Company and Finance News:

Court Provides Electronic Meeting Guidance
under the BC Societies Act
In its recent decision, Farrish v. Delta Hospice Society, 2021 BCSC 1374, the Supreme Court of British Columbia granted discretionary relief to hold an "electronic meeting," as defined by the BC Societies Act, to consider a special resolution as to the conduct of the next annual general meeting (AGM) only. The court considered whether the bylaws of the Delta Hospice Society (the Society) allows for the Society's board of directors (the Board) to call electronic meetings. The court concluded that they do not, principally on the basis that the bylaws, when properly interpreted, denote a physical location, physical attendance, and call for voting by a "show of hands." Further, the bylaws do not presently authorize electronic voting nor do they set out the procedures for carrying out such voting as contemplated by sections 84(5) and 84(6) of the Societies Act. This decision is significant as it provides an interpretive framework for societies, and to some extent corporations – given analogous provisions under the Business Corporations Act (the BCBCA) (s. 174) – in respect to electronic participation in general meetings and the right to vote electronically. Read the full article by Sunny Garcha with Borden Ladner Gervais.

Canada Emergency Wage Subsidy: TPM-17 and
Transfer Pricing Considerations
On March 2, 2016, the Canada Revenue Agency ("CRA") released Transfer Pricing Memorandum 17 "The Impact of Government Assistance on Transfer Pricing" ("TPM-17"). TPM-17 outlines the CRA's guidance on the treatment of government assistance and confirms the CRA's policy: "When a cost-based transfer pricing methodology is used to determine the transfer price of goods, services, or intangibles sold by a Canadian taxpayer to a non-arm's length non-resident person and the Canadian taxpayer receives government assistance, the cost base should not be reduced by the amount of the government assistance received, unless there is reliable evidence that arm's length parties would have done so given the specific facts and circumstances." (emphasis added)

As an economist working at the CRA's Competent Authority Services Division ("CASD") when this policy was introduced, I saw first hand the arguments raised by taxpayers in their applications for Mutual Agreement Procedure ("MAP") or an Advance Pricing Arrangement ("APA") in an attempt to support the "reliable evidence" exception. Now, in light of the pandemic and the government subsidies being given by the Canadian government, the policies in TPM-17 are a hot issue in the Canadian transfer pricing landscape, as taxpayers determine how to address the Canada Emergency Wage Subsidy ("CEWS") for transfer pricing purposes. Read the full article by André R. Bergeron with Gowling WLG.

Bill C-208 – Department of Finance Confirms ITA Amendments
Are in Force and Modifies Its Intended Approach
On June 29, 2021, Bill C-208 received Royal Assent. As previously discussed, that Bill amended the federal Income Tax Act (the "Act") with the intention of facilitating intergenerational business transfers. The amendments sought to accomplish those means by, in general:

• providing that siblings continue to be related for purposes of section 55 of the Act if a share of the corporation paying the subject dividend is a qualified small business corporation share (QSBCS) or share of the capital stock of a family farm or fishing corporation (SFFC), each as defined in subsection 110.6(1) of the Act; and
• deeming, for purposes of section 84.1, a vendor to deal at arm's length with a purchaser corporation if the transferred shares are QSBCS or SFFC, the purchaser corporation is controlled by one or more children or grandchildren of the vendor who are 18 years of age or older, and the purchaser corporation does not dispose of the subject shares within 60 months after their purchase.

Read the full article by Alexander Demner & Alvin Lun with Thorsteinssons LLP.

CSA Provide Transitional Relief from Certain Client Focused
Reforms for Deferred Sales Charge Products
In recently published CSA Notice 31-360, the Canadian Securities Administrators (CSA) announced they are granting transitional blanket relief from certain Client Focused Reforms (CFR) in respect of sales of deferred sales charge (DSC) products in connection with mutual fund sales.

As we discussed in a previous blog post, the CSA have adopted amendments to National Instrument 81-105 Mutual Fund Sales Practices (NI 81-105) to prohibit the payment by fund organizations of upfront sales commission to dealers resulting in the discontinuation of the DSC option that will take effect in all jurisdictions on June 1, 2022. Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), known as the CFR, include enhanced conflict of interest provisions that became effective on June 30, 2021. The remaining CFR provisions are required to be implemented by December 31, 2021. Read the full article by Darin R. Renton with Stikeman Elliott LLP.

Information Security and Outsourcing Guidelines for
BC Financial Institutions
The BC Financial Services Authority has issued revised drafts of its information security guideline and outsourcing guideline for provincially regulated financial institutions and pension plan administrators in British Columbia. The guidelines will likely require most regulated entities to make significant changes to their information security and outsourcing policies, practices and procedures and amend existing outsourced services contracts. Regulated entities should now be taking steps to prepare for compliance with the guidelines based on appropriate advice from independent and qualified business, legal and technical experts. Read the full article by Bradley Freedman with Borden Ladner Gervais.

Judge Upholds Constitutionality of Freeze
Orders on Bridgemark Group
The B.C. Supreme Court has ruled freeze orders against properties and bank and brokerage accounts issued by the B.C. Securities Commission against public market participants are constitutional.
The commission was challenged by dozens of stock promoters or purported consultants – known as the Bridgemark Group – who were once subject to freeze orders against 55 accounts and 19 properties, dating back to September 2018. While the commission has since lifted most of those freeze orders and released most of the Bridgemark Group from a future hearing, the constitutional challenge lingered until Justice Veronica Jackson's ruling July 27. Read the BIV article.

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

• 25-102 – Multilateral Instrument 25-102 Designated Benchmarks and Benchmark Administrators and Changes to Companion Policy 25-102 Designated Benchmarks and Benchmark Administrators
• 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations
• 45-106 –  CSA Notice and Request for Comment Proposed Amendments to National Instrument 45-106 Prospectus Exemptions to introduce the Listed Issuer Financing Exemption

For more information, visit the BC Securities website.

Energy and Mines News:

British Columbia Supreme Court Issues Precedent-Setting 
Cumulative Effects Decision
On June 29, 2021, the British Columbia Supreme Court released its decision in Yahey v British Columbia, in which it ruled that the rights of the Blueberry River First Nations (BRFN) under Treaty 8 in northeast British Columbia had been infringed by the cumulative impacts of industrial developments within Blueberry's traditional territory, including forestry, oil and gas, renewable energy and agriculture. This decision marks a significant departure from past cases involving cumulative effects and treaty rights infringement. Depending on the outcome of any appeal, it could materially increase regulatory risks for new infrastructure projects in northeast British Columbia, and could extend to other areas in Canada where similar claims may be made. Read the full article by Sander Duncanson, Martin Ignasiak, Tommy Gelbman, Olivia Dixon and Tyler Warchola with Osler, Hoskin & Harcourt LLP

Battery Powered: Specialty Metal Mining and the 
Future of Tech, Our Economy & the Environment
Gowling's Ian Mitchell explores battery metal mining and its impact on the world – and our future The push for a carbon-neutral economy has led to an intense search for green alternatives. One solution has been to develop and expand the application of batteries in everything from electric vehicles to power grids. The mining industry plays a critical role in battery production – batteries are produced using certain core metals that are found in deposits worldwide and the exploration and exploitation of these resources requires significant expertise and financial capability. We asked Gowling WLG's Canadian mining lead, Ian Mitchell, to explain to us the rise of battery metals, their impact on the environment and the economy, and what this means for Canadian mining companies now and going forward.

What are battery metals and which devices are they used for? What is Canada's role in the global market and why is this industry seeing such explosive growth? What are the longer term economic and geopolitical impacts that this growth will have on the mining sector?

The current push to reduce carbon dioxide emissions through the use of low carbon power sources (commonly known as "decarbonization") is seeing one of the world's oldest industries colliding with high tech companies and it is going to create change. Read the full article by R. Ian Mitchell with Gowling WLG, published on Lexpert.ca.

BC Reduces Regulatory Barriers and Facilitates
Investment and M&A in Hydrogen Sector
On May 25th, 2021, British Columbia amended its Greenhouse Gas Reduction Regulation (made under BC's Clean Energy Act) to authorize regulated gas utilities to produce, purchase and distribute specified types of hydrogen (the "Amendments"). The Amendments represent one of many strategies that legislators and regulators have adopted to facilitate the introduction of cleaner forms of technology to the highly regulated energy sector. The reduction of existing regulatory hurdles, coupled with increased legislative prescriptions to reduce Greenhouse Gas ("GHG") emissions, are creating an environment that is conducive to investment and M&A in the hydrogen sector.

Background
In December 2020, the federal government published a policy document entitled A Healthy Environment and a Healthy Economy which provided aggressive targets for Canada to reduce its greenhouse gas emissions and to ultimately become carbon neutral by 2050. Subsequent developments are further transitioning Canada's GHG reductions policy to a binding legal regime.

Read the full article by Eric H. Bremermann, Glenn Zacher and Daniel Gralnick with Stikeman Elliott LLP.

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

• INDB 2021-23 – Updates to the Application Management System (AMS)
• INDB 2021-24 – Release of Updated Noise Control Best Practices Guideline
• INDB 2021-25 – Updates to the Northeast Water Tool (NEWT) Launched
• IB 2021-04 – Commission Monitoring Dry Conditions in Northeast B.C.

Visit the BCOGC website to view this and other bulletins.

Family and Children News:

A Closer Look at the Report on Modernizing the  
Child, Family and Community Service Act:
Disclosure
This post is part of a series highlighting recommendations in the Report on Modernizing the Child, Family and Community Service Act. For other posts in the series click here.

Should section 64 of the Child, Family and Community Service Act be amended to conform with case-law stipulations on what a director should disclose? Section 64 of the Child, Family and Community Service Act sets out the general disclosure obligations for child protection proceedings under the Act. The section's provisions are rather skeletal. As a result, a body of case law has developed, which has interpreted the section and elaborated on its requirements. Should any of these case-law stipulations on disclosure be incorporated directly into section 64? Read the full article by Kevin Zakreski with the British Columbia Law Institute.

Modernizing Forest Policy Virtual Engagement
The Ministry of Forests, Lands, Natural Resource Operations and Rural Development will host regional policy-specific discussions to gather local government input following the release of the recent intentions paper Modernizing Forest Policy in British Columbia. These sessions are designed for Mayors, Chairs or their delegates to share insights on behalf of their communities. Registration is open for the sessions beginning the week of July 26.

The 20 policy intentions identified in the Modernizing Forest Policy in British Columbia were developed based on consultation and engagement on forest policy and program changes over the last few years. Local governments and others provided input to this consultation process, which has included potential changes to forest management as part of the Forest and Range Practices Act Improvement Initiative, Interior Forest Sector Renewal, Coast Forest Sector Revitalization and the Old Growth Strategic Review. Read the UBCM article.

BC Proposes Extensive Changes in Draft
Action Plan to Implement UNDRIP
The BC government recently released a draft action plan to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") in the province. The action plan, which was developed pursuant to BC's Declaration on the Rights of Indigenous Peoples Act (the "Declaration Act"), identifies 79 proposed actions that the provincial government will take to achieve the objectives of UNDRIP in cooperation with Indigenous peoples over the next five years. The Province is currently seeking input on the plan and the deadline for submissions is July 31, 2021.

The Draft Action Plan proposes a number of potentially significant new measures although these initiatives are described at a high-level and open to interpretation in terms of the precise magnitude of the potential changes. Read the full article by Bryn Gray and Alana Robert with McCarthy Tétrault LLP.

Court of Appeal Expands Recovery of Legal
Costs in Contaminated Sites Litigation
The recent decision of the British Columbia Court of Appeal ("BCCA") in Victory Motors (Abbotsford) Ltd. v. Actton Super-Save Gas Stations Ltd., provides important clarification of the law pertaining to the recovery of legal costs reasonably incurred during the remediation of contaminated sites under the Environmental Management Act ("EMA") and the Contaminated Sites Regulation. Prior to this decision, plaintiffs were generally thought to be limited to the recovery of legal costs that were incurred during the litigation process itself as assessed under the Supreme Court Civil Rules. The BCCA has now confirmed that remediating parties may claim both litigation legal costs and legal costs incurred throughout the actual remediation of the contaminated site. Read the full article by Brent Meckling and Kim Brown with Clark Wilson LLP.

Environmental Appeal Board Decisions
The following Environmental Appeal Board decision was made recently:

Water Sustainability Act

•  Larry Jones v. Assistant Water Manager [Stay Application – Denied]

Visit the Environmental Appeal Board website for more information.

BC to Offer Canada's First Safe Drug Supply in 
Response to Overdose Crisis
BC will be the first province in Canada to introduce a safe drug supply, in response to the deadly overdose crisis. But the rollout will begin slowly, at pre-existing clinics that already offer pharmaceutical replacement drugs as part of a trial program, and will at first offer just opioid replacement options, including fentanyl patches. The initiative won't offer stimulants or prescribed heroin in the first phase – which critics say is moving too slowly when an average of five British Columbians a day are being fatally poisoned by toxic street drugs right now. Officials with the Ministry of Mental Health and Addictions, though, argue they are moving as fast as they can with Canada's first safe supply program. Read the full article published by The Province.

It's All in the Context: The Content of Hospital Privileges and Assessment
of What Constitutes Constructive Revocation of Privileges Is
Highly Contextual, to Be Examined on a Case by Case Basis
Provincial Health Services Authority v. Campbell, [2021] B.C.J. No. 943, 2021 BCSC 823, British Columbia Supreme Court, April 30, 2021, N.P. Kent J.
The petitioner, the Provincial Health Services Authority, is responsible for managing BC Children's Hospital (the "Hospital"). The respondent, Dr. Campbell, is a pediatric cardiothoracic surgeon who joined the Hospital's medical staff in September 2004. The Hospital is the only hospital in BC that performs pediatric cardiac surgeries, and Dr. Campbell is one of two surgeons in the program. Read the full article by Mollie Clark with Harper Grey LLP.

BC Government Overhauls BC Emergency Health 
Services Amid Concerns of Response Times
The BC government is shaking up BC Emergency Health Services after growing concerns over response times following a historic heat wave in the province. Health Minister Adrian Dix has announced a new position as BC's chief ambulance officer. The province is also funding 85 new full-time paramedic positions.

"When we call for help, we need to know help is on the way, and that it will arrive quickly," Dix said. "Immediate action on operations, as well as stronger leadership and increased investment at BC Emergency Health Services, will deliver a more effective ambulance service for patients and families who depend on it. Better support for paramedics and dispatchers will help them do the vital work we count on every day."

Global News has reported multiple stories of BC paramedics speaking out about what they say is a "systemic crisis in the emergency service." Read the Global News article.

Meat Inspection Regulation – Early Consolidation
The Ministry of Agriculture, Food and Fisheries announced important changes to meat inspection and licensing in BC are coming on October 1, 2021. The Ministry amended the Meat Inspection Regulation to create new licence categories, and to allow more modernized inspection approaches. These updates to modernize meat licensing and inspection in BC are in response to consultation feedback regarding the challenges facing BC's meat industry, including capacity issues such as accessing slaughter services and cut-and-wrap businesses to process meat, and a lack of skilled labour. During recent consultations, we received feedback from the public, producers, industry and stakeholders, and heard there is strong support for modernization and increasing access to local meat. We would like to thank everyone who made their voice heard. For your convenience, Quickscribe has published an early consolidation of the regulation as it will read when these changes brought about by B.C. Reg. 213/2021 come into force in October.

New Industry Standard for Advertising Food and
Beverage Products to Children
The Association of Canadian Advertisers (ACA), the Canadian Beverage Association (CBA), Food, Health & Consumer Products of Canada (FHCP) and Restaurants Canada recently published the Code for the Responsible Advertising of Food and Beverage Products to Children (the "Code"). The Code, and its accompanying Guide for the Responsible Advertising of Food and Beverage Products to Children (the "Guide") expand upon the legislative and self-regulatory regimes that already exist in Canada by setting out the conditions governing responsible advertising of food and beverages to children. They recognize that children are a special audience and that particular care must be taken in developing advertising for children. Read the full article by Dara Jospe and Nicolas Charest with Fasken Martineau DuMoulin LLP.

Getting Ready: More Impending Changes to
BC's Employment Standards Act
British Columbia's Employment Standards Amendment Act (the "Amendment Act") received Royal Assent on May 30, 2019. Some provisions became effective at that time, while others have come into force since. On July 21, 2021, the BC Government announced that it will bring additional provisions into force on August 15, 2021 and October 15, 2021, respectively.

Broadly, the August 15th amendments alter the investigations, complaints and determinations processes set out in the Employment Standards Act ("ESA"), while the October 15th provisions change hiring practices as they pertain to children. Read the full article by Laura DeVries and Michael McDonald with McCarthy Tétrault.

BC Court Reduces Wrongful Dismissal Damages Finding that
CERB Payments are to be Considered Mitigation Income
The recent decision in Hogan v. 1187938 B.C. Ltd., 2021 BCSC 1021 ("Hogan"), is the first British Columbia Supreme Court case to address the treatment of Canada Emergency Response Benefit ("CERB") payments in connection with wrongful dismissal claims.

In doing so, the Court confirmed that damages for wrongful dismissal are intended to restore an employee to the economic position they would have been in had they received reasonable working notice of termination, not beyond. Accordingly, CERB benefits received during the applicable notice period should be deducted from wrongful dismissal damages claimed by a former employee. Read the full article by Danielle Douglas with McCarthy Tétrault.

Requiring Proof of Vaccination Allowed in "Limited Circumstances,"  
Says BC's Human Rights Commissioner
There are "limited circumstances" in which businesses and service providers can require people to provide proof of vaccination, according to new guidance from BC's human rights commissioner.

Kasari Govender's guidance, published online this week, [July 13] stresses that vaccination status policies should only be implemented if "less intrusive means of preventing COVID-19 transmission are inadequate for the setting and if due consideration is given to the human rights of everyone involved."

The document doesn't outline specific scenarios that would justify a proof-of-vaccine requirement, but does indicate any such policies should be based on evidence of a transmission risk in a particular setting. Read the CTV news article.

Just Cause Terminations: Even Lawyers Get It Wrong. And in the
Case of Ojanen v. Acumen Law Corporation, Very Wrong
It is well established that employers owe an obligation of good faith and fair dealing at the time of terminating an employee. This obligation requires employers to be reasonable, honest and to refrain from bad faith actions. The failure to act in such a manner can result in significant damages against the employer. In the case of Ojanen v. Acumen Law Corporation, 2021 BCCA 189, the bad faith actions of one employer resulted in an astonishing damages award.

In Ojanen v. Acumen Law Corporation, 2021 BCCA 189, Acumen Law Corporation ("Acumen") was found to have acted unlawfully in terminating an articling student. Specifically, their actions in terminating the employee were described as "unnecessary and psychologically brutal" and their response to certain actions by the employee were found to be "disproportionate and bullying". The result of Acumen's actions was an outstanding damages award made against them in the amount of $193,944. Read the full article by Kirstn Mase with Edwards, Kenny & Bray LLP.

Canada Is Introducing a Federal Minimum Wage: 
What Employers Need to Know
From 29 December 2021, a new federal minimum wage of CAD 15 per hour will take effect. A new Canadian federal minimum wage of CAD 15 per hour was included in the Budget Implementation Act, 2021, No. 1. It will come into effect on 29 December 2021 and will apply to workers in the federally regulated private sector.

Currently, federally regulated employees are subject to the minimum wage of the province or territory in which they are typically employed. Accordingly, federal employers could have employees occupying the same position but compensated differently because they are employed in different provinces or territories. Read the full article by John D. R. Craig with Ius Laboris LLP.

Duty to Mitigate: Dismissed Employees Cannot
Place Limits on Search for New Employment
A recent BC Supreme Court decision in Moore v. Instow Enterprises Ltd. provides helpful guidance regarding the extent to which a dismissed employee must go to mitigate their losses by searching for comparable employment.

Facts
The plaintiff in this case was a 53 year old employee who had worked at Kal Tire as a commercial sales associate for 26.5 years. The plaintiff did not have a written employment agreement.

In May 2020, the plaintiff was dismissed without cause and received payment of 8 weeks in lieu of notice. Kal Tire had experienced a significant downturn in their business due to the COVID-19 pandemic. After his dismissal, the plaintiff started his own woodworking business, which experienced limited success, and confined his job search efforts to positions that were essentially the same as the one that he had held with Kal Tire (i.e. commercial sales jobs in the tire sector).

Read the full article by Neal Parker with Harper Grey LLP.

Local Government News:

Cancellation of the COVID-19 State of Emergency –
Transition from the COVID-19 Related Measures Act and the
New Municipal Affairs Statutes Amendment Act, 2021
As of the end of the day on June 30, 2021, the COVID-19 State of Emergency, as previously declared under the Emergency Program Act (British Columbia), was cancelled. The Province is now in a period of transition under the COVID-19 Related Measures Act, SBC 2020, c. 8. The COVID-19 Related Measures Act was adopted to enact as statute law various Ministerial Orders that had been made under the Emergency Program Act ("COVID-19 Orders") in response to the COVID-19 pandemic.

Summaries of the COVID-19 Orders that directly affected the exercise of local government powers can be found in our earlier website posts, as follows:

• "New Local Government Meetings and Bylaw Process Order (MO192)", July 19, 2020;
• "New Local Government Finance (COVID-19) Order", May 20, 2020; and
• "Ministerial Orders under the Emergency Program Act", March 26, 2020.

Ministerial Order M159/2020 (the Local Government Finance (Covid-19) Order) has now been repealed. However, the Municipal Affairs Statutes Amendment Act, 2021, discussed below, contains provisions respecting reserve fund borrowing and revenue anticipation borrowing that was authorized under the now repealed Ministerial Order, and also contains transitional provisions for tax sales that were deferred as a result of the pandemic. Read the full article by Jessica Eastwood With Stewart McDannold Stuart.

Province Announces Recipients of Active Transportation
Planning Grants [Local Governments]
The Province is providing more than $404,000 to help local governments include active transportation in their community planning.

Since the Active Transportation Planning Grant launched, intakes in October 2020 and May 2021 have provided funding to 22 communities with the goal of encouraging British Columbians to choose walking, cycling, skateboarding and other active methods to get to their destinations.

"Transportation accounts for well over one-third of greenhouse gas emissions in British Columbia, so enabling more environmentally and socially responsible modes of travel is a priority for our government," said Bowinn Ma, Minister of State for Infrastructure. "This funding will help local governments integrate their active transportation planning as part of their land-use planning and will provide long-term benefits to our communities, our health, the environment and local economies."

Local governments with populations up to 25,000 that met the grant criteria were eligible for up to $20,000 toward their active transportation planning costs. Read the full government news release.

Bill 10, Municipal Affairs Statutes Amendment
Act, 2021 Now in Force
Effective July 11th, the Municipal Affairs Statutes Amendment Act, 2021, gives 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 is intended to:

• 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.

Municipalities Empowered to Ban Single-use Plastics
Municipalities throughout the province can now move more quickly to prevent plastics from polluting their communities. Under new rules, local governments can institute bans on plastic bags and certain single-use plastics without provincial approval. Read the government news release.

Modernizing Forest Policy Virtual Engagement
The Ministry of Forests, Lands, Natural Resource Operations and Rural Development will host regional policy-specific discussions to gather local government input following the release of the recent intentions paper Modernizing Forest Policy in British Columbia. These sessions are designed for Mayors, Chairs or their delegates to share insights on behalf of their communities. Registration is open for the sessions beginning the week of July 26.

The 20 policy intentions identified in the Modernizing Forest Policy in British Columbia were developed based on consultation and engagement on forest policy and program changes over the last few years. Local governments and others provided input to this consultation process, which has included potential changes to forest management as part of the Forest and Range Practices Act Improvement Initiative, Interior Forest Sector Renewal, Coast Forest Sector Revitalization and the Old Growth Strategic Review. Read the UBCM article.

BC Declares COVID-19 Outbreak in Central Okanagan,
Reimposes Mask Mandate [Travel Discouraged]
British Columbia is declaring a COVID-19 outbreak in the Central Okanagan after a rapid rise in cases in the region and is reimposing a local mask mandate, as well as other public health measures. More than half of BC's daily and active COVID-19 cases are concentrated in the area, Provincial Health Officer Dr. Bonnie Henry said Wednesday [July 28] during a teleconference.

"We are concerned in public health about the rapid increase in the Central Okanagan, particularly around the Kelowna area," said Henry, who was joined by Health Minister Adrian Dix and Dr. Sue Pollock, chief medical health officer for Interior Health.

Under the new health order, masks will be mandatory as of midnight in indoor public spaces for anyone over the age of 12. They are also being encouraged outdoors when people cannot physically distance themselves. Read the CBC article.

Penticton Goes to Court over BC Shelter in City
The City of Penticton has launched a B.C. Supreme Court challenge against the provincial government's move to override its zoning bylaws for what was to be a temporary winter shelter. The petition says the government's actions to continue to use the facility as a shelter, against Penticton's bylaw, bestows far greater power on the province than its laws intended. It's the latest twist in the dispute where the city is trying to close the 42-bed shelter in defiance of BC Housing's plans to extend the temporary-use permit for another year. Attorney General David Eby, who's also in charge of housing for the province, has said they need more time to find spaces for the homeless, while Penticton says the site has numerous crime issues and locals want it closed. Read the Times Colonist article.

Mass Timber Builder Welcomes 
"Net Zero" Bylaw
On June 1, the City of North Vancouver and West Vancouver became the first BC municipalities to legislate Step 5 of the BC Energy Code, which mandates that residential buildings must produce more energy than they use, resulting in buildings with net-zero energy requirements. City of Vancouver council recently voted down a recommendation from its city manager to delay implementation of its own net-zero code for a year to help clear a backlog of building permits. Read the BIV article.

Increased Residential Flexibility in ALR
The Ministry of Agriculture, Food & Fisheries has announced changes that will allow expanded residential flexibility in the Agricultural Land Reserve (ALR). The ALR Use Regulation has been amended and will come into force on December 31, 2021. The amendment includes options for ALR land owners for an additional small secondary home in addition to a principal residence.

Applications to the Agricultural Land Commission (ALC) will not be required and there will not be a requirement for the additional residence to be used by the owner or immediate family members. Local governments First Nation governments retain the ability to further restrict or prohibit these new additional residential provisions. Read the UBCM article.

BC Human Rights Commissioner Issues Guidance on
Proof of Vaccination Requirements
As COVID-19 vaccination rates continue to increase and BC has entered Step 3 of its re-start plan, the BC Human Rights Commissioner has issued guidance to clarify human rights considerations for employers when developing rules about vaccination status, such as proof-of-vaccination requirements.

The Commissioner advises that there are limited circumstances in which employers may implement vaccination status policies. Specifically, employers may implement such a policy only where no other less intrusive means of preventing COVID-19 transmission is possible, and if due consideration is given to everyone involved. Additionally, employers are reminded to remain mindful of human rights laws where their policies treat employees differently based on whether or not they have been vaccinated. Read the full article by Carolyn MacEachern and Julia Tikhonova with Young Anderson Barristers & Solicitors.

Miscellaneous News:

The Canadian Human Rights Tribunal
Introduces New Rules of Procedure
The federal government published the Canadian Human Rights Tribunal Rules of Procedure, 2021 on June 23, 2021. The new Rules of Procedure (the "Rules") came into force on July 11, 2021 and apply to federally regulated employers across Canada. Amendments to the Rules occurred in response to solicited public consultation in 2020. The updates seek to codify practices that were already in use and ensure the modernization of proceedings, including the incorporation of technology. This blog will provide an overview of some of the key changes to the Rules.

Key Changes to Modernizing the Rules
The goal of the Canadian Human Rights Tribunal (the "Tribunal") is to make proceedings simpler and faster. They have also introduced rules to improve their service to Canadians. Some of the key changes are as follows:

Read the full article by Nicole Naglie and Hezekiah Davies with McCarthy Tetrault LLP.

Early Consolidation of Small Claims Rules
Quickscribe has published an early consolidation of the Small Claims Rules, as amended by B.C. Reg. 191/2021, which will come into effect on August 16, 2021. Included in the changes are two new definitions, "remotely" and "virtually", which will allow parties to attend a conference, hearing or meditation session by telephone, video conference or other means of electronic communication, rather than in person. A new form has also been added, Form 38 – Address for Service, to be completed and filed by all persons or parties involved in a hearing or conference so they will receive notice from the Court and other parties. Two types of addresses for service must be provided on the form: for personal service and for service by mail or email.

BC Court Rules on Correct Standard of Review of Arbitral
Decision with Statutory Appeal Mechanism
In a case involving an assailed arbitral award with a statutory appeal mechanism, the Supreme Court of British Columbia has opted to apply the reasonableness standard of review based on stare decisis.

In Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd., 2021 BCSC 1415, an arbitrator appointed by the parties under the Arbitration Act, RSBC 1996, c 55, issued an 82-page award finding the petitioners indebted to the respondent for over $1.7 million in damages for the respondent's construction work on a real estate development on Vancouver Island. Read the full article by Bernise Carolino, published in the Canadian Lawyer.

BC Court of Appeal Provides its First
Pronouncement on Sequencing Issues
The B.C. Court of Appeal's decision in British Columbia v The Jean Coutu Group (PJC) Inc., 2021 BCCA 219, is the first time the B.C. Court of Appeal has weighed in on class action sequencing issues. The core issue on appeal was whether the motion judge erred by making a sequencing order that required 2 of 48 defendants to participate in long, complex and expensive proceedings that could continue for years before their challenge to the Court's jurisdiction over them would be heard. Read the full article by Renee M. Gagnon and Ranjan K. Agarwall with Bennett Jones LLP.

If I Hit the Car in Front of Me, Who's at Fault?  
There's definitely an I in tailgating. If you hit the car in front of you, it's your fault, not theirs. "If you rear-end the vehicle ahead of you, you will be considered to be at fault," said Anne Marie Thomas, spokeswoman for Insurance Hotline, a rate comparison site. "The thinking is that you should always keep a safe enough distance between your car and the vehicle ahead." The Insurance Corporation of British Columbia (ICBC), BC's government-run insurer, states on its website that if you hit the car in front of you while it's stopped or slowing down, you're 100 per cent at fault. Read The Globe and Mail article.

A Bold Step: The EU Accelerates Targets for
Zero-Emission Vehicles
The European Commission has unveiled its proposed "Fit for 55" legislation to accelerate the EU's goal of reducing greenhouse gas emissions. The new reduction target is 55% by 2030, up from the previous target of 40%. The EU has it sights set on Europe becoming the world's first climate neutral continent with net-zero emissions by 2050.

The EU's approach consists of the implementation of regulatory, tax and trade policies designed to expand the market for clean energy and accelerate the reduction of greenhouse gas emissions. Overall, the Commission proposes: (1) tightening the current EU Emissions Trading Scheme and establishing a new emissions trading system for fuel distribution for road transport and buildings; (2) taxing high-carbon imports, aviation and shipping fuel; (3) revising the Effort Sharing Regulation to set binding national greenhouse gas targets for each EU member state; and (4) strengthening carbon dioxide emissions standards for vehicles and requiring that charging capacity for zero-emission vehicles be expanded. Read the full article by Steven F. Rosenhek, Rosalind H. Cooper and Montana Licari with Fasken Martineau DuMoulin LLP.

Construction Firm Fined $20K for
Fall Risk Violation
SD Roofing Ltd. was fined $20K by WorkSafeBC following an inspection at a work site in Mission, BC. The firm was roofing a new three-storey house when WorkSafeBC inspected the site. During the inspection, WorkSafeBC determined that three of the firm's workers had installed a membrane on the 4:12 slo with any kind of fall protection systems in place. This lack of protection exposed the workers to a fall risk greater than 27 feet (8.2 metres). Following the inspection, WorkSafeBC issued a stop-work order. Read the full article by Maia Foulis published on Canadia Occupational Health Safety.

Proposed Policy Amendments on
Determining Workplace Status
From WorkSafeBC: Our Policy, Regulation and Research Division is releasing a discussion paper on determining workplace status with options and draft policy to stakeholders for comment. "Workplace status" refers to whether someone is an employer, worker, or independent operator. A person's status defines the rights and responsibilities the person has under the Workers Compensation Act, including compulsory coverage for workers, and obligations of employers to pay assessments into the accident fund. Read the full WorkSafeBC news release and discussion paper.

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

Orders:

• Mink Farms – July 26, 2021 (PDF, 330KB) 
• Industrial Camps – July 7, 2021 (PDF, 388KB)
  • Delegation: Industrial Camps – June 9, 2020 (PDF, 216KB)
• Gatherings and Events – July 7, 2021 (PDF, 305KB)
• Long-Term Care Facility Staff Assignment – April 15, 2020 (PDF, 274KB)
• Vaccinated Staff: Variance of the Facility Staff Assignment Order – July 28, 2021 (PDF, 412KB)

Guidance:

• Guidance on the Creation of Facility Clusters – July 28, 2021 (PDF, 112KB)
• Ministry of Health – Overview of Visitors in Long-Term Care and Seniors' Assisted Living – July 19, 2021 (PDF, 601KB)

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

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

OHS Guidelines — Occupational Health and Safety Regulation

• Part 21 Blasting Operations
  G21.4 Blasting log

• Part 26 Forestry Operations and Similar Activities
  G26.11 Wildfire dangerous tree assessment

OHS Guidelines — Workers Compensation Act

• G-P1-2-7 Jurisdiction over mines

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

BC's Changing Landscape for Industrial and Commercial 
Property Transactions: What You Need to Know about the
Recent Amendments to BC's Contaminated Sites Regime
On February 1, 2021, a number of amendments to BC's Environmental Management Act (the "EMA") and the associated Contaminated Sites Regulation (the "CSR") came into effect (the "Amendments"). The Amendments include new requirements on owners and operators of properties used for industrial and commercial purposes, and a shift from the long-standing "Site Profile" system to a more onerous "Site Disclosure Statement" system. At a high level, the most significant departures from the previous regime are:

1. Categories of industrial and commercial lands subject to the amended regime are now set out in a schedule, with the potential for more categories to be added in the future; and
2. When certain events occur – such as ceasing operations and decommissioning – owners and operators of "specified industrial or commercial use" properties must prepare a Site Disclosure Statement ("SDS") and hire an environmental consultant to conduct a preliminary site investigation ("PSI") and submit both the SDS and the PSI results to the Ministry of Environment.

Below we describe the key changes in greater detail (Part A), and offer some hypothetical scenarios to demonstrate how these may impact commercial and industrial real estate transactions in BC (Part B). Read the full article by Wally Braul, Maya Stano, Mark Youden and Lee Hawkings with Gowling WLG.

Doctrine of Spent Breach Raises Uncertainty for "No Prior Default"
Stipulation in Lease Renewal Terms
A common feature of many commercial lease agreements is an option to renew the lease for an additional term, provided that the tenant has not breached any covenants of the lease agreement.

In British Columbia, it has long been established that a tenant will not be granted relief from forfeiture by the court where a landlord relies on the "no prior default" stipulation in a renewal option clause, where the tenant has been in breach. In Clark Auto Body Ltd. v. Integra Custom Collision Ltd., the BC Court of Appeal concluded:

"there is no compulsion on the tenant to exercise the renewal option, but if it does so, the tenant must comply with the conditions precedent. If the tenant fails to comply, it does not suffer a penalty or forfeiture of an existing tenancy. Equity will not intervene."

This line of reasoning has since been followed in numerous decisions in British Columbia where the courts have upheld the conditions precedent of a renewal option. However, a recent decision out of Ontario goes in a different direction. Read the full article by Roy Nieuwenburg Q.C. and Manveer Sall with Clark Wilson LLP.

BC Foreign Buyers' Tax Constitutional,
Province's Highest Court Rules
BC's highest court has rejected the appeal of a lawsuit claiming that the province's foreign buyers' tax is unlawful and discriminatory.
The class action lawsuit was filed by representative plaintiff Jing Li, a Chinese woman who moved to Canada in 2013, completed the purchase of a home in Langley in November 2016 and had to pay substantial foreign-buyer taxes. She claimed that the tax, aimed at cooling a hot real estate market and initially 15 per cent when it was imposed but rising to 20 per cent, was related to historical patterns of discrimination in the province. Read the Vancouver Sun article.

Cents and Sensibility: Obtaining an Additional
Rent Increase for Capital Expenditures
As of July 1, 2021, landlords are now permitted to apply to the BC Residential Tenancy Branch for an additional rent increase to offset a "capital expenditure". Given that landlords have been extremely restricted in their rent increase opportunities over the last several years (and entirely banned from increasing the rent between March 30, 2020 and January 1, 2022), the opportunity to offset significant building expenses comes as welcome news. The additional rent increase opportunity originates from early recommendations from the BC Rental Housing Task Force. Its goal was a simple one: to build better homes for renters, while creating more opportunities for landlords to invest in their rental housing. Read the full article by Lisa Mackie with Alexander Holburn Beaudin + Lang LLP. 

Strata Council Ordered by BC Court to Release
List of All Owners to One of Its Members
The strata refused, citing privacy and safety concerns, and said it was not in the best interests of the strata community. But the law obligates stratas to compile a list and to distribute it when asked, a tribunal ruled
A BC condo owner went to court to force his strata council to hand over a list of names of all other strata lot owners in his development, after the council refused his request.

A civil resolution tribunal member agreed with the owner. Citing B.C. law, it ordered the strata to compile the list and provide it to the owner, over council's protestations of privacy and safety concerns, including worries the list could be used for criminal purposes.

"The strata has provided no valid justification for its refusal," ruled Chad McCarthy.

Ken Johnson several times last year requested an "owner contact list" that he is entitled to under B.C.'s Strata Property Act. The strata refused, saying he "didn't provide an adequate reason" and it had concerns about disclosing strata lot owners' personal information, which includes names, strata lot and mailing addresses, and information on parking stalls, storage lockers and unit entitlements. Read the full article by Susan Lazaruk on the Vancouver Sun website.

Wills and Estates News:

BC Case Comment: Surviving Business Partner not Entitled to 
Receive Partnership Property by Right of Survivorship
What happens when your business partner dies, in particular when the assets of the business are held by you and your partner jointly? Do you receive your deceased partner's "half" of the business, or does it go to their estate?

A fundamental characteristic of joint tenancy (i.e. registering assets in joint names) is the right of survivorship. When one joint tenant dies, their interest is extinguished, and the surviving joint tenant(s) take full ownership. For example, spouses often register title to their property in joint tenancy, so that the surviving spouse will receive the entirety of the property upon the other spouse's death. This is accepted as a permissible estate planning tool. Read the full article by James Zaitsoff, published in the BC Estate Litigation Blog.

Executors in British Columbia Should Exercise  
Caution before Distributing Estate Assets
Executors should be aware of required waiting periods before distributing estate assets and further complications caused by the suspension of limitation periods in response to COVID-19.

Introduction
On March 26, 2020, in response to the COVID-19 pandemic, the government suspended certain limitation periods to commence court proceedings in British Columbia. The suspension was lifted exactly one year later, on March 25, 2021. In this article, we discuss some implications of the suspension of limitation periods for the distribution of and potential claims against estates in British Columbia.

Overview
The suspension of limitation periods was effective to suspend the running of the 180 day time period for bringing a claim for maintenance from an estate. However, because the suspension of limitation periods only applied to time limits for commencing court proceedings, it did not affect the 210-day waiting period for the distribution of estates. As such, if a representation grant was obtained shortly before or during the suspension of limitation periods, the 210-day waiting period may elapse before the time limit for commencing a claim for maintenance from the estate runs out.

Read the full article by Allison Sharkey with Edwards, Kenny & Bray LLP.