/2016)
||by Reg 291/2020
|Electrical Power Corporations Valuation Regulation (217/86)
||by Reg 298/2020
|Home Owner Grant Act
||by 2020 Bill 3, c. 22, section 4 only (in force by Reg 302/2020), Finance Statutes Amendment Act, 2020
|Liquor Control and Licensing Regulation (241/2016)
||by Reg 283/2020
|Managed Forest Land and Cut Timber Values Regulation (90/2000)
||by Reg 296/2020
|Railway and Pipeline Corporations Valuation Regulation (203/86)
||by Reg 297/2020
|Railway, Pipeline, Electric Power and Telecommunications
Corporation Rights of Way Valuation Regulation (218/86)
||by Reg 299/2020
|Telecommunications Corporations Valuation Regulation (226/86)
||by Reg 300/2020
BC Courts Adopt Policy of Asking for Preferred
Pronouns to Encourage Diversity, Inclusion
In what is considered a first for Canadian courts, the Provincial Court of British Columbia is mandating a procedure that asks lawyers to provide their preferred pronouns when introducing themselves and their clients in court. The new mandate is meant to allow for a court system that is more inclusive of those who identify as non-binary. Some lawyers already volunteer this information, but under notice NP24, the court will use a process that asks those before the court to indicate whether they prefer "she/her/hers," "he/him/his" or "they/them/their." Read the full article by Zena Olijnyk and published on Canadian Lawyer.
Privacy and the Means for Enforcement
When governments draft new laws on controversial topics, typically they can hope for only one type of reaction – an acknowledgement that it's better than what came before. Bill C-11 is at least being received with a sigh of relief by most critics of the Personal Information Protection and Electronic Documents Act. The new legislation proposes to replace what Teresa Scassa of the University of Ottawa calls PIPEDA's "soft-touch oversight and enforcement model" with one that has actual teeth. "I do think it's an improvement, but PIPEDA set a really low bar," said Scassa, the Canada Research Chair in information law and policy. "The government certainly hit some of the right notes and beefing up enforcement was something that absolutely had to be done." C-11 gives the Office of the Privacy Commissioner of Canada (OPC) something it's been asking for years: the power to issue orders to enforce compliance with the law. The power to issue penalties, meanwhile, is to be vested in a new Personal Information and Data Protection Tribunal – which can impose fines ranging up to 5% of an organization's global revenue or $25 million, whichever is greater, for serious breaches of the law. Less serious violations could see fines of 3% of global revenue, or $10 million. Read the full article by the CBA National.
BC's Highest Court Rejects Media's Constitutional Challenge
Seeking Access to Court Files on Ex-cop
The B.C. Court of Appeal has upheld its own policy on access to court records in the face of a constitutional challenge filed by two media organizations. In reasons for judgment handed down Wednesday [December 9], Chief Justice Robert Bauman dismissed the challenge filed by CBC and Postmedia in connection with a bid for access to files concerning the investigation into disgraced former Vancouver detective James Fisher. Writing on behalf of a unanimous three-judge panel, Bauman said the media organizations "significantly overreach" in their arguments, suggesting the court's access policy violates the open court principle enshrined in the Canadian constitution. Read the CBC news article.
Non-Settling Parties Remain on the Hook:
Clarification of BC Ferry Agreements
Recently, in The Owners of Strata Plan KAS3204 v. Navigator Development Corporation, 2020 BCSC 1954 [Navigator], the B.C. Supreme Court clarified the effect of a BC Ferry Agreement, on the joint and several liability of remaining non-settling parties. A BC Ferry Agreement is where, in a multi-party proceeding, the plaintiff and one or more defendants agree to settle and the plaintiff agrees not to recover from the non-settling defendant(s) any portion of the loss ultimately attributable to the settling defendant(s). The Court in Navigator confirmed that when a BC Ferry Agreement is made, the liability of the remaining defendants remains joint and several as between each other. The BC Negligence Act provides that a plaintiff has a right to recover the whole of its loss from any one, or combination of, multiple wrongdoers on the basis of joint and several liability. It also provides that the wrongdoers have the right to claim for contribution and indemnity against each other "in the degree to which they are respectively found at fault" (s. 4(2)(b)). Read thee full article by Raman Johal and Brooke Fortugno with Clark Wilson LLP.
|Act or Regulation Affected
|Committees of the Executive Council Regulation (156/2017)
||by Reg 275/2020
|Police Tax Regulation (164/2007)
||by Reg 284/2020
VEHICLE & TRAFFIC
Motor Vehicle and Traffic
Case Summary: Vehicle Owner Vicariously Liable for
Accident Caused by Unknown Driver
The insurer appealed the trial judge's finding that the
defendant vehicle owner was vicariously liable for personal
injuries under s. 86(1) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318. Section 86(1) imposes vicarious liability
where a driver acquired possession of a motor vehicle with the
express or implied consent of the vehicle's owner. In this case,
the owner drove with three friends to a nightclub. The owner
later gave the keys to one of his three friends and left the
nightclub with his girlfriend in a taxi. Later that night, the
vehicle was involved in an accident wherein the plaintiff was
badly injured. The driver of the vehicle in the accident was
never identified but was found at fault. At trial, the
girlfriend testified that the owner had received a phone call
shortly after arriving home from the nightclub. The owner then
told her one of his friends was the driver in the accident but
asked her to lie and say the vehicle was stolen. The owner did
not testify at trial. Read the full article by Michael Robinson with
Harper Grey LLP.
Risks and Liability – Cybersecurity and
The arrival of connected and autonomous vehicles (CAVs) feels
both imminent and far away. Even as we increasingly rely on
automation in our daily lives, the idea of self-driving cars
that can navigate the chaos of the roads still sounds as
fanciful as an episode of The Jetsons or Knight
Rider to most people. But there have been significant
developments for autonomous vehicle technology – particularly in
the last few years – and more clarity on the various degrees of
"autonomy" a vehicle may achieve. After years of theoretical
discussion, the picture of what a world in which CAVS are the
dominant presence on the roads is coming into focus. Read the full article by Brent Arnold, Josh Hanet,
Kavi Sivasothy with Gowling WLG.
Vehicle Lessor Awarded Damages for Accelerated
Depreciation By BC Civil Resolution Tribunal
By Erik Magraken – BC Injury Law Blog: I've written many times about the law of "accelerated depreciation" claims in BC. In short when a vehicle is damaged in a crash it often suffers a loss of market value, even after all reasonable repairs are done. ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims. The damages for such claims can be pursued against the at fault motorist (through their liability insurance policy). As was demonstrated in reasons published this week by BC's Civil Resolution Tribunal there is no reason why such claims have to be limited to vehicle owner/operators but others with title interest in the vehicle can pursue such a claim. In what I believe is one of the first times this issue was addressed the Tribunal found that a vehicle lessor can also obtain damages for accelerated depreciation. Read the full article.
CVSE Bulletins & Notices
The following notice was posted recently by CVSE:
- CVSE 1052 Contacts – Notice to industry
that the List of Contacts for use with Form CVSE1052 has been
updated (January 5 2021)
For more information on these and other items, visit the CVSE website.
|Act or Regulation Affected
|| Amendment Information
|Special Direction IC2 to the British Columbia Utilities
||by Reg 281/2020
OCCUPATIONAL HEALTH AND SAFETY
Policy Changes to Implement the Workers Compensation Amendment Act, 2020 (Bill 23)
Occupational Health & Safety News:
Amendments Regarding Retirement Age Determinations
On August 14, 2020, the Workers Compensation Amendment Act, 2020 (Bill 23) came into effect. Under Bill 23, 34 legislative amendments were made to the Workers Compensation Act. One of these legislative amendments concerns retirement age determinations and [came] into effect on January 1, 2021. Read the full update on the WorkSafeBC website.
WorkSafeBC Provides Updates to BCFSC Trainers
In November 2020, BC Forest Safety Council trainers gathered for a two-day virtual meeting for the annual Train the Trainer session. During one of the sessions they received WorkSafeBC updates on industry performance, discussed sections of the Regulation and addressed emerging issues. WorkSafeBC's Darcy Moshenko and Terry Anonson provided updates on WorkSafeBC activities, which included details about the Forestry High Risk Strategy, injury rate summaries, Safe Phase Integration, new resources and changes to the Workers Compensation Act (WCA) and Occupational Health and Safety Regulations (OHSR). Read the full article in the December 2020 edition of the BC Forest Safety Newsletter.
OHS Policies/Guidelines – Updates
WorkSafeBC recently issued the following OHS updates:
- January 4, 2021: Updates to the Table of Exposure Limits for Excluded Substances
- January 1, 2021: CPI adjustments for penalties, citations, and claims cost levies
- January 1, 2021: A guideline was revised to reflect CPI adjustments for OHS citations
- December 18, 2020: A guidelines was revised to clarify when two vessels can be considered a single dive site
Check the WorkSafe BC Updates page to explore these and other important OHS updates.
|Act or Regulation
|Workers Compensation Act
||by 2020 Bill 23, c. 20, sections 17 and 18 only (in force by
Royal Assent), Workers Compensation Amendment Act, 2020
& REAL ESTATE
Property and Real Estate News:
The British Columbia Court of Appeal Finds Strata Council's Allocation of
Strata Fees Based on Unit Entitlement Significantly Unfair
In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, the general rule that strata owners are "all in it together" gave way to fairness considerations and King Day Holdings Ltd. ("King Day") reigned supreme in its claim that the strata council's allocation of strata fees based on unit entitlement was significantly unfair. Strata Plan LMS3851 consists of 228 strata lots in the building known as the Westin Grand (the "Building"). The Building contains a hotel, commercial properties and an underground parkade. Twelve of the strata lots are parkade lots, nine are commercial lots and 207 are hotel lots. Read the full article by Amy M. Nathanson, Flora Wu with Lawson Lundell LLP.
Underinsurance Leads to Whopping Bill after Fire at Condo Building
Condo expert says finding out who is responsible could "get messy" After a fire 16 months ago, Derek Wubs still has no home and no answers. What he does have is a $37,000 bill he's struggling to pay for his burned-out Chilliwack condo, and a warning for others. "I was under the belief that paying my strata fees would result in the appropriate building insurance being purchased," Wubs, 26, said. "People who are looking to buy in a strata, I would suggest to them be very careful because there's no such thing as a good strata story." Read the CBC article.
Injunctive Relief From Lease Termination in the
COVID Pandemic? Only If You Pay Rent.
Dear Tony: Our strata corporation normally has its Annual Meeting 60 days after our fiscal year end at the end of February. This gives us time to review our financials in advance of the next year and provide an accurate report to the owners with our notice. Whenever we have an increase in fees, we have included an adjustment over the next 10 months to pay for the increases that would have occurred in January and February. This reduces the impact on owners and with the dramatic insurance cost increases this year it has been the best financial option for everyone. Our manager has instructed us that we must make the entire adjustment in March and cannot make this over the next 10 months, and we have a new owner who is refusing to pay the adjustment claiming they did not own the unit in January and February so why should they pay? How is a strata corporation expected to balance a budget if we cannot address the adjustments and where in the Act does it require us to collect the fees in the next month. Read the full article by Tony Gioventu, published in the CHOA Condo Smarts bulletin.
Modest Increase in Most BC Properties, with
Shift to Larger Homes: BC Assessment
Property owners across BC can expect a modest increase to their homes' assessed value this month, bucking concerns of a COVID-related collapse, with the lion's share of the growth being felt in already high-priced single family homes. While low interest rates have likely kept money cheap and prices high, the pandemic may be partly to blame for the shift to larger properties, with buyers looking for bigger spaces to accommodate all the things many people are doing in their properties thanks to recommendations by public health officials to stay home. Read the CTV news article.
Clearing Liens and CPLs from Title: It Just Got Clearer
The BC Courts have recently clarified the mechanism under the Builders Lien Act for clearing liens and associated certificates of pending litigation ("CPLs") from title to construction project lands. In construction disputes clearing builders' liens and CPLs registered on title to the project lands often needs to be done quickly, efficiently and with certainty. Lenders to construction projects will often withhold construction financing until liens and CPLs are cleared from title to the project lands. Similarly, purchasers of residential units in projects will not close sales until liens and CPLs are cleared from title. One of the most important mechanisms to do so for owners and contractors on construction projects is section 24 of the Builders Lien Act. By paying into Court security for the lien claimed title can be cleared for the project lands so that construction financing is advanced and sales closed. Read the full article by Scott Lamb and Rosalie Clark with Clark Wilson LLP.
|Act or Regulation
|Land Owner Transparency Regulation (250/2020)
||by Reg 282/2020
|WILLS & ESTATES
Wills and Estates News:
Suspension of Limitation Periods in British Columbia
Ends March 25, 2021
The British Columbia Government suspended limitation periods
effective March 25, 2020. A limitation period sets the time
limit in which someone may file a lawsuit. Because of Covid-19,
the BC Government suspended the limitation periods. So for
example, if a two-year limitation period would have expired on
say May 19, 2020, the limitation period did not expire, but has
been extended until after the suspension is lifted. Now, it will
begin to run again after March 25, 2021. I am pleased to see
that the suspension is ending. I never understood the rationale.
Although Covid-19 has had a significant impact on the court
system, causing delays in hearings, it did not significantly
affect the ability to file claims in court. Limitation periods
set the time limits for filing claims, rather than for having
them heard in court. The suspension of limitation periods have
in some cases caused delays in distributing estates, mainly
because someone wishing to make a wills variation claim has 180
days from the date of probate to do so. The Wills, Estates and Succession Act provides
for a 210-day waiting period, because someone making a claim has
another 30 days to serve the personal representative with the
Notice of Civil Claim. Read the full article by Stan Rule with Sabey Rule LLP.
Solicitor/Executor's Remuneration Claim Excessive,
Despite Charging Clause in Will
Will-makers often choose lawyers or accountants to be their executor. Disputes over executor's remuneration can arise even in situations where the deceased's Will contains a "charging clause" which permits the executor to charge professional fees for estate-related work. Charging clauses can provide clarity and may reduce the likelihood of a dispute, but by no means do they provide a blank cheque. In Le Gallais Estate (Re), 2018 BCSC 388 estate beneficiaries successfully challenged an executor's remuneration and legal fees despite an explicit charging clause in the deceased's Will. Ms. Le Gallais was an only child who never married or had children. Her long-time friend and solicitor, Constance Isherwood, prepared Ms. Le Gallais' Will, which left the residue of her estate to six charities in equal shares. The Will appointed Mrs. Isherwood as executor and allowed Mrs. Isherwood to charge the estate for legal services in addition to receiving executor's remuneration. The charging clause read: Read the full article by Janis Ko with the ONYX law group.
Finders and Keepers and the Hidden Half-Million Dollars
In 1972, Bill and Mary Moroz purchased a humble single-story bungalow, in Edmonton, on the banks of the North Saskatchewan River. They were the first and only occupants of the home and lived there the rest of their lives. William died in 2009 and in September of 2016, so did Mary. Their nephew, William Smolak, was appointed personal representative of the Estate of Mary Moroz and set about preparing the house for sale. The house needed much work to clean and empty, but it was finally sold to Roger and Simone Gagne, and Christopher Short, who took possession on October 16, 2017. Two days later, the new homeowners found $100,000 in a tin in a basement shoe cubby roughly 18" high. Read the full article by Ian Hull and Daniel Enright with Hull Estate Mediation Inc.
|Act or Regulation
were no amendments this month.
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