Company and Finance News:

Canadian Anti-Money Laundering Requirements –
Changes Effective June 1, 2021
On June 1, 2021, a series of regulatory amendments made to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the "PCMLTFA") and regulations over the past few years will come into force, together with changes to guidance issued by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). Our prior summaries of the regulatory amendments can be found here and here, along with our summaries of the changes to the FINTRAC guidance issued in February, March and May 2021. Read the full article by Ana Badour and Shauvic Shah with McCarthy Tetrault LLP.

Bill C-30 – Selected Financial Services Measures
Bill C-30, Budget Implementation Act, 2021, No. 1 was introduced to the House of Commons for first reading on April 30, 2021. Bill C-30 will enact into legislation new policy measures outlined in the 2021 federal budget released earlier in April, many of which impact financial institutions and other financial services providers, as discussed in our earlier Blakes Bulletin: 2021 Federal Budget - Selected Financial Services Measures. This bulletin provides an overview of the specific legislative measures included in Bill C-30 that affect or deal with financial services and related issues. Read the full article by Paul Belanger, Bonny Murray, Vladimir Shatiryan, Jacqueline D. Shinfield and Patrick Sobchak with Blake, Cassels & Graydon LLP.

Cancelled Trips During COVID-19: Consumer Protection BC Weighs in on Travel
Refunds under the Business Practices and Consumer Protection Act
Consumer Protection BC recently issued an advisory informing consumers about their rights under provincial law to receive refunds for travel. Specifically, the advisory suggests, "If eligible consumers take the proper steps to exercise their rights, they should be provided with a full refund in the same way they paid, as outlined in the law."

This advisory comes only days after Consumer Protection BC released a step-by-step guide that explains how consumers can claim refunds for cancelled travel. The guide requires consumers to first address refunds with their travel supplier, such as airlines and tour operators, before filing a complaint with the regulator. A consumer's right to a refund for travel is based on the distance sales contract provisions of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (the "BPCPA"). Read the full article by Miranda Lam, Kirsten Marsh and Heather Mallabone with McCarthy Tetrault LLP.

Who is Caught by Canada's New Retail
Payment Systems Regulation?
The federal government introduced legislation to regulate retail payment providers in Canada. The much-anticipated draft of An Act Respecting Retail Payment Activities (the "RPAA") is part of the 2021 budget implementation bill (Bill C-30), which passed second reading on May 27, 2021. The RPAA aims to implement the retail payments oversight framework, which was originally announced in 2017 by the Department of Finance in a consultation paper, A New Retail Payments Oversight Framework (the "2017 Consultation Paper"). The RPAA sets out the general framework for the regulation of retail payments activities in Canada, while the details of the regime will be set out in regulations (the "Regulations") enacted by the Department of Finance and guidelines (the "Guidelines") developed by the Bank of Canada (the "BOC") which will be the designated supervisory authority under the RPAA.

For participants in the retail payments space, their initial concern will be to determine if the RPAA applies to them. In order to do so, such participants will need to determine if they are required to register under the RPAA. This bulletin will provide an overview of the proposed RPAA and set out some of the factors entities will need to consider when determining if they are required to register pursuant to it. Read the full article by Shahen A. Mirakian with McMillan LLP.

Electronic Meetings of Credit Unions
Now Allowed Permanently
Historically, the Credit Union Incorporation Act (the "CUIA") has restricted credit unions from holding entirely electronic meetings of members, primarily due to the requirement in the CUIA for meetings of members to be held at a physical location.

That all changed in the wake of COVID-19, with temporary measures introduced by the BC Government in the interest of the health and safety of meeting participants, permitting for the holding of entirely electronic meetings during the time period that BC remained in a state of emergency.

Although COVID-19 may eventually be coming to an end, credit unions will continue to enjoy the flexibility of electronic meetings on a permanent basis, due to the BC legislature giving royal assent to the Finance Statutes Amendment Act (No. 2), 2021 (the "FSAA") on May 20, 2021. Read the full article by Peter Brown and Lauren Frederick with Edwards, Kenny & Bray LLP.

New Disclosure Rules Aim to Protect
BC Investors from Shady Pitches
Promotions of companies with a connection to British Columbia would become more transparent under new rules proposed by the British Columbia Securities Commission (BCSC).

The disclosure requirements, being published for a 60-day comment period, would enable people to better evaluate the reliability of statements that encourage investment in issuers of securities, often made with the aim of driving up an issuer's share price.

"People should know if someone promoting a stock has a financial or other interest, because that would help them decide how much weight to give the promotion and make better informed investment decisions," said Peter Brady, the BCSC's executive director. Read the BIV article.

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

• 51-102 – CSA Notice and Request for Comment Proposed Amendments to National Instrument 51-102 Continuous Disclosure Obligations and Other Amendments and Changes Relating to Annual and Interim Filings of Non-Investment Fund Reporting Issuers and Seeking Feedback on a Proposed Framework for Semi-Annual Reporting – Venture Issuers on a Voluntary Basis
• 94-304 – CSA Notice and Request for Comment – Proposed Amendments to Multilateral Instrument 25-102 Designated Benchmarks and Benchmark Administrators and Changes to Companion Policy 25-102 Designated Benchmarks and Benchmark Administrators
• BC Notice 2021/03 – CSA Notice and Request for Comment – Proposed amendments to National Instrument 14-101 Definitions and Consequential Amendments
• 52-112 – Clarification of Requirements for Crypto Asset Trading Platforms

For more information, visit the BC Securities website.

Energy and Mines News:

Win for American Energy Companies
Facing Climate Change Litigation
In a 7-1 ruling in BP PLC et al v Mayor and City Council of Baltimore (19-1189), the Supreme Court of the United States ruled that the Fourth Circuit Court of Appeals did not fully analyze whether a climate change tort lawsuit seeking damages against several energy companies operating in the United States should be heard in federal court, instead of in state court. The decision is a welcome reprieve for energy companies facing potential litigation across a multitude of jurisdictions in the United States, as it could potentially result in climate change claims falling under the jurisdiction of federal courts instead of state courts, and under federal law rather than state law. Read the full article by Mike Theroux, Laura Gill and Jon McKay with Bennett Jones LLP.

Federal Court of Appeal Lifts Injunction on
Alberta's "Turn Off the Taps" Legislation
On April 26, 2021, the Federal Court of Appeal (the FCA) in Alberta (Attorney General) v. British Columbia (Attorney General), 2021 FCA 84 overturned the injunction granted by the Federal Court of Canada (the FC), in favour of British Columbia (BC), against Alberta's Preserving Canada's Economic Prosperity Act, SA 2018, c P-21.5 (the Act). The Act empowers Alberta to establish a licencing regime that permits Alberta to restrict exports of natural gas, crude oil, and refined fuels from the province. The FCA determined that BC's application, which also sought a declaration that the Act was unconstitutional, was premature as Alberta had not yet implemented an operational regulatory regime that would actually limit exports of natural gas, crude oil, or refined fuels to BC.

Overturning the FC decision and lifting the injunction placed on the Act represent a small victory for Alberta. However, contrary to some media coverage, the FCA did not uphold or otherwise make a declaration on the constitutional validity of the Act. Rather, the FCA merely lifted the injunction placed on the Act by the FC, while holding that it would be premature to render a declaration on the Act's constitutionality in the absence of its operational provisions. Read the full article by Michael A Marion and Brett Carlson with Borden Ladner Gervais LLP.

Are Electric Vehicle Charging Services Regulated "Suppliers" of
Electricity? Provincial Energy Regulators Are Saying No
Canadian electric vehicle (EV) sales have accelerated over the past decade, with no signs of slowing down. Between 2011 and 2020, the total number of EVs sold in Canada skyrocketed from 460 up to over 53,000 per year. With nearly 200,000 EV motors now whirring along Canada's roads, more and more EV charging stations have sprung up to power them. As of March, 2021, Canada has 6,029 EV charging stations, and counting – a year over year increase of 15%.

When EV drivers go to the "pump", they don't fill a tank by the litre. They fill a battery by the kilowatt (kW) – a fact which has raised novel legal questions for EV charging suppliers and electricity regulators across Canada. The sale or supply of electricity in all jurisdictions is legislatively confined to authorized electrical utilities, who are typically subject to careful regulatory oversight and price control. The owners and operators of EV charging facilities tend not to be authorized utilities, yet facilitate the delivery of electricity to their customers for compensation, a set of circumstances generally attracting regulatory prohibition or regulatory oversight. Read the full article by Chris Hummel and Ian A. Mondrow with Gowling WLG. 

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

• INDB 2021-17 – New Landslide Susceptibility Map for Oil and Gas Industry Working in NEBC
• INDB 2021-18 – Amendment Application Submission Requirements
• INDB 2021-19 – Updates to Area-Based Analysis

Visit the BCOGC website to view this and other bulletins.

Family and Children News:

A Closer Look at the Report on Pension Division: Locked-in
Retirement Accounts and Life Income Funds
Since the advent of the Family Law Act, case law has consistently held that locked-in retirement accounts and life income funds should be divided under part 5 of the act. Should the act be amended to change this conclusion, by providing that locked-in retirement accounts and life income funds should be divided under part 6? This issue is essentially a choice between proposing amendments to part 6 or deciding to remain with the status quo. Read the full article by Kevin Zakreski with BCLI.

Just When You Think It's Over: Material Change
Clauses in Final Separation Agreements
Separation agreements are commonplace in 2021. However, the court had not previously considered a separation agreement that purported to be final, but contained a clause that considered a "material change in circumstances" as grounds to change the agreement. In Hall v Hall, 2021 BCCA 115, the Court of Appeal set aside a trial judgment varying spousal support in a final separation agreement. The Court of Appeal noted in Hall v. Hall that if such a clause is included in a final separation agreement, the agreement may be be varied or set aside after a holistic review of the agreement and the parties' intentions at the time of entering the agreement. The Court found that no such variation was warranted because the agreement, when reviewed as a whole, set out the parties' intentions in relation to material changes in circumstances. This important decision will inform the drafting of separation agreements to ensure the parties' intentions are accurately set out. Read the full article by Chantal M. Cattermole and Jaicee Payette (Summer Student) with Clark Wilson LLP.

New BCLI Publications Call for Reforms to the Child
Protection Framework and Review of Legislation on
Youth Aging into the Community
The British Columbia Law Institute has just published the Report on Modernizing the Child, Family and Community Service Act and the Study Paper on Youth Aging into the Community.

With these two publications the work of BCLI's Child Protection Project Committee has drawn to a close. This committee met 19 times, considered 48 submissions in a public consultation, and developed two publications to meet distinct goals: one providing detailed recommendations for legislative reform, the other contributing comparative research on an emerging issue.

The Report on Modernizing the Child, Family and Community Service Act contains a focused review of British Columbia's child protection statute. It makes 39 recommendations for reform and contains draft legislation illustrating how these recommendations could be implemented by legislative changes. The report's recommendations address the following areas: (1) definitions and terms; (2) disclosure; (3) independent legal advice; (4) court procedures and orders; (5) selected protection issues; (6) incorporating children's views into child protection proceedings; (7) legal representation for children in child protection proceedings. Read the full article by Kevin Zakreski with the British Columbia Law Institute.

Mom, Mom, and Dad: Identifying Legal
Parentage with More than Two Parents
In British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767, the BC Supreme Court considered whether a child conceived through sexual intercourse can have more than two legal parents.

The petitioners, Olivia, Eliza and Bill, were three adults who had been living in a polyamorous relationship since 2017. In 2018, Eliza and Bill conceived a child (Clarke) through sexual intercourse. During Eliza's pregnancy, the petitioners agreed that Olivia would be involved in Clarke's life as a "full parent." Due to the operation of section 26 of BC's Family Law Act, however, Eliza and Bill were the only persons recognized as Clarke's legal parents on Clarke's birth registration, being his birth mother and his biological father. The petitioners sought a declaration that Olivia was Clarke's third legal parent, arguing that there is a legislative gap in the Family Law Act with regard to children conceived through sexual intercourse who have more than two parents. Read the full article by Aubrie Girou and Catherine Bunio with Alexander Holburn Beaudin + Lang LLP.

New Forest Policy to Redistribute Forest Tenures to
Small Operators and Indigenous Communities
The BC government has announced significant changes to forest policy, outlined in a new intentions paper. The proposed changes include what it calls a compensatory framework to redistribute forest tenures to Indigenous Nations, forest communities and small operators. The new policy will also provide for more government control over management of the sector. The goal will be to increase forest tenure held by Indigenous Peoples in BC from 10% to 20%. Other proposed changes will provide for increased access to wood fibre for value-added domestic manufacturers and an audit process of the fee-in-lieu it charges companies when unprocessed logs are exported out of BC. New legislation reflecting these new policies is expected to be introduced in the fall. A summary presentation of government's intentions paper is available here: https://news.gov.bc.ca/files/Modernize_Forest_Policy_Presentation.pdf.

U.S. Move to Double Tariffs on Canadian Softwood Lumber
Is "Egregious", Says BC Lumber Trade Council
The president of the BC Lumber Trade Council says a move by the United States to double tariffs on Canadian softwood lumber is "particularly egregious" given current record high lumber prices. Susan Yurkovich says the dramatic increase in the "all others" preliminary countervailing and anti-dumping rate to 18.32 per cent from 8.99 per cent will hurt American consumers who are faced with a market where prices are at record heights because supply can't keep up with demand. Read the Global News article.

Investigation Finds Old Growth, Biodiversity at 
Risk near Port Alberni – FPB
An investigation of a complaint about BC Timber Sales' (BCTS) logging of large old growth trees in the Nahmint River Watershed has found that BCTS's forest stewardship plan (FSP) is not consistent with the Vancouver Island Higher Level Plan Order and does not adequately protect old forest and biodiversity values in some ecosystems. Read the Forest Practices Board news release.

Environmental Appeal Board Decisions
The following Environmental Appeal Board decisions were made recently:

Environmental Management Act

• Christine McLean v. Director, Environmental Management Act [Preliminary Issue of Jurisdiction – Appeal Dismissed]

Integrated Pest Management Act

• Robert Todd Lang v. Administrator, Integrated Pest Management Act [Consent Order – Penalty Confirmed]

Water Sustainability Act

• Denis Lefebvre v. Assistant Water Manager [Final Decision – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Extensive BCCNM Investigation Results in Serious 
Penalties for Two Nurse Administrators
The BC College of Nurses and Midwives on May 23, 2021, reached consent agreements with Euphemia Guttin (agreement) and Victoria Weber (agreement) to resolve complaints about their conduct and competence from 2016-2018 while working as registered nurses in senior leadership roles at the Garth Homer Society in Victoria, B.C. These agreements were reached after a lengthy and complex investigation that spanned approximately three years.

These registrants have had their nursing registration suspended for the past three years pursuant to an interim order of the BCCNM Inquiry Committee in May of 2018 during the course of the investigation into their nursing practice. As part of their consent agreements, Ms. Guttin agreed to a 15-month suspension and Ms. Weber agreed to an 18-month suspension as a result of their unprofessional conduct.

For both registrants, 12 months was considered "time served" given the length of time they were suspended pursuant to the interim order of the Inquiry Committee while the investigation was conducted. Both registrants must complete remedial education prior to a return to practice and will both have limits, conditions, and extensive oversight of their nursing practice for a significant period of time. Read the BCCNM article.

Canada Approves Mixing and Matching Second
Vaccine Doses, BC Yet to Confirm Approval
For folks who got a first shot of the AstraZeneca vaccine and want to mix and match it with either Pfizer or Moderna for their second shot, Canada's top doctor, Dr. Theresa Tam, confirmed Tuesday [June 1] what provincial health officer Dr. Bonnie Henry has been hinting at for weeks.

"People who received a first dose of AstraZeneca Covishield vaccine may receive either AstraZeneca Covishield or an mRNA," said Tam.

The guidance originated from the National Advisory Committee on Immunization (NACI) and is based on data from ongoing studies in Europe. Tam advised that those who received Pfizer or Moderna for a first dose could get either shot for their second. Read the CTV news article.

New Minimum Wage Takes Effect June 1^st
Effective June 1, 2021, BC's minimum wage increased from $14.60 to $15.20 per hour. Liquor server minimum wage of $13.95 an hour is being eliminated and replaced with the general minimum wage of $15.20 an hour.

Alert: Extended Relief for Registered Pension
Plans and Deferred Salary Leave Plans
On May 20, 2021, the Department of Finance Canada announced a one-year extension of draft regulations, initially released on July 2, 2020 (2020 Draft Regulations), that are intended to assist sponsors of registered pension plans (RPPs) and deferred salary leave plans (DSLPs) to manage and maintain benefits for their employees through COVID-19.

The one-year extension announced by the Department of Finance Canada was introduced by way of proposed amendments to the Income Tax Regulations (2021 Draft Regulations), also released on May 20, 2021. For further information on the earlier 2020 Draft Regulations, please see our July 2020 Blakes Bulletin: Draft Pension and Deferred Salary Leave Tax Regulations Released. Read the full article published by the Pensions, Benefits & Executive Compensation group with Blake, Cassels & Graydon LLP.

Getting Back to Normal: BC's Restart
Plan 2.0 and Your Workplace
On May 25, 2021, BC's COVID-19 "circuit breaker" measures officially expired as Premier John Horgan announced the government's new four-step plan aimed toward returning to pre-pandemic life: "BC's Restart". Although tentative dates were set for each step of BC's Restart, actually progressing to each next step is dependant on declining COVID-19 case counts and an increase of the population vaccinated with dose one. The details of each of the four steps of BC's Restart, including the implications for employers and workplaces, are summarized below. Read the full article by Duncan Burns-Shillington & Kristina Draskovic (Articling Student) with DLA Piper LLP.

Key Considerations in Responding to Employee
Requests to Work from Home
During the pandemic, many employers and employees have demonstrated exceptional adaptability in shifting their place of work from the office to the home. As COVID-19 case numbers decline and a return to office begins, however, some employees may wish to continue working from home. Employers should keep certain key considerations in mind.

1. Employers are not obligated to accommodate an employee's desire to work from home if it is merely a preference. If an employee's request to work from home is based on a human rights entitlement, the employer may have an obligation to accommodate the employee – for example, on the basis of their disability or family status.
2. If an employee requests a human rights-based work accommodation, the employer may ask for reasonable proof of entitlement to the accommodation. Employees requesting accommodation have an obligation to co-operate in the accommodation process, including providing information to assist the employer in understanding what constitutes a reasonable accommodation.

Read the full article by Laura DeVries and Colton Dennis with McCarthy Tetrault LLP.

CAPSA Updates Pension Plan
Funding Policy Guidelines
In May 2021, the Canadian Association of Pension Supervisory Authorities (CAPSA) released updated Guideline No. 7, Pension Plan Funding Policy Guideline. CAPSA was engaged in a consultation process in the fall of 2020 and the updated Guideline is the result of that consultation process.

The updated Guideline No. 7 maintains the useful and clear guidance on pension plan funding policies (including format, content and specific issues such as use of funding excess). However, the updated guideline also contains provisions that relate specifically to target benefit plans. Guideline No. 7 reflects the unique challenge for target benefit plans in which benefit reductions are possible if funding objectives are not met.

Therefore, Guideline No. 7 is an important read for any pension plan sponsor, but with the most recent revisions, target benefit plan administrators should pay particular attention. For the administrators of target benefit pension plans, Guideline No. 7 also provides useful guidance on the following issues. Read the full article by Lisa Chamzuk with Lawson Lundell LLP.

50 Is Not the New 40 When Assessing
Reasonable Notice of Termination
The plaintiff, Jafeef Mohammed, brought an action against his former employer, Dexterra, for wrongful dismissal. The plaintiff began working with Dexterra as a supervisor in June 2018. He was terminated on November 11, 2019 without cause and given four weeks' notice. He was 51 years old.

Prior to his employment with Dexterra, the plaintiff had worked for a series of different cleaning companies including Sodexho, Marquise, and Hallmark. At his last employer, Hallmark, the plaintiff had worked graveyard shifts. As he got older the plaintiff found this was taking a toll on him and decided to look for a position with daytime hours. In early 2018, the plaintiff asked a former co-worker of his, Mr. Marsh, if he knew of any jobs with the possibility of dayshifts. In particular, the plaintiff asked if Mr. Marsh's employer, Dexterra, had any positions. Mr. Marsh told the plaintiff there were shifts available. Mr. Marsh recommended the plaintiff and he was introduced to Dexterra's senior operations manager. The plaintiff was offered a job. Read the full article by Deanna Froese with Harper Grey.

Local Government News:

New Legislation to Make Virtual Meetings, Hearings &
Other Tools Introduced During COVID Permanent
On May 13, the government introduced Bill 10, Municipal Affairs Statutes Amendment Act, 2021, which if passed, will give local governments new permanent authorities, such as enabling them to hold virtual and hybrid meetings and public hearings in addition to in-person meetings. According to the government, along with the electronic meetings and hearings, the new legislation will amend the Community Charter, the Local Government Act, the Municipalities Enabling and Validating Act (No.4) and the Vancouver Charter. The legislation will:

• expand eligibility for mail ballot voting by bylaw in local government elections;
• permit improvement districts greater flexibility with the timing of their annual general meetings and trustee terms; and
• create new ministerial authorities for borrowing in emergency situations and elections administration matters, allowing the Province to be more responsive in future extraordinary events. 

These changes will come into force by regulation once the current COVID-19 emergency authorities for electronic meetings and public hearings are lifted.

Bill 13-2021: Paid Sick Leave
On May 11, 2021, Bill 13-2021, which amends the Employment Standard Act, RSBC 1996 c 113, received its first reading. Bill 13-2021 introduces a paid leave program for employees who are on specified COVID-19-related absences in 2021. It also establishes permanent paid sick leave beginning January 1, 2022.

COVID-19 Paid Leave
Bill 13-2021 proposes to add section 52.121, "COVID-19-related paid leave". This provision will be in effect once the Bill receives royal assent and is automatically repealed on December 31, 2021. During the period this leave is in effect, an employee is entitled to receive up to three days of paid leave if the employee has been diagnosed with COVID-19, is in quarantine or self-isolation, or is not working due to the employer's concerns about the employee's exposure to others. Under section 52.121, an employer is required to pay an employee who takes COVID-19-related paid leave an amount based on the average daily rate of pay over the past 30 calendar days, excluding overtime.

Read the full article published by S. Michelle Blendell, Pam Costanzo and Alexandra Greenberg, Articled Student with Young Anderson Barristers & Solicitors.

Time for Mourning & Call to Action
UBCM president urges implementation of Truth and Reconciliation calls to action and full disclosure of government and church records that relate to the death of children while in the care of residential schools.
Following a report by Tk'emlúps te Secwépemc identifying the location of a mass burial site containing the remains of 215 children on the property of a former residential school, UBCM president Brian Frenkel is urging colleagues to take time to mourn the lost children and reflect upon the testimony of residential school survivors. Frenkel is also calling on the federal government to ensure the implementation of Truth and Reconciliation Calls to Action that relate to missing children and burial information; and for the full disclosure of related records by the federal Government and churches involved in the administration of residential schools. Read the UBCM article.

Miscellaneous News:

British Columbia Extends COVID-19 Related Data Residency
Exemptions for Health Care and Public Bodies
New Year's Eve 2021 will be far more social than last year's (we can hope)… but for all the good times, there is the danger of overindulgence and regrettable antics.

Fittingly then, New Year's Eve 2021 is now the day on which FIPPA's COVID-19 related data residency exemptions are set to expire and, unless we exercise care and moderation now, we are likely to wake up on January 1, 2022 with (an even worse) headache and perhaps some regrets.

Let's back up and take a few lines to provide some background on FIPPA's data residency requirements and the COVID-19 related data residency exemptions referred to above. If you can hang on until the end, we'll finish up with some practical steps to consider implementing now, to avoid waking up on New Year's Day 2022 with the headache of 2021's privacy law missteps. Read the full article by Nadia Rowe and Manveer Sall (Summer Student) with Clark Wilson LLP.

B.C. Court of Appeal Finds Class Action Waiver Clause
Unconscionable and Contrary to Public Policy
On May 17, 2021, the British Columbia (B.C.) Court of Appeal released a decision in Pearce v. 4 Pillars Consulting Group Inc. (Pearce) finding a class action waiver clause unenforceable as unconscionable and contrary to public policy, largely because it would likely prevent class members from pursuing any claims at all given the small amounts at issue. Pearce is one of the few Canadian decisions addressing the enforceability of class action waiver clauses, a question the Supreme Court of Canada expressly left open in the past. Read the full article by Joshua Hutchinson with Blake, Cassels & Graydon LLP.

BC Moves to Refuse Driver's Licence Renewals for 
Those Who Don't Pay COVID Fines
New legislation means people with outstanding fines have to pay up before renewing their driver's licence. The British Columbia government is trying to put some teeth into the fines issued to people flouting COVID-19 safety orders. New legislation introduced Tuesday [May 11] could see people with unpaid fines have their efforts to obtain or renew a driver's or vehicle licence blocked by ICBC. Read the CBC article.

Transport Canada Approves Changes
to Track Safety Rules
Certification process for employees who inspect tracks and supervise the restoration of tracks now required. Transport Canada has approved the changes to the Rules Respecting Track Safety, which specify safety requirements that railway companies must follow when inspecting and maintaining their railway track infrastructure. The changes are the result of a Ministerial Order that was issued in 2020 to address major risks that could cause derailments due to the condition of railway infrastructure. Read the full article by Jim Wilson published on the Canadian Occupational Health and Safety website.

Transport Canada's Means of Containment 
Facilities Registration Program
Transport Canada (TC) is holding a webinar on the upcoming proposed regulations that will introduce new fees for companies who are required to be registered under the Transportation of Dangerous Goods (TDG) Directorate's Means of Containment Facilities Registration Program. TC is proposing to introduce new fees and service standard for TDG's Means of Containment Facilities Registration Program. This program ensures that all Means of Containment used in transporting dangerous goods are designed, manufactured, certified, repaired and maintained according to safety standards referenced in the Transportation of Dangerous Goods Regulations. Read the TC news release.

CVSE Issues National Safety Code Bulletin Re: Electronic 
Logging Devices (ELDs) in British Columbia
– from CVSE
Highlights from the bulletin:

B.C. is in the process of determining how to implement ELDs for commercial motor vehicles operating within the province. The current intended target for the implementation of a provincial ELD mandate is Summer 2022. More information will become available as the regulatory change process moves forward.

1. What does this mean for B.C. carriers?

• Until B.C.'s regulations are amended, if your vehicles operate solely within B.C., you will not be required to use an ELD until B.C.'s regulations are changed to mandate ELDs.
• As of May 5, 2021, all Canadian jurisdictions have agreed to pause enforcement until at least June 2022, focusing on education and awareness activities within the industry.
• However, if your vehicles operate into any other Canadian jurisdiction, it is your responsibility to verify the requirements regarding ELDs in each jurisdiction where you plan to travel.

2. What does this mean for carriers from other jurisdictions that operate in B.C.?

• Until B.C.'s new regulations come into effect, drivers of extra-provincially plated commercial vehicles that travel in B.C. may continue to use paper or electronic versions of a daily log.

If you have questions regarding the information in the bulletin, please do not hesitate to contact Christina Hodkinson-Crook, NSC Program Advisor.

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

• NSC Bulletin 01-2021 – Electronic Logging Devices (ELDs) in British Columbia
• Notice 01-20 – As per Notice 01-20, effective May 13, 2021 (not prior) the email address that Applicants use to advise RCMP (E_Traffic_Media) as written on Page 2 of your CVSE 1052 Form will be changed. The new email address will be: E_BCHP_Media@rcmp-grc.gc.ca
• Circular 03-21 – New Weight Allowances for Commercial Trucks, Truck Tractors and Buses Powered by Electricity or Hydrogen/Diesel Bi-Fuel, and Changes to Existing Weight Allowances for Full Size Commercial Vehicles Powered by LNG, CNG or LNG/Diesel

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

Health and Safety at the Construction Site –
Apportioning Risk [Relevance to BC]
Construction safety is one of the most, if not the most, important issues for any construction project. Owners and contactors generally treat construction safety issues very seriously. As a result, the apportionment of liability for workplace safety on a construction site is a key term for any construction contract. Typically, owners will seek to shift the liability for ensuring workplace safety and compliance with applicable health and safety legislation to the contractor through the contract terms. Owners do so as risk is best placed where it is best managed and with respect to construction safety the contractor controls the project site and work and is best able to manage this risk.

A recent decision from the Ontario Court of Appeal, however, suggests that, at least in Ontario, the contract language may not be the only factor in determining who is responsible for compliance with applicable health and safety legislation. The owner's actions may make the owner liable for all health and safety matters, particularly if the owner has a presence at the construction site. Read the full article by Rosalie Clark and Scott Lamb with Clark Wilson LLP.

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

Orders:

• Gatherings and Events – May 28, 2021 (PDF, 425KB)
  • Variance: Indoor Worship Services – May 26, 2021 (PDF, 191KB)
  • Variance: Outdoor Worship Services – May 26, 2021 (PDF, 226KB)
  • Indoor Exercise Requirements – May 27, 2021 (PDF, 462KB)
  • Extension of the Variance Suspension: Indoor Worship Services on Four Days – April 19, 2021 (PDF, 208KB)
  • Read related Public Heath guidance
• Food and Liquor Serving Premises – May 24, 2021 (PDF, 339KB)
  • Read related Public Heath guidance
• Long-Term Care Facility Staff Assignment – April 15, 2020 (PDF, 274KB)
  • Variance of the Facility Staff Assignment Order – May 16, 2021 (PDF, 256KB)
  • Amendment: Deployment and redeployment of staff - October 26, 2020 (PDF, 444KB)
• Industrial Camps – May 12, 2021 (PDF, 394KB)
  • Delegation: Industrial Camps – June 9, 2020 (PDF, 216KB)
• Workplace and Post-Secondary Institution Safety – May 2, 2021 (PDF, 339KB)
• Advanced Care Paramedic and Critical Care Paramedic SARS-CoV-2 Swabbing – May 2, 2021 (PDF, 222KB)

Public Health Guidance:

• Guidance for Holding Low Risk Worship Services – May 26, 2021 (PDF, 384KB)
• Guidance for Outdoor Assemblies, Rallies, and Protests – May 17, 2021 (PDF, 370KB)

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

2021 New or Revised ACGIH Threshold Limit
Values and BC Exposure Limits
The Occupational Health and Safety Regulation provides that, except as otherwise determined by WorkSafeBC, an employer must ensure no worker is exposed to a substance exceeding the Threshold Limit Values (TLVs) prescribed by the American Conference of Governmental Industrial Hygienists (ACGIH). Each year, the ACGIH publishes a list of substances for which they have set new or revised TLVs. When the new or revised TLVs for substances are adopted, these TLVs are referred to as BC Exposure Limits (ELs). An EL is the maximum allowed airborne concentration for a chemical substance for which it is believed that nearly all workers may be exposed over a working lifetime and experience no adverse health effects. ELs may be set out as an 8-hour time-weighted average concentration, a 15-minute short-term exposure limit, or a ceiling limit. Read the full WorkSafe news release.

OHS Policies/Guidelines – Updates
WorkSafeBC recently issued the following OHS Updates:

OHS Guidelines – Occupational Health and Safety Regulation

The following guidelines were retired:

• Part 8 Personal Protective Clothing and Equipment
  • G8.21 Leg protection (retired)
• Part 29 Aircraft Operations
  • G29.12 Unstable materials (retired)

Editorial revisions were made to the following guidelines:

• Part 3 Rights and Responsibilities
  • G3.16(1.1) Basic requirements to meet schedule 3-A
• Part 26 Forestry Operations and Similar Activities
  • G26.21-26.22 Faller training - Application
  • G26.28 Summoning qualified assistance
  • G26.65(1) Certified welding inspector

Check the WorkSafe BC Updates page to explore these and other important OHS updates.

Workers Compensation Claims for Adverse
Reactions to COVID-19 Vaccine Possible
WorkSafeBC recently published its position on COVID-19 vaccinations, making it clear that workers compensation claims related to adverse vaccine reactions can be successful. Such reactions – either injury or death – would have to arise "out of and in the course of the workers' employment". That means that getting the vaccine would need to be a requirement of employment. Where an employee receives a vaccination voluntarily, there is likely no right to workers compensation benefits. Read the full article published Clark Wilson's employment and labour law lawyers.

BC Expands Property Transfer Tax Exemption for
Residential Property Purchases
On May 3, 2021, by Order in Council No. 277, the Government of British Columbia amended the Property Transfer Tax Regulation, B.C. Reg 74/88. This amendment relates to the application of the additional property transfer tax payable by foreign purchasers of residential property in specific areas of the province (the "Foreign Buyers Tax") and it expands an exemption introduced June 1, 2020, applicable to a limited partnership with a minority of foreign limited partners. This amendment is retroactive to June 1, 2020.

The exemption introduced last year provided that residential property that would otherwise attract the application of the Foreign Buyers Tax was exempt from the tax if the purchaser was a Canadian corporation that was a general partner of a limited partnership formed or registered under BC's Partnership Act and the corporation was acquiring the residential property on behalf of the limited partnership, in respect of which: Read the full article by by Mark V. Lewis and Michelle Yung with Bennett Jones LLP.

Public Health "Trumps" Commercial Losses – BC Supreme Court Rules in 
Favour of Landlords in a COVID-19 Related Termination
Commercial landlords have, in the past year and a half, dealt with many novel issues in relation to COVID-19, often on an emergency basis. Few landlords have had to deal with both public health order violations and gang crime relating to the same tenant, as in a recent decision of the B.C. Supreme Court, Ivy Lounge West Georgia Limited Partnership v. TA F&B Limited Partnership, 2021 BCSC 997. The court allowed the immediate termination of an occupation licence where the tenant's conduct was bringing the hotel into disrepute, potentially strengthening landlords' hands to take urgent action. The decision dealt with a licence agreement but it is likely that the same reasoning would apply to a lease.

Ivy Lounge, a bar located in Trump Tower, was issued an immediate Notice of Termination following "ongoing, repeated, and flagrant disregard for Public Health Orders, liquor restrictions" and the tenant's "apparent indifference" towards gang members who frequented the establishment. Read the full article by Thomas D. Boyd and Natasha Sanders with Lawson Lundell LLP.

Recent Changes to REDMA Made Permanent –
A Small Change But a Good Change
This blog post highlights certain amendments to British Columbia's Real Estate Development Marketing Act ("REDMA") Policy Statements 5 and 6 which came into effect May 1, 2021.

Policy Statement 5 sets out circumstances under which a developer is deemed to have permission to begin early marketing of a real estate development before a building permit is issued for the development. Policy Statement 6 sets out circumstances under which a developer may market a development if the developer has not obtained a satisfactory financing commitment to pay for the cost of utilities and other services for the development. Prior to the recent amendments, the early marketing period permitted under Policy Statements 5 and 6 was nine months from the date the developer files the disclosure statement with the Superintendent of Real Estate for the development. Read the full article by Jisoo Vis, Timothy H. Law and Aaron Kandola with Lawson Lundell LLP.

Alterations (Condo Smarts)
Dear Tony:
What are the limitations that we can impose on an owner who is wanting to undertake alterations to their strata lot? We have an owner who has purchased a penthouse unit and has submitted a request to renovate the space, including the removal of several walls, the installation of 2 new windows and a number of changes to the electrical and plumbing. We have the Standard Bylaw of the Act that applies and have requested before alteration a stamped set of engineering documents, building permits and details of all the renovations. The owner was very aggressive with us and told us we were not being reasonable and has started the renovations without meeting any of the conditions, resulting in a water leak from a severed line. Luckily it was stopped before there was any significant damage, but the owner below now has a stained ceiling. Is the Standard Bylaw sufficient for us to impose these conditions? Read the full article by Tony Gioventu, published in the CHOA Condo Smarts.

Wills and Estates News:

Case Comment: A Party Who Transfers Property to
Avoid Creditors May Not Later Reclaim It
If you transfer property to family members or other persons to avoid your creditors, you cannot assume that you are entitled to demand the return of the property at a later date.

The B.C. Supreme Court recently considered this issue in Pattinson v. MacDonald 2021 BCSC 652.

In 1986, Ms. Pattinson transferred a 160 acre farm property to her children, the defendants. She now sought an order that the property was held by the defendants in trust for her. She sought the return of the property, along with an accounting of rents, profits and income received by the defendants in respect of the property. She also claimed that her children were unjustly enriched by her upkeep of the property.

Her children claimed that they owned the property as a result of the 1986 transfer. They claimed that (1) they paid consideration for the transfer, and (2) the transfer to them was a fraudulent conveyance and/or intended to avoid claims by her creditors. Read the full article by James Zaitsoff with Owen Bird Law Corporation – published on the BC Estates Litigation blog.

The Bank of Nova Scotia Trust Company v. Rogers
A murderer may not inherit from his victim. This much is clear. But the implications on the rest of a will are not always so straightforward. This is illustrated by an Ontario case earlier this year: The Bank of Nova Scotia Trust Company v. Rogers, 2021 ONSC 1747.

Cameron Scott Rogers was convicted of the murder of both of his parents, Merrill Gleddie Rogers and David Blair Rogers. He was their only child. There is some indication that he suffered from a disability, but I stress that this is not a case where he was found not guilty by reason of insanity, which would likely have affected the outcome of the case. Read the full article by Stan Rule with Sabey Rule LLP.

Inheritances and the Unequal
Division of Family Property
Inheritances are considered excluded property under s.85(1)(b) the Family Law Act. As such inheritances are not standard family property which are normally divided equally in the event of separation or divorce. In Cook v Cook, 2021 BCCA 194, the Court of Appeal held the trial judge erred in finding that it would be significantly unfair to equally divide family property because of a financial inequality arising from an inheritance. Meaning because Mr. Cook had received an inheritance the court determined he did not need to receive 50% of the family property.

The appellant, Mr. Cook, and the respondent, Ms. Cook, had been in a 38 year long relationship. The parties were similarly situated after their separation as retired persons, with comparable incomes and they had divided their family property equally. The only disparity between them arose out of the Mr. Cook's receipt of an inheritance as the marriage was ending. Read the full article by Chantal M. Cattermole and Laura Besada with Clark Wilson LLP.

Charitable Gift in BC Will Leads to
Estate Litigation
Many people leave gifts to charitable organizations in their Wills. BC sisters in Galloway Estate v. British Columbia Society for the Prevention of Cruelty to Animals, 2021 BCSC 413, did just that. Each sister left her estate to the benefit of the other during her lifetime, with the residue to be divided into shares and distributed among several charities. After the surviving sister's death, a problem arose. One of the charitable organizations had ceased to exist. The BC court was called upon to answer: if a charity no longer exists, what happens to its share of a BC estate? Read the full article by Janis Ko with the Onyx Law Group.