Company and Finance News:

BC Simplifies Rules for Selling
Securities to Non-Residents
The British Columbia Securities Commission (BCSC) has made it easier for BC issuers to access capital outside the province. As of October 31, 2017, three new and/or improved exemptions to the prospectus requirement are available for distributions to purchasers outside BC:

• Private placement exemption (improved)
• Public offering exemption (new)
• Testing of the waters exemption (new).

The changes are found in the new BC Instrument 72-503 Distribution of Securities outside British Columbia, which revokes and replaces the previous version of the same instrument. Read the full article by Michael G. Urbani with Stikeman Elliott LLP. 

Excising Uncertainty: Comments on
Proposed Amendments to the ETA
The purpose of a definition is to define. The purpose of a clarification is to clarify. According to the CBA Commodity Tax, Customs and Trade Section, draft amendments to the Excise Tax Act do neither, and in fact create uncertainty. In its submission, the Section comments on subsection 272.1(8) proposed in draft amendments related to "investment limited partnerships." While the clear intent of the amendment is to levy unrecoverable GST/HST on management or administrative services provided by general partners, the amendments as proposed create "significant" uncertainty, the Section says. Read the full article published on the CBA National Blog. 

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

• BCN2017/05 – Notice of Revocation and Replacement of BC Instrument 72-503 Distribution of Securities outside British Columbia
  Effective October 31, 2017, the Commission revoked and replaced BC Instrument 72-503 Distribution of Securities outside British Columbia. This instrument provides exemptions from the prospectus requirement to facilitate distributions by issuers located in BC to purchasers outside of BC.

For more information visit the BC Securities website.

FICOM News
The Financial Institutions Commission of BC published the following announcements and bulletins in October:

• PRPP Agreement – The Second 2017 Agreement Amending the Multilateral Agreement Respecting Pooled Registered Pension Plans and Voluntary Retirement Savings Plans, which is effective November 15, 2017, adds the province of Manitoba as a participant to the Agreement
• Letter to Board Chairs/CEOS/General Managers, BC Authorized Credit Unions – Working Group Report on Risk-Based Premium Assessment Methodology-Date Extension for Comments
• Letter to CFOs/Finance Managers, BC Authorized Credit Unions 2017 Updates to the Capital Adequacy Return Completion Guide – Final
• Letter to CEOs / General Managers, BC Incorporated Property and Casualty (P&C) Insurers and Reciprocal Insurance Exchanges Adoption of Minimum Capital Test 2018 Guideline
• Letter to CEOs / General Managers, BC Credit Unions BC Credit Union ICAAP Reporting

Energy and Mines News:

New Emergency Management Regulation –
Oil & Gas Activities Act
The Oil and Gas Commission is updating the requirements of the Emergency Management Regulation by repealing and replacing the existing regulation with a new one, effective March 1, 2018. The new regulation generally reflects current industry practice, specifically by adopting the recently published CSA Z246.2. In addition, the new regulation promotes the use of an incident command system, puts more emphasis on training, and advocates a two-tier system for preparation and submission of emergency response plans. For your convenience, Quickscribe plans to publish an early consolidation of the new regulation in the next few business days. Anita Mathur from the Oil & Gas Commission will be publishing annotations and links between the current and new regulation shortly.

Pembina Pipeline Approves Construction of $260M
Propane Export Facility on BC Island
Pembina Pipeline Corp. says its board of directors has approved construction of an export terminal at Prince Rupert, B.C., to be used to send liquefied Western Canadian propane to markets in Asia and Central America. The Calgary-based company says the project on Watson Island is expected to cost about $260 million, up from an estimate of $150 million made last spring, due to minor scope changes, dock maintenance and additional site preparation. Pembina's facility, which still requires regulatory and environmental approvals, is expected to be in service by mid-2020 and will have a permitted capacity of about 25,000 barrels per day of propane. Read The Vancouver Sun article. 

Family and Children News:

2017 Update to the Federal Child Support Tables
The Federal Child Support Tables set out the basic monthly amounts of child support under the Federal Child Support Guidelines. The tables have been updated to reflect more recent tax rules. The updated tables came into effect on November 22, 2017. Source – Department of Justice 

New Case out of the BC Court of Appeal Highlights the
Challenges High Conflict Parenting Disputes
On November 23 the Court of Appeal released the family law decision N.R.G. v. G.R.G., 2017 BCCA 407. This is a very important case which dealt with a multiple parenting dispute between the parents of five children. At the time that court proceedings started the children were aged 11, 9, 7 and 3 year old twins. The parties unfortunately were engaged in contested court proceedings for approximately five years and at the time that the Court of Appeal reviewed some of the earlier decisions the children were aged 16, 14, 11 and the twins were 8. The mother is a physician and the father was described by the Court of Appeal as being "highly educated and has worked in the banking industry and property development but was effectively unemployed at the time of trial and had been for several years". This is a case where there were allegations of abuse on the part of the father, allegations of alienation on the part of the mother and evidence that both parents had behaved inappropriately at times in the presence of the children. Read the full article by Leneigh Bosdet with Pushor Mitchell LLP.

The BC Judge who "Ignored Evidence," "Erred in Law" and
Put a Ministry under Fire
It's one of the most alarming family justice cases in Canadian history: A high-conflict custody battle with allegations of sexual abuse by a father and incompetence by BC's Ministry of Children and Family Development (MCFD) is raising serious questions about how our system deals with families at their breaking point. In a five-part CKNW special investigation, reporter Charmaine de Silva takes an in-depth look at how a judge, a lawyer and our system, in general, led to justice being derailed. Access the full Global News story here. 

Local Government News:

Legalizing Cannabis: A Joint Effort
With the introduction of the Cannabis Act, the Federal government is proposing the legalization of the recreational use of cannabis. Local governments must now consider the implementation of a local cannabis regulatory regime in the context of this new federal approach to recreational cannabis, as well as a retail and distribution framework to be determined by the provincial government. This paper summarizes the proposed Cannabis Act, and outlines which level of government will be responsible for what under the new regime. It then discusses the status of the provincial cannabis framework, and highlights how other provinces have responded to the proposed legislation to date. Finally, the jurisdiction of local governments in determining an appropriate regulatory framework is considered, and information on what considerations a local government must take into account under a new cannabis regime is presented. Download the article by Francesca Marzari and Stefanie Ratien with Young Anderson Barristers & Solicitors.

Public Service Labour Relations Act

Miscellaneous News:

"Essential step": Liberals Move to End Sex-based
Status Discrimination in Indian Act
As many as 1.4 million people of First Nations descent would be eligible for status under the government's broadened plan to end sex-based discrimination in the Indian Act. The Liberal government says it will grant full legal status to all First Nations women and their descendants born before 1985, expanding the scope of its originally planned amendment that would have limited the timeframe to those born after 1951. The expansion, a proposed amendment to a bill tabled in the Senate, would address all inequities created between 1869 and 1951 as well, the office of Crown-Indigenous Relations Minister Carolyn Bennett confirmed. Status rights could immediately be granted to some 35,000 people in the post-1951 category when the bill comes into force. Read the CBC article. 

BC Supreme Court Extends Arbitration
Agreement to Non-Signatories
In Northwestpharmacy.com Inc. v. Yates, the BC Supreme Court upheld an application by the defendants to stay legal proceedings in favour of arbitration, despite the fact that the defendants themselves were not signatories to the arbitration agreement. The decision demonstrates the generous approach taken by the courts to granting a stay in favour of arbitration, and confirms that although a litigant may not be a signatory to an arbitration agreement, that does not determine whether it is a party to the arbitration agreement.

Application
The defendants' application related to an arbitration clause contained in a services contract between two Panamanian companies: Northwestpharmacy.com (Plaintiff) and Omega Group Inc. (Omega). The arbitration clause, which had been specifically negotiated by the Plaintiff, provided for the arbitration of "all disputes arising out of or relating to the contract" (Arbitration Agreement).

Read the full article by Laura Cundari and Brady Gordon (Student-at-Law) of Blake, Cassels & Graydon LLP. 

Federal Court of Appeal: Past Privacy Consent Does Not Prevent
New Means of Handling and Distributing Personal Information
The Federal Court of Appeal released its long-awaited decision in Toronto Real Estate Board v Commissioner of Competition on Friday, December 1, 2017. The decision is a statutory appeal and is the latest chapter in a very long saga in which the Competition Bureau has accused Canada's largest real estate board of acting in an anti-competitive manner to prevent new forms of competition in the real estate market. The Canada Real Estate Board (CREA), and its members such as the Toronto Real Estate Board (TREB) own and operate the Canadian Multiple Listing Service (which is the backbone of realtor.ca). A lot of information about current properties on the market is available on the site and realtors have access to a much wider range of information, including historical sales and listing information that is essential to carrying out market analyses for buyers and sellers. Read the full article by David Fraser published on the Canadian Privacy Law Blog. 

Ktunaxa Nation v British Columbia (Part 2):
On Review and Consultation
Part 1 of TheCourt.ca's coverage of Ktunaxa v BC covered the decision's contribution to freedom of religion jurisprudence. In part 2, I ask: What does an obscure snowy mountain in British Columbia have to do with a much less snowy, much more famed mountain in Jerusalem? The answer to that question is: "probably not a whole lot." Unless, of course, you were party to Ktunaxa Nation v British Columbia (Forests, Land and Natural Resource Operations) 2017 SCC 54 ("Ktunaxa"). One question at the hearing of the recently released Supreme Court of Canada ("SCC") decision was whether the Ktunaxa Nation was asking the Court to sanction a Canadian Temple Mount. The Ktunaxa's "no middle ground" position left the Court in a bind: either deny the freedom of religion claim or effectively grant the Ktunaxa a property interest in the land at stake. Read the full article by Bailey Fox, published on The Court.ca

Election Act Amendments in Force
Effective November 30, 2017, the Election Amendment Act, 2017 amended the Election Act to include an expansion of the definition of what is considered election advertising. Further changes made to the Act mean political parties cannot use prior contributions for partisan advertising that is prohibited under the new rules, including advertising conducted outside the standard campaign period. The new changes also include a phased-in quarterly report of political contributions, similar to the rules for federal political parties, which has been a priority of the Green caucus. Read more of the government news release. 

Motorist Found Fully at Fault for Clipping
Cyclist while Attempting to Pass
Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing fault for a collision involving a cyclist and a motorist. In this week's case (McGavin v. Talbot) the Plaintiff had merged onto the roadway where a bike lane ended. Shortly thereafter the Defendant, proceeding in the same direction of travel, clipped the Plaintiff's bike while a vehicle attempting to pass causing him to lose control and crash. The motorist denied fault. Mr. Justice Masuhara found fault rested fully with the motorist in these circumstances and provided the following reasons: Read the full article by Erik Magraken with McIsaac and Company.

Safer Roads Goal of New Focus on
Dangerous Drivers
Street racers and other dangerous drivers will spend longer away from the wheel – making roads safer for everyone else – as BC begins tailoring prohibitions to better deter certain serious driving behaviours. "The drivers posing the greatest risk to people's lives are often caught repeatedly, and that tells us they aren't taking the consequences seriously," said Minister of Public Safety and Solicitor General Mike Farnworth. "We're going to be scrutinizing their driving more closely and making sure the penalty fits. Racers who won't take their cars to the track can expect to walk or use public transit." Effective Dec. 1, 2017, longer prohibitions will replace the existing 15-day penalties for street racing and stunt driving. The prohibitions can also apply to a broader range of offences, including excessive speeding, driving without due care and attention and other high-risk driving behaviours that present an immediate risk to public safety. Read the full government news release.

New Drinking and Driving Rules bring Mandatory
Alcohol Screening to Canada
Supporters of federal rules on alcohol screening say
it will help prevent accidents, but critics predict Charter litigation.
In May, the federal government tabled Bill C-46, which would amend the Criminal Code for impaired driving offences. The proposed changes come on the eve of the government's legalization of recreational cannabis use, and they include new "legal limit" drug offences, as well as mandatory alcohol screening. Proponents say that mandatory alcohol screening, for one, will bring Canada into line with other Western nations that have lowered impaired driving charges using this form of screening; but the criminal defence bar cautions that aspects of the new bill may present Charter challenges and further burdens on the courts. "I think, absolutely, we are going to see more impaired drivers before the courts, and a greater strain on the justice system," says Toronto defence lawyer Daniel Brown. "Almost exclusively, these [impaired driving] cases are prosecuted in the provincial court system," where, he says, there is "already a strain on prosecutorial and police resources; these changes will only increase the strain on all of the justice participants." Bill C-46 has two parts. Part 1 would add new sections for driving while under the influence of drugs other than alcohol and would come into force on Royal Assent, before Bill C-45, the Cannabis Act, comes into force. Read the full article by Elizabeth Raymer, published on Canadian Lawyer Magazine.

Government Considers Cap on Minor Injury
Claims to "Fix" ICBC Finances
The BC government is considering capping insurance claims on minor automobile accidents, as well as boosting eligible amounts for physiotherapy and other medical benefits, as it tries to stem rising financial losses at the Insurance Corporation of BC Attorney-General David Eby, who oversees ICBC, said a cap on the amount paid out by ICBC on minor injuries could be a key part of a suite of reforms he's drafting to help prevent massive vehicle rate hikes from the monopoly Crown auto insurer. "We're looking at caps on minor pain and suffering awards, because there's been an explosion in the size of awards people receive for minor whiplash and minor injuries," Eby said in an interview Thursday [November 30th]. "It's a very significant piece of the portfolio of reforms we're looking at." ICBC also hopes to find efficiencies with trial lawyers in court cases over claims, said Eby. British Columbia is the last province in Canada with a purely litigation-based insurance model, where drivers not at fault in a crash sue the at-fault driver for economic loss and suffering. Read the Vancouver Sun article article

CVSE Bulletins & Notices
The following notices have been posted in November by CVSE:

• Invitation Letter – Invitation to participate in the Trucking Harmonization Task Force online survey
• Circular 06-17 – Deadline for Planned Trailer Axle Weight Reductions Extended to December 31, 2018 for affected vehicles
• Circular 07-17 – Temporary Increase to Steer Axle Weights for Specified Pre-Approved Logging Truck Configurations by General Authorization

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

Green Oak
In Green Oak Development Corp (West 7^th v. Hans Demolition & Excavating Ltd. (Inc. No. 448429) (Green Oak), the Court considered the application of the limitation period for filing a lien claim where the owner claimed that a head contract had been terminated. In Green Oak, the defendant, Hans Demolition & Excavating Ltd., (Hans) was a subtrade hired to work on a project (Project) owned by the plaintiff Green Oak Development Corp. (West 7th) Corp., (Green Oak). During the course of work on the Project, Green Oak changed the general contractor it had engaged, awarding the remainder of the work on the Project to another general contractor, Kindred Construction. Green Oak advised Hans and other subtrades of this by way of an email in September 2016.

Wills and Estates News:

Certificates of Pending Litigation (CPL) – Cancellation
Xie v Lai, 2017 BCSC 2035 involved an application to cancel a certificate of pending litigation and the law re same was reviewed.

The Legal Framework
31 The legal framework respecting the cancellation of CPLs was set out in Jacobs v. Yehia, 2015 BCSC 267. The principles can be summarized as follows:

1. A party to a proceeding who claims "an estate or interest in land" may register a CPL against the land: Land Title Act, R.S.B.C. 1996, c. 250 (the "Act"), s. 215(1). But if the party is unable to demonstrate an arguable or prima facie case for an interest in land, the CPL will be cancelled: 0861695 B.C. Ltd. v. Meola, 2013 BCSC 121.
2. A CPL will also be cancelled if the action in which it has been registered has been dismissed and no appeal from the dismissal has been registered: s. 245 of the Act.

Read the full article by Trevor Todd on his blog disinherited – Estate Disputes and Contested Wills.

Screening for Capacity and Undue Influence
– from CLEBC website – Practice Points
In this paper, Stanley Rule of Sabey Rule LLP discusses client interview tips, practical advice, and red flags to look for when screening for capacity and undue influence with estate planning clients. Click here to view a pdf version of the paper.

Suspicious Circumstances – Bhalla Estate, 2017 BCSC 1867
In British Columbia, there are three requirements for making a valid will:

1. the will must be validly executed in accordance with requirements set out in section 37 of the Wills, Estates and Succession Act, SBC 2009, c 13;
2. the will-maker must have the mental capacity to make a will; and
3. the will-maker has to "know of and approve" the contents of the will. This means that the individual must comprehend the terms in the will and agree that those terms represent the bequests that he/she wants to make.

Proper execution of a will leads to a presumption that the will-maker knew and approved of the contents of a will, and had the necessary capacity. However, circumstances surrounding the creation of a will may call into question whether these validity requirements were truly met. If someone challenging a will demonstrates that these circumstances are sufficiently worrisome, then the doctrine of "suspicious circumstances" is engaged. When a will is held to have been created under "suspicious circumstances", those seeking to prove the will have the burden of proving that the will-maker had the requisite capacity and knowledge and approval. Read the full article by Michael Larsen of Clark Wilson LLP. 

Ian Mulgrew: Hollow Tree Friendship
Leads to Inheritance Squabble
In its first decision involving the controversial new Wills, Estates and Succession Act, BC's top court has emphasized the broad discretion the law confers on judges. The Court of Appeal upheld a lower court ruling that rejected a 93-year-old widow's note, hand-written a few months before her death, entitled "This is my last Will," in favour of a much older, professionally prepared division of her $1.3-million estate. The case had the added fillip of seemingly involving the new attorney general. "I hope to see Mr. David Ebby (sic) in person to write this will," Eleanor Lena Hadley added in her spiral-bound journal on Sept. 1, 2014. Eby, however, said he had never in his legal career prepared a will and didn't speak to her. She became ill soon after she made the notes and died March 6, 2015, with no immediate family. Hadley was an extraordinary individual who was a key player in the fight to save the Hollow Tree in Stanley Park. A long-time resident of the West End, she was a spirited activist and repeat candidate for the park board. Virginia Maziak, Anita Berecz, Grace Gagner and Carol Fitzsimmons — four nieces in Ontario — were the main heirs under Hadley's 2008 will. But in the 2014 notebook, Bruce Macdonald, an elderly historian, and Daniel Pierce, a 31-year-old filmmaker, friends of Hadley's from the successful struggle to save the Hollow Tree, were named as beneficiaries along with one niece, Maziak. Read the full Vancouver Sun article by Ian Mulgrew,