Company and Finance News:

New BC Transparency Register:
Who Needs to Disclose?
On May 1, 2020 private companies incorporated under the BC Business Corporations Act (the "Act"), will be required to establish and maintain a transparency register of "significant individuals" who:

1. directly or indirectly own or control 25% or more shares of a company; or
2. have the right to elect or appoint a majority of the directors of the company.

The creation of this new register follows BC's commitments under the federal/provincial Agreement to Strengthen Beneficial Ownership Transparency to combat money laundering, terrorist financing, tax evasion and other criminal activities.

The new BC regulations relating to the transparency register were approved and ordered by the Lieutenant Governor in Council on October 24, 2019. These regulations provide guidance regarding the interpretation of what constitutes control, indirect control, and chain of intermediaries. Read the full article by Alexandra Madden with Clark Wilson LLP. 

Updates on the Speculation and Vacancy Tax: New Exemptions of
Popular Rental Restriction Bylaw and Vacant Land Exemptions
On December 10, 2019, the B.C. government announced new changes to the Speculation and Vacancy Tax (the "SVT"), following its inaugural year.

These changes were approved on December 23, 2019. These changes are timely, as homeowners are set to receive their 2019 tax declaration notices for the SVT in just a few weeks' time. As discussed in our previous blog post on the SVT, the tax rate for properties owned by a foreign owner or a member of a satellite family that are not subject to an exemption will increase to 2% for the 2019 tax year. The general tax rate for non-foreign owners or members of satellite families will remain at 0.5% of a property's assessed value. Read the full article by Ephraim Fung with Alexander Holburn Beaudin + Lang LLP. 

Turning the Common into the Uncommon: Supreme Court of BC Refuses
Certification for Breach of Modified Standard Form Contracts
One of the most important issues in a class action certification proceeding is determining which issues are common to the class. Standard form contracts have long been held to be well suited for class action proceedings because they are identical (or nearly identical) and therefore easily meet the bar for commonality.

Recently, in 676083 B.C. Ltd. v. Revolution Resource Recovery Inc., 2019 BCSC 2007, the Supreme Court of BC ("BCSC") distinguished true standard form contracts from contracts that started from a standard template but were then subject to subsequent negotiations and modifications. The BCSC went on to deny certification of issues related to breach of contract because the interpretation of the clauses at issue were not suited to a class proceeding. Ultimately, other issues in the litigation involving a restraint of trade were found to be suitable for certification although the Court rejected 676083 B.C. Ltd.'s suitability as a representative plaintiff. Read the full article by Edmond Chen with McCarthy Tetrault LLP. 

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

• 45-326 – CSA Staff Notice 45-326 Update on: Amendments to National Instrument 45-106 Prospectus Exemptions and National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations relating to Syndicated Mortgages
• 13-315 – Securities Regulatory Authority Closed Dates 2020
• BC Notice 2019/05 – Notice and Request for Comment - Consultation on the British Columbia Securities Commission BCP 15-601 Policy outlining procedures for hearings under the Securities Act
• 81-332 – CSA Staff Notice 81-332 – Next Steps on Proposals to Prohibit Certain Investment Fund Embedded Commissions 

For more information visit the BC Securities website.

Energy and Mines News:

Updated Rules for Water Use in
Mineral Exploration, Mining
Updated rules for water use in mineral exploration and small-scale placer mining operations are now in place to better protect the environment and provide more guidance for the people involved.

The updated provisions, under the Water Sustainability Act, make permanent the temporary provisions that allow certain individuals the use of available water for mineral exploration and small-scale placer mining activities without authorization.

In addition, the provisions now limit the size of a camp to 20 people that can use water without an authorization. Statutory decision makers can also now require an authorization if there is a risk of potential impacts to streams, other authorized water users or cultural heritage resources, such as sites that have historical or archaeological significance to a community or Indigenous peoples. Read the full government news release. 

Injunction Granted to Natural Gas
Company by BC Supreme Court
The British Columbia Supreme Court has granted Coastal GasLink an interlocutory injunction against members of a First Nation and others who oppose the company's natural gas pipeline. The company is building a pipeline from northeastern BC to LNG Canada's export terminal in Kitimat on the coast. Coastal GasLink says it has signed agreements with all 20 elected First Nations councils along the 670-kilometres route but hereditary chiefs in the Wet'suwet'en First Nation say the project has no authority without their consent. Read the CTV article. 

New Methane Regulations and Fugitive
Emissions Guidelines
The BC Oil and Gas Commission (Commission) is reminding industry and other stakeholders of new regulations and guidelines which take effect on Jan. 1, 2020. The Commission has introduced new regulations to reduce methane emissions from upstream oil and gas operations to meet or exceed federal and provincial methane emission reduction targets, through amendments to the Drilling and Production Regulation. Read the Information Bulletin. View all recent BCOGC Industry Bulletins.

Chevron's Possible Exit from Kitimat LNG Project Dents
Canada's Aspirations of Building LNG Hub
Chevron Corp. is considering putting its entire stake in the proposed liquid natural gas project in British Columbia on the block, in a blow to Canada's aspirations to build a robust LNG industry. "Although Kitimat LNG is a globally competitive LNG project, the strength of Chevron Corporation's global portfolio of investment opportunities is such that the Kitimat LNG Project will not be funded by Chevron and may be of higher value to another company," the company said on Tuesday [December 10th]. The San Ramon, California-based company said its Canadian unit will look for buyers for its 50 per cent interest in the Kitimat LNG Project, but set no timeline to conclude the process. Chevron's other Canadian projects are not part of the sale. Read the Vancouver Sun article. 

Family and Children News:

Supreme Court of Canada Decision: Yared v. Karam
Quebec family property rules apply to a family home held by a trust that one of the spouses controls, the Supreme Court has ruled. When people get married in Quebec, a "family patrimony" is created. It usually includes property such as family homes, cars, and furniture. These can be owned by both spouses, or by just one spouse. It can also include a family home that a spouse doesn't own, but has rights to use. Under Quebec's Civil Code, "rights which confer use" are included in the family patrimony. If the marriage ends, family patrimony almost always gets divided equally between the spouses. Read the full Case in Brief, published by the SCC. 

2019 Year in Review for Child-protection Project
Even though BCLI began its Modernizing the Child, Family and Community Service Act Project late in 2018, the project only really hit its stride in 2019. This year has seen some significant developments in both components of the project: (1) a focused review of the Child, Family and Community Service Act to identify outdated provisions and operational incompatibilities and gaps within the statute itself and with legislation that intersects with this act; (2) comparative legal research into legislative models that support policy and practice related to youth aging into the community. Read the full article by Kevin Zakreski with the British Columbia Law Institute. 

Forest and Environment News:

The Rule Against Multiple Convictions Revisited
In its 1975 decision R v. Kienapple, the Supreme Court of Canada established the doctrine of "res judicata" in Canadian common law (herein referred to as the "Kienapple Rule"). The Kienapple Rule provides that government cannot pursue multiple convictions for different offenses on the basis of the same facts if the offenses are substantially the same under the circumstances. In terms of policy, the rule is concerned with finality of litigation (no "double jeopardy"), and with multiple convictions for the same legal wrong (no "piling on").

In the early years of the Forest Practices Code of British Columbia Act (the "Code"), the applicability of the Kienapple Rule to administrative contravention determinations under the Code was extensively litigated before the Forest Appeals Commission (the "Commission"). The classic contravention determination at issue would concern a finding of contravention made in relation to a particular, substantive regulation prescribed under the Code, and another finding of contravention made under Section 67(1) of the Code for a failure to carry out a forest practice "in accordance with … the regulations". If a person committed a specific contravention of the regulations, then that person also automatically contravened the general requirements of Section 67(1) of the Code – one contravention couldn't exist without the other, even if both findings of contravention related to the exact same conduct. Read the full article by Jeff Waatainen in the January-February issue of BC Forest Professional Magazine.

The BC Court of Appeal Maintains a High Bar for
Certifying Environmental Class Actions
The BC Court of Appeal's decision in Kirk v Executive Flight Centre et. al striking out certification of an environmental class action illustrates the challenges in bringing environmental torts by way of class proceedings and specifically maintains a high bar for nuisance claims to be certified.

The defendant was driving a fuel truck when his truck rolled down an embankment into Lemon Creek, spilling 35,000 litres of Jet A-1 fuel. Local residents were ordered to evacuate, and water use restrictions were issued. The plaintiff commenced a class proceeding on behalf of local residents for claims including negligence, nuisance and diminution of market value of properties. The matter was certified as a class action, and the defendants appealed on the grounds that the Judge erred in certifying several common issues that lacked sufficient commonality. Read the full article by Kelsey Sherriff with Miller Thomson LLP. 

Public Input Sought on Hunting Regulation Changes
Proposed hunting, trapping, motor vehicle restriction and firearms restriction regulation changes for 2020 to 2022 are online and available for public review and feedback. Based on regional requirements and conditions, the intent of these regulation adjustments is to promote the conservation of wildlife and wildlife habitat, as well as to optimize sustainable hunting and trapping opportunities. Read the full government news release. 

New Environmental Assessment Act Now in Force
On December 16, 2019, the new Environmental Assessment Act and its supporting regulations came into force. The new legislation establishes a stronger environmental assessment process for reviewing major projects in BC by ensuring greater public participation and participation from Indigenous Nations at all stages. The changes provide greater clarity for collaborating with Indigenous Nations and opportunities for Nations to provide notification of consent at major decision points. Projects already in the environmental process will continue under the former Environmental Assessment Act. However, any projects that do not complete the assessment process within three years will be required to complete an assessment under the new act.

Environmental Appeal Board Decisions
There was one Environmental Appeal Board decision in the month of December:

Wildlife Act

• Abraham Dougan v. Deputy Director of Wildlife and Habitat [Final Decision – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Health News:

Heath Regulation Amendments
On January 1st, B.C. Reg. 180/2019 brought into force amendments to the Medical and Health Care Services Regulation, eliminating premium and combined premium rates for recipients of income assistance. Temporary and retroactive premium assistance was eliminated, as were dues for unpaid fees. Additional amendments included a heading change, definitions changes, and consequential and housekeeping amendments to the Drug Plans Regulation, Emergency Health Services Act Remission Regulation, and Emergency Health Services Regulation.

Labour and Employment News:

2019 Year in Review for the Pension
Division Review Project
Part 6 of the Family Law Act and the Division of Pensions Regulation set out the legal framework for dividing pension benefits after the breakdown of a spousal relationship. This legal framework first came into force in the 1990s and, like much of British Columbia's family-law legislation, saw some significant revisions when the Family Law Act came into force in March 2013. Having passed the fifth anniversary of those revisions, the time appeared to BCLI to be ripe to launch a law-reform project examining how the new legal framework for pension division is faring in practice. BCLI began the Pension Division Review Project in early 2019. The project's first year has been an active one. Read the full article by Kevin Zakreski with the British Columbia Law Institute. 

Legal Gifts for the Holidays: Breaches of the Employment Standards Act
Cannot Be Pursued in BC Courts
In the spirit of the season, our December blog posts provide "legal gifts" for employers. Last week, we confirmed that occasional flexibility in start times does not create a contractual right to start work later. This week, our legal gift comes from the British Columbia Supreme Court decision of Belanger v. Tsetsaut Ventures Ltd., 2019 BCSC 560, where the Court confirmed that in British Columbia, employees cannot pursue civil claims for alleged breaches of employment standards legislation. Rather, exclusive jurisdiction for employment standards complaints rests with the Director of Employment Standards.

In Tsetsaut Ventures, a group of employees brought a civil claim alleging that their former employer breached numerous sections of the Employment Standards Act (the "ESA"), including the requirement to provide severance, overtime and holiday pay. In addition, the employees claimed that their employer breached section 83 of the ESA by threatening to dismiss them if they exercised their rights pursuant to the ESA. Read the full article by Nicole K. Skuggedal with Lawson Lundell LLP. 

Local Government News:

Done with Dunsmuir – SCC Re-thinks the
Standard of Review
This morning [December 19th] the Supreme Court of Canada released reasons for judgment in a trilogy of cases, including Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, wherein its stated purpose was to reconsider its framework for standard of review. The facts of Vavilov are exciting. Alexander Vavilov is the son of Russian spies who were part of the "Illegals Program" (on which the hit FX TV series The Americans was based). Unfortunately for readers of this Bulletin, that is the last you will hear about Mr. Vavilov or the underlying facts of this case, which is only of interest to local governments for its legal commentary. Read the full article by Nick Falzon with Young Anderson Barristers & Solicitors.

ICBC Policy for Fleet Vehicle Drivers
Local governments may be aware that as of September 1, 2019, the Insurance Corporation of BC (ICBC) moved to a more driver-based model for vehicle insurance. This means that an individual's driving experience and crash history will play a bigger role in determining the cost of insurance premiums. ICBC has now reviewed and clarified their vehicle insurance policies in the context of local government fleet operations, as indicated in the following statement. Read the full UBCM article.

Traffic Fine Changes Reflect UBCM Input
The Province intends [PDF - 990 KB] to introduce amendments to the Traffic Fine Revenue Sharing Agreement (TFRSA) consistent with recommendations made by UBCM. Changes are expected to generate additional net income for local governments, while allowing the Province to recover costs associated with new traffic enforcement programs.

Changes to the traffic ticket system, some of which have already been implemented, include operating red-light intersection safety cameras (ISC-RL) around the clock, implementing speed activated intersection safety cameras (ISC-SA), the province-wide introduction of eTicketing, and potentially creating an administrative justice tribunal. Read the UBCM article. 

Miscellaneous News:

Yongfeng Holdings Inc. v. Zheng: The Need for Strict Compliance when
Registering a Claim of Builder's Lien
The British Columbia Supreme Court recently stressed and re-iterated the importance of strict compliance with the many requirements set out in the British Columbia Builders Lien Act (the "BLA").

In Yongfeng Holdings Inc. v. Zheng, 2019 BCSC 1534, the Court considered whether a lien claimant properly completed its claim of lien form. On January 11, 2017, the lien claimant registered against title to the project lands its claim of lien in the amount of $174,308 (the "Claim of Lien"). In particular, the court considered whether the lien claimant completed its Claim of Lien form in the manner, form, and time limits prescribed by the BLA. Read the full article by Tim Sportschuetz and John Singleton with Singleton Urquhart Reynolds Vogel LLP. 

Consultation Paper: Reform of the Builders Lien Act – Deadline for
Comments from Industry Stakeholders is Fast Approaching
Earlier this fall, the British Columbia Law Institute (the "BCLI") released its consultation paper on reform of the Builders Lien Act (the "BLA"). With 2020 almost upon us, the deadline for industry stakeholders to provide comment is fast approaching.

The current BLA has been in force since 1997. It is a cornerstone of construction law in British Columbia, providing security of payment for work done on and materials supplied to construction sites. Over the past two decades construction industry advancements have created new issues and uncertainty related to the legislation. The Builders Lien Act Reform Project Committee (the "Committee") prepared the Consultation Paper on the Builders Lien Act in response to an invitation from the Ministry of the Attorney General to conduct a comprehensive review of the BLA. Read the full article by Jamieson D. Virgin and Eleanor Rock, Articled Student with McMillan LLP.

Breach of Broker Duties, Beware
In the recent case of Duraguard Fence Ltd. v. Badry, the Court held that an insurance broker, in failing to consider the insured's loss history and foreseeable claims, may end up providing inadequate insurance coverage and in turn breach their legal duty to the insureds.

Duraguard (the "Plaintiff"), who were in the business of supplying and installing chain-link fence, brought an action against Douglas Farnell and Howard, Douglas Farnell Insurance Services Ltd (collectively the "Defendants") who were an insurance brokerage firm, for failure to place adequate insurance coverage for employee dishonesty. The claim concerned uninsured losses resulting from employee fraud that had been going on for five or six years and amounted to $589,000. The amount specifically at issue was $245,000: the difference between what the Plaintiff says it should have been paid if they were properly insured, less what was paid out by the insurer, being $5,000. Read the full article by Debbie Preston (Articled Student) and Raman Johal (Partner) with Clark Wilson LLP. 

Sperm Can't be Removed without Spouse's
Consent after Death: BC Supreme Court
No matter how sudden or unexpected the death, a widowed wife cannot remove sperm from her deceased husband's body to create an embryo, unless she has his informed consent in writing.

In L.T. v. D.T. Estate (Re), 2019 BCSC 2130, decided Dec. 9, Ms. T sought to retrieve sperm for reproductive use from Mr. T's body after his death. When the fertility centre told her of a 36-hour deadline and the need for a court order, she filed an urgent, after-hours application with the Supreme Court of British Columbia. Read the full article by Bernise Carolino and published on Canadian Lawyer. 

Motor Vehicle and Traffic News:

A Sober BC Man Gave His Impaired Mother
a Drive Home. Police Still Issued a Penalty
A B.C. family got a harsh lesson in designated driving after police impounded their vehicle and issued a roadside prohibition – even though the driver was sober and his impaired passenger was the one penalized. The passenger, who lives in Nelson and whose name was not provided, was at a Christmas party with her husband the night of Dec. 13 when they called their 22-year-old son to pick them up, as both had been drinking. The mother was sitting in the front passenger seat while her son drove his parents home when they went though a holiday Counter Attack road check. When police asked if anyone had consumed any alcohol, the woman admitted she had. Read the Global News article. 

Case Summary: Truck Drivers and the Troubling
Risk of Underinsured Motorists
The conditions of the Ontario Automobile Policy applied such that the insured did not have the benefit of any underinsured coverage on his personal vehicle when he was injured on the job with his commercial truck.

Kahlon v. ACE INA Insurance, [2019] O.J. No. 4962, 2019 ONCA 774, Ontario Court of Appeal, October 1, 2019, P.D. Lauwers, G. Huscroft and G.T. Trotter JJ.A.

The plaintiff's company owned and leased a tractor to Bell City Transport Systems Incorporated ("Bell City Transport"), and the plaintiff operated the tractor as an independent contractor for Bell City Transport under fleet insurance provided by ACE INA Insurance ("ACE"). The plaintiff also had a personal motor vehicle, which was insured by AllState. Both the ACE and the AllState policies had attached endorsements which provided underinsured vehicle coverage. Read the full article by Tricia Milne with Harper Grey LLP. 

CVSE Bulletins & Notices
The following notices were posted in December by CVSE:

• Circular 07-17 – Temporary Increase to Steer Axle Weights for Specified Pre-Approved Logging Truck Configurations extended to December 31, 2021
• Circular 09-19 – Clarification of Dimensional Requirements for Pony and Full Trailers Under 10,000 kg GVWR

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

Occupational Health & Safety News:

WorkSafeBC Updates Guidelines – Acceptable Occupational Hygiene Methods
– from WorkSafeBC Website
One guideline has been updated to provide guidance about acceptable occupational hygiene methods Guidelines — Occupational Health and Safety Regulation

• Part 5 Chemical Agents and Biological Agents
  o G5.53-4 Occupational hygiene methods acceptable to WorkSafeBC (revised)

New and revised guidelines are posted for a 60-day preliminary period, during which time the stakeholder community may comment and request revisions. To view this and other updates visit the WorkSafeBC website. 

Supreme Court of Canada Defers to Appeal Officer on
Canada Post's Health and Safety Inspections
Canada Post does not have to inspect mail routes and destinations in yearly health and safety checks, the majority of Supreme Court of Canada judges said, in the first major application of a new standard of review framework.

The Dec. 20, 2019 decision, Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, marked the court's first application of the paradigm espoused in the Dec. 19 decision, Canada (Minister of Citizenship and Immigration) v. Vavilov, although the release of Vavilov did not change the "reasonableness" standard of review. Read the full article by Anita Balakrishnan, published on the Canadian Lawyer Magazine website. 

Property and Real Estate News:

Petrick (Trustee) v Petrick: Another Reminder to
Be Careful with Joint Tenancies
A recent BC Supreme Court decision provides another cautionary tale about the use of joint tenancies as part of an estate plan. Family members often think holding assets in a joint tenancy will be an efficient way to devolve property to younger members, avoiding the cost and trouble of the probate process. However, unanticipated problems can often arise especially when one joint tenant encounters financial troubles.

The case of Petrick (Trustee) v Petrick, 2019 BCSC 1319 involves the joint ownership of a condominium by a mother and her son. The property was purchased with a mortgage granted to both Mr. Petrick and his mother, Ms. Chilton. Ms. Chilton paid the down payment, deposit for the purchase, the bulk of the mortgage payments and other costs associated with the property. Ms. Chilton was the only person who ever resided in the property. Counsel for Ms. Chilton asserted that the joint tenancy was only created as a feature of Ms. Chilton's estate plan. Specifically, Ms. Chilton swore an affidavit that "my purpose in [registering Mr. Petrick on title to the property] was not to make a gift of a half interest in the condominium to Rock Petrick but rather to arrange my affairs in such a way that in the event of death, the beneficial ownership in the property would pay to my son Rock Petrick, without the necessity of first obtaining a grant of letters probate and paying probate fees." Read the full article by Dwight D. Dee with Miller Thomson LLP. 

This Is Not What We Assumed! Developers & Strata
Corporation Dispute Cost-Sharing Provisions
This case involves a dispute between a strata corporation known as "Firenze" within the "International Village" development, and Interville, its owner developer and remainder owner. Prior to depositing the strata plan which created Firenze, Interville had entered into easements amongst the various air-space parcels comprising International Village on behalf of each of these air-space parcels. These easements contained certain cost-sharing agreements regarding the pedestrian pathway known as the "Keefer Steps". They were registered in the Land Title Office. However, following the deposit of its strata plan, Firenze did not execute an assumption agreement assuming the positive covenants contained therein. Read the full article by Lisa Frey with Lawson Lundell LLP. 

Landlords Found Not Liable for Tenant Dog Attack
Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, dismissing an injury claim following a dog attack. In this week's case (Ali v. Samra) the Plaintiff was walking to a park when a pitbull left a nearby property and attacked him in an alley where he was walking. The incident was described as follows. Read the full article by Erik Magraken, published on his BC Injury Law Blog. 

Case Summary: Strata Corporations Are Free to Get in Their Own Way When it
Comes to Claiming Reimbursement of Insurance Deductibles from Owners
BC Supreme Court upholds decision of the Civil Resolution Tribunal that the Bylaws of a Strata Corporation can narrow the Strata's ability to sue an owner pursuant to section 158(2) of the Strata Property Act.

Strata Plan BCS 1589 v. Nacht, [2019] B.C.J. No. 1967, 2019 BCSC 1785, British Columbia Supreme Court, October 18, 2019, M. Morellato J. (In Chambers)

The Owners, Strata Plan BCS 1589 (the "Strata") appealed a decision of the Civil Resolution Tribunal (the "CRT") that proof of negligence was required in order for the Strata to recover an insurance deductible from the respondent owners, the Nachts, and that the Nachts were not negligent. Read the full article by Mollie Clark with Harper Grey LLP. 

Wills and Estates News:

Update on Digital Assets
Digital assets are becoming increasingly important to Canadians, yet they are rarely addressed in wills. The digital nature of assets does not alter the fact that they are, indeed, assets. They form part of your estate on death, and it is important to leave clear instructions to your estate trustees about what should happen to these assets when you die to avoid losing these assets that can have monetary and sentimental value.

Due to a lack of legislation on digital assets, the estate trustee might be directed by service terms outlined by digital account providers and without explicit instructions either in a will or in a power of attorney, companies may assume the deceased had no intention of transferring or sharing digital information. Digital accounts often reserve the right to restrict access to non-account holders out of fear of breaching Canadian privacy laws, which are designed to protect a person's right to privacy both before and after death.

Different service providers apply their own service terms that can differ greatly from one another. Here's a look at some updates that have occurred in the last few years, months and weeks. Read the full article by Diana Tebby of Mann Lawyers.