Company and Finance News:

COVID-19 Tax Update: BC Announces Provincial Sales Tax (PST)
Rebate for Corporations on Select Machinery and Equipment
BC has announced a PST rebate for most incorporated businesses on select machinery and equipment purchased or leased between September 17, 2020 and September 30, 2021. This is a temporary program intended to help incorporated businesses recover from the financial impacts of COVID-19.

Most incorporated entities will qualify for the rebate. The rebate will not be available to select entities, including Crown and government corporations, charities and non-profit corporations, schools, hospitals, regional health boards, and agents of the foregoing.

Although the government publication is silent in respect of partnerships, we expect the rebate program to apply to partnerships with incorporated partners given that the PST rules generally do not treat a partnership as a separate person but rather look through to the partners (or possibly the general partner alone in the case of a limited partnership). Read the full article by Zheting Su with Thorsteinssons LLP.

BC Brings "Benefit Company" Corporate Status to Canada
As corporate governance issues related to sustainability come under greater scrutiny, British Columbia has introduced a new form of corporate structure into Canada – the "benefit company."

Valerie Mann, a partner at Lawson Lundell in Vancouver, says the move follows in the footsteps of 36 U.S. states using this type of corporate vehicle to help manoeuvre in a world of "evolving stakeholder capitalism."

Benefit companies is a new corporate status meant for-profit entities. However, they must promote one or more "public benefits" and, perhaps more importantly, conduct business in a way that is "responsible and sustainable." Benefit companies can be either private or publicly traded. Read the full article by Zena Olijnyk in Canadian Lawyer Magazine.

Transparency Register
Effective October 1, 2020, amendments to the Business Corporations Act will require private businesses in B.C. to keep and maintain transparency records of beneficial owners, including individuals who have direct or indirect control of the company or its shares. Information collected includes full legal name, date of birth, citizenship and last known address. Companies need to contact their shareholders to compile the required information. Companies can request that their shareholders provide information for the transparency register at any time. Shareholders have a duty to take reasonable steps to gather the requested information and to send it to the private company promptly. Read more on the BC government website.

Regulatory Easing Measures Update – Credit Unions
In response to the continuing COVID-19 pandemic and resulting disruptions, BC Financial Services Authority ("BCFSA") is updating the regulatory easing measures that were previously announced to support the credit union sector, credit union members and local communities.
The updates, including adjustments to the capital treatment of loan deferrals, are set out as follows:

Appendix 1 – COVID-19 Easing Measures Update
Appendix 2 – COVID-19 Regulatory Filing Deadline Extensions Update

Read the full advisory from the BCFSA website.

Enhanced Disclosure Obligations Proposed for Issuers Involved in
Real Estate Activities or Acting as Collective Investment Vehicles
Proposed amendments to National Instrument 45-106 Prospectus Exemptions (NI 54-106) are intended to provide investors with industry-specific disclosure where certain issuers use the offering memorandum exemption.

• On September 17, 2020, the Canadian Securities Administrators (CSA) published for comment proposed amendments to National Instrument 45-106 Prospectus Exemptions.
• The proposed amendments would introduce new disclosure obligations applicable to issuers engaged in real estate activities or acting as collective investment vehicles that are using the offering memorandum exemption found in section 2.9 of NI 45-106 (OM Exemption).
• The proposed amendments are intended to ensure investors are provided with better and more industry tailored information in respect of an issuer's activities.
• Comments on the proposal are being accepted until December 16, 2020.

Read the full article by Laura Levine with Stikeman Elliott LLP.

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

• 94-101 – CSA Notice and Request for Comment - Proposed Amendments to National Instrument 94-101 Mandatory Central Counterparty Clearing of Derivatives
• 81-333 – CSA Staff Notice 81-333 Guidance on Effective Liquidity Risk Management for Investment Funds
• 81-105 – CSA Notice of Amendments to National Instrument 81-105 Mutual Fund Sales Practice and Related Consequential Amendments Prohibition of Mutual Fund Trailing Commissions Where No Suitability Determination Was Required
• 45-106 – CSA Notice and Request for Comment – Proposed amendments to National Instrument 45-106 Prospectus Exemptions, Companion Policy 45-106CP Prospectus Exemption

For more information visit the BC Securities website.

Forest and Environment News:

Fisheries Act Protections for Canada's Marine Mammals Upheld as "Bear-banger"
Court Case against Commercial Skipper Concludes in British Columbia
Fisheries and Oceans Canada is committed to protecting Canada's wildlife and biodiversity and safeguarding the long-term health and productivity of Canada's fisheries resources. These efforts include enforcing the Fisheries Act and Marine Mammal Regulations. On Aug. 24, 2020, B.C. harvester Allan Marsden pleaded guilty in Courtenay Provincial Court to disturbing marine mammals under section 7.1(b) of the Marine Mammal Regulations. Mr. Marsden was fined $8,000 and prohibited from possessing explosives for the next three years.

Section 7.1(b) of the Marine Mammal Regulations states that: "No person shall disturb a marine mammal except… when fishing for marine mammals under the authority of these Regulations."

In March 2019, a video surfaced on social media showing Mr. Marsden, a commercial herring harvester, tossing a modified explosive device into a group of sea lions near Hornby Island. In the video Mr. Marsden stated openly that his purpose in using the explosive device was to deter the sea lions from interfering with his fishing operations. Read the Government of Canada news release.

Changes to Lumber Regulations Aimed at
Increasing Domestic Production
The provincial government is keeping its commitment to protect BC jobs and support companies investing in British Columbia that are creating more high-value products from its natural resources and want to employ local workers.

Changes to the Manufactured Forest Products Regulation (MFPR) around export requirements for sawn-wood products and lumber made from western red cedar or cypress go into effect Sept. 30, 2020. These changes are intended to increase the amount of processing of wood products done within British Columbia, leading to more BC jobs, rather than having that processing done after export. Read the full government news release.

Navigating Muddy Waters: the Meaning of
"Changes in and about a Stream" under the WSA
Section 11 of the Water Sustainability Act (the WSA) prohibits making changes in and about a stream, unless authorized to do so (such as by a licence, change approval, or the regulations). What activities constitute a "change in and about a stream" are not well defined in the WSA, and have created significant uncertainty for those undertaking works that do not directly affect stream channels but may have incidental effects on stream function.

The British Columbia Environmental Appeal Board (EAB) recently released two decisions – Smoluk and Ware (together, the decisions) – that clarify the meaning of this prohibition. The decisions indicate that works will likely be considered a "change in and about a stream" within the meaning of WSA if, either: they modify the physical characteristics of the stream or stream channel, or they redirect flows relative to the stream at issue in a manner that modifies the "basic character or quality" of the stream. Read the full article by Max Collett, Michael Manhas and Niles Bond with Norton Rose Fulbright Canada LLP.

Area and Volume Tenure Agreements in Canada
Our forest industry employs approximately 230,000 Canadians in mills and woodlands operations in more than 400 resource-dependent communities. We have about 200 million hectares of forest land under management. Approximately 175 million hectares is Crown forest land; 20 million hectares of private woodlots are owned by 450,000 rural families; and five million hectares of "private industrial" forest land are owned by forest companies, pension funds, foundations, and private investors.

The purpose of a tenure agreement is to provide a dependable supply of timber to support the mill and employees living in the community. Tenure agreements have generally been signed between the provincial government and a forest products company under the authority of the minister, as laid out in provincial forest management legislation. Legislation is modernized at approximately 20-year intervals. The terms and conditions of tenure agreements often change with the legislation. Read the full article by Tony Rotherham, RPF(Ret), published in the fall edition of the ABCFP BC Forest Professional Fall.

BC Announces Second Increment of Dormant
Sites Reclamation Program Funding
On September 18, 2020, the British Columbia government announced that the first half of a $100-million fund earmarked for cleaning up dormant wells has been disbursed. The Dormant Sites Reclamation Program is dedicated to cleaning up wells which have been inactive for five or more consecutive years and are unlikely to return to service.

As we noted in our earlier blog, British Columbia received $120 million in total from the federal government under the COVID-19 Economic Response Plan for Canada's Energy Sector. In addition to the $100 million set aside for reclaiming dormant wells, British Columbia allocated $15 million to the Orphan Sites Supplemental Reclamation Program and $5 million to the Legacy Sites Reclamation Program. Read the full article by Brad Gilmour, Keely Cameron, Stephanie Ridge and Shimon Sherrington with Bennett Jones LLP.

Environmental Appeal Board Decisions
There was one Environmental Appeal Board decision in the month of September:

• John Pickford v. Director, Environmental Management Act [Final Decision – Permit Confirmed; Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Health News:

New Public Health Order to Help
Slow BC's Overdose Crisis
To help stop overdoses and save lives, Dr. Bonnie Henry, provincial health officer, has issued a public health order to increase the number of health professionals authorized to help people at risk for overdose access safer alternatives to the toxic street drug supply, as BC works to update prescribing guidance. "We know the pandemic has only made the street drug supply in BC more toxic than ever, putting people who use drugs at extremely high risk for overdose," Henry said. "Giving physicians and nurse practitioners the ability to prescribe safer pharmaceutical alternatives has been critical to saving lives and linking more people to treatment and other health and social services. I am issuing a provincial health officer order to expand the health professionals who are able to provide safer, accessible alternatives to the toxic street drug supply and help more people find their pathway to hope." The order, issued under the Health Professions Act, authorizes registered nurses and registered psychiatric nurses to prescribe pharmaceutical alternatives to street drugs to help separate more people from the poisoned street drug supply to save lives and provide opportunities for ongoing care, treatment and support. New nursing standards will be introduced, along with training and education, and access to expert consultation and pathways to connect people to broader addictions and primary care. Read the full government news release.

British Columbia Supreme Court Rules against
Expansion of Private Health Care
This decade-long legal challenge over the right to expand the provision of private health care was decided in favour of the existing public health care system in a ruling released last week. The case raised issues about the constitutionality of restricting the ability of British Columbia residents to pay privately for medically necessary health care services as an alternative to, and in the face of, long wait times in the public health care system. Cambie Surgeries Corporation v. British Columbia was first filed in 2009. The case made its way to trial in the British Columbia Supreme Court beginning in 2016. On Thursday, September 10, 2020 the presiding judge, the Honourable Justice John Steeves, released his 880-page long decision, which ruled against the Plaintiffs' arguments. Read the full article by David C. Rosenbaum and Briana Maguire with Fasken Martineau DuMoulin LLP.

Federal Court Finds Reasonable Health Canada's Decision that Enantiomer of
Previously Approved Drug Not Entitled to Data Protection
On September 18, 2020, the Federal Court dismissed Janssen's application for judicial review of a decision of the Minister of Health (Minister) denying Janssen data protection for its drug SPRAVATO: Janssen Inc. v Canada (Attorney General), 2020 FC 904. SPRAVATO, which is indicated for treating major depressive disorder, contains as its medicinal ingredient esketamine hydrochloride, an enantiomer of ketamine hydrochloride which had been approved and marketed as KETALAR. Janssen sought data protection for SPRAVATO under the Food and Drug Regulations (Regulations), which provides data protection to an "innovative drug", defined as:

innovative drug means a drug that contains a medicinal ingredient not previously approved in a drug by the Minister and that is not a variation of a previously approved medicinal ingredient such as a salt, ester, enantiomer, solvate or polymorph.

Read full article by Eleanor Wilson with Smart & Biggar LLP.

Assisted Dying Bill to be Reintroduced Today as Court Deadline Looms
Facing a looming court-imposed deadline, the federal government will reintroduce legislation Monday [October 5th] to amend Canada's law on medical assistance in dying. The government has until Dec. 18 to amend the law to comply with a Quebec court ruling last fall, which found it was unconstitutional to allow only those whose natural death is "reasonably foreseeable" to be able to get medical help to end their suffering. Justice Minister David Lametti introduced a bill in response to that ruling last February but it didn't get beyond the initial stage of the legislative process before the House of Commons adjourned in mid-March due to the COVID-19 pandemic. That bill died when Prime Minister Justin Trudeau prorogued Parliament last month. Read CBC article.

Labour and Employment News:

BC Labour Board Allows Union's Certification Application for
Workforce on Layoff Due to COVID-19
British Columbia's Labour Relations Board (the "Board") recently considered the issue of whether a workforce on layoff due to COVID-19 can unionize. In Chemainus Theatre Festival Society and International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, Local No. 168 ("Chemainus"), the union applied on April 6, 2020, for certification of the employees of the Chemainus Theatre Festival Society (the "Society") when all Society employees had been laid off or had received layoff notice. The Society argued that the union's application should be dismissed as premature because none of the employees had sufficient continuing interest in the proposed unit due to the indefinite closure of the Society's operations. Read the full article by Lauren Soubolski with McCarthy Tetrault LLP.

Enhanced Job Security for Federal Workers
Employment security is something every worker is concerned about, especially during a pandemic. It is generally accepted that unionized workers enjoy more security than their non-unionized counterparts do. And public sector workers are better protected than private sector workers are. The federal government regulates only about 6% of all Canadian employees. They may be directly working for the federal government or in one of the federally regulated industries such as telecommunications, shipping, aeronautics, railroads, banking and atomic energy. Most of these federally regulated employees are unionized. But some workers in banks, telecommunications companies, airlines, Crown corporations and other federally controlled employers are non-unionized. In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about "unjust dismissal." These amendments granted unionized federal workers the right to written reasons for dismissal and to complain to an adjudicator if they believe they have been dismissed without just cause. This is an expansion of their collective agreement rights. An adjudicator finding the dismissal unjust can order the worker reinstated or compensated. Read the full article by Peter Bowal and Curtis Birch-Lucas published by LawNow.

Local Government News:

Approving Officer Liability
The B.C. Supreme Court has recently confirmed (Goy v. Sechelt (District) 2020 BCSC 1242) that a subdivision approving officer exercising authority under Part 7 of the Land Title Act cannot be held liable in negligence for a bona fide exercise of discretion in approving a subdivision application. This recent case arose from a subsidence incident that rendered uninhabitable a 28-lot residential subdivision bordering Sechelt Inlet on the Sunshine Coast, after several homes had been built and occupied. Owners of the subdivision lots alleged negligence against numerous parties, including the developer of the subdivision, engineers who reported on geotechnical hazards affecting the land being subdivided, the municipality in whose jurisdiction the subdivision is located, and the municipality's approving officer. The amount of trial time that has been estimated to be required in the case, which the Court described as a "geotechnical disaster", is 100 days. Read the full article by Bill Buholzer with Young Anderson Barristers and Solicitors.

Province Releases EPA Follow-up Report
The provincial government has released a summary report of feedback provided in response to its discussion paper, Modernizing BC's Emergency Management Legislation. Emergency Management BC's 'What We Heard' report also advises that the Province plans to table new emergency management legislation next year.

The report summarizes many of the key themes outlined in UBCM's response to the discussion paper, including the need for local authorities to receive additional resources and provincial support to address new responsibilities proposed by the Province. Last week, these concerns were endorsed by the UBCM membership as part of SR1 – New Emergency Management Legislation. Read the UBCM article.

Agricultural Land Reserve Changes
On September 30, 2019 Bill 15 brought changes to the Agricultural Land Commission Act, requiring applicants to provide notification to the Agricultural Land Commission (ALC) when registering statutory rights of way on agricultural land reserve lands. In addition, private landowners are no longer able to apply to the ALC to have land excluded from the agricultural land reserve. Exclusion applications may only be submitted by the Province, local or first nation governments or a prescribed public body. The remaining provisions of the Agricultural Land Reserve General Regulation are also now in force, which set out permitted subdivisions of agricultural land as well as procedures for proposals and applications.

BC Municipalities Continue to be Left
Out of Cannabis Revenue-sharing
Municipal governments are once again appealing to the BC government for a share of the cannabis excise tax revenue to help deal with the extra costs and responsibilities they've taken on since marijuana legalization. It's the fifth year in a row that delegates at the Union of B.C. Municipalities (UBCM) convention have voted on a resolution about receiving some of the federal tax that is applied to medical and non-medical cannabis. The federal government passes on 75 per cent of the excise tax revenue to the provinces and territories, and although three provinces have deals to share that cash with their local governments, BC does not. Read the Vancouver Sun article.

Existential Questions in Planning Law
It's no secret that section 479 of the Local Government Act authorizes local governments to regulate, by bylaw, "the use of land, buildings and other structures" and "the density of the use of land, buildings and other structures". These are significant powers, and lie at the heart of most local land use regulation schemes, also known as zoning bylaws. But what is "use", what is "density", and what, for that matter, is a "zoning bylaw"? This article tries to answer the last of these three vexing questions, and explain briefly why answers to the first two remain elusive. Read the full article by Guy Patterson with Young Anderson Barristers and Solicitors, published in their September Newsletter (UBCM Conference Issue).

BC Big City Mayors Call on Provincial Parties to Address Mental
Health and Substance Use in Their Election Platforms
Mayors from 13 of B.C.'s biggest cities are calling on all provincial parties to commit to addressing mental health and substance use in their platforms. In a call-to-action document released today, the newly formed BC Urban Mayors' Caucus also advocated for greater provincial investment in affordable housing and public transit, as well as a new funding framework for municipalities.

"The COVID-19 pandemic has created unique challenges for B.C.'s urban communities and exacerbated existing challenges related to mental health and substance use, homelessness and lack of affordable housing," says Lisa Helps, Mayor of Victoria and Co-Chair of the BC Urban Mayors' Caucus. "We are asking all parties to commit to working more closely with leaders from B.C.'s urban communities to address the issues we face today, while we plan for restored prosperity and growth as we emerge from the pandemic as a more resilient, and equitable society." Read the full article on the City of Kelowna website.

Federal Rapid Housing Initiative
The Federal Government last week announced a $1 billion Rapid Housing Initiative. The initiative will be administered by the CMHC and will receive applications to cover the costs of construction of modular housing, conversion of existing buildings to affordable housing, and land acquisition to support vulnerable populations such as women fleeing violence or those at immediate risk of homelessness. In addition to the new initiative, the Federal Government also announced $236.7 million in funding for Reaching Home: Canada's Homelessness Strategy, to help extend the emergency response to COVID-19. Read the UBCM article.

Involving Cities in Immigration
– from CBA
Municipal governments should be considered a partner, not a stakeholder, in the selection and retention of newcomers.
The municipal level of government is the level with the closest connection to the people it serves. That close connection is one reason why it makes sense for municipalities to have a greater stake in the immigration process, able to do their own outreach and with proper funding for programs to serve this constituency.

Immigration, Refugees and Citizenship Canada has created a draft design for a Municipal Nomination Program and requested feedback on it.

"Municipal governments have no constitutional responsibility for immigrant selection, settlements or integration, yet newcomers live in local communities and interact with municipal services every day," the CBA's Immigration Law Section said in its submission to the Department. "Municipal governments have direct knowledge of support services and employment opportunities that could inform immigration strategies. Municipal governments should be considered a partner, not a stakeholder, and should be given a larger role in the selection and retention of newcomers to their area." Read the full article by Kim Covert, published in the CBA National.

Case Summary: The Issuance of a Building Permit was Unreasonable because the
Drawings Were Not Made in Compliance with the Architects Act
The issuance of a building permit was unreasonable because the drawings were not made in compliance with the Architects Act.

Architectural Institute of British Columbia v. Langford (City), [2020] B.C.J. No. 886, 2020 BCSC 801, British Columbia Supreme Court, May 29, 2020, S.F. Kelleher J.

The Chief Building Inspector for the City of Langford issued a building permit for the construction of a mixed commercial/residential strata complex. The project drawings were prepared by a designer and did not involve an architect. Under section 59 of the Architects Act, the practice of architecture includes the "planning or supervision of the erection or alteration of buildings" except those built for self-occupancy. Section 60 qualifies section 59, stating that the Architects Act does not prevent "a person from advising on, planning, designing or supervising the erection, alteration or repair of a building other than (vii) any other building in excess of 470 m² gross area, being the aggregate area of all floors…" Therefore, the strata complex in Langford required the involvement of an architect pursuant to the Architects Act. AIBC and the City of Langford disagreed on the application of the Architects Act as it related to the City's Building Bylaws. Read the full article by Jackson C. Doyle with Harper Grey LLP.

Single User Plastic Item Bylaws
The Province of British Columbia has announced that the Minister of Environment will now likely approve municipal bylaws banning single use plastic items. This addresses the concern arising from the quashing of Victoria's bylaw by the BC Court of Appeal on the basis that the bylaw was environmental in nature and therefore required ministerial approval. The Minister has approved the Saanich single use plastic item ban bylaw, and has indicated that bylaws of Tofino, Richmond, Ucluelet and others will soon have approval. Read the full article by Don Lidstone, Q.C., with Lidstone & Company Barristers and Solicitors.

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

• Notice NSC 01-20 – Carrier Safety Guide - Updated Version Published
• School Bus Barrier Guidance Document – Questions and answers regarding the use of barriers in school buses.

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

Occupational Health & Safety News:

• Guidance – COVID-19 Public Health Guidance for K-12 School Settings (Updated September 11)
• Order – Registered Nurse and Registered Psychiatric Nurse Public Health Pharmacotherapy – September 16, 2020 (PDF, 227KB)
• Order – Food and Liquor Serving Premises – September 18, 2020 (PDF, 304KB)
• Order – Gatherings and Events – September 18, 2020 (PDF, 231KB)

BC Forest Safety Council and FPInnovations Work Together to
Improve Forest Industry Safety Performance
The CEO of the BC Forest Safety Council (BCFSC), Rob Moonen, and the President and CEO of FPInnovations, Stéphane Renou, are pleased to announce that the two organizations have signed a Memorandum of Understanding (MOU) to work collaboratively on enhancing safety performance in the forest industry by sharing leading, innovative scientific and technical applications. Under the MOU, individual projects and financial support agreements for specific activities will be identified through consultation between the two parties, with FPInnovations providing research expertise and non-proprietary technical resources or materials to assist the BCFSC in improving or expanding the support it provides to the forest industry to reduce serious injuries and fatalities. Read the full article on the BC Forest Safety website.

WorksafeBC OHS Guidelines Revised
– from WorkSafeBC:
Guidelines revised related to authority under the OHS Regulation, approved respirators, and isolation and lockout (September 18).

Property and Real Estate News:

B.C.'s Land Owner Transparency Act Comes into
Force November 30th - Are You Ready?
On September 20, 2020, the Province of British Columbia confirmed by Order in Council that most of the provisions of the Land Owner Transparency Act, SBC 2019, c 23 ("LOTA"), will come into force on November 30, 2020. [Quickscribe has published an early consolidated version of LOTA as it will read on November 30, 2020] The Province also released the Land Owner Transparency Regulation (the "Regulation"), which will come into effect concurrently with LOTA. The Regulation and Order in Council 549/2020 answer some key questions that have remained unanswered since the government introduced the initial framework for LOTA in 2018 read the full article by Edward L. Wilson, Brendan J. Craig and Sophie Marshall with Lawson Lundell LLP.

BC Government Takes First Steps to Address
Rising Strata Insurance Costs
On September 13, 2020, the Government of British Columbia (Government) announced regulatory changes (Regulations) to address rising strata insurance costs in British Columbia. These changes follow the passage of the Municipal Affairs and Housing Statutes Amendment Act (No.2), 2020 (Bill 14), which amended certain insurance-related provisions of the Strata Property Act (SPA) and the Financial Institutions Act (FIA). Bill 14 and the Regulations follow an interim report by the BC Financial Services Authority (BCFSA), which found that strata insurance premiums and deductibles have risen significantly on a year-over-year basis. The increases have partly resulted from insurers struggling to sustain profitability in the B.C. strata insurance market due to rising claim costs. In addition, insurers have identified the B.C. strata insurance market as "high risk" due to rising property values and excessive exposure to earthquake risk. The BCFSA report also noted that there is a lack of capacity in the strata insurance market to support future demand. Read the full article by Benjamin Effa, Tony Magre and Greg Umbach with Blake, Cassels & Graydon LLP.