Company and Finance News:

Underused Housing Tax – Requirements and Exemptions
The federal government's new underused housing tax (UHT) may be aimed primarily at non-residents of Canada, but others may also be caught. Find out more about the UHT and when it applies. In Budget 2021, the federal government announced plans for an annual one per cent tax on the value of residential real estate that is:

• owned by any non-resident, non-Canadian, and,
• considered vacant or underused.

The UHT Act was enacted on June 9, 2022, with effect from January 1, 2022. While the budget suggested that only non-residents would be affected, the scope of the final legislation is broader, as we explain later in this blog. For example, where a property is held in trust for Canadian resident beneficiaries, there may be a requirement to file a return (form UHT-2900, Underused Housing Tax Return and Election Form) even though no non-residents have an interest in the property and no tax is payable. In this blog, we highlight the UHT's key elements and answer some top questions you might have about the new tax. See also the Canada Revenue Agency (CRA)'s new UHT webpage, which includes the new UHT return, technical guidance and other information, and which, as we understand, the CRA will update with new information going forward. Read the full article by Bruce Ball, FCPA, FCA, CFP, published by CPA Canada.

Clarity for CBCA Incorporated Reporting Issuers
On January 31, 2023, the Canadian Securities Administrators (CSA) published an exemption (the Exemption) for reporting issuers incorporated under the Canada Business Corporations Act (CBCA) from the form of proxy requirement outlined in subsection 9.4(6) of NI 51-102 – Continuous Disclosure Obligations (NI 51-102) for uncontested director elections. The Exemption resolves potential conflict and confusion for CBCA incorporated reporting issuers following recent amendments to the CBCA that came into effect August 31, 2022. Read the full article by Geoffrey Davis, Andrew Disipio, Kristopher Hanc and John Piasta. with Bennett Jones.

CRA Rules Favorably on Foreign Takeover 
Context: M&A transactions often involve new entities that do not have a bank account. As a result, substantive legal steps to accomplish the end goal of the merger or acquisition often involve multiparty agreements, directions to pay, simultaneous transactions, and agency relationships. In addition, postclosing restructuring transactions can sometimes involve capital contributions without the movement of cash or other consideration. Understanding the tax consequences of each such step is of course an important element in the successful completion of any merger or acquisition. Read the full article by Ian. J. Gamble with Thorsteinssons LLP.

"Checking the Box" Not Enough to Avoid 
Director's Liability for Outside Director
A decision of the Tax Court of Canada has provided further insight into the duties of an "outside" director who wishes to rely on the due diligence defence to avoid a director's liability assessment under the Income Tax Act (the "Act"). In Burnett v The Queen (2022 TCC 99), the taxpayer was assessed pursuant to section 227.1 of the Act for unremitted payroll source deductions of Canadian Noble Cut Diamonds Ltd. ("CNCD"), of which he was a director. The taxpayer, who had previously been a director of numerous private and public corporations, viewed himself as an outside director, and did not have access to CNCD's bank account and was not a signing officer. Read the full article by Carolyn S. Inglis with Miller Thompson LLP.

Notifiable Transactions: Practice Issues, Ethical  
Considerations and Constitutional Dimensions
Much has already been written about the proposed addition of section 237.4 to the federal Income Tax Act ("ITA"), which would impose mandatory reporting in respect of "notifiable transactions." The purpose of this post is not to explain the notifiable transaction regime in any great detail, nor do we intend to address the merits of the underlying tax policy. Instead, the purpose is to set out practice and ethical issues that will arise for lawyers should the proposed changes be enacted. Read the full article by Greg DelBigio, K.C. with Thorsteinssons LLP.

The CSA and ISSB Climate-related Disclosure Proposals: Significant Implications for 
Directors, Boards and Public Company Governance, One Year On
Just over a year has passed since Dentons released a paper outlining significant governance implications for directors, boards and public companies from the Canadian Securities Administrators' (CSA) proposed National Instrument 51-107 Disclosure of Climate-related Matters (NI 51-107) and its proposed Companion Policy 51-107CP (the Climate Disclosure Proposals). That paper can be found here. On October 12, 2022, the CSA announced that it was reviewing the ISSB and SEC proposals and how they may impact or further inform the Canadian Climate Disclosure Proposals. The CSA noted that the Canadian rule would need to reflect Canadian capital markets and investor needs, but also have considered international consensus with a view to providing climate-related disclosure standards "that as a priority elicit consistent and comparable disclosure for investors and that support a comprehensive global baseline of sustainability disclosures." Read the full article on the Dentons website.

A Driving Force behind Securities Act Enforcement: The BC Securities  
Commission's New Power to Suspend Driving Privileges
The recent decision of Re Oei, 2022 BCSECCOM 225 marks the BC Securities Commission's (the "Commission") first consideration of section 163.2 of the Securities Act RSBC 1996, c 418 (the "Act"), which sets out the Executive Director's new power to revoke driving privileges in order to enforce contraventions of BC's securities laws. We previously wrote on the British Columbia Legislature's introduction of over 100 significant and expansive changes to the Act through Bill 33, which you can find here. On March 27, 2020, these amendments to the Act came into force by way of order in council (see related documents here). As noted in our previous post, these amendments, brought as a response to increase protection of investors and limit white collar crime, substantially strengthen the powers of the Commission with respect to the enforcement of fines and penalties permitted under the Act and afford the Commission some of the strongest enforcement powers for a securities regulator in the country. Read the full article by Joseph Romanoski and TJ Garcha with Whitelaw Twining.

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

• BC Notice 2023/01 – Solicitation of Members for Fintech Advisory Forum [BCN]
• 51-930 – CSA Coordinated Blanket Order 51-930 Exempting Reporting Issuers Incorporated under the Canada Business Corporations Act from the Director Election Form of Proxy Requirement

Energy and Mines News:

First Nation Can Veto Proposed B.C. Coal Mine
as Part of Unique Deal with Developer
Agreement could change how natural resources projects are developed in Canada
A coal company and a First Nation in British Columbia have struck a rare deal to give the community the power to veto a proposed mining project, which could set a precedent for how natural resources projects are developed in Canada.

NWP Coal Canada and the Yaq̓it ʔa·knuqⱡi'it (YQT), also known as the Tobacco Plains Indian Band, describe the agreement as one of a kind and say it will give the First Nation the power to act as a "regulator and reviewer" of the company's proposed $400-million Crown Mountain coal mine near Elkford, in the southeast part of the province.

The mine would produce coking coal, which is predominantly used for making steel. The project was first proposed in 2010, and construction could begin in 2025. Federal and provincial regulators are currently reviewing the possible environmental impacts of the project. Read the CBC article.

B.C. Legislative Amendments Will
Facilitate Hydrogen Development
On November 24, 2022, British Columbia passed the Energy Statutes Amendment Act, 2022 (the Act) to change the legislation governing energy resources in B.C., including hydrogen. Most parts of the Act will not come into force until proclaimed by regulation, including the parts relating to hydrogen.

Once fully in force, the Act will significantly amend the Oil and Gas Activities Act (the OGAA), including by renaming it as the Energy Resources Activities Act and renaming the B.C. Oil and Gas Commission (BCOGC) as the British Columbia Energy Regulator (BCER) – consistent with other energy regulators in Canada (notably, the Canada Energy Regulator and the Alberta Energy Regulator). The B.C. Oil and Gas Appeal Tribunal will similarly be renamed as the Energy Resource Appeal Tribunal. Read the full article by Jesse Baker and Joey Chan with Osler, Hoskin & Harcourt LLP.

Be Mindful of Technical Disclosure
Requirements Under NI 43-101
A recent settlement provides a reminder for junior mining companies to comply with National Instrument 43-101 Standards of Disclosure for Mineral Projects ("NI 43-101").

A settlement agreement (the "Agreement") between the British Columbia Securities Commission ("BCSC") and the Chief Executive Officer ("CEO") of Equity Metals Corporation (the "Company"), a junior mining company listed on the TSX Venture Exchange, provides a stark reminder that a Qualified Person ("QP") must review any and all technical disclosure and that companies need to ensure strict compliance with NI 43-101. Read the full article by Kim Brown and Virgil Hlus with Clark Wilson LLP.

Energy Regulatory Trends to Watch In 2023:
Electrification, Sequestration and Friction
Last year, we characterized 2022 as the "beginning of the Great Energy Transition." Many regulatory and fiscal measures were either implemented or announced in 2022 to accelerate this transition. For 2023, we foresee some potential for movement in the transition in the area of electrification to meet Canada's future energy requirements, and sequestration of carbon to facilitate continued production of oil and gas. However, 2023 may mark a new trend of increasing regulatory friction that risks slowing the pace of energy transition.

Electrification
In 2022, after years in development, the federal government enacted its Clean Fuel Regulations (CFR), deferring their implementation into 2023, but increasing their stringency to require a reduction in the emission intensity of gasoline and diesel fuel by 15% by 2030. Some of this reduction may be achieved through the production of advanced biofuels, but most of the reduction will likely be achieved by the adoption of electric vehicles (EVs).

Read the full article by Bernie (Bernard) J. Roth with Dentons.

Woodfibre LNG Project Near Squamish, B.C., Seeks
Amendments to Environmental Assessment
A liquefied natural gas project that would produce around two million tonnes of the fossil fuel a year near Squamish, B.C. – about 64 kilometres north of Vancouver – for export is seeking changes from Environment and Climate Change Canada over how it is required to monitor for marine mammals affected by underwater noise, such as pile driving, during construction.

Opponents of Woodfibre LNG (WLNG), which received its federal environmental approval in 2016, say the changes will harm pinnipeds – seals and sea lions – in Howe Sound, which was designated a UNESCO biosphere region in 2021. Read the CBC article.

Skills Roadmap Helps People in the Mining Sector
More people will be able to pursue fulfilling careers in mining through the Skills Roadmap Report, which identifies British Columbians' future skills and training needs within the mining sector.

"There are a lot of opportunities for British Columbians to find rewarding careers in mining," said Selina Robinson, Minister of Post-Secondary Education and Future Skills. "The Skills Roadmap is a step towards bringing more labour certainty to the industry as a whole and helping people receive the training they need to bridge the skills gap for good jobs today, tomorrow and beyond."

The Skills Roadmap Report was recently completed by the B.C. Centre of Training Excellence in Mining. It fulfils a recommendation from the B.C. Mining Jobs Task Force to develop a cohesive roadmap for enhanced mining-sector training to meet the sector's future skills and labour needs through a collaborative, inclusive, innovative and geographically focused approach. Read the government news release.

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

• IU 2023-01 – Requirements for Engineering or Geoscience Work

Visit the BCOGC website to view this and other bulletins.

Family and Children News:

Does a Stepparent Have to Pay
Child Support in BC?
When it comes to child support, many people assume that only biological parents are responsible for financially supporting their children. However, the laws surrounding child support can be complex, and in some cases, step-parents may also be held responsible for providing financial support. In this article, we will explore the laws and guidelines surrounding step-parent child support in British Columbia. We'll cover the factors that determine whether a step-parent is liable for child support, the rights of step-parents, and much more to help you understand the child support process as it relates to step-parents. Read the full article from the Onyx Law Group.

Is Child Support Required for
Adult Children in BC?
In British Columbia, child support obligations usually end when a child reaches 19, the age of majority in the province. However, parents with children over 19 may still be obligated to pay child support when their adult children are pursuing post-secondary education.

For the 2020/21 year, a total of 287,523 students were enrolled in post-secondary institutions in British Columbia. Approximately 40% of students in post-secondary studies across Canada reside at home with at least one of their parents, a statistic that has remained relatively consistent since 2001. With a significant number of adult children living at home during post-secondary studies, it is important to understand parental support obligations. Read the full article by Chantal Cattermole, Sarah Tradewell and Adrienne Adams with Clark Wilson LLP.

Forest and Environment News:

What Forest Professionals Should Know
About Their Statutory Duty to Report
Under Section 58 of the Professional Governance Act (PGA), registrants have a statutory duty to report another registrant when there is a reasonable and probable risk of significant harm to the environment or safety of the public or a group of people. What this means is registrants have an obligation under the PGA to report such concerns to the Association of BC Forest Professionals (ABCFP) or another regulatory body under the PGA. Registrants are not limited to reporting other forest professionals, but can report registrants belonging to other PGA regulators, which includes but is not limited to engineers, biologists, geoscientists, and agrologists. Read the full article by Janine Jivani in the BC Forest Professional Magazine.

New Agreement Between Blueberry
River First Nations and Province
On January 18, 2023, the province of BC and Blueberry River First Nations signed the Blueberry River First Nations Implementation Agreement. The agreement follows the decision in Yahey v. British Columbia, 2021 BCSC 1287, which found that the Province had breached its treaty commitment to Blueberry River First Nations.

The agreement sets out timelines for the Province and the First Nation to develop collaborative plans for managing natural resource sector activities in parts of Blueberry River's claim area, including watershed, timber, wildlife, and oil and gas strategies. It also includes a three-year review and sets out a $200 million restoration fund for the area, which is expected to be in place by June 2025.

According to the Province, the agreement also provides certainty for existing authorized activities in the claim area to continue, and for some timber harvesting and oil and gas activities to proceed.

B.C. Not Legally Required to Provide 'Quantitative
Data' on Meeting GHG Targets, Court Rules
In a request for judicial review, heard at a Vancouver Supreme Court in October 2022, lawyers for Sierra Club BC argued that the government's latest report on how it would achieve its emission reduction targets didn't go far enough, and essentially amounted to a "vague plan to make a plan."

"We are pleased with the court's ruling," said a spokesperson for the Ministry of Environment and Climate Change Strategy. "B.C. has some of the strongest climate accountability measures in Canada, ensuring credibility and transparency."

The case turned on a key piece of legislation known as the Climate Accountability Act, which is meant to provide transparency around the government's emission reduction targets. Read the BIV article.

B.C. Wood Manufacturers to Get Bigger Cut of the Cut
Wood manufacturers in B .C. that have little or no Crown tenure will get increased access to logs through BC Timber Sales.

B.C. Forests Minister Bruce Ralston Tuesday [January 24] announced a new program – the BC Timber Sales (BCTS) Value-Added Manufacturing Program – that will set aside 10% of BC Timber sales for qualifying businesses.

It will not be open to conventional lumber producers. Only higher value-added manufacturers will qualify. That includes veneer and plywood, engineered wood products, shakes and shingles, log home manufacturing, decking and flooring. Read the BIV article.

Canadian Government Amends Regulation
Setting Out Specified Gases and Their
Global Warming ‎Potentials
The schedule to the Carbon Neutral Government Regulation setting out the Specified Gases and Their Global Warming Potentials was amended by OIC 682/2022, effective December 19, 2022, to adjust the 100 year time horizon global warming potential figures for the various specified gases.

The Carbon Neutral Government Regulation (the "Regulation") creates the requirement for all public sector organizations to determine, report and verify greenhouse gas emissions from buildings, vehicles and paper use, and establishes the requirement to purchase emission offsets in order to become carbon neutral. Public sector organizations are also required to verify data and emissions information, and report annually on their progress through the Carbon Neutral Action Report. Read full article by Dean Dalke and Caroline Yao with DLA Piper.

Court Denies Province's Appeal to
Reject Greengen Lawsuit
The B.C. Court of Appeal recently dismissed an appeal filed by the provincial government's Ministry of Forests, Lands and Natural Resource Operations; regional water manager; and the Ministry of Environment against Greengen Holdings Ltd., thus setting the stage for a trial this spring.

This dispute started back in August 2009 after Greengen was denied a permit by the provincial government for a hydropower project in Fries Creek, a stream that leads into the Squamish River near Judd Slough. That decision by the province was partially due to a land use agreement it had with the Sḵwx̱wú7mesh Úxwumixw 2023 (Squamish Nation). Read the BIV article.

Climate Change Suits Against the Government:
The Limits of Court Action
In recent years, governments in Canada have been sued in various ways in respect of climate change. Invariably, the government will seek to have the claim dismissed because it is not "justiciable". Justiciability is a legal doctrine that applies when the subject matter of a case is too political in nature to be properly adjudicated by the courts. Justiciability recognizes the separation of powers between courts and legislatures and that some subjects – like making policy choices and legislating – are not appropriate for a court. Recent case law, including a B.C. Supreme Court decision released in January 2023, shows the limits of what courts have been willing to do when governments are sued regarding climate change. Read the full article by Peter Kolla, Monica Creery and Gillian Olsen with Goodmans LLP.

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

Environmental Management Act

• The Board of Education of School District No. 43 v. Director, Environmental Management Act [Summary Dismissal Decision – Granted; Costs Ordered]
• Richmond Steel Recycling Ltd. v. Director, Environmental Management Act [Decision on Application for Document Production – Denied]
• Richmond Steel Recycling Ltd. v. Director, Environmental Management Act [Decision on Application for Document Production – Denied]

Visit the Environmental Appeal Board website for more information.

Health News:

What You Need to Know about the Decriminalization of
Possessing Illicit Drugs in BC
Starting Tuesday [January 31st], it is no longer a criminal offence to possess small amounts of certain illicit drugs in BC for people aged 18 or above. It's part of a three-year pilot by the federal government, which granted BC an exemption from the Controlled Drugs and Substances Act (CDSA) on May 31, 2022. While advocates for drug users say decriminalization alone won't stop thousands of people dying from a tainted drug supply, others say it is a step in the right direction when it comes to how drug users are treated. Here's what you need to know about B.C.'s drug decriminalization pilot. Read the CBC article.

Here's Why BC Doctors Are Upset about
Changes to Disciplinary Colleges 
BC Health Minister Adrian Dix said the law is a necessary fix that will help patients by improving oversight of the colleges. A new law that changes the way BC's health colleges are regulated is facing backlash by some doctors who say it gives the government too much power over how 130,000 health professionals like chiropractors, dentists and doctors are disciplined. BC Health Minister Adrian Dix, however, said the law is a necessary fix that will help patients by improving oversight of the colleges and make sure cases of misconduct by practitioners are made public. Read the Vancouver Sun article. 

New Health Professions and Occupations Act and Its
Impact on Private Medical Service Providers
BC Bill 36: Health Professions and Occupations Act (the "HPOA") received Royal Assent on November 24, 2022. When the new legislation comes into force, it will repeal and replace the current Health Professions Act (the "HPA"). The in-force date for the HPOA is yet to be released. Until then, the HPA continues to operate and regulate the province's health professions. While the HPOA will impact various aspects of the regulation of health professions in BC, such as the amalgamation process for combining two or more health regulatory colleges, this article specifically focuses on the impact of the HPOA on health profession corporations. Read the full article by Afshaan Jiwaji Kapasi and Jessica Park with Alexander Holburn Lang + Beaudin.

BC's "Transformational" Agreement with  
Family Doctors Kicks In
BC's health minister and the newly elected president of the Doctors of BC describe a new agreement for compensating family physicians that began Wednesday [February 1] as "transformational" for patient care in the province. Health Minister Adrian Dix and Dr. Joshua Greggain said the agreement should bolster the ranks of family doctors and improve care for residents, especially those who are struggling to find a primary-care physician. Read the Vancouver Sun article.

BC Boosts Enticements for Nurses
British Columbia is making it easier for nurses to come and work in the province. The government will now be covering application and assessment fees for internationally educated nurses (IENs), saving them a total cost of more than $3,700. "Supporting nurses is key to our work to making health care accessible to all British Columbians. Still, the demand for nurses is outpacing the supply," says Premier David Eby. Read the full article by Jim Wilson on Canadian HRReporter.

Labour and Employment News:

Employment and Privacy Implications of
Recent BC Time Theft Case
A question we are often asked by employers is how they can manage the work and performance of their remote working employees. This raises obvious challenges from both an employment and privacy perspective, as demonstrated by a recent time theft case in British Columbia.

On January 11, 2023, the BC Civil Resolution Tribunal (CRT) published its decision in Besse v. Reach CPA Inc., 2023 BCCRT 27, concluding that an employer had just cause to terminate their remote employee's employment as a result of time theft. "Time theft" is when an employee accepts payment for work they have not performed, or time they spent not actually working. The CRT held that the employee's time theft amounted to serious misconduct that led to an irreparable breakdown in the employment relationship that justified a dismissal for cause. Importantly, the CRT noted that trust and honesty is especially important in the remote work environment where employees work without supervision. Read the full article by Michelle McKinnon and Robbie Grant with McMillan LLP.

Update: BC Court of Appeal Confirms
CERB Payments Cannot be Deducted
from Wrongful Dismissal Damages
In a previous blog post, we summarized Hogan v. 1187938 B.C. Ltd, 2021 BCSC 1021 (Hogan), where the British Columbia Supreme Court ("BCSC") deducted Canada Emergency Response Benefit Program ("CERB") payments received during the applicable notice period from wrongful dismissal damages claimed by a former employee. Generally, wrongful dismissal damages are reduced by the amount of new income, if any, that a former employee earns during their notice period.

As a refresher, CERB payments provided financial support to employed and self-employed Canadians who were directly affected by COVID-19. If an individual was eligible, they could have received $2,000 for a 4-week period (i.e. $500 a week). CERB was in place from March, 2020, until October 23, 2021. Although CERB payments had ended at the time, we wrote another blog post, which reviewed some of the remaining questions regarding how to treat CERB earnings, as the courts were somewhat divided on the issue.

Now, the British Columbia Court of Appeal ("BCCA") has determined, in Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398 (Yates), that CERB payments are not deductible from damages awarded for wrongful dismissal. Read the full article by Abby Nann with McCarthy Tétrault LLP.

Award of Enhanced Damages [Wrongful Dismissal]
The year has kicked off with an award of significant enhanced damages in a wrongful dismissal claim. While it is not uncommon for dismissed employees to seek aggravated and punitive damages following their termination, these are damages that are not commonly awarded and when they are, they tend to be in modest amounts. That trend may be changing and employers and employers' counsel should take this as a warning to be careful in the manner in which they are carrying out their terminations. Aggravated damages are generally awarded for the increased harm that a dismissed employee suffers as a result of the manner in which the termination is carried out. Punitive damages are awarded to punish the employer for their conduct.

In Chu v. China Southern Airlines (2023 BCSC 21) the dismissed Marketing and Business Manager who had worked for the airline for approximately 8 years was awarded 20 months notice. Additionally they were awarded $50,000 in aggravated damages for breach of the duty of good faith in the manner of termination and a further $100,000 in punitive damages for the conduct of the employer in the course of the litigation. Read the full article by Rose Keith with Harper Grey LLP.

Managing Medical Marijuana in
Safety-Sensitive Workplaces
"Accommodation of disabilities being treated through medical cannabis is a complex and challenging area for both employers and employees, with ongoing development in both the science and the law." – Robert v National Process Equipment Inc., 2021 AHRC 133 at para 20

Marijuana has become a hot workplace topic since its legalization. A recent labour decision has addressed zero tolerance alcohol and drug policies and reinforced the duty to accommodate.

Background
Dealing with medical marijuana in the workplace continues to present a significant challenge for employers when trying to balance employee privacy and human rights with workplace safety. Like with any other drug or substance that is legal but has the potential to impair, employers are entitled, and in many cases legally obligated, to implement policies that control the use of medical marijuana in the workplace. At the same time, employers may also have to contend with an employee's privacy rights and right to accommodation. The balancing of these legal rights and obligations requires employers to maintain a delicate balance. While the use and management of medical marijuana in the workplace continues to be an evolving area of law, some general principles are emerging.

Read the full article by April Kosten and Kristi Wong with Dentons.

Unions Mourn British Columbia Arbitrator's
Decision That Queen's National Day of
Mourning Was Not a Statutory Holiday
A Labour Arbitrator decided that the National Day of Mourning for Her Majesty Queen Elizabeth II was not a statutory holiday under five private sector collective agreements in British Columbia.

In Construction Labour Relations Association of British Columbia v United Association of Plumbers And Pipefitters, Local 170, 2023 CanLII 3049 ("CLRA Decision"), Arbitrator Randall Noonan was asked to decide whether the September 19, 2022 National Day of Mourning ("NDM") was a statutory holiday for the purpose of five collective bargaining agreements applicable to private sector construction workers represented by two unions in British Columbia. Read the full article by Kris Noonan and David Price with Stikeman Elliott LLP.

Guidelines Issued on New Wage-Fixing
and No Poach Offences for Employers
On January 18, 2023, the Competition Bureau ("Bureau") issued draft guidelines ("Guidelines") on the application of the new section 45(1.1) offences in the Competition Act ("Act"). As we detailed last year, the new offences – which enter into force June 23, 2023 – will criminalize agreements between unaffiliated employers to: (1) to fix salaries, wages or other terms and conditions of employment; or (2) refrain from soliciting or hiring each other's employees.

The Guidelines have been published in draft as part of a public consultation process that runs until March 3, 2023. As described below, the Guidelines provide useful clarity on the Bureau's interpretation of aspects of the new offences but, in our view, also overreach in several notable respects. Read the full article from McCarthy Tétrault.

Local Government News:

Tax Sales for Municipal Finance Officers
This paper will discuss current legal trends regarding notices, upset prices and post-redemption period court challenges to tax sales as each of these can have a significant impact on municipal liability. This paper assumes the reader has a general understanding of the mechanics of the tax sale process and is not intended to be a step-by-step guide. Read the full article by Michael Moll with Civic Legal LLP.

Court of Appeal Scales Back Riparian
Area Protection Powers
In a decision that will likely come as a shock to many clients who have been attempting to carry out the mandate in the Riparian Areas Protection Act (RAPA) (formerly the Fish Protection Act) to protect their riparian areas from development impacts, the B.C. Court of Appeal has determined (in Wilson v. Cowichan Valley (Regional District) 2023 BCCA 25) that the only regulatory tool that conceivably enables them to do so, the "natural environment" development permit area, may not be up to the task. Read the full article by Bill Buholzer with Young Anderson, Barristers & Solicitors.

New Requirements for Local Governments: Privacy Management 
Programs and Privacy Breach Notifications
Local governments are now required to develop privacy management programs and to report privacy breaches that could be expected to result in serious harm. These new requirements, which were among the amendments to the Freedom of Information and Protection of Privacy Act ("FIPPA") enacted in November 2021, came into force on February 1, 2023.  Read the full article by Amy O'Connor and Julia Tikhonova with Young Anderson, Barristers & Solicitors.

BC Court Ruling Shows Local Government Meetings
Need More Transparency, Legal Expert Says
A legal expert is calling for more local government transparency after a recent court case overturned decisions made by the City of Rossland in BC, regarding development permits. On Jan. 16, the B.C. Supreme Court ruled that the West Kootenay municipality – home to more than 4,000 people located near the Canada-U.S. border – must grant a local resident's applications for development permits to allow for timber to be removed from his four properties. The court verdict says the city council "acted in bad faith" when rejecting the applications. Read the CBC article.

Contaminated Site Update: Unforeseen Impact of a
Remediation Order on Property Tax Assessments
Ordinarily, owners of significantly contaminated sites can seek and obtain a reduction in the assessed value of their lands and therefore a reduction in property taxes on account of the presence of the contamination and the drag such contamination has on the value of the lands. Following Seaspan ULC v. North Vancouver (District) [2022 BCCA 433], the BC Court of Appeal has ruled that such a reduction in value is not warranted where the land in question is subject to a remediation order. This decision is worth consideration any time that an owner of a contaminated site is faced with a decision as to whether to undertake voluntary remediation or face the prospect of having a remediation order levied against it. Read the full article by Nicholas Hughes, Kate Macdonald and Dinah Holliday (Articling Student) with McCarthy Tétrault LLP.

Decriminalization of Illicit Drugs in  
Effect on January 31
The BC government has been granted an exemption by Health Canada from the Controlled Drugs and Substances Act to decriminalize the possession of certain illegal drugs. This is one of the approaches by the provincial government to address the ongoing toxic poisoning crisis. The exemption begins on January 31, 2023, and is in effect until January 31, 2026. Local governments are invited to register for a webinar on February 15 to discuss decriminalization with Ministry staff and the BC Center for Disease Control. Under this exemption, adults (18 years and older) in BC will not be arrested or charged for possessing small amounts of certain illegal drugs for personal use. The total amount of illegal drug(s) must be equal to or less than 2.5 grams. The illegal drugs covered by the exemption are: Read the full UBCM article.

Vancouver Island Municipality to Ban Drug Use in 
Public Spaces as Decriminalization Takes Effect
A Vancouver Island community is adopting a bylaw banning the consumption of controlled substances on municipal property as BC becomes the first province in Canada to decriminalize the possession of small amounts of certain illicit drugs. Campbell River Coun. Ben Lanyon moved the motion in favour of the bylaw during a Jan. 26 council meeting, five days before decriminalization was to take effect, calling it a proactive approach. It now awaits final adoption, having passed third reading. Read the CBC article.

New Energy Efficiency Requirements under the BC Building Code
The BC Energy Step Code is a provincial building standard incorporated within the BC Building Code (BCBC) that provides an incremental approach to achieving more energy efficient buildings that go above the base requirements of the BCBC. The Energy Step Code is designed to slowly introduce and increase mandated efficiency requirements so that local authorities and the construction industry can adapt to the process in a management way. The standard was first introduced in 2017 as a voluntary, compliance-based roadmap that both local government and industry could choose to use to incentivize or require builders to meet a level of energy efficiency in new building construction. Read the full article by Eugenia Adamovitch with Civic Legal LLP.

Miscellaneous News:

BC Court Ordered Misfeasance Claim Proceed without
Including Individual Officers as Defendants
The British Columbia Court of Appeal upheld the rule that a misfeasance claim against public authorities does not require the inclusion of the individual officers as defendants as long as they are identifiable and notified that their conduct is in issue. Greengen Holdings Inc., an independent contractor, required a water license and a Crown land tenure to develop a run-of-river hydropower project on Fries Creek, British Columbia. Fries Creek is within the territory of the Squamish Nation. Greengen submitted a development plan for the Project in April 2007. However, three months after, the Province and the Squamish Nation entered into a land use agreement that prohibited new Crown land tenures within cultural sites. Read the full article by Jason Tan on Canadian Lawyer.

Inactive Appeal of Litigant with Cognitive Disability  
Allowed to Proceed: BC Court of Appeal
The British Columbia Court of Appeal removed an appellant's appeal from the inactive list a second time and granted leave to proceed with his appeal against the City of Victoria. MPW was subjected to unlawful arrest and negligent investigation in 2010. He sued the City of Victoria and the two police officers involved in the arrest and investigation. However, his claim was dismissed in June 2020. MPW appealed the lower court's decision, alleging that the judge dismissed his claims based on an incomplete record and denied him sufficient opportunity to present his case. Read the full article by Jason Tan on Canadian Lawyer.

Motor Vehicle and Traffic News:

7 Out of 10 Trucks Checked in Burnaby in 2022 Taken
Off the Road for Safety Violations: RCMP
Of the 866 commercial vehicles pulled over by police in Burnaby in 2022, 605 failed the safety inspection
If the vehicles pulled over by police in 2022 are any indication, there are more unsafe trucks moving through Burnaby than ever before, according to Burnaby RCMP statistics released this week.

Some of the more egregious violations caught by police inspectors last year included a trucker with a learner's licence driving a semi unsupervised down Royal Oak Avenue (not a truck route).

Then there was the defective truck and trailer caught by police three times in three different cities; a trailer with worn tires, defective brakes and 4,000 kilograms too much weight being towed down Cariboo Road; and a diesel truck leaking a trail of diesel that the driver and his boss didn't think warranted taking the vehicle off the road. Read the full article by Cornelia Naylor with BurnabyNow.

Autonomous Vehicle Laws in Canada: Provincial &
Territorial Regulatory Review
In this article, we build on our 2021 Cross-Canada AV legislative update to provide an updated snapshot of the current autonomous vehicles regulatory and legislative framework in Canada.

Automated vehicles in Canada: Scope of current regulations
In Canada, AV technology and testing is a shared responsibility between the federal and provincial or territorial governments. Provincial and territorial governments are responsible for regulating individual drivers and vehicle operation in their respective jurisdictions, whereas the federal government (through Transport Canada) creates safety regulations for vehicles that are sold within, or imported to Canada.

Read the full article by Marin Leci, Michael Akins and Greg Rafter with Borden Ladner Gervais LLP.

Union Calls for National Task Force to Fight
Violence Against Transport Workers
A union representing 35,000 transit workers in Canada wants a national task force involving all levels of government to tackle violence against workers and riders on public transit systems across the country.

"The swarmings, the unprovoked stabbings, today's incident of someone running around with a syringe – it's only a matter of time before these injuries become catastrophic and start to take lives. We need to act now, not tomorrow," said John Di Nino, national president of the Amalgamated Transit Union (ATU) Canada, during a news conference.

How? Criminal Code reforms, interventions, greater visibility of police officers on transit systems, greater deterrence, funding for mental health supports in the community and worker training in de-escalation techniques, could help, he says. Read the full article by Jim Wilson in the HR Reporter.

Proposed Amendments to Merger Review for
Port-Related Transactions under the Canada
Transportation Act and Competition Act
In November 2022, Bill C-33, Strengthening the Port System and Railway Safety in Canada Act, completed its first reading in the House of Commons. Among changes to various transportation-related legislation, Bill C-33 proposes to amend the mandatory pre-merger notification process under the Canada Transportation Act (the "CTA"). Currently, transactions involving "transportation undertakings" that are subject to mandatory pre-merger notification to the Competition Bureau (the "Bureau") under the Competition Act must also be notified and approved by the Minister of Transport (the "Minister"). The proposed amendments would require notification to both the Minister and the Bureau of an additional category of mergers, namely those that involve transportation undertakings situated in ports, which would expand the federal government's jurisdiction over port terminals in Canada. Read the full article from McCarthy Tétrault.

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

• CVSE1016 – 9-Axle Logging Truck Routes
• NSC Bulletin 01-2022 – Publication of Carriers Cancelled for Cause

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

Passenger Transportation Board Bulletins
The following updates were recently published by the BC Passenger Transportation Board:

Industry Updates & Advisories

• New Passenger Transportation Board Mailing Address
  As of February 1, 2023, please direct any physically mailed correspondence to the Board's new mailing address:
  PO Box 9857 STN PROV GOVT, Victoria BC V8W 9T5
• Credit Card Surcharges – Feedback Requested from Industry
  To improve uniformity and clarity on credit card surcharges, the Board is considering enacting a rule prohibiting the charging of credit card surcharges by all PDVA and TNSA. The Board is seeking submissions from industry on this matter. Any submissions must be provided to ptboard@gov.bc.ca by February 8, 2023.
• Final Deadline to Activate Additional Taxis Extended
  Considering recent feedback, the final activation deadline is extended to July 1, 2023. Licensees will have until this date to activate additional vehicles, or they will no longer be valid.
• Board to Conduct Follow-up Investigation on the Current State of COVID-19 recovery for BC Passenger Transportation Industry
  The Board will be undertaking a follow-up study to the 2021 COVID-19 investigation, to better understand the current economic landscape. For further information, please read the Industry Advisory and the Q&As.

Applications Received

• 16182-22 – Solomon Ena Urhodo (The Luxporter)
• 16431-22 – Mebin Thomas (Super Cabs)
• 16451-22 – Savannah Marie Swaisland (Grape Savvy Wine Tours / Grape Savvy Trolley Co)
• 16362-22 – Subash Chandar Chandel (Victoria Taxi)
• 16509-22 – Transfer of Licence PDVA from Donald Raymond Major to Hollywood Limousines Ltd.
• 16469-22 – Transfer from William Robertson Benzie and Anne Wilson (Big Mountain Little Shuttle, A Toast the Okanagan Wine Tour / Toast the Okanagan Wine Tours) to Russell Bertram Banister and Cheryl Anne Banister (Big Mountain Little Shuttle)
• 16597-22 – Charanjit Singh Bhangu (Victoria Taxi)
• 16588-22 – Victoria Taxi Transportation Ltd.
• 16407-22 – Beaton's Meet & Greet Ltd.

Application Decisions

• 16243-22 & 16244-22 Combined Decision – Robert Charles Darwin and Leticia Natalie Darwin (This Rides for You…Wheelchair Services) [Approved in Part]
• 16362-22 – Subash Chandar Chandel (Victoria Taxi) [Approved]
• 16460-22 UPN – Shotgun Shuttle Ltd. [Approved]

Occupational Health & Safety News:

• update the Regulations to be in line with the most recent standards under the Globally Harmonized System of Classification and Labelling of Chemicals (GHS), leading to decreased costs and trade benefits for suppliers navigating Canadian and U.S. regulatory requirements; and
• improve protections for workers against product hazards handled in the workplace.

Consultation on Proposed Amendments to Part 6 of the
Occupational Health and Safety Regulation
from WorksafeBC:
Our Policy, Regulation and Research Department is requesting feedback on proposed amendments to Part 6, Substance Specific Requirements, sections 6.1–6.2.3, of the Occupational Health and Safety Regulation. The amendments are related to asbestos certification and licensing. The consultation phase gives stakeholders an opportunity to share feedback before the proposed amendments are taken to public hearing. View the proposed regulatory amendments and information on how to provide feedback. Please provide your feedback by 4:30 p.m. on Tuesday, February 28, 2023.

Mining Safety Expert Worries 
about Attracting Workers
Mike Parent knows 2023 will test the mining industry. After spending more than 25 years in the sector, the vice president of prevention services at Workplace Safety North has the experience and foresight to recognize the safety obstacles that lie ahead. And he says one of the biggest hurdles will be attracting and training skilled workers.  "Unfortunately, there's a bit of a perception that mining is [dangerous]. If there is a bad thing that happens in mining, it seems to catch the eye of the media, and that seems to paint the sector with that stigma."  Read the full article by Shane Mercer on Canadian Occupational Safety.

Five New Training Centres for Health Workers in BC
Five new health and safety satellite training centres have opened in British Columbia for the province's healthcare workers. They are meant to support continuing and long-term care workers who have experienced some of the highest incidents of workplace violence and injury rates due to staff shortages, fatigue, and burnout. The training centres in Kelowna, Williams Lake, Burnaby, Lumby, and Salmon Arm are part of a partnership between SafeCare BC and AgeCare. Read the full article by Shane Mercer on Canadian Occupational Safety.

Conducting Effective and Fair Workplace Investigations
When issues regarding safety, harassment or discrimination arise in a business, employers may need to conduct a workplace investigation. An employer's failure to conduct a proper investigation can make an already complicated situation much worse for an organization and trigger harsh penalties. If you are in a situation where a workplace investigation is required, consider the following tips for conducting one fairly and effectively. Read the full article published on the Overholt Law LLP Blog.

OHS Policies/Guidelines – Updates

Guidelines – Occupational Health and Safety Regulation

February 2, 2023

The following guideline was revised:

• Part 7 Radiation
  • G7.19(5) Exposure to non-ionizing radiation – Ultraviolet radiation

Property and Real Estate News:

Prohibitions on Non-Canadians Purchasing Residential Property –
More Potential Unexpected Commercial Impacts
On January 13, 2023, we wrote about some of the potential unexpected commercial impacts arising from the Prohibition on the Purchase of Residential Property by Non-Canadians Act (the "Act") and the Prohibition on the Purchase of Residential Property by Non-Canadians Regulations (the "Regulations"). Since that post, additional unexpected commercial impacts of the Act and Regulations have been identified, particularly with respect to the definition of "purchase" defined in section 4(1) of the Regulations. In our previous post we noted that a "purchase" includes "the acquisition, with or without conditions, of a legal or equitable interest or a real right in a residential property". Read the full article by Sarit Pandya, John C. Currie, Craig Shirreff, Annie Gagnon-Larocque, D. James Papadimitriou, John W. Boscariol, Sam Rogers and Eric Freeman with McCarthy Tétrault LLP.

BC Beefs Up Strata CRF Contributions in   
Effort to Address Insurance Costs
The BC government announced today (Jan. 24) that it is implementing changes to strata regulations to better protect strata owners, and mitigate the high cost of strata insurance. The amendments to the Strata Property Act are designed to eliminate confusion and clean-up or correct areas of contention, Tony Gioventu, executive director of the Condominium Home Owners Association of BC, told Glacier Media. Read the BIV article.

Should Assigning a Commercial Real Estate Purchase Agreement  
Impact Your Environmental Due Diligence?
In a commercial real estate transaction, it's common for the original buyer to assign the purchase agreement prior to closing or for a different party to otherwise take title to the relevant property. If you're the party receiving the assignment or otherwise taking title, should this impact your environmental due diligence? According to a recent decision of the British Columbia Court of Appeal, it should. In 0694841 BC Ltd. v. Alara Environmental Health and Safety Limited, the court ruled that a company who was assigned a purchase agreement could not rely on an environmental assessment prepared for a related entity when purchasing commercial real estate. As such, when the property was later discovered to be contaminated, the owner could not sue the environmental consultant for missing the contamination. Read the full article by Lana Finney and Patrick Gordon with Blake, Cassels & Graydon LLP.

New Rental Protection Fund Announced
The Province recently announced the creation of a $500 million Rental Protection Fund with the intention to preserve affordable rental housing and protect tenants from eviction.The fund will provide one-time capital grants to non-profit housing organizations to purchase residential rental buildings that may otherwise be redeveloped or converted to more expensive units, evicting or driving out current residents. The Rental Protection Fund will be managed by the Housing Protection Fund Society, consisting of the BC Non-Profit Housing Association, the Co-operative Housing Federation B.C., and the Aboriginal Housing Management Association (AHMA). It will be operational in the coming months and will be financed prior to March 31, 2023.

What Prompt Payment Legislation Will Mean for
Contracts and Projects in BC
In response to concerns from contractors over receiving full and prompt payment for their work, Ontario and other jurisdictions across Canada have implemented or are in the process of implementing prompt payment legislation, which sets tight timelines for the payment of contractors after their work is completed. It is expected that British Columbia will soon follow suit. As prompt payment legislation is being introduced across Canada, British Columbia can look to other Canadian jurisdictions for considerations on the implications of its own prompt payment legislation. Read the full article by Scott Lamb and Dan Melnick with Clark Wilson.

BC Property Ownership Registry in Full Effect,  
But Will Take Years to "Mature"
The registry, the first of its kind in Canada, was set up in an effort to tackle criminal money-laundering. Two years after a land ownership transparency registry was introduced in BC to help combat money laundering and tax evasion, it is now finally in full force. Still, it will likely take more time, perhaps years, for the usefulness of the registry to be tested and proven, say those whose regulatory and policing work could benefit from the registry. "It's very helpful to have this," said Ron Usher, general counsel for the Society of Notaries Public of BC. "But stay tuned. It will be three of four years before a real evaluation is done." Read the Vancouver Sun article by Gordon Hoekstra.

Wills and Estates News:

Remote Witnessing of Powers of Attorney
Recent amendments to the Power of Attorney Act and Power of Attorney Regulation permit remote witnessing of signatures in British Columbia. These amendments came into affect on January 1, 2023.

The donor (referred to as the "adult" in the legislation) may sign a power of attorney in the electronic presence of a witness who is a British Columbia lawyer or notary public. Similarly, the attorney may also sign in the electronic presence of the witness, provided that the witness is a British Columbia lawyer or notary public. Accordingly, it is no longer necessary for the donor or attorney to sign in front of a lawyer or notary public in person, but may be witnessed using audiovisual technology. Read the full article by Stan Rule with Sabey Rule LLP.

B.C. Sees New Year Changes to Estate
Planning, Real Estate Laws
The new year often can bring new changes – and that is something that is true for lawyers in British Columbia at the beginning of 2023, with the province making pandemic-era tweaks to how certain estate planning documents can be witnessed permanent, as well as implementing new rules aimed at protecting homebuyers in B.C.'s hot real estate market.

Amendments to both the Power of Attorney Act and the Representation Agreement Act are now in place to permanently allow for remote electronic witnessing of the signing of enduring powers of attorney (EPAs) and representation agreements. The amendments, which were passed in fall 2022 but came into effect Jan. 1, are similar to temporary measures which were adopted in response to the COVID-19 pandemic and require a lawyer or notary to be in the electronic presence of the person signing the agreements, which also require a statement saying they were signed in accordance with the alternative process. Read the full article by Ian Burns in The Lawyer's Daily.

Presumption of Advancement in British
Columbia Estate and Family Law
The Presumption of Advancement in British Columbia has sparked heated debates among family lawyers and estate litigators. This common law doctrine assumes that when one spouse transfers property to the other, it's considered a gift and becomes the sole property of the recipient spouse. But what happens in the event of death or relationship breakdown? Can the transfer be undone? This has been a lingering question, with various interpretations and applications of the doctrine. Read the full article from the Onyx Law Group.

Financial Disclosure in Wills Variation
Matters: Richter v Richter Estate
Parties to wills variation proceedings have, for some years, faced uncertainty regarding the financial disclosure they may be required to provide to other parties during the litigation process. Disclosure of financial information can give rise to concerns about privacy, and these concerns may be felt more acutely where, as is often the case, those other parties are family members with whom a litigant may have acrimonious relationships.

In Richter v. Richter Estate, 2023 BCSC 105, the British Columbia Supreme Court recently considered the scope of document disclosure obligations in wills variation matters. Justice Blake confirmed that while some financial disclosure will always be relevant, the extent of the disclosure required will vary based on the circumstances of each case. Read the full article by Polly Storey and Cameron Fox with Clark Wilson LLP.

British Columbia Law Institute:
Undue Influence Recognition
The British Columbia Law Institute has recently publish Undue Influence Recognition and Prevention: A Guide for Legal Practitioners together with A Reference Aid.

In 2011, the BCLI published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide in contemplation of changes to our succession law that would in some cases make it easier to challenge wills on the grounds of undue influence. The purpose was to assist lawyers and notaries in recognizing indicia of undue influence and forestalling the exercise of undue influence in respect of wills. Read the full article by Stan Rule with Sabey Rule LLP.

BC Supreme Court Orders Heir to Return Funds
Taken from Testator's Joint Account
The BC Supreme Court has ordered an heir to return the funds he took from a joint account with his deceased mother.

When Thelma Campbell died in 2017, she was survived by her three children, Karen, Arnold, and Ivan. Karen was named as the executor and trustee of her mother's estate. Six months before her death, Thelma added Ivan's name to three bank accounts she previously held in her sole name and Arnold's to another. Those bank accounts are the center of the dispute in Campbell Estate (Re), 2022 BCSC 2184. Read the full article by Angelica Dino in the Canadian Lawyer.