New Tax Rules for Certain Pension Contribution Errors
Long awaited amendments to ease the process of correcting contribution errors in Defined Contribution ("DC") pension plans are now law. Federal Bill C-47 passed and received Royal Assent on June 22, 2023. It includes certain eagerly awaited pension-related amendments to various statutes.

This article considers the new rules for correcting contribution errors in DC pension plans under the Income Tax Act (Canada) and its regulations (the "Tax Act"), and identifies some unresolved issues. Read the full article by Allyson Marta with Fasken Martineau DuMoulin.

Amendments to Societies Act
On July 7, the Societies Act was amended by 2021 Bill 19, the Societies Amendment Act, 2021. The recent amendments seek to refine the Act by increasing transparency and flexibility for societies and protecting the information of society members, and include:

• requiring societies to disclose the remuneration of any employee or contractor that exceeds the amount set by regulation (currently $75,000), which will apply to financial statements presented to members at annual general meetings held one year after this amendment takes effect;
• extending time periods for limited restorations of a society or allowing the conversion to full restorations without any time limit;
• allowing an extraprovincial non-share corporation to remove an attorney by filing a notice with the registrar; and
• requiring a resigning attorney to give the resignation to the corporation at least two months before the resignation takes effect and file a notice of resignation with the registrar.

Code of Market Conduct for All Insurers Conducting
Business in British Columbia
The goal to modernize the British Columbia Financial Services Authority's (BCFSA) approach to market conduct supervision and oversight includes the requirement for insurers operating in British Columbia (BC) to adopt and follow a Code of Market Conduct established by the BCFSA.

On July 10, 2023, the BCFSA released a regulatory statement establishing the Insurer Code of Market Conduct (Code) that all insurers authorized to conduct business in BC must adopt and ensure compliance effective April 1, 2024. This requirement applies to all BC incorporated insurance companies, extra provincial insurance corporations, societies deemed under the Financial Institutions Act, and mutual fire insurance companies, but excludes reinsurers, reciprocal exchanges and captive insurance companies. Failure to comply with the adoption of the Code by the effective date may result in enforcement action by the BCFSA. Read the full article by Derek Levinsky and Taschina Ashmeade with Dentons LLP.

Reverse Gear: Supreme Court of British Columbia Provides Guidance on
Reverse Vesting Orders in Insolvency Proceedings
The use of Reverse Vesting Orders ("RVOs") has become a common occurrence in Canadian insolvency proceedings in recent years. However, in PaySlate Inc. (Re) the Supreme Court of British Columbia initially declined to grant an RVO and instead offered guidance on when this extraordinary remedy is appropriate. Read the full article by Noor Mann and Jacqueline Ovsenek with Lawson Lundell LLP.

Canada Revenue Agency Publishes Guidance on
Mandatory Disclosure Rules
On July 6, 2023, the Canada Revenue Agency (CRA) posted on its website new administrative guidance (CRA Guidance) on the application and administration of the revised mandatory disclosure rules in the Income Tax Act (ITA) that were included in the Budget Implementation Act (Bill C-47) released on April 17, 2023. For our Bulletin discussing the revised mandatory disclosure rules, please see Blakes Bulletin: Mandatory Disclosure Update: Department of Finance Introduces Revised Rules in the House of Commons. Bill C-47 received Royal Assent on June 22, 2023.

The CRA Guidance was contemplated in the explanatory notes (Explanatory Notes) that were released with Bill C-47. It was developed with input from the Department of Finance and various stakeholder groups, and it is expected that the CRA may update the guidance as they continue to consider submissions received. The CRA is also expected to release updated versions of the mandatory reporting forms in the near term, but the forms have not been published as of the date of this bulletin. Read the full article by Lara Friedlander, Jeffrey Shafer, Chris Sheridan and Andrew Spiro with Blake, Cassels & Graydon LLP.

British Columbia's Money Services Businesses Act
Receives Royal Assent
On May 11, 2023, British Columbia's Money Services Businesses Act (BC MSB Act) received royal assent. The BC MSB Act will be the province's first statute of this kind and will be administered by the British Columbia Financial Services Authority (BCFSA).

BCFSA will appoint a Superintendent of Money Services Businesses (MSBs) to spearhead this new mandate and has stated it expects to regulate 578 MSBs operating in the province. The path forward for MSBs promises to be: first, registration; second, regulation; and in turn, enforcement. Early adoption of best practices within the industry will mitigate the impact of regulation and the risk of enforcement and civil claims that inevitably follow.

The coming-into-force date has not yet been announced, but impacted businesses will be given time to prepare to register. Read the full article by Ross McGowan, Cindy Y. Zhang and Matthew Connors.

Legislative Amendments Empower BC Securities Commission to
Combat Investment Market Misconduct
The BC Securities Commission (BCSC) has announced that a comprehensive package of legislative amendments came into force on July 17, enhancing the BCSC's powers to investigate investment market misconduct and hold people accountable for their illegal acts.

One of the key updates to BC's Securities Act is a provision that empowers the BCSC to take swift action against non-cooperative individuals who fail to comply with a summons or demand for information. Previously, the BCSC had to resort to time-consuming court processes such as applying to the Supreme Court for an order that a non-cooperative person be liable for contempt. Now, the BCSC can use its administrative procedures to impose faster consequences, including market participation restrictions and administrative penalties of up to $1 million. Read the full article by Angelica Dino in the Canadian Lawyer.

Recent Tax Ruling Undermines Purpose of Proposed
Reforms to General Anti-avoidance Rule: Lawyer
The recent Supreme Court of Canada decision involving the Income Tax Act's general anti-avoidance rule has undercut the need for the federal government's proposed legislative reforms, says Laurie Goldbach, a tax litigator at BLG.

The court released its ruling in Deans Knight Income Corp. v. Canada, 2023 SCC 16 on May 26. The case dealt with a company that executed a complex series of transactions to capitalize on tax benefits held by another company. The SCC found the transactions, which transferred tax deductions acquired through non-capital losses, were abusive under the general anti-avoidance rule (GAAR). Read the full article by Aidan Macnab in the Canadian Lawyer.

Update to PST Information
The provincial government recently made revisions to Bulletin PST 400, PST Refunds, to

• clarify that you should not submit original documents with your application
• clarify that we may ask you to provide additional supporting documentation or proof of payment
• clarify that Electronic Funds Transfer documents and third-party payment system documents must show the name of the payee
• clarify that it is your responsibility to submit an accurate and complete refund application
• clarify when interest starts accruing for refunds
• clarify that the federal luxury tax is not considered a sales tax for the purposes of determining refund eligibility for motor vehicles removed from B.C.
• add information about refunds for PST paid on motor vehicles where an appraisal is obtained within 30 days from the registration of a motor vehicle purchased at a private sale or imported from outside Canada, and both the appraised value and the declared purchase price are less than the average wholesale value
• reflect a Budget 2022 change, effective June 3, 2022, allowing persons operating a commercial rail service to store items not used for a taxable purpose in inventory for up to 24 months
• add information about refunds for PST paid on fossil fuel combustion systems and heat pumps where the contractual agreement was affected by changes in PST rates on April 1, 2022

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

• 81-336 – Guidance on Crypto Asset Investment Funds that are Reporting Issuers
• 13-932 – CSA Notice regarding Coordinated Blanket Order 13-932 Exemptions from certain requirements in connection with the launch of the System for Electronic Data Analysis and Retrieval +
• 13-933 – CSA Notice regarding Coordinated Blanket Order 13-933 Temporary exemption from the requirement to transmit a report of exempt distribution through SEDAR+ in connection with distributions of eligible foreign securities to permitted clients
• BC Notice 2023/07 – Notice of Amendments to the Securities Act
• 31-363 – Joint CSA and CIRO Staff Notice 31-363 – Client Focused Reforms: Review of Registrants' Conflicts of Interest Practices and Additional Guidance

For more information, visit the BC Securities website.

With Great Power Over Ratepayers Comes Regulation: BCUC Finds
Submetering Provider is Subject to Regulation as a Public Utility
On June 28, 2023, the British Columbia Utilities Commission ("BCUC") released Decision and Order G-168-323, finding that Wyse Meter Solutions Inc. ("Wyse"), a submetering provider, was a "public utility" under the British Columbia Utilities Commission Act (the "UCA") and, therefore, was subject to regulation by the BCUC. The decision confirms that the BCUC's regulatory reach extends to services that may not be considered typical of public utility service, including submetering to tenants and condo owners.

Background
Wyse is a submetering provider that has offered services in British Columbia since 2016. Submetering involves measuring the consumption of electricity, water and sewer, natural gas and/or thermal consumption in individual units of multi-residential buildings (i.e., rental / condo units) downstream of a bulk meter. The associated contracts with building owners are exclusive and long-term (often up to 20 years in length). Individual unit holders (i.e., tenants / condo owners) then enter into a "Utility Services Contract" with Wyse for service to their unit.

Read the full article by Tariq Ahmed and Niall Rand with Fasken Martineau DuMoulin.

Canada Joins Nations Calling for
Moratorium on Deepsea Mining
The international community has spent the last two years striving to meet a deadline set to expire this month for mining rules and environmental protections.

Canada is joining the tide of nations calling for a moratorium on deepsea mining in the high seas.

"The protection, conservation, restoration and sustainable use of ocean ecosystems is essential to all life on Earth," said a federal government news release last week as an international meeting got underway on the issue.

The meeting this month of the International Seabed Authority is a last-ditch attempt by the international community to finalize regulations for deepsea mining. The international community has spent the last two years striving to meet a deadline set to expire this month for mining rules and environmental protections around extracting metals off the sea floor. Read the Vancouver Sun article.

Federal Critical Minerals Funding Unearthed
The energy transition and global demand for critical minerals, and the opportunities these present for Canada, continue to be areas of focus for the Government of Canada (Canada). Building upon the release of the Canadian Critical Minerals Strategy in late 2022 (discussed in our previous blog post), Canada recently announced two new funding opportunities in the critical minerals space.

Strategic Innovation Fund
To better position Canada to take advantage of the opportunity presented by the energy transition and ongoing demand for critical minerals, Budget 2022 proposed $1.5 billion in funding through the Strategic Innovation Fund (SIF) to accelerate investments in critical minerals projects. Additionally, Budget 2023 included another $500 million over 10 years to the SIF to support these targeted investments. On July 14, Canada announced the criteria for funding eligibility.

Read the full article by Brian Bidyk, Louis-Nicolas Boulanger, Dominique Amyot-Bilodeau, Ashley Urch and Artem Sushko with McCarthy Tetrault.

Reforming BC's Mineral Tenure Act in
Alignment with UNDRIP
The province of British Columbia (the "Province") created the Declaration Act Action Plan (the "Action Plan") under section 4 of the Declaration on the Rights of Indigenous Peoples Act (DRIPA). The Action Plan aims to bring to life the aspirations of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and to see that Indigenous peoples can fully enjoy their inherent rights to own, use, develop and control lands and resources in their traditional territories.

The Urgency of Modernizing the Mineral Tenure Act
The clock is ticking on the Action Plan, slated for implementation between 2022-2027. One of the key steps of the Action Plan is to "modernize the Mineral Tenure Act in consultation and cooperation with First Nations and First Nation organizations." The existing free-entry mining system, a pillar of the current Mineral Tenure Act (MTA), disregards their inherent rights to the land, necessitating an urgent reform. Both Indigenous governments and the Province agree that the MTA and its Regulations need to be reformed so that Indigenous peoples can meaningfully actualize their rights and title.

Read the full article by Tolu Kolawole and Nick Leeson with Woodward & Company LLP.

BC Hydro's New Clean Power Call: What it
Means for the BC Power Industry
On June 15, 2023, the BC government announced that BC Hydro and Power Authority ("BC Hydro") will be launching a new call for sources of renewable, emission-free electricity in the province of BC. More information about the announcement and the new call can be found in our recent blog post.

Concurrent with announcing the new call, BC Hydro filed its first signpost update (the "Signpost Update") to the 2021 Integrated Resource Plan (the "IRP") with the BC Utilities Commission (the "BCUC"). The Signpost Update, among other things, confirmed the need for new sources of clean or renewable energy in the province sooner than previously anticipated in the IRP. Clean or renewable energy, as defined in Section 1 of the Clean Energy Act (British Columbia), includes technologies focused on biomass, biogas, geothermal heat, hydro, solar, ocean, wind, biogenic waste, waste heat, and waste hydrogen. BC Hydro published a 2023 update to the IRP (the "IRP Update" and, together with the Signpost Update, the "2023 Updates") to reflect the developments in the Signpost Update. The 2023 Updates come after BC Hydro sent a letter to the BCUC on March 23, 2023, anticipating the need to renew Electricity Purchase Agreements ("EPAs") expiring after 2026, acquire new greenfield energy resources, and advance capacity resources such as transmission projects and utility-scale batteries. Read the full article by Sven O. Milelli, Robin Sirett and Josh Friedman with McCarthy Tetrault.

Early Consolidation of the Child, Family
and Community Service Act
Quickscribe has created an early consolidation of the amendments to the Child, Family and Community Service Act (CFCSA) by 2022 Bill 38, c. 40, which are not yet in force. Bill 38 amends the CFCSA to enable Indigenous governing bodies to assume jurisdiction over Indigenous child and family services in British Columbia. The legislation also creates the position of Indigenous child-welfare director in the Ministry of Children and Family Development.

Amendments in the early consolidation include:

• provisions for the withdrawal of the director from a proceeding due to Indigenous law;
• provisions for circumstances in which an Indigenous authority will have custody of an Indigenous child who is in the continuing custody of the director;
• applications to dispense with the required consent of an Indigenous governing body before a director requests the placement of an Indigenous child for adoption;
• provisions for the Public Guardian and Trustee to continue to be an Indigenous child's property guardian by agreement with an Indigenous authority;
• conferring jurisdiction on the Provincial Court if an Indigenous law provides for that jurisdiction.

New Court Rules Changes to Improve
Access to Justice – September 1st
The latest amendments to the Supreme Court Civil Rules ("Rules") and Supreme Court Family Rules ("Family Rules") aim to clarify existing rules, streamline court processes, and improve accessibility to court services. For your convenience, Quickscribe has published early consolidations of the amendments made to the Rules and the Family Rules.

The key changes, which come into force on September 1, 2023 include:

1. Definitions (Rules and Family Rules, R. 1-1(1)): adding a definition for "business day", which means a day on which the court registries are open for business.
2. Service of documents (Rules, R. 4-1(1); Family Rules, R. 6-1(1)): requiring an email address, if available, for service of documents.
3. Trial management conferences (Rules, R. 12-2(1); Family Rules, R. 14-3(1)): reducing the circumstances in which a trial management conference ("TMC") is required. Parties are no longer required to have a TMC between 28 and 120 days before the trial date. Unless the court otherwise orders, TMCs are required if the trial is a jury trial, if the trial will be more than 15 days in length, if a party does not or may not have legal representation at the trial, or if a party of record requests a TMC by filing a requisition at least 42 days before the trial date.
4. Application and petition records (Rules, R. 8-1(15) and 16-1(11); Family Rules, R. 10-6(14) and 17-1(11)): restricting how early before the date of a hearing an application record or petition record may be provided to the registry. Parties must now provide application and petition records to the registry no earlier than 9:00 a.m. on the business day that is three full business days before the date set for the hearing and no later than 4:00 p.m. on the business day that is one full business day before the date set for the hearing. However, if an earlier date is fixed by a registrar, the application or petition record must be provided to the registry on or before that date.
5. Trial briefs (Rules, R. 12-1.1; Family Rules, R. 14-2.1): a new rule setting out requirements relating to trial briefs, including that the failure to file or serve a trial brief may lead to the removal of the trial from the trial list or a costs award against the party that failed to file or serve a trial brief.
6. Case-planning conferences (Family Rules, Part 7.1): new rules providing for a case-planning conference option in family law cases.

The amendments also reflect housekeeping and typographical revisions, including adding gender inclusive language. Quickscribe would like to thank Kirsten Marsh from OnPoint Law Corporation for summarizing these changes.

The Importance of Written Consent: Removal and Use of
Human Reproductive Materials After Death
In 2020, the BC Court of Appeal considered an important issue concerning the removal and use of human reproductive materials (sperm, ova, embryos): Whether a spouse or common-law partner (defined as a person who is cohabitating with an individual in a conjugal relationship for at least one year) can use their spouse or common-law partner's human reproductive materials after death without prior consent?

Short Answer:
The answer is: no. In Canada, you must have informed, written consent in accordance with the Assisted Human Reproduction (Section 8 Consent) Regulations from your spouse or common-law partner to extract and use their human reproductive materials after their death.

Read the full article by Jeannette Aucoin and Shiona Nickel with Clark Wilson LLP.

Government Finally Agrees to Ombudsperson's Call to Apologize For 1950s
Detention of Doukhobor Children, But Is Vague on Compensation
In a report released today, the BC Ombudsperson says government's commitment to apologize later this year to surviving members of the Doukhobor community, who were apprehended, institutionalized and maltreated, as children in the 1950s, is a "momentous step." However, he is "deeply disappointed" that the Attorney General is remaining vague about compensating the survivors, their families, and communities.

"I am relieved that government has indicated in its response to this report that, this fall, it will finally apologize for its harmful actions," said Ombudsperson Jay Chalke. "This will be a welcome, albeit long-awaited, step toward justice. However, I am saddened and surprised that government is still not unequivocally committing to compensation, a critically important measure to right this historic wrong." Read the full article from the Office of the Ombudsperson.

Increased BC Family Benefit Here to Stay
More than 285,000 families throughout B.C. will see bigger payments in their bank accounts starting this month, thanks to the permanently increased BC Family Benefit.

"Global inflation and higher interest rates continue to be hard on many families right now," said Grace Lore, Minister of State for Child Care. "The BC Family Benefit is one way we're helping families provide the food, clothes and opportunities their kids need to have the best start possible."

The BC Family Benefit is a regular monthly payment from the provincial government. Eligibility is based on income and number of children. The benefit reaches families with yearly earnings below $106,908 with one child and $143,783 with three children. Read the government news release.

Family Law Act in British Columbia:
A Comprehensive Guide
Whether you are at the beginning, middle or end of a separation, you are facing difficult decisions that will affect your future. There are so many issues that need to be resolved, from financial issues (e.g., child support and spousal support payments), to property division, to arrangements for your children.

You will be in a stronger position to plan for your future and make wise choices if you know the law. In British Columbia, the Family Law Act is the main law that applies to family law issues. It sets out the legal rights and responsibilities of all parties involved in a family law dispute. Read the full article from the Onyx Law Group.

Recent Forest Legislation Amendments
As mentioned in the last Quickscribe Reporter, provisions of 2021 Bill 28, the Forest Amendment Act, 2021, came into force on July 15. These amendments added Parts 15 to 19 to the Forest Act, which will allow areas of Crown land to be designated as special purpose areas, for an access purpose, for a non-timber production purpose, or for one or more first nation purposes, BCTS licence purposes or community forest agreement purposes. The bill also provides for compensation to certain licence or permit holders who may be impacted by special purpose areas. Other amendments authorize the reduction to allowable annual cuts of forest licences for the purposes of entering into forest licences with first nations or entering into BCTS licences.

Never Going to Let You Go: BC's EMA May Allow Creditors to Seek
Recovery from Third Parties for Environmental Remediation Claims
The recent decision from the Supreme Court of British Columbia (the "Court") in Cordy Environmental Inc. v Obsidian Energy Ltd., 2023 BCSC 1198 ("Cordy Environmental") has opened the door for creditors of an insolvent company to recover pre-filing amounts relating to environmental remediation from certain third parties. The main issue in Cordy Environmental was whether a service company that performed remediation work on a pipeline spill could rely on the statutory indemnification provisions under the Environmental Management Act, S.B.C. 2003, c. 53 (the "EMA") to recover unpaid amounts from a prior owner of the pipeline with whom the service company had no contractual relationship.

The trial judge found that, pursuant to EMA s. 47, the prior owner of the pipeline may be jointly and separately liable for the costs of remediation incurred by the service company, and that such liability is independent of any contractual relationship between the parties. Further, the Court held that the prior owner's liability for the costs of remediation continues to operate notwithstanding the insolvency of the party that originally created the obligations owing to the service company for its remediation work. Read the full article by Robyn Gurofsky, Anthony Mersich and Rebecca Barclay Nguinambaye with Fasken Martineau DuMoulin LLP.

Practicing Landscape Fire Management –
Technical Bulletin
As a companion document to its special report, Forest and Fire Management in BC: Toward Landscape Resilience, the Forest Practices Board has produced a technical bulletin to help land managers put Landscape Fire Management into practice. The bulletin describes six key principles for practicing landscape fire management, including:

1. Defining the landscape
2. Understanding current and projected conditions
3. Understanding risks to values
4. Setting complementary wildland fire objectives across land use zones
5. Coordinating intervention
6. Adaptive management

Read the bulletin from the Forest Practices Board.

Legal Challenges Threaten Net-Zero Pledges
The legal risks associated with voluntary climate action to transition to net-zero emissions are becoming real for companies as they face the possibility of prosecution for antitrust violations. To guarantee the effectiveness of their net-zero pledges, firms are now calling for a more stable and predictable legal environment.

According to Net Zero Tracker, almost half of the world's largest firms have set net-zero commitments. Among them are banks, asset owners and insurers. Different net-zero financial alliances were established in the lead-up to COP26 to mobilize the financial sector around the goals of the Paris Agreement. Financial institutions recognized the long-term business risks of climate change and understood the commercial value of collaborating towards net-zero. But we know that pollution is an environmental externality. In the absence of regulatory sticks or financial carrots to reduce emissions, firms are incentivized to emit greenhouse gases without restraint, leading to the everlasting tragedy of the commons. Read the full article by Julien O. Beaulieu in the CBA National magazine.

British Columbia Takes Action on Plastic Waste
On July 14, 2023, the Province of British Columbia published the Single-Use and Plastic Waste Prevention Regulation, which will come into effect on December 20, 2023. This regulation will lead to the phasing-out of oxo-degradable plastic packaging and products, shopping bags, and food service ware and accessories in British Columbia.

The publication of this regulation ends a multi-year consultation process pursuant to the CleanBC Action Plan, which launched in 2019. Read the full article by Mark Youden, Emma Hobbs and Wynona Klemt with Gowling WLG.

International Sustainability Standards Board Releases
Sustainability Disclosure Standards
On June 26, 2023, the International Sustainability Standards Board (ISSB) released the final versions of its first two global sustainability disclosure standards for financial reporting (the ISSB Standards). The ISSB aims to position the ISSB Standards as the global baseline for voluntary sustainability reporting. Canada and British Columbia have indicated strong support for the ISSB Standards, but have refrained from outlining whether they will adopt them, and if they do, to what extent and when. The Canadian Sustainability Standards Board (CSSB), which became fully operational following the release of the ISSB Standards, will guide the implementation of the ISSB Standards in Canada. Read the full article by Erik Coates, Radha Curpen and Sharon Singh with Bennett Jones LLP.

Nuxalk, Kitasoo Xai'xais Guardians Appointed
with Park Ranger Authority
The Kitasoo Xai'xais and Nuxalk First Nations, along with BC Parks, have launched a new pilot program that designates 11 Indigenous guardians with the same legal authorities as park rangers within the parks and protected areas in their ancestral territories.

Six Kitasoo Xai'xais and five Nuxalk guardians recently received park ranger appointments during ceremonies held in Klemtu and Bella Coola to mark the official launch of the Shared Compliance and Enforcement Pilot Program. The pilot is the first project of its kind in B.C. Read the full government news release.

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

Environmental Management Act

• District of Sicamous v. Director, Environmental Management Act [Dismissal Order – Appeal Dismissed]
• Halcyon Hot Springs Resort Ltd. v. Director, Environmental Management Act [Dismissal Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Health Professions and Occupations
Act – Early Consolidation
The Health Professions and Occupations Act, Bill 36, received Royal Assent on November 24, 2022, and will replace the existing Health Professions Act when it comes into force. The new legislation reflects recommendations set out in the 2018 Cayton Report, the result of an independent inquiry by UK regulatory expert Harry Cayton, commissioned by BC's Minister of Health. For your convenience, Quickscribe has published an early consolidation of the new Act, along with Hansard references at section levels.

BC Supreme Court Adds ER Doctor in Medical Negligence
Case as It Would Be 'Just and Convenient'
The BC Supreme Court has allowed a plaintiff's request to include another doctor in a medical negligence case because it would be "just and convenient."

In Stutt v Hung, 2023 BCSC 1085, Kerri Ann Stutt filed a medical negligence claim for her treatment at Richmond General Hospital (RGH) in 2019. She alleges that the care she received from various healthcare professionals fell below the required standards. She claimed that a spinal epidural abscess she was experiencing was misdiagnosed and mistreated, causing her to suffer a severe spinal cord injury and leaving her a wheelchair-bound paraplegic. Stutt's condition includes bowel and bladder function loss and recurring bladder infections. She requires daily assistance for self-care and has been left permanently wheelchair-bound. Read the full article by Angelica Dino in the Canadian Lawyer.

No More MAiD Delays
The CBA's End of Life Working Group asks the government to move forward with medical assistance in dying in circumstances where the sole underlying condition is a mental illness. Further delays to the eligibility for medical assistance in dying, or MAiD, in circumstances where the sole underlying condition is a mental illness are deeply concerning and should not be prolonged. That's the gist of a letter to Justice Minister David Lametti and Health Minister Jean-Yves Duclos from the Canadian Bar Association's End of Life Working Group.

The CBA's commitment to clarifying the law about end-of-life decision-making goes back nearly a decade. "The CBA supports MAiD for persons with mental illnesses and mature minors, and supports advance requests for MAiD, with appropriate safeguards." It has made recommendations to that effect consistently over the years. Read the full article by Brigitte Pellerin in the CBA National magazine.

Man Showing No Active Symptoms to Continue Receiving
Involuntary Psychiatric Treatment: BC Court
A man who receives involuntary psychiatric treatment under British Columbia's Mental Health Act has lost at the Court of Appeal arguing that the Act's provisions require that he manifest active symptoms of serious impairment to remain subject to the treatment.

"This decision is a further step in an already very restrictive mental health regime," says Carly Peddle, a lawyer at MacKay Boyar in Vancouver who represented the BC Civil Liberties Association, an intervenor in the case. "The BC Mental Health Act is one of the most restrictive and least liberty-encouraging statutes compared to other provinces across Canada." Read the full article by Aidan Macnab in the Canadian Lawyer.

Research and Public Health Groups Cannot Agree on
Whether Aspartame Is, or Is Not, Carcinogenic
If the purpose of science is to explain and understand, a number of organizations that embrace the scientific method and publish regularly on public health are not doing a very good job of either. About a month ago, I posted information about a study suggesting that sucralose, the nation's leading sugar substitute, might be a cause of cancer. Now sucralose's nutritive non-sugar sweetener counterpart, aspartame, has become the subject of a highly publicized scientific debate over its potential toxicity.

Aspartame has been used widely since the 1980s in various food and beverage products such as diet drinks, yogurt, breakfast cereal, toothpaste, and even in some medications such as cough drops and chewable vitamins. Consumers rely on products containing aspartame and other sweeteners to reduce their sugar consumption. Read the full article by Paul Benson, with Michael Best & Friedrich LLP.

New Restrictions on Advertising
Food and Drinks to Children
On June 28, 2023, Ad Standards' new Code for the Responsible Advertising of Food and Beverage Products to Children (FBA Code) took effect. The FBA Code and its complementary Guide for the Responsible Advertising of Food and Beverage Products to Children set new restrictions on advertising certain foods to children.

Ad Standards is the advertising non-profit, self-regulatory body that administers the Canadian Code of Advertising Standards and sets the criteria for acceptable advertising in Canada. Companies in the food and beverage industry are encouraged to review the new standards and expectations under the FBA Code, which are now in force.

Under the FBA Code, no advertising for a food or beverage product may be primarily directed at a child unless the product satisfies specific nutrition criteria. This core restriction applies to advertising featuring a food or beverage product directed to residents of Canada in any media (including social media, streaming services, applications and games). "Child" is defined as a person under 13 years of age. Read the full article by Laura Weinrib, Pei Li and Lindsay Toth with Blakes.

BC Stops Collecting Vaccine Status Information from
Health-Care Colleges
B.C.'s provincial health officer has lifted a pandemic-related order around the collection of vaccine status information for healthcare workers, but that doesn't mean unvaccinated staff will be allowed to return to work.

Dr. Bonnie Henry on Friday [July 14] repealed an order that required health professional regulatory colleges to obtain vaccination status data about their registrants. The repealed order also allowed regulatory colleges to share vaccination status with post-secondary institutions. Read the BIV article.

British Columbia Court Finds Termination Clause Enforceable Because
It Complied with Statutory Individual Notice Provisions

• Supreme Court of British Columbia held that a termination clause was enforceable because it met the minimum statutory requirements for notice in individual termination scenarios; it did not matter that the agreement in this case waived the minimum notice requirement for group terminations under the Employment Standards Act.
• This decision deviates from how courts in Ontario interpret termination clauses; there, factfinders must analyze termination agreements as a whole rather than on a piecemeal basis, and if any termination provision in the agreement is contrary to the requirements of the Employment Standards Act, 2000, all termination provisions in the contract will be considered unenforceable.

In Forbes v. Glenmore Printing Ltd., 2023 BCSC 25, the Supreme Court of British Columbia (BC) disagreed with the employee's argument that the termination clause in his employment agreement was invalid because it required the notice to which he would be entitled only under the individual termination provisions in section 63 of the Employment Standards Act (BC ESA), and effectively waived the minimum notice to which he would be entitled under the group termination provisions in s. 64 of the BC ESA. The court dismissed the employee's action, finding that the termination clause was enforceable because s. 63, not s. 64, establishes the minimum statutory requirements needed to oust the common law entitlement to reasonable notice, and the termination clause allowed for the same notice provided for in s. 63. Read the full article by Rhonda B. Levy and Barry Kuretzky with Littler Mendelson P.C.

Correcting Contribution Errors in Respect of Defined Contribution
Pension Plans – New Rules Now in Force
On June 22, 2023, Bill C-47 received royal assent, implementing a variety of amendments to the Income Tax Act (Canada) (ITA) and its regulations (ITA Regulations) tabled as part of the 2023 Federal Budget. As we previously discussed in our blog, Fixing Contribution Errors for Defined Contribution Pension Plans, this includes amendments which permit retroactive contributions to defined contribution (DC) registered pension plans, a long anticipated change originally introduced as part of the 2021 Federal budget.

Correcting Under-Contributions
As a reminder, the ITA and ITA Regulations previously did not permit retroactive contributions to DC registered pension plans. Instead, DC contribution error corrections made in a year were limited by that year's annual contribution limit. The ITA amendments stemming from Bill C-47 provide greater flexibility – permitting corrective contributions in respect of an individual plan member to be made in respect of any of the previous ten calendar years, subject to certain limitations.

Read the full article by Jordan N. Fremont, Hennadiy Kutsenko and Ben Sissons with Bennett Jones LLP.

Audio Recordings from Work Vehicle Are Admissible
as Evidence in Termination Grievance
Two corrections officers were terminated for professional misconduct following an incident, that occurred during the transportation of an inmate to and from a hospital for medical treatment. The incident was reported to the employer by a hospital employee, who stated the two corrections officers conducted themselves in an offensive and unprofessional manner.

The employer began an investigation. As part of its investigation, the employer decided to review audio recordings that were made automatically in the inmate transport vehicle while its engine was on. The corrections officers were not aware that audio recordings were being made of their conversations and statements. Read the full article by Lennie Lejasisaks with Fasken Martineau DuMoulin.

New Pay Transparency Act Not Entirely Clear on
Obligations Imposed on BC Employers
Employers in BC have new prohibitions and obligations under the Pay Transparency Act (the "Act"), which was introduced and passed this spring in a stated effort to address systemic discrimination in the workplace, and to help close the gender pay gap.

Prohibitions
Upon the Act becoming law on May 11, 2023, employers in BC are prohibited from:

1. obtaining information on the pay history of an applicant, unless this information is publicly available; and
2. retaliating against employees who:
   1. make inquiries about their own pay;
   2. disclose their pay information to a colleague or to an applicant with the same employer;
   3. ask the employer about a pay transparency report or information contained within it;
   4. ask their employer to comply with the Act; or
   5. report their employer for failure to comply with the Act.

Read the full article by Iman Hosseini and Sarah Richmond with Alexander Holburn Beaudin + Lang LLP.

Reminder for Federally-Regulated Employers: Canada
Labour Code Amendments Now in Force
Amendments to the Canada Labour Code (the "CLC") and the Canada Labour Standards Regulations (the "Regulations") regarding employee information and reimbursement of work-related expenses came into force on July 9, 2023.

Employee Information
The CLC amendments which came into force last week require employers to provide employees with a written statement containing information relating to their employment within 30 days of the start of employment. The Regulations outline what information must be contained in the statement, which includes information regarding the term of employment, a description of the necessary qualifications and required training for the position, hours of work and compensation. Employers must retain a copy of the employment statement for 36 months after an employee's employment ends, and provide additional copies to the employee upon request.

Read the full article by Nicole Deniset with McCarthy Tetrault.

Case Summary: The Duty to Defend: A Clarion Call
Surrey (City) v. Co-operators General Insurance Co., [2023] B.C.J. No. 1069, 2023 BCSC 955, British Columbia Supreme Court, June 5, 2023, A. Walkem J.

The insurer was required to defend an additional insured because there was at least a mere possibility of coverage based on the allegations in the pleading.

A gym user was injured while using a leg press machine at the Surrey Recreation and Leisure Centre. He sued the City of Surrey ("Surrey"), alleging that he had been hurt when a pin had fallen out of the machine. He said the pin in question had not been designed for the machine in which it had been placed.

Surrey had contracted with two individuals and a fitness equipment repair entity (collectively, "Elk") for the provision of weekly maintenance and repair services, as well as quarterly preventative maintenance. The contract required that Elk have in place commercial general liability insurance on an occurrence basis, naming Surrey as an additional insured. The coverage extended to death, bodily injury and property damage arising directly or indirectly out of the work or operations of Elk and its employees and agents. Elk duly obtained a policy with Co-operators General Insurance Co. ("Co-operators"). The policy contained an exclusion clause for bodily injury arising out of any act or omission of Surrey or its employees. Read the full article by Siobhan H. Sams with Harper Grey LLP.

Empty Homes Tax Amended to Add Exemption for Completed
But Unsold Condominiums in Vancouver
Vancouver's Empty Homes Tax (the "EHT) was first introduced in 2017 with the intention of encouraging owners to rent their vacant residential properties to help alleviate pressure on Vancouver's rental market. Subject to certain restrictions, residential properties which are tenanted or considered a principal residence generally do not pay EHT. The current annual tax payable on a residential property declared empty under the EHT bylaw is 3% of the assessed value, unless an exemption is available. Read the full article by Craig Shirreff and Will Fraser with McCarthy Tétrault.

Trade Agreements – Rights and Requirements 101
Trade agreements apply to public organizations, such as local governments, Crown corporations, health authorities and school districts, and may impact the process by which they procure goods and services (including construction). It is important for public organizations, and vendors that may supply them with goods and services, to understand the rules, limitations and exceptions that may operate for different types of procurements. Read the full article by Sonia Sahota and Kai Hsieh with Civic Legal LLP.

'One Size Fits All' Approach Doesn't Work for
Housing, Say Rural BC Municipalities
Two rural Island municipalities on a list of communities that might have to meet future housing targets are asking the Housing Ministry to avoid a one-size-fits-all approach as it take steps to increase the province's housing supply.

The mayors of North Saanich and Metchosin, two of the 47 municipalities identified in the list, have penned letters to Housing Minister Ravi Kahlon arguing a provincewide approach to increasing density might not suit more rural communities. Read the BIV article.

New Court Rules Changes to Improve
Access to Justice – September 1st
The latest amendments to the Supreme Court Civil Rules ("Rules") and Supreme Court Family Rules ("Family Rules") aim to clarify existing rules, streamline court processes, and improve accessibility to court services. For your convenience, Quickscribe has published early consolidations of the amendments made to the Rules and the Family Rules.

The key changes, which come into force on September 1, 2023 include:

1. Definitions (Rules and Family Rules, R. 1-1(1)): adding a definition for "business day", which means a day on which the court registries are open for business.
2. Service of documents (Rules, R. 4-1(1); Family Rules, R. 6-1(1)): requiring an email address, if available, for service of documents.
3. Trial management conferences (Rules, R. 12-2(1); Family Rules, R. 14-3(1)): reducing the circumstances in which a trial management conference ("TMC") is required. Parties are no longer required to have a TMC between 28 and 120 days before the trial date. Unless the court otherwise orders, TMCs are required if the trial is a jury trial, if the trial will be more than 15 days in length, if a party does not or may not have legal representation at the trial, or if a party of record requests a TMC by filing a requisition at least 42 days before the trial date.
4. Application and petition records (Rules, R. 8-1(15) and 16-1(11); Family Rules, R. 10-6(14) and 17-1(11)): restricting how early before the date of a hearing an application record or petition record may be provided to the registry. Parties must now provide application and petition records to the registry no earlier than 9:00 a.m. on the business day that is three full business days before the date set for the hearing and no later than 4:00 p.m. on the business day that is one full business day before the date set for the hearing. However, if an earlier date is fixed by a registrar, the application or petition record must be provided to the registry on or before that date.
5. Trial briefs (Rules, R. 12-1.1; Family Rules, R. 14-2.1): a new rule setting out requirements relating to trial briefs, including that the failure to file or serve a trial brief may lead to the removal of the trial from the trial list or a costs award against the party that failed to file or serve a trial brief.
6. Case-planning conferences (Family Rules, Part 7.1): new rules providing for a case-planning conference option in family law cases.

The amendments also reflect housekeeping and typographical revisions, including adding gender inclusive language. Quickscribe would like to thank Kirsten Marsh from OnPoint Law Corporation for summarizing these changes.

BCSC: No Private Law Duty of Care Exists for Breach of FIPPA: Not Every
Personal Data Breach Caused by Negligence Results in Liability
As personal information becomes more and more valuable to businesses and malefactors alike, the unauthorized access, use, and theft of such information is becoming increasingly prevalent. Private and public organizations are subject to statutory mandates with respect to the protection and safeguarding of personal information in their control. However, even when organizations meet or exceed those standards, they simply cannot prevent all breaches.

In a recent decision dismissing an application for certification of a proposed class action, the British Columbia Supreme Court considered whether individuals whose personal information was involved in a malicious data breach had a cause of action against the public body who suffered the breach. In particular, and among other alleged causes of action discussed below, the Court examined whether the affected individuals were able to advance a cause of action in negligence for the public body's alleged failure to implement its statutorily mandated security requirements under the British Columbia Freedom of Information and Protection of Privacy Act ("FIPPA"). FIPPA applies to public bodies.

In rejecting the plaintiffs' certification application, the Court held that there is no nominate tort nor private law duty of care based on a breach of s. 30 of FIPPA. Citing previous case law, discussed in more detail below, the Court confirmed that since FIPPA contains a "comprehensive statutory framework for dealing with conduct breaching s. 30 of FIPPA" and does not create a private right of action in damages for breach of its provisions, a duty of care should not be recognized on public policy grounds. Read the full article by Rebecca von Rüti, Ryan Black, Keri Bennett, Tamara Nielsen, Tyson Gratton, Joshua Sved and Trevor Hunt (Articling Student) with DLA Piper.

Bill C-41 Amendments to the Criminal Code: Update and
Impact on Organizations Engaging in Humanitarian
and Development Activities
Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts (Bill C-41), received royal assent on June 20, 2023. Bill C-41 has created a regime that allows eligible persons to carry out certain humanitarian aid activities in areas controlled by terrorist groups. Prior to Bill C-41, these activities would have been prohibited under subsection 83.03(b) of the Criminal Code, RSC 1985, c C-46.1

Background
Afghanistan has been under the control of the Taliban – a terrorist group as defined under the Criminal Code – since August 2021. The Taliban's rise to power created hurdles for humanitarian organizations seeking to operate in Afghanistan. The Criminal Code's provisions made it challenging for these organizations to provide humanitarian aid, as any resources sent to Afghanistan had the possibility of being used by, or to the benefit of, the Taliban. Bill C-41 has established a regime that carved out two exceptions which serve to balance the application of the stringent laws against terrorist financing provided under the Criminal Code. The exceptions act as pathways for humanitarian aid organizations to operate and conduct certain activities without fear of criminal sanctions.

Read the full article by Pamela Shin and Raphael T. Eghan with Dentons LLP.

Backlogs at the BC Human Rights Tribunal and Applications to
Dismiss Complaints – A Strategy Update from the BCHRT
The delay of complaint resolution and limitation on the available processes for determining complaints will continue. If you are a respondent waiting on the outcome of an application to dismiss a human rights complaint at the BC Human Rights Tribunal, your wait will continue. A new announcement from the Tribunal, combined with the significant delay in the processing of complaints by the Tribunal, may result in respondents not learning of filed complaints until 12 months or longer after they are filed.

The BC Human Rights Tribunal has been overwhelmed with complaints related to COVID-19 restrictions and states that it does not have the capacity to address these and other human rights complaints in a timely fashion, compared with its pre-pandemic timelines. To address the situation, the Chair of the Tribunal recently issued a message about the Tribunal's backlog strategy beginning in July 2023. The strategy will divide the backlogged complaints into three components: 1) Covid case project; 2) Outstanding Dismissal Applications Project; and 3) Screening Inventory Project. Read the full article by Michael Watt and Sarah Richmond with Alexander Holburn Beaudin + Lang LLP.

Builders Liens: Failing to Comply with Procedural Requirements of the
Builders Lien Act May be Fatal to the Validity of the Lien
In a recent decision of Orbital Construction Inc. v Hansen, 2023 BCSC 712, the British Columbia Supreme Court has again addressed the question of compliance with the procedural requirements of the Builders Lien Act ("Act") in filing builders liens.

In this case,  the owner James Hansen contracted with Barbato Development Group Inc. ("Barbato") for home renovations. Barbato subcontracted some of the work to Orbital Construction Inc. ("Orbital"). Orbital did not get paid for its work and filed a claim of lien against Mr. Hansen's property for unpaid amounts. Read the full article by Anna Sekunova with Clark Wilson LLP.

Bare Assertions Don't Cut It: BC Court Denies Certification in
Proposed Data Breach Class Action
In G.D. v. South Coast British Columbia Transportation Authority, the B.C. Supreme Court declined to certify a proposed class action against a B.C. public body that experienced a data security incident. The decision teaches that a plaintiff's bare assertion that a defendant willfully violated their privacy contrary to the B.C. Privacy Act cannot pass muster at the certification stage, and B.C. public bodies owe no private law duty of care to comply with s. 30 of the B.C. Freedom of Information and Protection of Privacy Act ("FIPPA"), which requires B.C. public bodies to protect personal information by making reasonable security arrangements. Read the full article by Connor Bildfell and Grace Simpson with McCarthy Tétrault.

BC Appeal Court Quashes Extradition of Alleged
Drug Trafficker, Orders Judicial Review
The British Columbia Court of Appeal has quashed the extradition to the United States of a man accused of heading a large cross-border drug trafficking organization. In a unanimous decision, the province's highest court said there is no rule of law preventing someone facing extradition from challenging the admissibility of Canadian-gathered evidence based on a prior guilty plea. Read the full article by Zena Olijnyk in the Canadian Lawyer magazine.

New Report Details BC's Progress in Implementing
Objectives of UN Indigenous Rights Declaration
British Columbia has released a report which provides detailed information about progress achieved on implementing the objectives of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which follows up on a detailed action plan which was revealed last year.

In 2019, the province unanimously passed the Declaration on the Rights of Indigenous Peoples Act (Declaration Act), making the province the first jurisdiction in Canada to have passed legislation to formally adopt the internationally recognized standards of UNDRIP. The Act mandates government to bring provincial laws into alignment with UNDRIP, which defines the individual and collective rights of Indigenous peoples, including ownership rights to cultural and ceremonial expression, identity and language, and to develop and implement an action plan to achieve its objectives in consultation and co-operation with Indigenous peoples. Read the full article by Ian Burns on Law360 Canada.

Revisions to Practice Direction 58 – Sealing Orders in Civil and
Family Proceedings and Practice Direction 61 – Applications to
Commence Proceedings Anonymously
– from BC Supreme Court
Please be advised that Chief Justice Hinkson has revised two practice directions.

Practice Direction 58 – Sealing Orders in Civil and Family Proceedings sets out that an applicant seeking a sealing order must prepare a draft sealing order in the form attached in Schedule A, have it vetted by the registry, and provide it to the Court at the hearing of the application. This Practice Direction also sets out the steps required after obtaining a sealing order.

Practice Direction 61 – Applications to Commence Proceedings Anonymously sets out the procedure for commencing proceedings using initials or a pseudonym in civil or family law cases.

The Public Interest and a Single Legal Regulator
The British Columbia government has proposed that one entity should regulate lawyers, notaries and paralegals. The stated rationale is that this will lead to legal services being more accessible to the public.

The Law Society, like every group and individual involved in the justice system, considers access to justice a priority. There can be no doubt that many members of the public in BC simply do not have access to legal services. According to a 2020 Law Society survey, around 60% of British Columbians facing legal issues do not receive legal advice from anyone, which is alarming and speaks to the lack of an accessible justice system. No matter how strong, impartial, or fair a legal system is, if most people can't access it, it is flawed. Read the full article by Christopher McPherson, KC, in the CBA National.

Canada Amps Up Enforcement of the Motor Vehicle Safety Act and Regulations – Transport Canada's Long-Awaited Administrative Monetary Penalties (AMPs) Regime Will Come into Full Force on October 3, 2023
On July 1, 2023, Canada celebrated both its birthday and the coming into force of amendments to the Motor Vehicle Safety Act (the "MVSA" or the "Act") that provide Transport Canada with new enforcement powers, including the ability to impose administrative monetary penalties ("AMPs") for violations of certain provisions of the Act and the Motor Vehicle Safety Regulations ("MVSR"). The amendments were added to the Act back in 2018. On July 5, 2023, the new Administrative Monetary Penalties (Motor Vehicle Safety) Regulations ("AMPs Regs") were published in their final form. The AMPs Regs complete the AMPs scheme set out in the Act by designating which provisions of the MVSA, the MVSR and orders for which an AMP could be issued. The AMPs Regs will come into force on Tuesday, October 3, 2023, following a 90-day transition period to provide stakeholders with sufficient time to familiarize themselves with the regulations and associated policies and operating procedures. Read the full article by Timothy Cullen with McMillan LLP.

Uninsured Motorist Protection (UMP) in British Columbia: Essential
Coverage and Important Facts You Need to Know
Uninsured Motorist Protection (UMP) is insurance coverage in British Columbia that provides financial protection to drivers who are involved in accidents with uninsured or underinsured motorists. It helps cover medical expenses, and other losses resulting from the accident. Here are four facts you may not know about this type of coverage. Read the full article by Rose Keith with Harper Grey LLP.

Electronic Logging Devices Will Make Roads Safer
Commercial vehicle operators will have tools to support safer travel this summer, as mandated use of electronic logging devices (ELDs) will come into effect throughout the province on Tuesday, Aug. 1, 2023.

ELDs automatically track drivers' time behind the wheel, reducing the likelihood of driving while tired and helping to ensure they stick to the allowable regulation driving time in a day.

The requirement for ELDs in B.C. was announced in February 2023, giving B.C. carriers six months to install ELDs throughout their fleets and to complete driver and dispatcher training. Government has partnered with carriers to introduce this tool to increase safety and reduce the risks associated with driver fatigue. Read the government news release.

BC Supreme Court Rejects Defense of Failure
to Mitigate Loss in Car Crash Case
The BC Supreme Court has rejected the argument that the plaintiff in a motor vehicle accident failed to mitigate her loss with continued treatment, finding no real and substantial possibility her condition would have improved with additional treatment.

In McWilliams v. Hardy, 2023 BCSC 1259, Morgan McWilliams was driving her mother's car when she was struck hard from behind by a vehicle driven by the defendant, Ronald Hardy. McWilliams sustained various physical injuries from the collision and claimed that the pain from her injuries continued to impair her quality of life and her ability to work and perform household chores. In addition, she claimed that she suffered from depression and debilitating driving anxiety due to the collision. Read the full article by Angelica Dino in the Canadian Lawyer.

Canada's Renewed Attempt to Regulate Airports:
The Introduction of Bill C-52
On June 20, 2023, An Act to enact the Air Transportation Accountability Act and to amend the Canada Transportation Act and the Canada Marine Act was introduced in the House of Commons by the Hon. Omar Alghabra, Minister of Transport. This much awaited legislation follows failed attempts in 2003 and 2006 by Parliament to update the legislative frameworks for airports, airport authorities and other airport operators. On the heels of the COVID-19 pandemic and public concern over airport and airline delays, lost bags and stranded passengers, the Minister of Transport has indicated that the changes proposed by the Bill are intended to "help create a transportation sector that is more efficient, transparent and accountable". This blog summarizes the aspects of the Bill relevant to the air transportation sector. Read the full article by Jody E. Aldcorn, Rachael Carlson and Eric Driver with McCarthy Tetrault.

BC Court of Appeal More Than Doubles Damages
Awarded in Car Accident Case
A judge of the lower court failed to compare an injured party's likely future earnings if the accident had not occurred with her likely future earnings after the accident happened, the B.C. Court of Appeal recently said.

In February 2014, the appellant was injured as a passenger in a rear-ended car. At the time, she was 19 years old, was working full-time at a retail company, and was earning minimum wage. According to the judge's findings, the accident caused her fibromyalgia; chronic back pain, which continued until the present and which would likely continue into the future; and anxiety, which developed into depression and into a panic disorder for several months. Read the full article by Bernise Carolino in the Canadian Lawyer.

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

• NSC Bulletin 01-2022 – Publication of Carriers Cancelled for Cause
• Circular 03-21 – Highway 4 Cameron Lake Bluffs Temporary HOS Exemption
• Compliance Circular 04-2023 – HOS Exemption for Non-Passenger CMVs under 11,795 kg LGVW
• Compliance Circular 03-2023 – Provincial ELD Exemptions
• Notice 02-2023 – Amended MVAR Division 37 Now In Force

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:

News and updates

• Special Committee to Review Passenger Directed Vehicles
  Section 42.1 of the Act required the Legislative Assembly to establish a Special Committee. Read the full notice.
• Notice to Taxi Licensees RE: Terms and Conditions Update
  The Passenger Transportation Board is providing notice to taxi licensees of changes the Board intends to make to Terms and Conditions (T&Cs) in their licences. Read the full notice.
• New Strategic Plan 2023-2026
  The Passenger Transportation Board (Board) has updated its three-year Strategic Plan (2023-2026). This Strategic Plan focuses on the following: positioning the Board to fulfill its expanded role and mandate; supporting ongoing organizational transformation; strengthening engagement with interest parties; and, promoting a healthy and vibrant passenger transportation industry in BC. Read the full notice.
• Updated Materials for Public Need and Sound Economic Conditions
  The Passenger Transportation Board has updated policies and guidelines on Public Need and Sound Economic Conditions criteria. These materials include a Public Need policy, Sound Economic Conditions policy, and guidelines called Demonstrating Public Need and Sound Economic Conditions. Read the full notice.
• Taxi Rates – Cost of Living Adjustment 2023
  On March 29, 2023, the Passenger Transportation Board (Board) gave notice to licensees regarding potential changes to taxi and TNS rates regulation and invited licensees to provide feedback on the considered options. In June 2023, the Board reviewed feedback from the taxi sector and decided to initiate the construction of a new custom TCI. Read the full notice.

Applications Received

• 17650-23 – Russel Bertram Banister and Cheryl Anne Banister (Big Mountain Little Shuttle)
• 17968-23 – Supreme Limousine & Chauffeur Service Ltd
• 17963-23 – Robert John Lee Chisan (Rockwest Construction)
• 17865-23 – North Coast Trail Shuttle Ltd.
• 18052-23 – Yellow Top Taxi Ltd.
• 16955-23 – 1202033 BC Ltd. (Cariboo Taxi)
• 18186-23 – Swiftsure Taxi Co. Ltd. (Yellow Cab Nanaimo)

Application Decisions

• 15580-22 – Green Coast Ventures Inc. (Whistle!) [Refused]
• 17433-23 – Luxe Fleet Inc. [Approved]
• 17992-23 – Cobble Hill Taxi 2016 Ltd. [Approved]
• 17432-23 – KJ Limousine Services Inc. [Approved in Part]
• 17800-23 – Skeena Taxi Ltd. [Approved]
• 18208-23 PS TOP – Corporate City Limousine Services Ltd. [Approved]
• 17345-23 – Mehran Yanough (Perspolis Tour & Transport) [Refused]
• 17753-23 – Delta Sunshine Taxi (1972) Ltd. (Green Cab) [Approved]
• 17087-23 – Zayan Limousine Inc. [Refused]
• 18092-23 UPN – Deborah Jean Asher and David Brand Hilton (Trips for Tips) [Approved in Part]
• 17391-23 – Whistler Eco Tours Ltd. [Refused]
• 17993-23 – A Stylish Arrival Chauffeured Service, A Stylish Arrival [Approved]

Visit the Passenger Transportation Board website for more information.

WorkSafeBC Keeps Premium Rate
Steady at 1.55 Percent for 2024
In a move aimed at providing financial stability and predictability for employers, WorkSafeBC has revealed that the preliminary average base rate for 2024 will remain unchanged at 1.55 per cent of employers' assessable payroll. If approved by WorkSafeBC's Board of Directors, this will mark the seventh consecutive year that the average base rate has been kept at this level, reflecting the organization's commitment to maintaining steady rates. Read the full article by Shane Mercer in the Canadian Occupational Safety Magazine.

Underpaid Foreign Worker with Workplace Injury
Faced Harassment, Discrimination: Tribunal
An employer that underpaid a foreign worker for more than three years and accused her of lying about a workplace injury discriminated against her, the BC Human Rights Tribunal has ruled.

Many of the issues in the case were related to employment standards and workers' compensation, but the worker's vulnerable position crossed into the human rights jurisdiction, says Jessica Fairbairn, a partner at Harris & Company in Vancouver. Read the full article by Jeffrey R. Smith in the HRReporter.

Consultation on Proposed Amendments to Part 14 of the
Occupational Health and Safety Regulation
– from WorkSafeBC
Our Policy, Regulation and Research Department is requesting feedback on proposed amendments to Part 14, Cranes and Hoists, sections 14.73.1 to 14.75, of the Occupational Health and Safety Regulation. The consultation phase gives stakeholders an opportunity to provide feedback before the proposed amendments are taken to public hearing. Feedback will be accepted until 4:30 p.m. on August 25, 2023.

Proposed Policies Regarding Duty to Cooperate and
Duty to Maintain Employment
– from WorkSafeBC
The Workers Compensation Amendment Act (No. 2), 2022 (Bill 41) amended the Workers Compensation Act to add a duty to cooperate and a duty to maintain employment. These new provisions will come into force January 1, 2024. Our Policy, Regulation and Research Department is releasing a discussion paper with proposed policies to provide guidance on these new provisions. You're invited to provide feedback on the discussion paper and proposed policies until 4:30 p.m. on Friday, September 1, 2023.

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

• Notice of Repeal of Health Professionals COVID-19 Vaccination Status Information Order – July 14, 2023 (PDF, 291KB)

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

OHS Policies/Guidelines – Updates
Guidelines – Occupational Health and Safety Regulation

• Part 20 Construction, Excavation and Demolition
  G20.112 Hazardous materials – Asbestos

Visit the WorkSafeBC website to explore this and previous updates.

BC Judge Strikes Down Refugee Appeal of a $1.32 Million
Foreign Buyer's Tax on $6.6 Million Home
The Supreme Court of British Columbia has struck down the claim of an Iranian refugee appealing a decision that he pay a $1.32 million "foreign national" tax on a $6.6-million house in West Vancouver, dismissing his arguments that his Charter rights have been infringed.

Justice Geoffrey Gomery dismissed the claim on s. 7 and 15 of the Canadian Charter of Rights and Freedoms. However, he did give Kourosh Bakhtiari leave to amend his claim on s. 7 grounds. Read the full article by Zena Olijnyk in the Canadian Lawyer.

Have a Little Faith in Me: Good Faith in Leasing Lately
This bulletin explores the duty of good faith in commercial leasing, which grows out of the Supreme Court of Canada's recent decisions in C.M. Callow Inc. v Zollinger ("Callow") and Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District ("Wastech") and earlier Bhasin v Hrynew ("Bhasin"). Included in this bulletin is a helpful summary of recent leasing cases and their takeaways regarding the duty of good faith for landlords and tenants.

Introduction
The duty of good faith was recognized by the Court in Bhasin as a common law doctrine requiring "honest, candid, forthright, or reasonable contractual performance" between two contractual counterparties. That doctrine has been refined by the Court in Bhasin to clarify that "parties generally must perform their contractual duties honestly and reasonably" and must not lie or knowingly mislead the other party. The Court also confirmed that this duty exists in every contract, without needing to be explicitly mentioned, and cannot be contracted out of.

Read the full article by Mervyn Allen, Ximena Pinilla and Jacob Stucken with McMillan LLP.

Does a Strata Corporation Have a Right to
Key Access to a Strata Lot?

Dear Tony:
Owners in our Coquitlam building received notice that we are being forced to provide a key to access our strata lots. A bylaw is  being proposed at our upcoming annual general meeting, which will require everyone (owner/landlord) to provide a key to the
resident manager for the purpose of emergencies, routine inspections, and service requirements. The only service requirement we have is the routine testing of the smoke and heat detectors. This is always scheduled for the 2nd week of September and owners and tenants are always provided with at least 7 days notice for access. The notice package has indicated that if we do not provide a key, and there is an emergency access, we will be responsible for any related damages to our strata lot or other strata lots. Is a strata corporation permitted to compromise our security and safety? – Francis W.

Dear Francis:
The standard bylaws of the Strata Property Act make a provision both for emergency access and routine access with notice for the purpose of inspections and servicing. Your home is your private strata residence. While a strata corporation may amend access requirements to strata lots, they cannot force an owner to provide a key for access or codes for alarms that in any way may compromise their personal safety, security, or risk to their personal assets and property in the strata lot.

Read the full article by Tony Gioventu on Condo Smarts, published by CHOA.

Have You Received a Monetary Order from the Residential Tenancy
Branch ("RTB") and Wondered How to Collect It?
Congratulations on your favourable RTB decision! Unfortunately, the RTB cannot help you collect on the Monetary Order you just received. Instead, the Residential Tenancy Act allows an order for financial compensation up to $35,000.00 or the return of personal property to be filed in British Columbia Provincial Court's Small Claims division ("Small Claims Court"). The Monetary Order can then be enforced like a judgment of that court. Read the full article by Megan Wong with Alexander Holbun Beaudin + Lang LLP.

Landlord Options Upon Default Under A Commercial Lease
The starting point for determining the rights and obligations of landlords and tenants under a commercial lease is the written lease agreement. A poorly written lease can really limit a landlord's options on default by a tenant. In addition, the common law and provincial legislation, including the Commercial Tenancy Act, RSBC 1996, c. 57, also outline relevant considerations when deciding on enforcement strategies. Generally, a landlord's options include terminating the Lease, suing for arrears, reletting the property on the tenant's account or commencing distraint proceedings. Read the full article by Eric Ledding with Pushor Mitchell LLP.

LTSA Changes: Retirement of COVID Measures
Effective September 30, 2023
In response to COVID-19 ("COVID"), many adjustments were made to the land title applications process in order to accommodate province-wide restrictions. Specifically, the formalities under the Land Title Act were relaxed to allow land title documents to be witnessed remotely and individuals with medical concerns were typically granted permission to sign the documents without the physical presence of an officer.

Effective September 30, 2023, many of the COVID-related measures implemented by the Land Title and Survey Authority of British Columbia (the "LTSA") will be retired in line with the removal of provincial COVID restrictions. Read the full article by Paul Tonita and Marina Nichols with Pushor Mitchell LLP.

Estranged Daughter Left Out of Will: A Case Study
A classic example of an estranged child being left out of a will is the case of LeVierge v. Whieldon. In this dispute, a daughter contested her exclusion from her mother's will, arguing that their estrangement was not a valid reason for her disinheritance. The BC court did not accept the daughter's characterization of her relationship with her mother and found that the primary reason for the disinheritance was in fact the daughter's own conduct. The evidence satisfied the court that the daughter was disinherited for valid and rational reasons, and further, that the mother's decision to disinherit her daughter was consistent with what a judicious parent would do in similar circumstances. Read the full article from the Onyx Law Group.

Would a British Columbia Court R-E-S-P-E-C-T
Aretha Franklin's Handwritten Will?
A jury in Michigan decided that a notebook with scribbles found in Aretha Franklin's couch is valid as the Queen of Soul's will. […]

Would a B.C. court recognize Franklin's handwritten will?
Section 37(1) of B.C.'s Wills, Estates and Succession Act ("WESA") sets out the formal requirements of a will. First, a will must be in writing. Second, the will-maker must sign at the end of the will in the presence of two witnesses. Third, two witnesses must sign the will in the will-maker's presence. Accordingly, the two documents at issue in the legal battle regarding Franklin's estate would fail to meet the formal requirements in B.C. because the documents were not witnessed.

Read the full article by Dani Gorelov and Zachary Murphy-Rogers with Clark Wilson LLP.

B.C. Case Comment: Lost or Misplaced Will –
Presumption of Revocation Rebutted
A will-maker can revoke a will. There are a number of ways to do so, and there is also a presumption that a will-maker revoked their will if the will was last in the will-maker's possession and cannot be located. If the presumption is rebutted by evidence to the contrary, a copy of the will may be submitted for probate instead of the missing original.

First, the ways to revoke a will (other than an electronic will) are set out at section 55(1) of the Wills, Estates and Succession Act. Read the full article by James Zaitsoff on the BC Estate Litigation Blog.

Legal Closure: Understanding the
Presumption of Death Act in BC
The search for the OceanGate submarine and its five passengers captivated the world by storm this past June. The U.S. Coast Guard ultimately concluded that the "five crew members onboard the submersible were probably killed instantly in a 'catastrophic implosion'". Possible human remains have been recovered from the wreckage, but confirmation through medical analysis still needs to be done.

The story should end there – but, it is not so simple in the eyes of the law.

Declarations of Death
To be declared dead in British Columbia is a formal and highly procedural process. It requires the confirmation of human remains by a medical practitioner or coroner, who then completes and signs a Medical Certification of Death. This Certification is forwarded to a funeral director, who will obtain more information about the deceased from an informant.

Read the full article by Vivian Thieu and Zachary Murphy-Rogers with Clark Wilson LLP.