Company and Finance News:

BC Employment Incentive Credit – New
As of March 30, 2021, applications for the BC increased employment incentive (BCIEI) are now open online and will close on December 31, 2021. The BCIEI was developed as part of BC's Economic Recovery plan and offers a tax credit for employers that hired new employees or increased payroll in Q4 (October 1 to December 31, 2020) compared to Q3 2020 (base period). The increased employment incentive allows employers to apply for a one-time tax credit equal to 15% of the amount that the employer's total eligible remuneration for all eligible employees in the qualifying period exceeds the employer's total eligible remuneration for all eligible employees in the base period. Visit the BC increased employment incentive webpage to learn more details about eligibility and how to calculate and apply.

Revised Investment Canada Act Guidelines Broaden
National Security Focus on Foreign Investments
On March 24, 2021, the Canadian government announced the release of revised Guidelines on the National Security Review of Investments ("Revised Guidelines") under the Investment Canada Act ("ICA"). In summary, the Revised Guidelines: (i) restate the COVID-19 policy of subjecting investments by state-owned enterprises ("SOEs") to "enhanced scrutiny", (ii) expand the non-exclusive list of factors that the government will take into account when assessing investments on national security grounds, and (iii) broaden and/or provide more detail on some of the existing national security factors. Read the full article by Jason Gudofsky, Jonathan Bitran, Oliver Borgers, Debbie Salzberger and Dominic Therien with McCarthy Tetrault.

Thompson Bros. – Tax Court Requires Crown to Disclose
Relevant Materials Not Reviewed by CRA Auditor
The Tax Court recently released an important decision regarding the relevance test for production of documents and information during discoveries. In Thompson Bros. (Constr.) Ltd. v. The Queen, 2021 TCC 15 ("Thompson Bros."), the Tax Court was asked to determine whether the Crown had correctly refused to satisfy various requests made by the taxpayers in the course of the examination for discovery of the Crown on the basis that the documents and information requested were not relevant. The Court sided with the Taxpayers in relation to the majority of the requests, and in doing so provided valuable guidance regarding the relevance test. Read the full article by Vivian Esper with Thorsteinssons LLP.

Crypto Assets Trading Platforms – Canada is Open for
Business for those who Play by the Rules
The Canadian Securities Administrators (CSA) and the Investment Industry Regulatory Organization of Canada (IIROC) published new guidance this week providing greater clarity on when securities and derivatives legislation applies to crypto-asset trading platforms (CTPs). Joint Canadian Securities Administrators/Investment Industry Regulatory Organization of Canada Staff Notice 21-329 Guidance for Crypto-Asset Trading Platforms: Compliance with Regulatory Requirements (the Notice) does not introduce new rules for CTPs but provides a path to transition into the Canadian regulatory framework for both domestic Canadian CTPs and for global CTPs that admit Canadian-resident users to trade crypto assets. The guidance applies to CTPs that facilitate trading of crypto assets that are securities (Security Tokens), and to CTPs that facilitate trading in crypto assets that are not securities (such as Bitcoin), but which the CSA view as instruments or contracts that are subject to Canadian securities and/or derivatives regulation due to their trading processes and structures (Crypto Contracts). Read the full article by Alix d'Anglejan-Chatillon and Ramandeep K. Grewal with Stikeman Elliott LLP.

BC Residents Who Don't Pay Securities Fines
Fines Could Lose Driving Privileges
Former Victoria investment advisers David Michael Michaels and Ian Thow may have trouble getting new driver's licences or renewing vehicle insurance if they don't pay fines owing to the BC Securities Commission. The commission says anyone who hasn't paid fines related to investment misconduct is at risk of losing their vehicle insurance, renewal of a driver's licence or plates. It says in a statement that Canada's first such law, passed in BC in 2019, has now come into effect, giving the commission powers to block driving privileges if the amount owed is $3,000 or more. Read the BIV article.

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

• 51-363 – CSA Staff Notice 51-363 Observations on Disclosure by Crypto Assets Reporting Issuers
• 41-307 – CSA Staff Notice 41-307 (Revised) Concerns regarding an issuer's financial condition and the sufficiency of proceeds from a prospectus offering
• 21-329 – Joint Canadian Securities Administrators/Investment Industry Regulatory Organization of Canada Staff Notice 21-329 Guidance for Crypto-Asset Trading Platforms: Compliance with Regulatory
• BC Notice 2021/01 – ICBC-related Amendments to the Securities Act

For more information visit the BC Securities website.

Financial Institutions Act

Insurance (Captive Company) Act

Securities Act

Energy and Mines News:

Case Summary: Municipal Bylaws Do Not Apply to Activities Authorized under
Permit Issued under Mines Act because of Exclusive Provincial
Jurisdiction over "Mines" and "Mining Activities"
O.K. Industries Ltd. v. Highlands (District), [2021] B.C.J. No. 85, 2021 BCSC 81, British Columbia Supreme Court, January 20, 2021, C.E. Hinkson C.J.S.C.
The petitioner O.K. Industries Ltd. was engaged in the quarrying of mining aggregates. It purchased vacant and unimproved property from the Province located within the respondent District of Highlands, a municipal corporation created pursuant to the Community Charter, S.B.C. 2003, c. 26.

The petitioner sought a permit to operate a quarry on the property. The respondent opposed that application. The Province, through the Senior Inspector of Mines, issued the petitioner a quarry permit pursuant to the Mines Act, R.SB.C. 1996, c. 293. The quarry permit was subject to detailed authorizations and conditions. The quarry permit specifically restricted vegetation clearing and other ecological activities. The quarry permit also indicated other laws and regulations may apply to the petitioner's activities, including local government bylaws. Read the full article by Joel A. Morris with Harper Grey LLP.

McCarthy Tétrault Publishes Mining in the Courts, Vol. XI
The 11th annual edition of Mining in the Courts provides a one-stop annual update on legal developments impacting the mining industry. In addition to providing summaries of many of the most important cases, this edition contains articles with our insights on current legal trends and what we think the industry can expect to face in the coming year.

Topics covered in this edition include:

• Aboriginal Law and UNDRIP;
• Administrative Law;
• Bankruptcy and Insolvency;
• Civil Procedure;
• Constitutional Law;
• Contract Law;
• COVID-19 and its impact on the Mining Sector;
• Criminal Law;
• Climate Disclosure and Environmental Law;
• Intellectual Property Litigation;
• Labour and Employment Law, including workplace impairment;
• Shareholder Rights and Remedies; and
• Tax Law.

A PDF version of this McCarthy Tétrault publication can be downloaded here and additional information about the publication can be found on the McCarthy Tétrault website https://www.mccarthy.ca/en/insights/books-guides/mining-courts-vol-xi Authors include: – Aidan L. Cameron, Lindsay Burgess, Kathryn Gullason, Selina Lee-Andersen, Meghan S. Bridges, Miranda Lam, Timothy St. J. Ellam, Steven Tanner, James S. S. Holtom, Tracey Doyle, Kendra Levasseur, Gabriel Faure, François Alexandre Toupin, Gabrielle G. Maurer, Bryn Gray, Ben Ratelband, Justine Lindner, Caroline-Ariane Bernier, Mathieu Bernier-Trudeau, Marco Fimiani, Daniel Thomas and Alexis Hudon.

Teck Coal Fined Record $60 Million for
BC River Contamination
The company's Teck Coal Ltd. (TCL) subsidiary pleaded guilty to two charges of depositing a deleterious substance under the federal Fisheries Act related to discharges of selenium and calcite into the Fording River and a pond in 2012. Those substances, Associate Chief Justice Paul Dohm heard from prosecutor Alexander Clarkson as part of a joint submission to the court, can cause deformities and mortality in fish fry.

Dohm said cutthroat trout were affected by discharges from the Fording and Greenhill's mines. Fish had moved from the river into mine settling ponds. Further, he said, calcite can bind rock and gravel together and harm fish habitats.

Selenium is a naturally occurring element that is essential to human health, but at high concentrations it can be toxic to fish, birds and amphibians. Dohm said Tech Coal was aware of selenium and calcite harms prior to 2009 but has taken significant steps since 2012 "to reduce its presence in the Elk Valley watershed." But, said Dohm, there has been "very serious damage," although he added the company is of good corporate Canada and one of the world's leading environmentally committed companies. Read the BIV article.

Health, Safety and Reclamation Code for
Mines in British Columbia Amendments
On April 1, 2021 a number of amendments to the Code came into force. According to the government, the intent of these changes is to provide greater worker protection and oversight for the mining industry.

The revisions include:

• adding cannabis in the impairment clause to align with federal legalization
• adding avalanche safety requirements
• adding gas detection and blowout prevention for exploration sites
• updating Workplace Hazardous Materials Information System (WHMIS)
• updating requirements to ensure safety mechanisms are in place for under-truck repairs on haul trucks
• updating clauses related to pressure vessels to ensure they meet current Canadian Standards Association standards
• updating legislation references in the Code for the Public Health Act
• modernizing the requirements for atmospheric detection in underground mines

Additionally, the chief permitting officer now oversees the provisions of the code related to the permitting process, demonstrating the separation of accountabilities established under the Mines Act, which was amended in August 2020. The chief inspector of mines remains accountable for health and safety, as well as compliance and enforcement functions.

Canada Announces the
Critical Minerals List
On March 11, 2021, Canada unveiled its Critical Minerals List. The list includes 31 minerals considered integral to the Canadian economy, all of which are available in Canada. The list highlights focus areas in future Canadian mining policy and investments and builds on the existing Canadian Minerals and Metals Plan. The plan is a framework and signals the future strategic direction Canada will encourage in support of national security and economic growth objectives through the minerals and metals industry. Read the full article by Radha Curpen, Sharon Singh, Sander Grieve and Kenryo Mizutani with Bennett Jones LLP.

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

• INDB 2021-08 – Release of New Light Control Best Practices Guideline
• INDB 2021-09 – Regulation Changes – Consultation and Notification Regulation; Service Regulation; Fee, Levy and Security Regulation
• INDB 2021-10 – A new Oil and Gas Processing Facility Regulation (OGPFR) has been approved
• INDB 2021-11 – Natural Gas Levy Rate Change

Visit the BCOGC website to view this and other bulletins.

Gas Utility Act

Family and Children News:

BCLI Recommends Pension Division Reforms
BCLI has just published the Report on Pension Division: A Review of Part 6 of the Family Law Act, which calls for reforms to how pensions are divided between separating spouses. The report is the culmination of more than two years' work by BCLI's Pension Division Review Project Committee, which since 2019 has been examining pressing and emerging legal issues in pension division. Read the full article by Kevin Zakreski with the BCLI.

Adult Guardianship Act

Child Care BC Act

Vital Statistics Act

Forest and Environment News:

Failure to Report Spills May Attract Penalties up to $75,000: 
New Administrative Penalties in Effect for BC Land-based Spills
In February 2021, more than three years after BC's land-based spills regime came into force (see our previous legal update), the BC government amended the Administrative Penalties (Environmental Management Act) Regulation (the Regulation) to allow the government to impose fines for contraventions of the Spill Preparedness, Response and Recovery provisions of the Environmental Management Act and associated regulations. The new amendments create three categories of penalties with maximum limits of $75,000, $40,000 and $10,000. Of note, the amendments allow administrative penalties of up to $75,000 to be levied for failing to:

• Report an actual or potential spill that is at imminent risk of occurring to the Provincial Emergency Program (by phone at 1-800-663-3456).
• Take specific actions if a spill occurs or is at imminent risk of occurring, including a failure to identify and mitigate spill-related environmental, human health, and infrastructure impacts.
• Have a compliant spill contingency plan in place.

Read the full article by Max Collett, Emily Chan and Michael Manhas with Norton Rose Fulbright Canada LLP.

Road Maintenance and Protection of Fish Habitat
One aspect of environmental management the Forest Practices Board often examines is the protection of fish habitat; most recently in its special investigation on Conserving Fish Habitat (2020), which found that sediment from forest service roads (FSR) in streams is a common source of potential harm to fish habitat. Elevated levels of sediment may be harmful to fish and negatively affect their habitat.

In a recent Board audit, auditors found a section of a FSR had been sliding into a fish stream for several years. There were multiple industrial road users – none of which were fully aware of their maintenance obligations and legal requirements – and none had stabilized the road. To protect fish habitat it is important for road users to understand legislative requirements for road maintenance, understand who is responsible for road maintenance, and apply sound road maintenance practices. The Forest Planning and Practices Regulation (FPPR) provides protection for fish habitat by requiring persons responsible for road maintenance to: Read the full article by Daryl Spencer, RPF published in the BC Forest Professional Spring 2021 (PDF).

The Federal Carbon Pricing Regime is Constitutional –
What the Supreme Court's Decision Means for Business
On March 25, 2021, the Supreme Court of Canada (the "SCC") released the much-anticipated decision on the provincial challenges to the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (the "GGPPA"). The verdict: the GGPPA is constitutional. The SCC's decision to uphold the GGPPA affirmed the federal government's authority to regulate greenhouse gas ("GHG") emissions through a GHG pricing system under the "national concern branch" of the "peace, order and good government" power ("POGG") of the Constitution Act, 1867. Each of Alberta, Ontario, and Saskatchewan had previously challenged the federal GGPPA's regulation of such matters as an intrusion into provincial powers. Read the full article by Selina Lee-Andersen, Joanna Rosengarten, Kimberly Howard, William Horne and Ashley Wilson with McCarthy Tetrault LLP.

BC Timber Sales Audit in Burns Lake Finds Issues
State-Province Joint Report
An audit of BC Timber Sales (BCTS) and timber sale licence (TSL) holders in the Burns Lake Field Unit portion of BCTS's Babine Business Area found compliance with BC's forestry legislation, with two exceptions, according to the audit report. "BCTS complied with requirements of the Forest and Range Practices Act and the Wildfire Act. However, auditors found two bridges had guardrails that needed repair and several TSL holders' fire hazard assessment practices require improvement," said Kevin Kriese, board chair, Forest Practices Board. Read the full article published by the Forest Practices Board.

State of Regulation of Plastics in Canada: The Basics
Plastics have become part of the fiber of daily life in Canada. Their low cost, durability and utility make them an attractive material. Over the last 70 years, the production of plastics globally has increased more than any other manufactured material. Plastic resin and plastic product manufacturing in Canada accounts for more than five per cent of sales in the Canadian manufacturing sector. If the trend continues in this regard, current forecasts predict little change in the current management of the plastics economy.

However, as highlighted by The Honourable Jonathan Wilkinson, Canada's minister of Environment and Climate Change, in a news release dated Oct. 7, 2020, the government recognises that Canadians expect them to take action in order to improve environmental protections and reduce plastic pollution across the country. Read the full article by Jonathan Cocker, Julie-Anne Pariseau, Morgane Larnder-Besner, Brianne Taylor with the firm Borden Ladner Gervais.

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decision in the month of March:

• Dario Rossi; Cora Rossi; Rocky Rossi; Samantha Rossi v. Assistant Water Manager[Final Decision – Appeal Dismissed]

Environmental Management Act

• GFL Environmental Inc.; Michael Dumancic; Nathalie McGee; Meaghan Lyall; Margaret & Foster Richardson; Wendy Betts; David Frame; Carol Ann La Croix; Joss Rowlands; Shelley Lee; Barry Mah; Trish Steinwand; Harry Dhaliwal; Joan Hislop; Douglas Burgham; Jennifer Burgham; Douglas McDougall; Michael W. Betts v. District Director, Environmental Management Act [Final Decision – Appeals Granted in Part]

Visit the Environmental Appeal Board website for more information.

Carbon Tax Act

Climate Change Accountability Act

Integrated Pest Management Act

Water Protection Act

Health News:

Amendments to Medical Assistance in
Dying Laws in Canada
On March 17, 2021, the Federal Government announced that changes to Canada's Criminal Code provisions on Medical Assistance in Dying (MAiD) under Bill C-7 had received Royal Assent and would immediately come into force. These changes mark a significant milestone in Canada's MAiD laws, which have been under constant debate and criticism since the Supreme Court of Canada held in Carter v Canada ("Carter"), that the criminal laws prohibiting assistance in dying limited the rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (the "Charter") in a manner that was not demonstrably justified under section 1 of the Charter. This blog post reviews the judicial and legislative history of MAiD in Canada, outlines the major new changes, and discusses some ongoing concerns with the MAiD laws. Read the full article by Fiona Balaton with Carbert Waite LLP.

Battle over Chiropractors' Ability to Do 
Routine X-rays Headed for BC Court
A group of chiropractors in British Columbia is headed to court to obtain an injunction against a new rule that does not allow chiropractors to perform routine and repeat X-rays unless a physical exam or patient history indicates something is seriously wrong. The chiropractors fighting the rules argue that the College of Chiropractors of BC is failing in its duties to "serve and protect" the public, as the changes "do not account for patients who have found tremendous benefits in chiropractic modalities that rely on X-rays." Read the full article by Zena Olijnyk published on Canadian Lawyer.

PHO Expands List of Health Care Providers
Giving COVID-19 Vaccine
Health Officer Dr. Bonnie Henry on March 24, 2021, issued a public health order (replacing her March 14, 2021, order) expanding the number of health professions who are able to administer a COVID-19 vaccine. Midwives, retired nurses, retired midwives and nursing and midwifery students are among the regulated and unregulated health professionals listed in the order. The order sets out specific requirements, including that the immunization activity be performed in the course of providing an immunization program approved by a medical health officer with responsibility for the geographic area in which it is performed. Note that the order does not include current practising health professionals whose scope includes providing immunization services for the general population, such as practising nurses (LPNs, NPs, RNs and RPNs). Read the announcement published on the BCCN&M website.

Upcoming Changes to Post-Market Requirements
under the Medical Devices Regulations
Recently published amendments to Canada's Medical Devices Regulations, which will take effect in June and December of 2021, impose additional post-market surveillance and reporting obligations on holders of medical device licences and medical device establishment licences ("MDELs"). Read the full article by Timothy Squire, Dara Jospe and Mark Vanderveken with Fasken Martineau DuMoulin LLP.

Hospital Act

Milk Industry Act

Labour and Employment News:

BC Workers' Compensation Claim for Mental Disorder Arising from Impacts of
COVID-19 on Work Environment Ruled Non-Compensable
Employers concerned about whether employees can make workers' compensation claims for mental disorders as a result of COVID-19 can take some guidance from a recent decision of the WorkSafeBC Review Division.

Section 135 of British Columbia's Workers Compensation Act (the "Act") provides that a worker may receive compensation for a mental disorder where it is either a reaction to one or more traumatic events arising out of and in the course of a worker's employment, or predominantly caused by a significant work related stressor or a cumulative series of significant work-related stressors. In Review Reference #R0269567, WorkSafeBC's Review Division considered whether a mental disorder allegedly arising from the impacts of COVID-19 on the worker's work environment was compensable. Read the full article by Christopher McHardy and Colton Dennis with McCarthy Tetrault LLP.

Paid Time Off for Employees to get Vaccinated Currently 
Being Considered for British Columbia
Employees in British Columbia may soon be entitled to paid time off work to receive the Covid-19 vaccination. Last week the Province of Saskatchewan amended its Occupational Health and Safety Regulations to provide for a 'special vaccination leave' that entitles an employee to three or more consecutive paid hours off from work to get vaccinated. The 'special vaccination leave' was implemented in an effort to ensure that all workers in the province obtain the vaccination. The vaccination leave must be granted by an employer if requested by an employee and must be without loss of pay and benefits. The amendment was made by way of regulation and became effective on March 17, 2021. Read the full article by Dianne Rideout and Michelle McKinnon with McMillan LLP.

Pension Benefits Standards Act

Temporary Foreign Worker Protection Act

Workers Compensation Act

Local Government News:

Latecomer Agreements [Local Governments]
Legislative framework:
A latecomer agreement is an agreement between a local government and a landowner who subdivides and develops the land and is required by the local government to provide "excess or extended services" and to pay all or part of the cost of those services in connection with the subdivision or development. The statutory requirements for latecomer agreements flow from s. 506 Local Government Act (BC) (the "LGA") and are prescribed in ss. 507 and 508 of the LGA.

Section 506 of the LGA permits local governments, by bylaw, to regulate and require the provision of works and services in respect of the subdivision or development of land. Under s. 506 of the LGA, local governments may, as a condition of the approval of a subdivision, or the issuance of a building permit, require that the owner of the land provide works and services, in accordance with the standards established in the bylaw. Read the full article by Lindsay Parcells with Lidstone & Company, published in their spring Newsletter.

Go with the Flow – Regulating 
Development Near Water
When it comes to regulation of development near water, it can be helpful for local governments to consider the distinction between:

1. regulating to protect riparian areas from development; and
2. regulating to protect developments from flooding.

Riparian areas border on streams, lakes, or wetlands, and are typically identified as having high ecological, economic and aesthetic value. The shorthand for all of this is "fish habitat". With respect to the protection of development, it is clear that floods in developed areas can have significant and dire consequences. Local governments tend to be interested in both fish and floods, and have been given some overlapping and some distinct and separate tools, as well as marching orders, for these jobs. Read the full article by Amy O'Connor & Sarah Strukoff with Young Anderson Barristers & Solicitors, published in the firm's March Newsletter.

Legislation Aims at Doubling Federal Gas Tax Fund
The Government of Canada has stated its intention to top-up the federal Gas Tax Fund allocation provided to BC and other provinces and territories for 2021. Contingent upon the passing of Bill C-25, local governments would see funding allocations effectively double for the current year. The proposed funding would deliver $2.2 billion across Canada to address short-term infrastructure priorities in local government and First Nation communities. Read the UBCM article.

Case Summary: Municipal Bylaws Do Not Apply to Activities Authorized under
Permit Issued under Mines Act because of Exclusive Provincial
Jurisdiction over "Mines" and "Mining Activities"
O.K. Industries Ltd. v. Highlands (District), [2021] B.C.J. No. 85, 2021 BCSC 81, British Columbia Supreme Court, January 20, 2021, C.E. Hinkson C.J.S.C.
The petitioner O.K. Industries Ltd. was engaged in the quarrying of mining aggregates. It purchased vacant and unimproved property from the Province located within the respondent District of Highlands, a municipal corporation created pursuant to the Community Charter, S.B.C. 2003, c. 26.

The petitioner sought a permit to operate a quarry on the property. The respondent opposed that application. The Province, through the Senior Inspector of Mines, issued the petitioner a quarry permit pursuant to the Mines Act, R.SB.C. 1996, c. 293. The quarry permit was subject to detailed authorizations and conditions. The quarry permit specifically restricted vegetation clearing and other ecological activities. The quarry permit also indicated other laws and regulations may apply to the petitioner's activities, including local government bylaws. Read the full article by Joel A. Morris with Harper Grey LLP.

Can Campaign Contributions Create a
Conflict of Interest?
Back in 1998, the Council of the City of Nanaimo disqualified one of its councillors from holding office due to a conflict of interest by reason of having voted in favour of projects by a developer that also contributed to his election campaign. The councillor was ultimately successful in overturning his disqualification (King v. Nanaimo (City), 2001 BCCA 610). In the Court of Appeal, Mr. Justice Esson established a stringent test to make out a case of conflict of interest based on campaign contributions from a person or corporation with a matter before council. The mere fact that a developer makes a campaign contribution to a council member will not, "in and of itself", establish that the council member has either a direct or indirect pecuniary interest in a "matter" involving the contributor. A sufficient link between a "matter" before council and a council member's pecuniary interest to make out a conflict would exist if it could be shown that a council member agreed to vote in favour of a contributor's projects in return for a campaign contribution. But again, the appeal court was clear that the mere fact of an applicant having made a campaign contribution was not sufficient. Read the full article by Barry Williamson of Young Anderson, Barristers & Solicitors, published in the firm's March Newsletter.

Supreme Court of British Columbia Rules in Favour of 
City of New Westminster Use of Residential Tenure
Zoning to Protect Existing Rental Stock
New Westminster — Today [March 30, 2021] the Supreme Court of British Columbia released a decision upholding the City's use of residential rental tenure zoning – an important tool that gives the City a legislative ability to preserve and increase the overall supply of rental housing in the community.

"Rental tenure zoning has been an important tool used to respond to the real challenge of saving existing purpose-built rental housing," said Mayor Jonathan X. Coté. "We are pleased that the BC Supreme Court has upheld the City's rental residential zoning powers so that we can preserve our rental housing stock and support our residents. We know that the housing crisis has been worsened by the pandemic and we are very committed protecting tenant rights."

In July 2018, the Province enacted rental tenure zoning authority to enable protection of the rental tenures in existing apartment buildings. In 2019, New Westminster City Council adopted Zoning Amendment Bylaws No. 8078 and 8123, making it the first municipality in the province to apply the newly granted residential tenure zoning powers to some of its existing rental housing stock. More specifically, New Westminster sought to protect over 200 households whose tenancies were not adequately protected with any of the other existing legislative tools found in the Local Government Act and the Community Charter. Read the City of New Westminster press release.

The OCP Consistency Rule: What Is It and
Are You Being Reasonable?
Section 478 of the Local Government Act contains the "OCP consistency rule". It provides that after the adoption of an Official Community Plan ["OCP"], all bylaws enacted and works undertaken by a council or board must be "consistent with" the relevant plan. There are a number of cases that have addressed the question of whether a particular zoning bylaw is consistent with an OCP and some important principles have emerged from these cases. Read the full article by Kathleen Higgins with Young Anderson Barristers & Solicitors, published in the firm's March Newsletter.

Municipal Liability for Negligent Building
Inspection and How to Manage Risk
A decision of the Ontario Superior Court from January 2021 highlights the serious financial risk to municipalities that regulate building construction and provides an opportunity for re-visiting best practices for managing such risk.

In Breen v. The Corporation of the Township of Lake of Bays, 2021 ONSC 533 ("Breen"), a couple purchased a cottage in Lake of Bays, Ontario in 1999 for $710,000. During subsequent renovations to the cottage in 2011 they discovered several structural issues and Building Code violations in the original construction that rendered the cottage unsafe to inhabit. Construction of the cottage by the previous owner had begun in 1989 pursuant to a building permit and the Township had conducted building inspections in 1990 and 1991. Read the full article by Josh Krusell with Stewart McDannold Stuart.

Interpretation Act

Taxation (Rural Area) Act

Miscellaneous News:

Words Matter, Even When Absent: BC Appeal Court Confirms
Unlimited Insurance for Construction Mitigation Expenses
The British Columbia Court of Appeal recently held that a professional liability insurance policy provided potentially unlimited coverage, at least in respect of one area of coverage. In Surespan Structures Ltd. v Lloyds Underwriters, 2021 BCCA 65, the Court of Appeal found that the limits applicable to certain coverages available under the policy did not extend to loss mitigation coverage. Read the full article by Christine Viney, Bruce Mellett and Patrick Schembri with Bennett Jones LLP.

Human Rights Code Can't Protect Anti-maskers 
Making Unproven Claims, BC Tribunal Says
A decision by the British Columbia Human Rights Tribunal says anyone denied service for refusing to wear a mask must be ready to prove they have a disability if they intend to file a complaint. The warning is contained in a screening decision published Wednesday [March 31] as tribunal member Steven Adamson addresses what he describes as a large volume of complaints alleging discrimination related to mask requirements. Read the Globe and Mail article.

Start Your Clocks! Limitation Periods 
Start to Run on March 25, 2021
The suspension of limitation periods has almost been in effect for one year (which oddly feels like it was just yesterday, but also feels like ages ago, blame the "pandemic time warp"). On March 26, 2020, the government initiated a suspension of limitation periods. Previously, the suspension was tied to the provincial state of emergencies; however, that is no longer the case., Iit is now a one year suspension with a definite end date … and that end date is coming up.

The suspension of limitation periods ends on Thursday, March 25, 2021. There will be no further transition or grace period after this date, so it's important to be aware of any potential limitation periods coming up and file accordingly. Read the full article by Richard Bereti and Nicola Virk with Harper Grey LLP.

Standing on Guard for Canadians' Privacy Rights
The CBA Privacy and Access Law Section comments on the latest discussion papers from Justice Canada on modernizing the Privacy Act. Modernizing the legal framework protecting the privacy rights of Canadians can sometimes feel like an endless process, and not just because technology keeps evolving. We want government institutions to use relevant data in their programs and policies, but we also insist on protecting the privacy of Canadians whose data is necessary for the elaboration of those programs and policies. Expect the push and pull to continue.

The CBA's Privacy and Access Law Section has produced several submissions and sponsored many resolutions on privacy issues going back to 2004. When Justice Canada issued discussion papers on modernizing the Privacy Act in November 2020, the Section was ready once again to comment. Read the CBA National article by Brigitte Pellerin. 

Lobbyists Transparency Act

New Relationship Trust Act

Form Amendment: Application for Review of Dangerous
Goods Policies and Procedures and Training Programs
Transport Canada's Transportation of Dangerous Goods (TDG) Directorate has completed a review of Form 16-0090 for air operators submitting their dangerous goods policies, procedures and training programs for approval. This page is intended to inform air operators of the change to Form 16-0090 – Application for Review of Dangerous Goods Policies & Procedures and Training Programs. The amended Form 16-0090 will be effective and available online on April 1, 2021, for air operators to submit their application for the review of dangerous goods policies, procedures and training programs. From April 1, 2021, to July 1, 2021, air operators may continue to use the previous version of Form 16-0090. As of July 1, 2021, only the amended form can be used for any TDG document review request. Visit Transport Canada website for additional details.

Electric Kick Scooter Pilot Project
New regulation – Effective April 5
Electric kick scooters could be legal in 6 B.C. municipalities this summer
Provincial government has approved a pilot program for the vehicles, with a speed limit of 24 km/h. [View the new Electric Kick Scooter Pilot Project Regulation 190/2021 – in force as of April 5, 2021.] Electric kick scooters could become legal in six British Columbia municipalities in a matter of months. Vancouver, Kelowna, Vernon, West Vancouver and North Vancouver city and district will be allowed to enact bylaws allowing e-scooters on residential streets where the speed limit is 50 kilometres or less, the provincial government announced Tuesday. The scooters themselves cannot have motors that exceed 24 km/h on a clean, paved and level surface. The BC Motor Vehicle Act doesn't allow transportation such as electric scooters on roads or sidewalks, but a 2019 amendment permits communities to work with the province on pilot projects. Read the CBC news article.

Case Summary: Court Dismisses Taxi Companies Judicial Review
Concerning Decisions of the BC Passenger Transportation Board
Regarding Ride Sharing Approvals of Uber and Lyft
Yellow Cab Co. v. Passenger Transportation Board, [2021] B.C.J. No. 89, 2021 BCSC 86, British Columbia Supreme Court, January 20, 2021, S. Wilkinson J.
The petitioners consisted of nine taxi companies in the City of Vancouver and Metro Vancouver. The petitioners sought a judicial review of two decisions of the respondent, Passenger Transportation Board (the "Board"), granting transportation network services licences to other respondents, Uber Canada Inc. and Lyft Canada Inc. The Board is a regulatory licencing body under the Passenger Transportation Act, S.B.C. 2004, c. 39. The Board was responsible for special authorizations in respect of licences for ride hailing. Uber and Lyft applied for licences with special authorizations enabling them to operate ride hailing services in the Lower Mainland of British Columbia.

The Board issued two separate decisions in respect of the application by Uber and Lyft. In both decisions, the Board concluded that there was a public need for ride hailing services, that Uber and Lyft is a "fit and proper person" capable of providing the proposed services, and that the application would promote sound economic conditions in the passenger transportation business. In doing do, the Board observed that it could closely monitor fleet sizes to ensure supply and demand could be balanced. Read the full article by Joel A. Morris with Harper Grey LLP.

New Fairness Officer to Foster Transparency in Insurance
Corporation of British Columbia's Decisions
The BC government [has introduced] legislation amending the Insurance Corporation Act, RSBC 1996, c 228, to establish a fairness officer who seeks to promote trust in the processes of the Insurance Corporation of British Columbia.

The new fairness officer, who will be appointed by the provincial government to ensure more independence from the ICBC, will aim to foster fairness and transparency in the ICBC's decisions, actions and practices and in the ICBC's handling of complaints, disputes and procedural matters, particularly in the context of the ICBC's transition to Enhanced Care coverage on May 1. Read the full article by Bernise Carolino published on the Canadian Lawyer.

Cyclist at Fault For Attempting To Pass Bus
Re-Entering Flow of Traffic on the Right
Reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, dismissing a cyclist's negligence action against a bus operator.

In today's case (Coles v. British Columbia Transit Corporation) the Defendant was operating a bus and pulled over to let passengers on or off. At the same time the Plaintiff was operating a bicycle in the Defendant's lane of travel. The Defendant put on her left signal indicating she was going to emerge back into the flow of traffic. The Plaintiff mistakenly believed the signal indicated the bus operator was going to make a lane change and attempted to pass the bus on the right hand side. This attempt failed and "he collided with the rear of the bus, came off his bicycle, landed on the ground, and broke his elbow." Read the full article by Erik Magraken, posted in ICBC Liability (fault) Cases.

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

• Updated CTPM – Commercial Transport Procedures Manual has been updated March 2021
• Circular 01-21 – Single trip or term permits may be issued to operate tractor-semi-trailer combinations that include extended length semi-trailers
• Circular 02-19 – Extended: Hours of Service Pilot Project for the Motion Picture Industry in B.C.

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

Motor Fuel Tax Act

Occupational Health & Safety News:

WorkSafe BC Updates Guidelines – (March 11)
– from WorkSafeBC:
A number of Occupational Health and Safety regulation guidelines were updated in March. These include:

Guidelines – Occupational Health and Safety Regulation

• Part 4 General Conditions
  
  • G4.16 Training (revised)
  • G4.38 Extreme temperatures (revised)
  • G4.46 Definition of musculoskeletal injury (MSI) (revised)
  • G4.66 Means of illumination (retired)
  • G4.67 Brightness, reflectance and glare (revised)
  • G4.68 Illumination measurement (revised)
  • Part 21 Blasting Operations
  
  • G21.3 Dangerous incident reports (revised)
  • Part 23 Oil and Gas
  
  • G23.22 Driver training (revised)
  • G23.60 Rotary tongs (revised)

New and revised guidelines are posted for a 60-day preliminary period, during which time the stakeholder community may comment and request revisions. Visit WorkSafe BC Updates page for these and other changes.

Mandatory Vaccinations Unlikely in BC Workplaces
Offices left mostly barren during the pandemic may soon be home again to the hum of workplace chatter and lunchroom confabs as British Columbians get their COVID-19 vaccinations en masse in the coming months. But if employers want throngs of work-from-home employees to return to the office, can they tell them to get their jabs first? "The first question is: What do people mean by mandatory vaccinations?" said Elizabeth Reid, a lawyer specializing in employment, labour and human rights at Vancouver's Boughton Law Corp. "You can't hold your employees down and say, ‘You're getting this whether you want to or not.'" Read the BIV article.

New Public Health Orders
The Public Health Office (PHO) recently issued the following orders & Guidelines:

• Gatherings and Events – March 31, 2021 (PDF, 465KB)
• Requirements: Indoor Individual Exercise – March 31, 2021 (PDF, 352KB)
• Variance Suspension: Indoor Worship Services on Four Days – March 29, 2021 (PDF, 207KB)
• Variance: Outdoor Worship Services – March 23, 2021 (PDF, 250KB)
• Read related Public Heath guidelines
• Food and Liquor Serving Premises and Retail Establishments which Sell Liquor – March 31, 2021 (PDF, 377KB)
• Regulated and Unregulated Health Professionals SARS-CoV-2 Immunization Order – March 24, 2021 (PDF, 458KB)
• Emergency Medical Assistants SARS-CoV-2 Immunization Order – March 18, 2021 (PDF, 289KB)
• Agricultural Temporary Foreign Workers – March 14, 2021 (PDF, 279KB)
• Ministry of Health – Overview of Visitors in Long-Term Care and Seniors' Assisted Living – April 1, 2021 (PDF, 672KB)

Visit the PHO website to view these and other related orders and notices.

Everything You Need to Know about
Respiratory Protection
What was already a pretty key bit of PPE has now become one of the most sought-after pieces of equipment due to the ongoing pandemic. Respiratory protection has been an integral part of a number of professions for many years, be it doctors who require surgical masks or construction workers in need of N95 respirators. Since the COVID-19 outbreak last year, however, almost every single worker is required to wear a respirator or face covering of some sort. Read the full article by Canadian Occupational Safety.

BC Increases Fines for Covid-Related Offences
Effective March 25, the fines issued to those promoting or attending a non-compliant gathering was increased from $230 to $575. According to the government, even sharing an event on social media could be considered promoting the event. The changes were made to Schedule 2 of the Violation Ticket Administration and Fines Regulation, B.C. Reg. 89/97, under the "Protective Measures (COVID-19) Order".

Property and Real Estate News:

Long Term Leases and Property Transfer Tax
Under the Property Transfer Tax Act, RSBC 1996, c 378, (the "Act"), property transfer tax ("PTT") would, generally speaking, be imposed on a lease with a term of 30 years or more, or a lease in conjunction with lease modification agreements that would result in a cumulative term of 30 years or more, would be subject to PTT under the Act. In the recent decision of M&N Hewitt Enterprises Ltd. v. British Columbia, 2021 BCSC 93 ("M&N Hewitt Enterprises"), the British Columbia Supreme Court addressed the question of when PTT would be imposed on a lease.

More specifically, M&N Hewitt Enterprises addresses a situation where two consecutive leases on the same property are granted by a lessor to a lessee. In such a case, would the respective terms of each lease be added together to reach or exceeded 30 years, rendering the leases subject to taxation? Read the full article by Stephanie Wong and Katherine Zhou with Lawson Lundell LLP. 

British Columbia Supreme Court Finds that Developers Do Not Owe a 
Fiduciary Duty to Purchasers of Pre-sale Condominiums
After a lengthy trial, the BCSC confirmed that developers of condominium projects do not owe a fiduciary duty to pre-sale purchasers, and that the commonly used lease structure to assign parking stalls and lockers to purchasers is valid and binding on the owners and the strata corporation.

Mr. Justice Myers of the BCSC released his decision in One West Holdings Ltd. v. The Owners, Strata Plan LMS2995 2021 BCSC 473 following a lengthy trial. The defendant Strata challenged the legality of the established practice of a developer granting to itself or a related company an option to lease (registered) over the parking and locker areas of the development, and subsequently entering into a lease before the strata plan is filed. After stratification, the parking tenant partially assigned the lease to purchasers of individual stalls and lockers including the Strata. Read the full article by Jonathan S. McLean, Angela Crimeni and Madison Vonk with Stikeman Elliott LLP.

Condo Stink: Tribunal Orders Restaurant to Fix All-day "Oniony"
Cooking that Forced Victoria Man from His Home
Cooking smells from a restaurant in a new condo building in downtown Victoria were so "nauseating" to an owner that he was forced to stay in hotels, at campgrounds and at friends' places to avoid it, according to a BC court ruling. The restaurant has tried to fix the problem of smells in some suites, the lobby and parkade and outside the building, but BC's civil resolution tribunal found the owners broke the strata's nuisance bylaw in the mixed-used residential/commercial model that's common in BC cities, and told them to try again. Read the Vancouver Sun article.

Land Owner Transparency Act

Land Title Act

Wills and Estates News:

Petrick (Trustee) v. Petrick
I have always urged caution in using joint tenancies as an estate-planning tool for the transfer of wealth from a parent to a child. One of my earliest blog posts, from September 17, 2005 is entitled "Six Potential Pitfalls Parents Should Consider Before Transferring Real Estate Into a Joint Tenancy with Their Children." Jointures, including joint bank accounts, appear to be deceptively simple. On the death of a joint owner, the title to the asset passes by right-of-survivorship to the other joint co-owner (or owners). But it is not really that simple. In many cases, there is a question about whether the survivor is really entitled to keep the property or whether it is held in trust for the now deceased co-owner. There may also be unintended consequences of owning property in a joint tenancy. The nuances and risks are illustrated in the case I am about to discuss. Read the full article by Stan Rule with Sabey Rule LLP.

The Significance of Testamentary Documents 
A recent decision from the BC Supreme Court highlights the special nature of testamentary documents, and the consequences that may result where an executor fails to comply with their obligations.

In Sarzynick v. Skwarchuk, 2021 BCSC 443, Justice Morellato considered a case involving a dispute between two siblings over the estate of their mother, Mary. Mary was survived by her two children, Leonard and Caroline, who were the only beneficiaries under the will. Mary appointed Leonard as her executor, and named Caroline as her alternate executor. Prior to Mary's death, Leonard had also been her attorney under a power of attorney document. Read the full article by Emily Clough and Polly Storey with Clark Wilson LLP.

Pour Over Clauses and the Quinn Estate
Connections between Canadians and Americans have never been as abundant or transparent as they are now as many Canadians own American property, have American spouses or partners, and have children and grandchildren born or living in the United States. As a result of this trend, estate planning for people with assets and connections to both the United States and British Columbia has become increasingly frequent, as have examples of legal pitfalls people in cross-boarder situations are facing.

For sometime now, courts in British Columbia have had the power to cure deficiencies in some circumstances where a will-maker has taken real steps to make a will, but certain formalities have fallen short. The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 ("WESA"), recognizes that a failure to meet formal requirements should not automatically result in a will-maker's "testamentary intentions" being defeated for that reason alone. Read the full article by Alexander Swabuk with Miller Thomson LLP.

Wills Variation: The Ten Considerations
The leading case Tataryn v Tataryn (1994) 2 SCR 807 clarified that most people would agree that an adult independent child is entitled to such consideration as the size of the estate and the testator's other obligations may allow, after he for after firstly satisfying any legal obligations owed to a spouse or dependent children.

The court recognized that while the moral claim of an independent adult child may be more tenuous, a large body of case law existed that suggested that if the size of the estate, permitted and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made in an estate. Read the full article by Trevor Todd at Disinherited.com.

BC Court Intervenes to Uphold Bequest to Charity
It is common for will-makers to make bequests to charitable organizations in their wills. But what if the charity that is named as a beneficiary no longer exists at the date of the will-maker's death? Over time, charities may be dissolved or cease to exist, change names or structures, or otherwise be replaced by successor organizations. If a will-maker intends to make a charitable bequest, but the charity named in the will no longer exists at their death (or no longer exists in that name or form), what happens?

This issue was recently considered by the B.C. Supreme Court. In Galloway Estate v. British Columbia Society for the Prevention of Cruelty to Animals 2021 BCSC 413, the deceased left shares of her estate to certain charitable organizations "that are in existence as at the date of [her] death," including "Pacific Coast Public Television Association" ("PCPTA"). Read the full article by James Zaitsoff with Owen Bird Law Corporation.