Company and Finance News:

Canadian Securities Administrators
Propose New Take-Over Bid Rules
On September 11, 2014, the Canadian Securities Administrators (CSA) announced that they intend to publish for comment a new harmonized regulatory proposal to Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids and Ontario Securities Commission Rule 62-504 Take-Over Bids and Issuer Bids (for Ontario) (collectively, the Proposed Bid Amendments). The Proposed Bid Amendments will aim to facilitate the ability of shareholders to make voluntary, informed and coordinated tender decisions and provide target boards with additional time to respond to hostile bids, each with the objective of rebalancing the current dynamics between hostile bidders and target boards. Read the full article by Bernard Pinsky with Clark Wilson LLP.

BC Invites Feedback on New Franchise Law
The Government of British Columbia launched a consultation on a proposed new Franchises Act [on September 10] that would help level the playing field for small business owners and provide certainty for investors. BC is planning to develop new franchise legislation that would be consistent with legislation used in five other provinces. Government recognizes that franchise purchasers make a significant capital investment, yet they are often at a disadvantage when relying on the information provided by the company offering the franchise due to a lack of knowledge and experience, and access to expert advice. Franchise legislation would help to rectify this imbalance and support the expansion of franchises by standardizing regulatory requirements, while at the same time encouraging investment in BC. A Franchises Act would govern all franchised businesses throughout the province and would provide important protection for small business owners and franchisors alike by:

•  Regulating the sale of franchises.
•  Requiring that contracts include pre-sale disclosure agreements.
•  Providing more legal rights and protections to help parties to resolve disputes.

Read government news release. 

Corporate Disclosure on Social Media:
Don't Get Poked by Regulators
Social media can provide reporting issuers with a fast and efficient means for communicating with shareholders and is an increasingly popular means of disseminating information. Such channels are, of course, subject to the same rules as other corporate disclosure, although applying those rules to social media requires some careful consideration given the limited "sound bite" nature of a post and potential for increased risk of selective disclosure. While Canadian regulators have not expressly addressed potential issues relating to disclosure through social media, general principles governing disclosure are set out in National Policy 51-201 Disclosure Standards. For TSX-listed companies, meanwhile, the TSX has published its own Electronic Communications Disclosure Guidelines, which cover online communications, generally. Read the full article by Jonah Mann and Frank Selke with Stikeman Elliott LLP. 

BC Securities – Policies & Instruments
The following policies and instruments were published on the BCSC website in the month of September:

• CSA Notice 62-306 – Update on Proposed National Instrument 62-105 Security Holder Rights Plans and AMF Consultation Paper An Alternative Approach to Securities Regulators' Intervention in Defensive Tactics
• 81-102 – Adoption of amendments to National Instrument 81-102 Mutual Funds, National Instrument 81-106 Investment Fund Continuous Disclosure, National Instrument 81-101 Mutual Fund Prospectus Disclosure and National Instrument 41-101 General Prospectus Requirements and related policies and consequential amendments. The amendments came into force on September 22, 2014. The amendments as part of Phase 2 of the Modernization of Investment Fund Product Regulation Project introduce fundamental investment restrictions and operating requirements for non-redeemable investment funds, as well as securities lending disclosure requirements for all investment funds.

For more information visit the BC Securities website.

PST Bulletins
The following PST bulletins and notices were issued in the month of September:

• Bulletin CT 002, Carbon Tax Refunds for Purchasers
• Bulletin MFT-CT 002, Sales to First Nations, and the Exempt Fuel Retailer Program
• Bulletin CTB 007, Exemption for Members of the Diplomatic and Consular Corps
• Bulletin PST 138, Personal Services
• Bulletin PST 108, Boats
• Bulletin PST 134, Aircraft
• FIN 407, Provincial Sales Tax (PST) Schedule - Boats and Aircraft

For more information, visit the Consumer Taxes website.

Energy and Mines News:

New Frontiers – Mining Litigation in Canada
for the Activities of Foreign Subsidiaries
In June 2014, a Notice of Civil Claim was filed in the British Columbia Supreme Court in the case of Adolfo Garcia v. Tahoe Resources Inc. ("Garcia"). In Garcia, the plaintiffs have sued a Canadian parent company that conducts mining activities through a foreign subsidiary in Guatemala. This is the first time this type of claim has been brought in British Columbia. This claim parallels the claim brought in Ontario in Choc v. Hudbay Minerals Inc. ("Choc"). The courts in Ontario have refused to strike the claim in Choc and it appears to be heading to trial. Historically, corporations have relied upon the separate legal personality of subsidiary corporations to shield the parent corporation from direct legal liability for the activities of the subsidiary. Garcia and Choc are examples of plaintiffs, usually backed by non-governmental organizations, using traditional legal principles in an attempt attach liability directly to the parent corporation for the activities of a foreign subsidiary. Importantly, these claims have been brought in Canadian, not foreign, courts. Accordingly, corporations conducting activities abroad should take note of these types of claims because, absent a strong judicial rebuke, the use of this litigation strategy is likely to increase. Read the full article by Craig Ferris with Lawson Lundell LLP. 

Eastern Promises? LNG Expands Beyond BC
Much media attention has been devoted to following the developments of British Columbia's nascent LNG Export industry. At the same time potential LNG Export Projects on Canada's East Coast are slowly gaining momentum. The following chart sets out LNG Export Projects on Canada's East Coast that have been announced to date. Although the number of potential projects pales in comparison to proposed projects in British Columbia, there are a number of reasons why LNG export from Eastern Canada is becoming increasingly attractive. Perhaps the most significant reason is that Eastern Canada is home to Canada's only potential "brownfield" LNG Export Project. Repsol YPF SA, the owner of the Canaport LNG Import Terminal in New Brunswick, has publicly indicated that it is considering converting the underutilized import facility to export LNG. Read the full article by Jonathan Drance and Cameron Anderson with Stikeman Elliott LLP. 

BC to Release LNG Tax Laws [this] Month
British Columbia will unveil tax rules for the province's fledgling liquefied natural gas industry [this] month, during a pivotal point in the race to export LNG. The timing is crucial because BC LNG proponents are edging closer to making their final investment decisions on whether to forge ahead with their massive projects. Rivals such as Australia, Qatar, Nigeria and the United States are among the jurisdictions ahead of Canada in the global LNG competition. BC could miss out on a window of opportunity because foreign suppliers are eager to export LNG to meet growing global demand, especially in Asia. BC Deputy Premier Rich Coleman said the province is optimistic that the proposed income tax on LNG, to be introduced in legislation in the fall session, will be competitive with other jurisdictions. Read The Globe and Mail article. 

Family and Children News:

JP Boyd – Rethinking Marriage: Beta Marriages,
Renewable-Term Marriages and Other Interesting Ideas
It will probably surprise no one to learn that the reason why marriage is presumed to be permanent in the Western world stems from the Catholic doctrine of the indissolubility of marriage, you know, from this line in the New Testament: "what god hath joined together, let no man put asunder." Canon law on the irrevocability of marriage was all well and good when our life spans topped out at 30 in the middle ages; surely if you'd be entitled to the McDonalds senior's coffee discount at age 25 you could manage a life-long commitment to someone. However, considering that life expectancy in Canada shot from 59 for men and 61 for women in 1920 to 79 and 83 respectively in 2007, the notion of a single, life-long relationship takes on a somewhat more ominous aspect. Interestingly enough, despite our increasing longevity, our enthusiasm for marriage has not yet begun to wane, although the rate of unmarried long-term relationships is increasing at a pace three times that of marriage and the divorce rate is a healthy 41%. The national divorce rate had held at this level for the last decade or so, after two sharp increases that followed the introduction of the federal Divorce Act in 1968 and the removal of the provisions about fault and matrimonial misconduct in 1985. Read the full article by JP Boyd and published on the Blog. 

Neucel Specialty Cellulose Fined
(Port Alice Pulp Mill)
The work of the Conservation Officer Service's Major Investigations Unit has led to the conviction of Neucel Specialty Cellulose Ltd. for illegally discharging waste from their Port Alice pulp mill operation. Neucel Specialty Cellulose Ltd. has been ordered to pay $1,000 in fines to the Province and $174,000 to the Habitat Conservation Trust Foundation. In 2011, Neucel exceeded authorized levels of discharge into Neroutsos Inlet on three separate occasions. The Major Investigations Unit of the Conservation Officer Service (COS), supported by Environment Canada, conducted a joint investigation and forwarded recommended charges to Crown counsel. BC's Conservation Officer Service enforces over 33 pieces of provincial and federal legislation to ensure compliance with environmental laws and regulations. Specializing in commercial, environmental and industrial investigations, the COS has full authority to independently handle these cases and forward recommendations for charges directly to provincial Crown counsel. Read government news release.

Environmental Appeal Board Decisions
A number of Environmental Appeal Board decisions were released in the month of September. These include the following:

Environmental Management Act

• Domtar Inc. v. Director, Environmental Management Act [Mid-Hearing Rulings and Abandonments]
• Seaspan ULC (formerly Seaspan International Ltd.) v. Director, Environmental Management Act [Application for Costs – Granted]
• Emily Toews; Elisabeth Stannus v. Director, Environmental Management Act [Application for Order to Produce Documents – Granted in Part]

• Wilfred Boardman v. Regional Manager (Kootenay Boundary Region) [Final Decision – Appeal Dismissed]
• Tim Stephenson v. Regional Manager (Kootenay Boundary Region) [Final Decision – Appeal Dismissed with One Exception]
• Frederick Vandenberghe v. Regional Manager [Final Decision – Appeal Dismissed]

Visit the Environmental Appeal website for more information.

New Forestry-Related Annotation Posted
The first of many annotations was recently made to the Forest Act. You can identify an annotated section by the annotation icon located on the far right side of each section. For example, if you go to section 1 of the Forest Act, under the definition of "Crown Land" you will see a star icon adjacent to the section. Click the star icon to view the Expert annotation. Expect to see many more annotations posted in the coming weeks and months, including annotations to other resource-based laws.

Legal Case Study: Cost Recovery under the EMA –
J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc.
On August 25, 2014, the BC Supreme Court rendered a ruling in a cost recovery action brought by J.I. Properties Inc. against PPG Architectural Coatings Canada Inc. pursuant to the Environmental Management Act, RSBC 2003, c. 53 ("EMA"). The Plaintiff obtained a judgment against the Defendant in the amount of $4,750,000, representing the reasonable costs incurred by the Plaintiff in investigating and remediating James Island, located between the Saanich Peninsula and Sidney Island, BC. In the reasons for judgment, the court interpreted and applied several key provisions of the Environmental Management Act, applicable to cost recovery actions, and considered legal arguments that had not previously received judicial consideration. The material facts giving rise to the action were largely not in dispute. The Plaintiff, J.I Properties Inc., purchased James Island (the "Property") from a third party, Pacific Parkland Properties Inc., on August 29, 1994. From 1913 to 1988, the Property was owned and/or operated by the corporate predecessor of the defendant, PPG Architectural Coatings Canada Inc. The Defendant manufactured and stored explosives on the Property until 1985, resulting in contamination. Read the full article co-written by Una Radoja and Kimberley Fenwick with Harper Grey LLP and published in the British Columbia Environment Industry Association (BCEIA) newsletter. 

Vancouver to Treat E-Cigarettes like Tobacco
Council approves bylaw to ban them in
public places where smoking is prohibited
Vancouver city council has voted to treat electronic cigarettes in the same way as conventional cigarettes by banning them in public places where smoking is already prohibited. This news comes as the BC government revealed it is preparing legislation to regulate the sale of e-cigarettes with the same restrictions as tobacco. The new Vancouver bylaw, approved by council late [October 1^st] in a unanimous vote, also prohibits the display or sale of e-cigarettes or related products to minors. And that's a good thing, says Dr. Meena Dawar, medical health officer with Vancouver Coastal Health who strongly favoured the ban. "I think it's a very progressive move forward in protecting our youth," Dawar said Thursday [October 2^nd]. Read more. 

BC Doctors Urge Provincial Ministers to
Take a Stand on Public Health Care
Provincial and territorial health ministers gathered in Banff [recently] and advocates of Canada's public health-care system urged them to protect medicare while they were there. Dr. Vanessa Brcic of the BC Health Coalition said a lack of federal leadership on health care has led to a proliferation of private health-care services across the country, with British Columbia leading the way. "In other provinces we don't see quite as much for-profit investment as we do in BC," Brcic said Monday [September 29^th] at a news conference held outside the Cambie Surgery Clinic in Vancouver. "There's definitely a tremendous movement towards for-profit care, simply because the profit that you can make from illness and suffering is absolutely tremendous." The BC government is in negotiations to resolve a long-running dispute with the private Cambie clinic, nestled on a tree-lined street near the sprawling Vancouver General Hospital complex in Vancouver. Read The Globe And Mail article. 

BC Government Partners with BC Transplant to Save Lives
The Government of BC has partnered with BC Transplant to make registering your decision on organ donation easier than ever before. Starting [September 22^nd], Service BC centres in Dawson Creek, Quesnel, Port Alberni and Salmon Arm will offer citizens the opportunity to register their decision about becoming a lifesaving organ donor quickly and easily. More than 95% of British Columbians support organ donation but only 19% have registered. With close to 500 citizens on the transplant waiting list, signing up to become an organ donor could help save lives – possibly the life of a neighbour, co-worker, friend or family member in need. Read the government news release.

Beyond Bardal: The Presence of a Non-Competition
Clause as a Reasonable Notice Factor
While many employers may be aware of the difficulties in enforcing non-competition clauses, they may not be aware of another risk associated with such clauses: their potential to increase the reasonable notice period. Last October, a case [was discussed] in which an employee with only 4 years of service was awarded damages equivalent to 12 months of notice. This result was due, in part, to the fact that the employee was subject to a 12-month non-competition clause. More recently, in Ostrow v Abacus Management Corporation, Mergers and Acquisitions, 2014 BCSC 938, the British Columbia Supreme Court stated that "a non-competition clause in the employment contract is a factor which may increase the length of the reasonable notice period." (para 79) In that case, the 42-year-old plaintiff was employed as a specialist in US taxation for 9 months. Read the full article by Alison J. Bird, published by First Reference Talks. 

BC's Labour Laws are Failing Workers, Says Fraser Institute
All Canadian provinces lag behind American states in terms of labour relations laws, and British Columbia is particularly bad, according to a Fraser Institute study released August 28. The laws in Canada restrict worker choices, leading to suppression of job growth and investment, argues the study, while laws in every U.S. state are less biased and more conducive to growth. "Overall, Canadian provinces as well as the federal government dramatically lag behind U.S. states in terms of providing workers with the choices and opportunities that come from balanced, neutral labour relations laws," said study co-author Charles Lammam, resident scholar in economic policy at the Fraser Institute. Read the BIV article. 

Rare Costs Award at BC Human Rights
Tribunal for Improper Conduct
Despite an employer's legitimate basis for terminating an employee's employment, it will often find itself a respondent to a human rights complaint following termination. The costs for employers to defend a human rights complaint can be very high and, unlike in the courts, the BC Human Rights Tribunal does not have jurisdiction to order unsuccessful parties to pay the successful party's legal fees. However, in exceptional circumstances, the Tribunal has a limited jurisdiction under the Human Rights Code to make punitive costs awards for "improper conduct" that impacts the integrity of the Tribunal's processes. The Tribunal found such circumstances to exist in the case of Ma v. Dr. Iain G. M. Cleator and another. Kim Ma worked in the respondent doctor's clinic as an office assistant for a number of years. She eventually took an extended maternity leave and, when she returned to the workplace, found that a significant number of processes and operations had changed in her absence. Ms. Ma resisted the changes and was in immediate conflict with the new office manager. Despite efforts to make it work, Dr. Cleator found the employment relationship was unworkable and terminated Ms. Ma's employment, providing her pay in lieu of notice, approximately one month after her return. Read the full article by Ryley Mennie with McCarthy Tetrault LLP. 

Local Government News:

Tsilhqot'in Decision Impacts Considered [UBCM]
One of the most important Supreme Court of Canada decisions in the history of British Columbia was the focus of a plenary policy session [at the recent UBCM convention]. A packed room of nearly 600 delegates heard opinions from Chief Roger William, Xeni Gwet'in First Nation and a Director on the Cariboo Regional District; Chief Percy Guichon from Alexis Creek First Nation; and Gregg Cockrill from Young Anderson on the recent decision by the Supreme Court of Canada with regard to Tsilhqot'in land title. Mr. Cockrill, who also teaches local government law at UBC, began by describing the historical, legal and practical significance of the Supreme Court of Canada's decision. Cockrill referenced the likelihood the precedent setting decision would lead to other similar decisions, the fact that the decision recognized title on a territorial basis, and that aboriginal title has greater importance than fee simple title. "Fee simple title is not protected against action by the government – including expropriation without compensation," said Cockrill. "Aboriginal title is entirely different. While having the features of fee simple land, the interest is also protected by the Constitution. Any kind of governmental action would need to meet strict Supreme Court tests." Read the UBCM article. 

Local Government Legislation Annotations
The first of many annotations have now been posted to local government related legislation. You can identify an annotated section by the annotation icon located on the far right side of each section. For example, if you refer to section 939 (5) of the Local Government Act, you will see a star icon adjacent to the section. Click the star icon to view the Expert annotation. You can expect to see more annotations posted in the coming weeks and months.

Anti-Spam Law Update: CRTC Says Municipalities
May Be Subject to CASL
There has been some debate about whether municipal governments are subject to Canada's Anti-Spam Legislation ("CASL") or whether, like the provincial and federal governments, municipal governments are exempt from CASL. The CRTC , which is the primary enforcement agency for CASL, has published FAQs on its website, which include the following statement: "CASL does not apply to the activities of the federal, provincial and territorial governments. CASL does apply, however, to crown corporations, including municipal governments, when the corporation is acting in the course of any commercial activity" (emphasis added). While we are not convinced that municipal governments are "crown corporations," it is clear that the CRTC considers municipal governments to be potentially subject to CASL, depending on their activities. Federal and provincial governments are not bound by CASL because of a provision in the federal Interpretation Act which states: "No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment". Read the full information bulletin by Davis LLP. 

Retooling of Agricultural Land Reserve Won't
Lead to Application Backlog, Minister Says
Critics say land commission is paralyzed
because of move to regional panels
BC's agriculture minister is brushing aside concerns that a delay in forming regional panels to oversee the Agricultural Land Reserve will lead to a backlog of unresolved applications. Norm Letnick said he will announce a full slate of 18 commissioners in six regional panels [this] week at the legislature. The appointments are a week past a deadline set by Premier Christy Clark in Letnick's mandate letter. "I asked for extra time because I wanted to speak to each of the finalists to make sure I had a good sense that we were getting 18 people with a balanced perspective," Letnick said. "The timing of the appointments will have very little impact to the timelines for processing applications." Read The Vancouver Sun article. 

UBCM President Blasts Government for
Inaction on Fiscal Report
The provincial government's refusal to open discussions on a report calling for a new and equitable model in municipal finance has caused a rift in relations with the Union of BC Municipalities in recent weeks. That rift blew into a full-blown fracture [recently] when UBCM president Rhona Martin, in her annual address, criticized the government for not acting on any of the concerns addressed in the "Strong Fiscal Futures" report the UBCM tabled last year. The report concluded the current property tax system is failing to meet the needs of local governments. It called for a new method of financing municipalities and proposed that the province share revenues when growth exceeds three per cent. Read more. 

Get Off the Road!: Encroachments onto Public Roads
– Community Charter – Property Law Act
Many municipalities struggle with encroachments on municipal highways, particularly in the circumstance where private property abuts on an unopened road allowance (such as a lane), which, through the installation of patios, barbeque pits and gardens, gets treated by the property owner as part of his or her private property. The recent decision of District of West Vancouver v. Liu, 2014 BCSC 1230, ("Liu") deals with this issue and, as such, it has significant implications for municipalities and property owners. In Liu, the District sought an order for the removal of a living room, retaining walls, decorative ponds, hedges and a fence (the "Encroachments") constructed on the District's highway adjacent to Ms. Liu's property. The legal basis for the order was that the Encroachments had been installed contrary to section 46(1) of the Community Charter and the District's traffic and parking bylaw. Ms. Liu brought her own petition for a declaration that she was entitled to an easement over the District's highway pursuant to section 36 of the Property Law Act. Read the full article by Kathleen Higgins and Erika Lambert with Bull Housser LLP. 

Miscellaneous News:

SCC Strikes Down BC's Court Hearing Fees
In a huge victory for access to justice advocates, the Supreme Court of Canada today struck down British Columbia's court hearing fees. In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), the top court ruled that court hearing fees – intended to discourage frivolous claims and fund the system – were unconstitutional because they impeded access to justice and therefore jeopardized the rule of law itself. The case stems from a family dispute where one litigant, V, could not afford to pay fees amounting to $3,600 for a trial that lasted 10 days. British Columbia is currently the only province that levies substantial hearing fees ($800 per day after the 10^th day of hearings), and while the province's Rules of Civil Procedure already allow them to be waived for the "impoverished" or "indigent," V did not strictly fall under these categories. Nevertheless, the trial judge stayed V's obligation and invited submissions on the constitutionality of court hearing fees. This invitation was met by challenges by the Trial Lawyers Association and the provincial branch of the Canadian Bar Association. [On October 2^nd], in a 6-1 ruling written by Chief Justice Beverley McLachlin, the top court came down squarely in favour of increased access to justice. Read the full article by David Dias published on the Legal Feeds Blog  The decision states that while court hearing fees are permissible in principle, those that present "undue hardship" to litigants, such that they are discouraged from accessing the court system, violate core jurisdictional principles within the Constitution: "The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law.

BC Supreme Court gives Green Light
to Amended Drunk Driving Laws
Judge says roadside suspensions
don't violate drivers' rights
A judge has dismissed a constitutional challenge to changes made to BC's drunk driving laws, but at least one lawyer says an appeal of the ruling is being considered. In 2011, B.C. Supreme Court Justice Jon Sigurdson found that the automatic roadside prohibition program as it related to drivers who registered more than .08 on a roadside screening device infringed on the drivers' Charter rights. In particular, he found that there was not a meaningful appeal process for drivers ordered suspended from driving for 90 days. The judge suspended his ruling to give the BC government time to amend the law. After the law was amended by the legislature in 2012, another constitutional challenge was launched against the new law. But in a ruling released [September 8], B.C. Supreme Court Justice Malcolm Macaulay found that there had been no infringement on the rights of drivers. Read The Province article. 

"Wholly Inadequate" Stop Sign Placement
Leads to Liability for Collision
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a construction company largely at fault for the "wholly inadequate" placement of a temporary stop sign in a construction zone. This week's case (Richmond v. Channa) involved a two vehicle collision where the Channa vehicle failed to stop at a stop sign controlled intersection and collided with the Richmond vehicle. While the Court found Channa 25% to blame for the crash the Court held the lion's share of fault rested with a construction company who blocked visibility to the intersection's stop sign and placed an inadequate temporary sign in its place. In reaching this apportionment Mr. Justice Skolrood provided the following reasons: read the full article by Erik Magraken on his BC Injury Law blog. 

Property and Real Estate News:

Superintendent of Real Estate Publishes Amended
Policy Statements Pursuant to Real Estate
Development Marketing Act (British Columbia)
On May 29, 2014, a number of important amendments to the Real Estate Development Marketing Act (REDMA) became effective. Scott Smythe and Jennifer Hayes have both commented on these amendments in previous blog posts (see http://www.canadianrealpropertylawblog.com/2014/03/redma-revisited/ and http://www.canadianrealpropertylawblog.com/2014/08/redma-an-update/). The purpose of this post is to advise of a very recent, related development, being the publication by the Superintendent of Real Estate for British Columbia of several amended Policy Statements that complement the recent REDMA amendments. The amended Policy Statements will become effective on October 1, 2014, and can be found here.  By way of background, the Superintendent's office has the power to issue Policy Statements setting out rules that must be followed by developers when marketing certain types of real estate developments (notably strata developments). The Superintendent previously published 15 Policy Statements which explain various REDMA requirements and set out the Superintendent's views on how they may be satisfied. Policy Statements 1, 2, 3, 8, 9, 10 and 11 are critically important, as they describe in detail what must be included in a disclosure statement for different types of development properties in order for the Superintendent to consider the disclosure statement compliant with REDMA. Read the full article by Craig Shirreff with McCarthy Tétrault LLP. 

Annotations Posted to Strata Property Legislation
The first of many annotations was recently posted to the Strata Property Act. You can identify an annotated section by the annotation icon located on the far right side of each section. For example, if you refer to section 247 (1) in the Strata Property Act you will see a star icon adjacent to the section. Click the star icon to view the Expert annotation. You can expect to see more annotations posted in the coming weeks and months.

Pick Your Poison Wisely: Choosing the Right
Remedy to Address a Defaulting Tenant
Deciding what to do with a defaulting commercial tenant can be a trap for the unwary. A recent decision from the BC Court of Appeal has confirmed that once a landlord has elected to pursue a certain remedy or course of action as against a defaulting tenant, that election may well be irrevocable such that a landlord may not "switch horses" and later elect to pursue a different course of action for the exact same breach. In Delane Industry Co. Limited v. PCI Properties Corp., PCI Waterfront Leasing Corp., 2014 BCCA 285, a landlord had initially elected to distrain for past arrears of rent in the amount of well over $100,000 and indeed some of the tenant's property was sold to pay down the arrears. However, a large amount of arrears remained outstanding following completion of the distraint. Accordingly, the landlord purported to terminate the lease in reliance on a Notice of Default that had been provided prior to levying distraint on the tenant's property. In other words, in response to the breach by the tenant, the landlord elected to affirm the lease by seizing and selling the tenant's assets but then later sought to terminate for that same breach because the distraint did not pay the arrears in full. Read the full article by Michael Morgan with Lawson Lundell LLP. 

Wills and Estates News:

Trustees Take Note – Context is Key when Interpreting
a Settlor's Intention; Broad Discretion is Not a Shield
In July of this year, the B.C. Court of Appeal released its decision in Miles v. Vince, 2014 BCCA 289. The court removed and replaced a lay trustee for failing to meet the "prudent investor" standard set out in s. 15.2 of BC's Trustee Act, and at common law. The court was critical of the trustee's failure to adequately consider the interests of the beneficiaries in light of the circumstances in which the trust was settled, and also found her to be in a conflict of interest. The courts are often reluctant to remove an appointed trustee, particularly where the trustee has been granted broad discretion under the trust deed, making this a decision of interest. The facts of the case were not in dispute at trial. William Vince, the settlor, settled two trusts prior to his death. The first, the "Family Trust" was settled in 2006 for the benefit of Mr. Vince's children. The trust property consisted of shares in real estate holding companies. The second, the "Insurance Trust" was settled in 2007 for the benefit of the children and Mr. Vince's spouse, and was made up of proceeds from Mr. Vince's life insurance policies. Notably, Mr. Vince settled the second trust after he was diagnosed with cancer. Mr. Vince named his sister, Marilynne Vince, as trustee. Mr. Vince died in June 2008. Read the full article by Amanda Winters with Alexander Holburn Beaudin + Lang LLP. 

New Wills and Estates Annotations
The first of many annotations have now been posted to the Wills, Estates and Succession Act. You can identify an annotated section by the annotation icon located on the far right side of each section. For example, if you refer to Part 2, Section 5 of the Wills and Estates Succession Act, you will see a star icon adjacent to the section. Click on the star icon to view the Expert annotation. You can expect to see more annotations posted in the coming weeks and months.

Termination of Statutory Property Guardianship
The following article was written by Stan Rule on his blog Rule of Law:

I have written two previous posts on British Columbia's new statutory property guardianship legislation and regulation coming into effect on December 1, 2014, the first dealing with the procedures for issuing a certificate of incapacity pursuant to which the Public Guardian and Trustee becomes the statutory property guardian of a person incapable of managing his or her own finances, and the second dealing with the criteria to be applied in determining whether a person is incapable. In this post, I will summarize how a statutory property guardianship may be terminated. Section 34 of the Adult Guardianship Act provides that an adult who has a statutory property guardian must be reassessed if any of the following apply: Read the full article.