Company and Finance News:

British Columbia's Occupiers Liability Act and COVID-19: 
What Business Owners Need to Know
The current COVID-19 pandemic has put pressure on businesses to navigate unprecedented challenges while continuing to meet their legal obligations to customers and the wider public. One of the most important obligations that business owners should be aware of is their duty to ensure the safety of their business' premises, even during the on-going pandemic. Recently, the British Columbia Provincial Government has released a ministerial order that provides important legal protections for certain businesses that continue to operate during the pandemic.

In British Columbia, the Occupiers Liability Act ("OLA") outlines the legal obligations that occupiers owe to persons visiting their premises. An "occupier" under the OLA includes any person (i.e., an individual or a corporation) who (a) is in physical possession of the premises, or (b) has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises. Read the full article by Jonathan S. McLean with Stikeman Elliott LLP. 

Additional Measures for Entrepreneurs and Businesses
Disproportionately Affected by COVID-19
Since the start of the spread of COVID-19 in Canada, the federal and provincial governments have announced various programs and subsidies to help Canadian businesses survive in light of the challenges posed by necessary social distancing measures, as discussed in our previous blog post here. Despite recent announcements to respond to gaps in government programs for growth stage innovation companies, as discussed in our blog post here, many small businesses and entrepreneurs have continued to fall through the cracks without any government assistance.

The Canadian government recently announced more support for businesses and entrepreneurs who are still struggling amid the current crisis, including additional funding to support women entrepreneurs. Additionally, the federal government announced it would be expanding the Canadian Emergency Business Account ("CEBA") eligibility requirements to allow for an increase in the number of eligible businesses. Read the full article by Michael M. Macaulay, Kellan E. McKeen and Asha Young with Lawson Lundell LLP.

CEBA Eligibility Expanded
On May 19th, Prime Minister Justin Trudeau announced that the eligibility criteria for the Canadian Emergency Business Account (CEBA) has been expanded to include more small businesses. CEBA offers interest-free loans of up to $40,000 for small businesses and not-for-profits for up to one year. Eligibility was previously expanded to include companies with 2019 payrolls of between $20,000 and $1.5 million. The new rules now accommodate some sole proprietors, businesses that rely on contractors, and family-owned corporations that pay employees through dividends rather than payroll.

Minister Ng Announces Hotline to Provide Small Businesses in
Need with Financial Planning Advice amid COVID-19
Small businesses have been facing unprecedented challenges during the COVID-19 pandemic and will continue to do so as they take steps toward reopening. To help them get through this crisis, the Government of Canada has introduced a wide range of supports to help businesses retain their employees, keep their costs low and pay their operating expenses. The smallest businesses may face the additional challenge of accessing tailored financial planning advice to help them survive this difficult period. Read the full government news release. 

Exercising Business Judgment through COVID-19
As COVID-19 related restrictions begin to ease, boards and management face unique decisions as to how to return to a new normal amid evolving legal requirements, health guidelines and divergent stakeholder concerns and expectations. A focus on business judgment will assist corporate leaders in making these tough decisions and finding a path to the other side of the pandemic.

The COVID-19 pandemic has forced boards and management teams to face unprecedented challenges and make quick decisions in order to guide their companies through uncharted waters. Canadian corporate law provides a well-worn framework for decision making and directors and officers should continue to bear in mind their fundamental duties as outlined in the various Canadian corporate statutes. Aspects of directors' and officers' duties all have implications in navigating decisions related to COVID-19. Read the full article published by Stikeman Elliott LLP.

Canadian Securities Regulators Extend Deadlines for 
Filings between June 2 and August 31
On May 20, 2020, the Canadian Securities Administrators (CSA) published blanket orders extending deadlines by 45 days for documents required to be filed or delivered by non-investment fund issuers between June 2 and August 31, 2020.

What you need to know:

• The 45-day extension applies to the filing and delivery deadlines for documents including financial statements, management's discussion and analysis (MD&A), annual information forms, technical reports and business acquisition reports (BARs) required to be filed between June 2 and August 31, 2020.
• Issuers with December 31 fiscal year ends will now have an additional 45 days to release Q2 2020 results.
• Issuers with March 31 fiscal year ends will now have an additional 45 days to release annual and Q1 2020 results.
• Provided that an issuer is not relying on the extension for its annual or interim filings, base shelf prospectuses expiring between June 2 and August 31, 2020 may be extended for 45 days.

Read the full article by Paulina Taneva, Rima Ramchandani and Jonathan R. Cescon with Torys LLP. 

BCFSA News
The BC Financial Services Authority published the following in May:

• Insurance Bulletin – Charitable Donation of Life Insurance Policies in British Columbia
• Pension Bulletin – COVID-19: Frequently Asked Questions (UPDATED)

Visit the BCFSA website for more information.

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

• 51-517 - CSA Notice 31-357 – BC Instrument 51-517 Temporary Exemption from Certain Corporate Finance Requirements with Deadlines during the Period from June 2 to August 31, 2020
• 51-360 - CSA Staff Notice Updated: Frequently asked questions regarding filing extension relief granted by way of a blanket order in response to COVID-19
• 81-521 - BC Instrument 81-521 Extension of Certain Filing, Sending, Delivery and Prospectus Renewal Requirements of Investment Funds with Deadlines during the Period from June 2 to September 30, 2020
• BCN 2020/05 - Notice of Revised British Columbia Securities Commission Policy 15-601 Hearings
• 51-516 - BC Instrument 51-516 Temporary Exemptions from Certain Requirements to File or Send Securityholder Materials

For more information visit the BC Securities website.

Energy and Mines News:

Canada Energy Regulator Denies 
NGTL Abandonment Application
On May 20, 2020, the Commission of the Canada Energy Regulator denied an application by NOVA Gas Transmission Ltd. (NGTL) for leave to abandon facilities that are part of NGTL's extensive system of pipeline and facilities in Alberta and British Columbia.

NGTL brought the application primarily on the basis that the facilities to be abandoned were no longer economic. It argued that tolls for contracted volumes were not sufficient to justify the continued operation and maintenance of the facilities, and that continued operation would place an undue burden on NGTL and its rate payers, which was not in the public interest. The Commission disagreed, finding that the application was not in the public interest at this time and that there would be no undue burden on NGTL or its rate payers if the application was denied. Read the full article by Marie Buchinski and Stephanie Ridge with Bennett Jones LLP. 

COVID-19 Workplace Safety Plan Requirement and Guidance
The May 14, 2020 Order of the Provincial Health Officer requires all workplaces to have COVID-19 Safety Plans in place. Subsequently, on May 19, the Ministry of Energy, Mines and Petroleum Resources (EMPR) released guidance with the expectation that COVID-19 Safety Plans on mine sites (including permitted exploration sites) be in place no later than the end of day on May 31, or prior to the commencement of work. EMPR will not be reviewing or approving the plans of individual mines, but this plan must be posted prominently. Read the full update on the Association for Mineral Exploration British Columbia.

The BC Oil and Gas Commission (Commission) is Simplifying the Process for
Submitting Emergency Response Plans (ERP) and Plan Updates
Effective date: May 25, 2020
The BC Oil and Gas Commission (Commission) is simplifying the process for submitting Emergency Response Plans (ERP) and plan updates. Effective 8:00 a.m. on May 25, 2020, all documents currently submitted using the FTP process must be submitted via the eSubmission online portal.

This change simplifies the submissions process for industry, eliminating the need to request special access to the FTP portal. Permit holders will be able to administer access within their own organization. Users submitting plans in eSubmission will require the "Notices" security role. Users who do not have this role will need to contact their company administrator to have this role assigned in KERMIT. Refer to the eSubmission Reference Guide for more information about creating accounts and obtaining security roles, and the Company Administration. Read the full news release published by BCOGC. 

Private Power Producer Disputes BC Hydro's
Cancellation of $20 million in Purchases
BC Hydro has cancelled $20 million worth of electricity purchases from six private power facilities, the company that operates them said, and it is disputing the utility's reasons for refusing delivery of the power. Longueuil, Que.-headquartered Innergex Renewable Energy Inc. said last week that it had received notice that Hydro would refuse delivery of electricity from the six run-of-river generating stations between May 22 and July 20.

"B.C. Hydro cites the current COVID-19 pandemic and related governmental measures taken in response to it as constituting a 'force majeure' event," meaning an event beyond its control that prevents Hydro from fulfilling its contract, Innergex said in a news release. Innergex will comply, the company said, "but will do so under protest and will seek to enforce its rights" under its contract with Hydro. Read the Vancouver Sun article. 

BC Swamped with Funding Applications to
Restore Oil and Gas Wells: Minister
More than 1,100 applications deluged a BC program creating a funding plan to restore dormant and inactive oil and gas wells within hours of the program's launch. Energy Minister Bruce Ralston says Monday's [May 25] requests equal up to $152 million in reclamation work and if completed would potentially support up to 1,200 jobs and reclaim over 2,400 inactive wells. The federal government announced in April that BC would receive $120 million to clean up inactive oil and gas sites, most of them in the northeastern corner of the province. Read the Vancouver Sun article. 

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

• INDB 2020-13 Natural Gas Levy Rage Change
• INDB 2020-12 2020 Updates to Area-Based Analysis
• INDB 2020-10 Emergency Response Plan (ERP) Submission Changes
• INDB 2020-11 Well Testing Opportunity for New Data

Visit the BCOGC website to view these and other bulletins.

Family and Children News:

Child-protection Committee Tackles
Three Topics at Monthly Meeting
At its May 2020 committee meeting, BCLI's Child Protection Project Committee completed one topic and began its review of two new topics.

The committee finished its look at selected protection issues by considering a pair of issues. First, it considered whether the act should be amended to provide for regular reassessments of whether a child should remain in the care of the director. Second, it examined whether new provisions could be added to the act to promote contact between a child and parents, siblings, and extended family.

Then, the committee examined two topics that are somewhat intertwined. These topics relate to issues concerning incorporating a child's views into a child-protection proceeding and providing for legal representation for a child in a child-protection proceeding. Neither of these issues is directly addressed in the Child, Family and Community Service Act. Instead, a mixture of policies, government programs, and court decisions provide British Columbia's legal framework for dealing with them. Read the full article by Kevin Zakreski with BC Law Institute. 

New Order Restricts Overnight
Camps for Children and Youth
On May 30th, Provincial health officer, Dr. Bonnie Henry issued a new Order that prohibits the operation of sleep away camps for children and youth. "Such camps often have large numbers of children coming from many different areas – campers and counsellors – and they often take place in more remote areas. Physical distancing is very much a challenge in these situations. I know that this is a disappointment for many groups who are used to having that important part of their summer, but I would encourage everybody to focus on arranging day camps where staying outside in smaller groups is far easier to do, and will be safe."

Forest and Environment News:

NAFTA Panel Sides with U.S. Lumber 
Decision, BC Hopes for Final Win
A NAFTA panel has backed the U.S. International Trade Commission's decision regarding softwood lumber imports from Canada but British Columbia's industry group still hopes for an ultimate victory. The U.S. Lumber Coalition says the decision affirms the USITC determination from December 2017 that the imports "materially injured" American producers and workers. It says in a news release that the harm is caused by the Canadian government providing its lumber industry "massive subsidies" and dumping those products into the U.S. market. The BC Lumber Trade Council says it is disappointed by Friday's [May 22] decision, saying it remains convinced that the determination that the U.S. industry is injured by Canadian lumber imports is "flawed and without merit." Read the full article by the Canadian Press and published on BNN Bloomberg. 

British Columbia Announces Funding to
Clean Up Orphan and Inactive Wells
On May 13, 2020, British Columbia announced how it will administer the $120 million in federal funds earmarked to clean up orphaned and inactive oil and gas wells under COVID-19 Economic Response Plan for the Canada's Energy Sector. British Columbia is the second province to roll out its programming in relation to these federal funds. Alberta was the first jurisdiction to announce its Site Rehabilitation Program and continues to make adjustments as the program is implemented. Saskatchewan has not yet announced how it will administer the $400 million allocated to the Government of Saskatchewan to support work to clean up orphan and inactive oil and gas wells across the province. In its news release, British Columbia states that it intends to invest this funding across three new programs. Read the full article by Brad Gilmour, Keely Cameron and Stephanie Ridge with Bennett Jones LLP.

Integrated Forestry Project (IFP) / Forestry, Revitalization and
Modernization (FRAM) Prepares for Initial Testing
An ongoing project for the forest industry is getting ready to be put to the test this summer. The Integrated Forestry Project (IFP) or also known as the Forestry, Revitalization and Modernization (FRAM) project, has grown over time to include several systems, including the cutting permits (CP) application system, a new resource road system (RRS), a new version of forest tenure administration (FTA 5.0), and a new Forestry Status and Clearance system (SNCSC). IFP/FRAM requires thorough vetting, as this application will affect 55 other applications, making its efficiency crucial. This new integration will help forestry offices ensure data accuracy, save time and money, and will be accessible from various online resources. IFP/FRAM is preparing for initial testing this summer which will be conducted with the help of numerous groups directly affected by this new platform. These groups will be testing how IFP/FRAM influences their daily workload, and how cohesively it runs with other applications. The anticipated launch date will be sometime this coming winter and is subject to funding. IFP/FRAM was first started in 2011, before IIT and the NRPP joined forces and was initially created as a by–product of the resource roads system (RRS). Read the full article published by ABCFP. 

Super-Priority for Environmental Obligations in Insolvency Law
In the recent decision of British Columbia Attorney General v Quinsam Coal Corporation, 2020 BCSC 640 (Quinsam), the British Columbia Supreme Court (the Court) considered the priority between a debtor's environmental liabilities and a secured creditor. In its analysis, the Court extensively discussed the Supreme Court of Canada's decision in Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 (Redwater). In reference to Redwater, the Court posed the following question:

Did the Supreme Court of Canada intend to extend the "polluter pays" principles to effectively create a super priority for the costs and environmental liabilities associated with the closure or abandonment of oil wells, mines and other resource extraction projects?

Unfortunately, since the assets in dispute did not actually constitute the debtor's property, it wasn't necessary for the Court to answer that specific question. However, the fact such a question was posed serves as a reminder that Redwater may have done just that. Read the full article by Lisa Hiebert and Jessica Cameron of Borden Ladner Gervais LLP.

Environmental Appeal Board Decisions
There were three Environmental Appeal Board decisions in the month of May:

• Canadian National Railway Company; Canadian Pacific Railway Company; BNSF Railway Company v. Delegate of the Director, Environmental Management Act [Final Decision – Orders Reversed; Appeals Allowed]

• Gary Ware v. Assistant Water Manager [Final Decision – Appeal Dismissed; Order Confirmed]
• Vincent Smoluk v. Assistant Water Manager [Final Decision – Appeal Dismissed; Order Confirmed]

Visit the Environmental Appeal Board website for more information.

Health News:

BC Covid-19 Temporary Pandemic Pay
The BC Government recently announced a program that will provide extra pay for eligible employees working in social services and corrections delivering in-person, front-line care during the COVID-19 pandemic. The intent is to compensate those who deliver a range of health and services in an environment where it is difficult to maintain social distancing. Eligible workers will get an extra $4 an hour for a 16-week period, starting March 15th . No application is necessary and payment will be made as a lump sum through the employer. The province estimated about 250,000 people will be eligible. For more information on this program, and to determine who is eligible visit the BC Government COVID-19 response page. 

Case Summary: Dental Exams and the 
Standard of Review
Affirmed that the standard of review is reasonableness as per Vavilov. In order for a finding by the administrative body that not implementing additional evaluation or assessment measures was unreasonable to be made, the appellant must have brought this up before the administrative decision-making body.

Pour v. Canada (National Dental Examining Board), [2020] O.J. No. 556, 2020 ONSC 555, Ontario Superior Court of Justice, February 10, 2020, R.C. Boswell, M.A. Penny and L.G. Favreau JJ.

Dr. Pour immigrated to Canada in 2013. He had practiced dentistry for twenty-three years in Iran. The National Dental Examination Board of Canada ("NDEB") required that he pass a test consisting of fundamental knowledge, clinical judgment, and clinical skills. Candidates had three attempts to pass the tests. Dr. Pour passed the first two assessments but had difficulty with his clinical skills assessments. On his third attempt of his clinical skills assessment, Dr. Pour marginally failed. Dr. Pour appealed. His appeal was dismissed by way of brief written reasons by the Appeal Committee. Dr. Pour sought judicial review of the board's decision. Read the full article by Deana Froese with Harper Grey LLP. 

Providing In-person Community Care during COVID-19:
Guidance for Regulated Health-care Providers
from BCCNP:
May 15, 2020
May 26, 2020: We've revised and reordered the content below in response to feedback from nurses—click here to visit the new webpage.
The following guidance has been developed collaboratively by the BC Health Regulators with expertise and direction provided by the Provincial Health Officer (PHO), the BC Centre for Disease Control (BCCDC) and WorkSafeBC. It is intended for all registrants in community practice and is applicable for the duration of the COVID-19 pandemic. Note that this guidance reflects the best evidence available at this time and it will change as required to reflect updates in our understanding of the virus and its transmission. Resources that are linked to in the guidance are also subject to change, and registrants need to be watch closely for updates from BCCNP as well as updated guidance from the Provincial Health Officer, BC Centre for Disease Control and WorkSafeBC. Read the full announcement published on the BC College of Nursing Professionals website. 

COVID-19: New Substances Used to Cut
Street Drugs much Harder to "Reverse"
A frank obituary for a Victoria man who died of an overdose lays bare the added harm the novel coronavirus has brought to people who use illicit drugs. Samuel Stuart died alone on May 3, leaving behind his mother Judith, father Stanley and sister Lisa. The 44-year-old had suffered from schizoaffective disorder and used street drugs to self-medicate, according to his loved ones. "Many of us are encircled in grief, standing but crumbling," Judith Stuart wrote in his Victoria Times Colonist obit. "The homeless, those suffering from mental illness, the abused, the dispirited are left aside. With borders closed and a shutdown surrounding us, how does a loved one get safe supply? What is the matter with us that we supply one addiction yet turn our back on another addiction? Read the Vancouver Sun article. 

Labour and Employment News:

Federal Government Encouraging Provinces to
Recognize 10-Day Paid Sick Leave
In the midst of Monday's [May 27th] political back-and-forth, Prime Minister Justin Trudeau made his strongest comments to date that may ultimately prove relevant for both Canadian citizens and their employers.

While the debate over how and where Canadian Parliament should function in the midst of the COVID-19 pandemic remained at an impasse, Prime Minister Trudeau and NDP leader Jagmeet Singh did agree on their shared desire to see all Canadian provinces and territories implement more robust sick leave. This would allow employees to feel more comfortable staying home when they feel ill, a change that may help mitigate against the threat of a second wave of COVID-19. Read the full article by Noah Burshtein with Borden Ladner Gervais LLP.

Minimum Wage Increase
On June 1, amendments to the Employment Standards Regulation raised the general minimum wage to $14.60 per hour from $13.85 per hour. The minimum wage rates for liquor servers, resident caretakers and live-in camp leaders were also increased:

• liquor server minimum wage increased 9.8% to $13.95 per hour;
• resident caretaker minimum wage, per month, increased 5.4% to $876.35 for those who manage nine to 60 units (an increase of $35.12/unit), or $2,985.04 for 61 or more units; and
• live-in camp leader minimum wage, per day, increased 5.4% to $116.86.

These changes represent the third of four scheduled increases to occur on June 1 of each year, until 2021 when the minimum wage will reach $15.00 per hour.

COVID-19 Measures Taken by Pension
Regulators across Canada Bulletin
As a result of the COVID-19 pandemic, pension regulators across Canada have been announcing special measures to help protect the interests of pension plan members, assist pension plan administrators and ensure the ongoing financial health of pension plans, particularly given the negative impact that current financial market conditions have had on the funded status of pension plans. This bulletin summarizes the measures that have been announced to date. It will be updated as new measures are introduced.

Canada Revenue Agency

• Waiver of 1% minimum employer contributions for DC Plans: On May 5, 2020, the Canada Revenue Agency (CRA) announced it will waive the requirement for employers with defined contribution plans to contribute at least 1% of the total pensionable earnings of all active members for the remainder of 2020. The requirement will only be waived if the plan is amended to suspend accruals under the plan for the year, meaning that there will be no employer or employee contributions made to the plan after the amendment. Plan administrators who wish to take advantage of the waiver must submit an amendment to the Registered Plans Directorate.

Read the full article by Sophia Ma and Meghan Popp with Lawson Lundell LLP. 

Workplace Policies: Ensuring That They Reflect the Risks and Realities of a
Return to Operations During the COVID-19 Pandemic
Workplace policies play an integral role in management of the workplace. Your policies reflect decisions that the company has made with respect to a variety of matters. Putting those decisions in writing ensures that all employees have knowledge and understanding of the approach that the workplace takes. An integral part of the development of your Safety Plan for return to operations during the pandemic is the development and refinement of your workplace policies.

The policies that you need to ensure are in place with resumption of operations include policies with respect to sick days, remote working and health and safety policies. Also consider whether your workplace requires a policy with respect to who can be at the workplace, a policy with respect to dealing with workers who exhibit signs of illness in the workplace and a policy with respect to how workers can be kept safe in the new working conditions, particularly if your workplace is one that has extensive interactions with the public. In developing or revising your workplace policies the guidance of the provincial health officer and the BC Centre for Disease Control must be kept in mind. Read the full article by Rose Keith, QC with Harper Grey LLP. 

Employee Handbooks Should not be Relied upon to Avoid
Common Law Reasonable Notice on Termination
A recent BC Small Claims Court decision [Shehata v Ashton College Ltd., 2020 BCPC 37] reminds employers that it is best practice to clearly address termination entitlements in employment agreements or offer letters rather than attempting to rely on provisions in an employee handbook.

Facts
The claimant, Mr. Shehata, was hired by the defendant, Ashton College, as a Senior Education Administrator ("SEA") in November 2018. When the director was explaining the role of SEA, prior to the claimant's hiring, the claimant asked what would happen if he was terminated following his probationary period. He was told "we would follow Employment Standards". Upon being offered the role of SEA, the claimant emailed to ask what the notice period was for termination or resignation. He was told that there was no fixed notice. He was informed that for termination the employer would "have to calculate how many weeks of notice an employee entitled [sic] to keeping in mind the BC Employment Standards Act". The offer letter made no reference to the notice period but stated that his employment was subject to existing conditions of employment set out more fully in the employee handbook. The claimant was not provided with a copy of the handbook until after he had accepted the offer of employment. The employee handbook attempted to limit the claimant's entitlement (on termination without cause) to the minimum entitlement in the Employment Standards Act, RSBC 1996, c 113.

Read the full article by Deanna Froese with Harper Grey LLP. 

New WorkSafeBC COVID-19
Safety Plan Requirements
As the Province of British Columbia prepares to re-open certain businesses, WorkSafe BC has outlined that employers resuming operations must develop a "COVID-19 Safety Plan" and have established a new guide to assist employers. WorkSafe BC has outlined that a COVID-19 Safety Plan should consider the following:

1. Assessment of the risk at the workplace in order to identify the risk of transmission. This includes looking at where people congregate and what equipment and surfaces employees and others may come into contact with.

Read the full article by Alizeh Virani and Walter Pavlic, Q.C. with MLT Aikins LLP. 

10% Temporary Wage Subsidy Update
On May 15, 2020, the Government of Canada released new regulations (the "New Regulations") relating to the 10% temporary wage subsidy (the "10% Temporary Wage Subsidy") implemented on March 25, 2020 pursuant to Bill C-13, the COVID-19 Emergency Response Act.   The 10% Temporary Wage Subsidy is separate from (but reduces) the subsequently introduced Canada Emergency Wage Subsidy ("CEWS").

Under the 10% Temporary Wage Subsidy, eligible employers (as described below) may be entitled to a subsidy in respect of remuneration paid between March 18, 2020 and June 19, 2020. The amount of the subsidy is calculated as a "prescribed percentage" of eligible remuneration paid during the applicable period, subject to  maximum "prescribed amounts" per eligible employee and per eligible employer.  Unlike the CEWS, no application is required and employers receive the 10% Temporary Wage Subsidy simply by deducting the subsidy amount from payroll withholdings payable to the Canada Revenue Agency ("CRA") in respect of federal, provincial or territorial income tax.  Under the New Regulations, the maximum "prescribed amounts" are $1,375 per eligible employee and $25,000 per eligible employer.  This is consistent with previous statements made by the Government. Read the full article by Stefanie Morand, Kabir Jamal and Dean Xiao of McCarthy Tétrault.

Local Government News:

Damages Claim Relating to a Zoning Error Dismissed for Failing to Establish a 
Private Law Duty of Care Where Only a Public Duty Existed
The BC Supreme Court recently dismissed an action brought against the Regional District of Okanagan-Similkameen (the "RDOS") by a land owner and developer seeking lost profits and other damages relating to the alleged frustration of his attempts to move forward with a planned large-scale development. Jeff Locke and Josh Krusell of Stewart McDannold Stuart successfully defended the RDOS in this proceeding. The developer's claim largely related to the decision of the RDOS Board to down-zone the subject property after it was discovered that the property had been inadvertently up-zoned years earlier.

The Court's decision, cited as 0956375 B.C. Ltd. v Regional District of Okanagan-Similkameen, 2020 BCSC 743, addresses several legal issues relevant to local governments, including:

• A public law duty of care vs. a private law duty;
• Solicitor-client privilege over legal advice received pertaining to a matter ultimately going before a Board or Council at a public hearing;
• The ability of local governments to correct an error in zoning; and
• The tort of misfeasance of public office.

Read the full article by Jeff Locke and Josh Krusell with Stewart McDannold Stuart. 

Canada to Fast-track C$2.2 Billion for Infrastructure to
Cash-strapped Municipalities
Canada's cash-strapped municipalities will receive C$2.2 billion ($1.62 billion) in fast-tracked federal infrastructure funding to help cover funding shortfalls in budgets battered during the COVID-19 pandemic, Prime Minister Justin Trudeau said on Monday [June 1].

The one-time payment will be delivered in June through the federal Gas Tax Fund, Trudeau told his daily press briefing. As of Monday, Canada had 91,351 cases of COVID-19, the respiratory disease cause by the novel coronavirus, and had reported 7,305 deaths, according to official data. Municipalities will have flexibility to use the funding to meet local needs, including for projects like boosting access to high-speed broadband or improving roads and water systems, Trudeau said. Read the full Reuters news article. 

Streamlined Process to Assist Hospitality Sector
The provincial government has introduced a streamlined online application for food primary, liquor primary and manufacturer licensees seeking a Temporary Service Area Authorization (e.g. patio approval). Local governments have the option to further expedite this process by pre-approving all eligible licensees seeking to apply for a temporary service area expansion.

These measures are intended to support BC's hospitality sector in complying with the Provincial Health Officer's direction and recommendations (e.g. physical distancing) in response to COVID-19. Licensees will not be able to increase their approved occupancy loads, and must comply with all local government bylaws, as well as health and fire regulations. To ensure compliance, the Province will conduct regular inspections. Read the full UBCM article. 

Expert Panel on Housing Supply and Affordability
The Expert Panel on the Future of Housing Supply and Affordability has been tasked with making recommendations to the Governments of BC and Canada. In light of the of the COVID-19 pandemic, the deadline for input was extended to June 26, 2020. Feedback may be provided via online form or as a written submission. UBCM is preparing a submission based on policy set out in UBCM's housing strategy. Local governments are also advised that FCM has partnered with Generation Squeeze to develop a toolkit to help local governments across Canada regulate short-term rentals. Read the full UBCM article. 

Will BC Let All Homeowners
Defer Property Taxes?
The Union of British Columbia Municipalities has asked the provincial government to allow all residential property owners to defer their taxes as a way to help individuals and local governments weather the impacts of the COVID-19 pandemic.

"Given the risk of property tax delinquencies, local governments are seeking an expansion of the existing Property Tax Deferment Program to cover all residential tax payers at a minimum," UBCM President Maja Tait wrote in a May 8 letter to Municipal Affairs and Housing Minister Selina Robinson.

The existing program allows people over the age of 55, people with disabilities, those who have lost a spouse, and families with children to defer their property taxes. Read the full article by Andrew MacLeod, Legislative Bureau Chief for the Tyee. 

Province Announces Municipal Financing and Tax Collection
Measures in Response to COVID-19 Pandemic
On May 15, 2020, the Province issued Ministerial Order 0159 to assist local governments and ratepayers who may be facing financial difficulties as a result of the Covid19 pandemic. The Order enacts some initiatives previously announced by the Ministry of Municipal Affairs and Housing, although the Order does not include changes to penalties for the late payment of property taxes. Ministerial Order 0159 is issued under the Emergency Program Act and grants a number of powers and relaxations, which are summarized as follows:

Reserve Borrowing – Municipalities, regional districts and improvement districts may, in 2020, borrow from reserve funds to cover an operational shortfall in 2020, thereby overriding the normal rule that capital reserves may only be used, even temporarily, for capital purposes. No bylaw is required to authorize such a borrowing. The borrowed funds must be repaid, without interest, by December 31, 2025. If any money remains unpaid after that time, that amount must be added as a transfer to reserves under the 2026 financial plan (or budget or estimates) together with a 5% penalty.

Read the full client bulletin by Michael Moll, Mike Quattrocchi and Gregg Cockrill with Young Anderson. 

City Liable after Tenant Injures Other by
Pouring Used Oil on a Fire
Reasons for judgement were published this week by the BC Court of Appeal dismissing an appeal of a jury finding liability after a tenant of a residential property owned by the City of Burnaby caused severe burns to a guest.

In today's case (Abdi v Burnaby (City)) the Plaintiff, a young woman who was invited as a guest to a party at the Defendants property "suffered severe burns and her life was forever changed" after the Defendant tenant had a backyard fire and "poured used motor oil onto the fire from a bucket. The oil exploded onto Ms. Abdi, and she became covered in flames from neck to toe". There was evidence that the tenants "had a long history of having fires in the fire pit they created in their backyard, despite open fires being contrary to a City bylaw".

There was further evidence that the City had some prior knowledge of this requiring, at least on one occasion, the City's fire department having to attend the residence and extinguish a fire. Following this incident the City did not follow up with any inspection of the property despite having a policy to conduct safety inspections of its residential properties. At trial a jury found both the tenants and the City liable. In dismissing an appeal of the City's liability the BC Court of Appeal provided the following reasons. Read the full article by Erik Magraken published on his BC Injury Law Blog. 

Court Finds that Zoning Bylaw is Consistent with Official Community Plan and Denies
Challenge Brought by Community Association against High-density Development
The B.C. Supreme Court recently dismissed a judicial review petition challenging the validity of a Town of Gibsons zoning bylaw amendment on grounds that it conflicted with the Official Community Plan (OCP) by allowing for a new high-density residential development in Gibsons.

The Court's decision, cited as O'Shea/Oceanmount Community Association v Town of Gibsons, 2020 BCSC 698, canvasses a number of key issues relating to challenges brought against bylaws, including:

• the applicable standard of review to be applied on this type of judicial review,
• the nature of the evidence that is admissible before the Court, and
• the scope of what is a "reasonable" decision by a local government legislative body.

Read the full article by Josh Krusell with Stewart McDannold Stuart. 

Miscellaneous News:

Canada's New Privacy Watchdog
There's more to the Competition Bureau's $9.5 million settlement with Facebook over misleading privacy claims than the modesty of the sum. Like the guest who shows up late to the barbecue with the same potato salad everyone else brought, the recent attempt by Canada's Competition Bureau to bring Facebook's privacy practices to heel probably struck some people as tardy — or redundant.

Earlier this month, the Bureau reported that, after having investigated Facebook's operations between August 2012 and June 2018, it had concluded that while the company had given users the impression that they could control who had access to their personal information, they really couldn't. Developers of third-party applications had access to users' personal data, and to information about their friends.

The Bureau started looking into Facebook in spring 2018, in response to the Cambridge Analytica scandal. So did the Office of the Privacy Commissioner, which produced a report a year later accusing Facebook of violating the privacy rights of Canadians. The OPC went to Federal Court in February seeking a declaration that the company had violated federal privacy law. Facebook went to court in April seeking to overturn the OPC's findings. Read the full article published by the CBA/ABC National. 

Special Committee Begins Consultations on Changes to
BC's Personal Information Protection Act
On February 18, 2020, the Legislative Assembly of British Columbia appointed a Special Committee to conduct a review of British Columbia's private and not-for-profit sector privacy legislation: the Personal Information Protection Act ("PIPA"). The Special Committee will be holding public hearings via tele/videoconference on June 3, 5, 9, 10, 12 and 16, 2020 as part of its review, inviting British Columbians to share their views on how PIPA is – or is not – working for them or their organizations.

As part of its review, the Special Committee is likely to consider whether to align PIPA with other provincial and federal privacy legislation by requiring organizations to notify the Office of the Information and Privacy Commissioner of British Columbia ("OIPC") and affected individuals of data breaches that pose a real risk of significant harm to the affected individuals. Read the full article by Jade Buchanan and Kelsey Franks with McCarthy Tétrault LLP. 

Update on Traffic, Ticket or Bylaw
Matters in BC Provincial Court
Further to the Provincial Court's May 26, 2020 Announcement, the following housekeeping update (in italics and underlined) has been made to Part V of NP 19 COVID-19: Commencing Recovery of Some Court Operations:

V. Traffic, Ticket or Bylaw Matters
Traffic, ticket or bylaw matters scheduled from March 18 to June 12, 2020 (revised date) are adjourned without the disputant having to attend Court and will be rescheduled to a later date. A notice of a new Appearance date will be sent to the disputant by mail to the address on file with the Court. Disputants have the options of:

1. Filing Written Reasons including a request for a fine reduction and/or time to pay (link to form: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-serv…).
2. Paying the fine(s) on the ticket

The timeline to pay fines related to a Provincial Court traffic, ticket, or bylaw case is extended to June 30, 2020. To dispute a violation ticket and have a trial date assigned as a future available court date, the Disputant can download a form and mail it in to: Ticket Dispute Processing, Bag 3510, Victoria, B.C. V8W 3P7.

Read the official government announcement. 

Federal Court of Canada Further Extends
COVID-19 Suspension Period
Like virtually every person, family, and business around the world, the Federal Court of Canada (the "Court") was forced to suspend its normal operations this year as a result of the global COVID19 pandemic. Following closure of the Court to visitors on March 13, 2020, the Court issued a practice direction and order on March 17, 2020 which suspended most deadlines until April 17, 2020 (the "Suspension Period"), and modified various other elements of Court procedure. The Suspension Period was later extended to May 15, and then further extended to May 29, 2020, by subsequent orders and practice notices. Most recently, on May 29, 2020, the Court further extended this Suspension Period to June 15, 2020.

In spite of this general Suspension Period, the Court has continued operating throughout the pandemic with the help of technological solutions, such as its electronic document filing portal, as well as changes to its standard rules of practice. Read the full article by David Bowden with Clark Wilson LLP. 

Ian Mulgrew: Tribunal Ordered to
Reconsider Use of Lawyer
Opinion:
BC's top court has slammed the province's celebrated online dispute adjudicator for refusing to let a litigant use a lawyer in a complicated strata-building case. In a stinging decision that undercuts one of the key tenets of the Civil Resolution Tribunal, the Court of Appeal said the legal issues in a dispute over $700 in sun-room repairs were sophisticated and being represented by counsel was a reasonable request. Read the article by Ian Mulgrew with the Vancouver Sun. 

Motor Vehicle and Traffic News:

E-bike Rider Loses Court Case against Ticket for 
Operating without Licence, Insurance
A man in Metro Vancouver who was fined for operating an electric scooter without a licence or insurance has lost his appeal in B.C. Supreme Court, even though the province's insurer doesn't provide coverage for that type of vehicle.

Ali Moussa Ghadban argued in court that his Motorino XMr is a motor-assisted cycle – outfitted with pedals, limited power and a maximum speed of 32 km/h – and under B.C. law doesn't require a driver's licence or insurance to operate. But a judicial justice disagreed, and a B.C. Supreme Court judge recently upheld that decision.

"It's frustrating," said Ghadban's lawyer in the case, Brandon Moscoe. Ghadban had tried to to insure the Motorino at ICBC, Moscoe said, but the provincial insurer doesn't offer coverage for that type of vehicle. In 2019, a man in Saanich, BC, had the same fines dismissed for that reason. But in this case Justice Robert W. Jenkins said the Motorino is not a motor-assisted cycle because the pedals don't propel the engine and the vehicle can operate without them. Read the CBC article.

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

• Circular 03-20 – COVID - 19 - Vehicle Inspection Certificate of Approval decal expiry extension conclusion
• NSC Bulletin 02-2020 – REVISED: Modernizing Safety Regulations for Commercial Motor Vehicles – Stakeholder Engagement
  
• Circular 02-20 – Transportation Network Service (TNS) vehicles specialized light/beacon authorization

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

Occupational Health & Safety News:

CSA Group Announces New OH&S
Resources, Standards
The Canadian Standards Association (CSA Group) has released new official documents related to bioaerosols and airborne infectious substances for the following OH&S standards: CSA-Z94.3:20, Eye and face protectors; and CAN/CSA-Z94.4-18, Selection, care, and use of respirators.

These documents can be found on the CSA Group OH&S Public Community Space: https://community.csagroup.org/community/ohs, as well as in the COVID-19 Response Standards and Handbooks Space: https://community.csagroup.org/groups/covid-19-response-standards-and-handbooks.

Furthermore, CSA Group also announced that they are working to have these important documents posted alongside the Z94.4 and Z94.3 listings on the group's online store. Additionally, as a response to the current pandemic and its effects, CSA Group has made a selection of relevant standards available for no-fee viewing via their online platform, CSA Communities: https://www.csagroup.org/news/covid-19-response-standards-handbooks/. Read the full article published in the recent Canadian Occupational Safety publication. 

BC Covid-19 Temporary Pandemic Pay
The BC Government recently announced a program that will provide extra pay for eligible employees working in social services and corrections delivering in-person, front-line care during the COVID-19 pandemic. The intent is to compensate those who deliver a range of health and services in an environment where it is difficult to maintain social distancing. Eligible workers will get an extra $4 an hour for a 16-week period, starting March 15th . No application is necessary and payment will be made as a lump sum through the employer. The province estimated about 250,000 people will be eligible. For more information on this program, and to determine who is eligible visit the BC Government COVID-19 response page. 

New WorkSafeBC COVID-19
Safety Plan Requirements
As the Province of British Columbia prepares to re-open certain businesses, WorkSafe BC has outlined that employers resuming operations must develop a "COVID-19 Safety Plan" and have established a new guide to assist employers. WorkSafe BC has outlined that a COVID-19 Safety Plan should consider the following:

1. Assessment of the risk at the workplace in order to identify the risk of transmission. This includes looking at where people congregate and what equipment and surfaces employees and others may come into contact with.

Read the full article by Alizeh Virani and Walter Pavlic, Q.C. with MLT Aikins LLP. 

Workplace Injury and Health Challenges
Long Haul Drivers Face
On behalf of Overholt Law posted in employment law on Tuesday, June 2, 2020.
Big rig drivers face health and safety hazards each day. Commercial vehicle operators in British Columbia haul their loads across the country, and risk workplace injury and illness. For many truckers, their vehicles are also their homes, where they work, sleep and eat. A significant percentage of long haul truck operators develop health problems over the years due to exposure to various hazards.

Long haul truckers spend most of their time sitting, with limited movement. The lack of physical activity, long hours and irregular schedules often lead to health problems. Unreasonable deadlines force many drivers to continue working despite being fatigued. Many truckers develop chronic diseases, such as diabetes, heart disease, obesity and hypertension. The nature of their work limits their food options and access to nutritious meals, leaving them eating unhealthy meals, which also contributes to their poor health. Read the full article published by Overholt Law.

Adding Diseases Caused by Communicable Viral Pathogens, Including
COVID-19, to Schedule 1 of the Workers Compensation Act
The Policy, Regulation and Research Division [of WorkSafeBC] is releasing a discussion paper on adding diseases caused by communicable viral pathogens, including COVID-19, to Schedule 1 of the Workers Compensation Act with options and draft amendments to stakeholders for comment. If a disease is identified in Schedule 1 and the worker was employed in the corresponding process or industry listed in the Schedule, then WorkSafeBC presumes the cause of the disease is work-related, unless the contrary is proved. Read the full article published by WorkSafeBC. 

OHS Regulation Guidelines Amendments (Respirators)
WorkSafeBC recently amended two of its guidelines regarding respirators:

• Part 8 Personal Protective Equipment
• G8.33(2)-1 Approved respirators (revised)
• G8.40(2.1)(c) Single-use respirators and fit test equivalency (revised)

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

Property and Real Estate News:

B.C. Offers Additional Support to CECRA
[Ministerial Order No. M179]
On Monday, June 1, 2020, the BC Provincial Government announced its intent to provide assistance to small businesses seeking commercial rent relief by putting measures in place to prevent the eviction of small business tenants. The details of this announcement were released shortly after the initial press release by way the enactment of Ministerial Order No. M179.

Ministerial Order No. M179 expressly references the Canada Emergency Commercial Rent Assistance program (CECRA) implemented by the Government of Canada and administered by the Canadian Mortgage and Housing Corporation (CMHC) in its preamble. (We have previously published articles providing information regarding the implementation of CECRA available at Clark Wilson LLP's COVID-19 Resources webpage.) The CECRA program provides forgivable loans to commercial property owners that:

• have one or more "impacted small business tenant"; and
• enter into a binding rent reduction agreement with its impacted small business tenants for the period of April, May and June 2020 reducing the tenant's gross rent by at least 75% per month. Applications for the forgivable loans provided by the CECRA can only be made by commercial property owners (not the small business tenants). A rolling application process for the CECRA program opened on May, 25, 2020.

Read the full article by William Holder and Rosalie Clark with Clark Wilson LLP. 

Strata Property Regulation Amendments Address Insurance,
General Meetings during a State of Emergency
Recent amendments [OIC 270/2020] to the Strata Property Regulation are intended to address two pressing concerns for strata corporations: (1) paying for insurance in the face of a sharp rise in insurance premiums and (2) dealing with general meetings during a state of emergency.

The first amendment sets out a definition of "prevent significant loss" for the purposes of section 98 of the Strata Property Act. Section 98 deals with "unapproved expenditures," which are expenditures that haven't "been put forward for approval in the budget or at an annual or special general meeting." Section 98 sets out a procedure that governs how and in what circumstances a strata corporation may make an unapproved expenditure.

This amendment to the Strata Property Regulation is intended to clarify section 98 (3), which provides "[t]he expenditure may be made out of the operating fund or contingency reserve fund if there are reasonable grounds to believe that an immediate expenditure is necessary to ensure safety or prevent significant loss or damage, whether physical or otherwise." Read the full article by Kevin Zakreski with the BCLI. 

Bill M206 – 2019
Residential Tenancy Amendment Act, 2019
Effective May 29th , 2020 the Residential Tenancy Act was amended by Bill M206 2019. The members bill was originally introduced in the spring of 2019 but was scheduled to come into force one year after receiving Royal Assent. According to the government, the changes are intended to provide greater protection for renters who are experiencing violence inside or outside their home by allowing them to end their tenancy early. There are existing provisions under the Residential Tenancy Act (RTA) that allow a renter, or their dependent, who has been a victim of family violence to end a tenancy agreement early without financial penalty. Changes are being made to the RTA to include all renters experiencing violence within or outside of the home. If staying in the rental home threatens their own safety or the safety of another occupant, such as a roommate, they will now be eligible to end their tenancy.

Exemption from the Foreign Buyers Tax Introduced for
Certain Limited Partnerships
On May 19, 2020, the British Columbia provincial government amended the Property Transfer Tax Regulation, B.C. Reg. 74/88, to take effect on June 1, 2020. The amendment introduces a new exemption for foreign entities and taxable trustees from the obligation to pay additional property transfer tax of 20% on acquisition of residential property within specified areas, often referred to as the foreign buyer's tax, under the Property Transfer Tax Act. Prior to this amendment, a nominee or a partner taking transfer of residential property within a specified area in trust for a limited partnership comprised of even one limited partner that was a foreign national, foreign-incorporated corporation or foreign-controlled corporation was subject to foreign buyers tax on a taxable transaction's fair market value.

With this amendment, if a purchaser of land in a taxable transaction is the general partner of a limited partnership, the limited partnership is exempt from the foreign buyer's tax if the limited partnership meets all of the following criteria. Read the full article by Jack Yong, Julia Winters and Asha Young with Lawson Lundell LLP. 

Long-term RV dwellers in Parks and Campgrounds Have
Tenancy Rights, BC Says in Updated Guidelines
The province has updated its housing guidelines to clarify that recreational vehicles can count as permanent homes in an RV park or campground – and therefore those who live in them may be protected by provincial tenancy laws. The guidelines were last revised in 2004. Paul Lagace, a poverty advocate who often works with people who live in RV parks, says the updates were long overdue. Read the CBC article. 

Meeting Challenges for Electronic AGM's
CHOA – Condo Smarts
Dear Tony:
What happens when an owner attempts to attend a general meeting that was issued as a proxy only meeting for our AGM? Because our strata cannot safely social distance in our common room, the council determined we would conduct a proxy only meeting and issued a restricted proxy to enable every owner to exercise their voting rights. Two owners showed up at our common room at the time of the scheduled meeting and insisted on attending. After a short discussion they left and chose not issue a proxy for their units and now claim their voting rights were violated. Of the 120 units in our building we did receive 94 proxies and every vote passed unanimously, so the outcomes would not have changed. Do we have to consider reconvening the meeting or were we acting appropriately? Read Tony's response in the latest edition of Condo Smarts, published by CHOA. 

Wills and Estates News:

Ministerial Orders Allow Electronic Witnessing of Wills and
Personal-planning Documents in British Columbia
In a pair of ministerial orders [M161-2020 and M162-2020] dated 19 May 2020, the government of British Columbia has enabled electronic witnessing of wills, enduring powers of attorney, and representation agreements. The ministerial orders are temporary; they are set to expire when the COVID-19 pandemic state of emergency ends. The government explained the rationale for the orders in an information bulletin:

The emergency orders address concerns raised by the legal community, including the regulatory bodies and representative associations for lawyers and notaries public, as well as by members of the public, regarding the requirement that such legal documents be executed and witnessed in person.

Read the full article by Kevin Zakreski with BCLI. 

Executor Personally Liable for Estate Taxes; Beneficiaries
Not Obligated to Return Estate Monies to Indemnify
Beneficiaries generally want to receive their shares of the estate as soon as possible. Executors may feel pressured by beneficiaries to distribute estate assets prematurely, before all of the estate liabilities have been confirmed and paid. In particular, it often takes time to determine the final tax liabilities of the deceased person and their estate, and obtain clearance certificates from the Canada Revenue Agency confirming that no further taxes are owing. As executor, you may be considering payout of estate assets prior to obtaining a clearance certificate, perhaps with a holdback which you intend to apply to any outstanding tax (or other) liabilities as they arise.

There is a risk to this. Section 159 of the Income Tax Act requires that a personal representative obtain a clearance certificate before distribution of an estate and imposes personal liability for the tax liability of the estate on a personal representative who does not do so. Read the full article by James Zaitsoff on the BC Estate Litigation Blog.