Company and Finance News:

COVID-19 Tax Update: a Detailed Review of the New Canada Emergency  
Rent Subsidy (CERS) and Lockdown Support Programs [November 26]
On November 19, 2020, Parliament enacted the Canada Emergency Rent Subsidy ("CERS"). Ostensibly designed to replace the underutilized Canada Emergency Commercial Rent Assistance ("CECRA"), the CERS subsidizes commercial real estate expenses incurred by businesses negatively affected by COVID-19. For businesses subject to a public health order, the CERS includes a separate, but intertwined, "lockdown support" top-up component. The CERS is available as of September 27, 2020. Consequently, as of that date businesses qualifying for both the basic CERS and "lockdown support" top-up may receive up to $67,500 per property per month from the federal government. Similar to the Canada Emergency Wage Subsidy (the "CEWS"), CERS payments come in the form of a refundable tax credit under the federal Income Tax Act (Canada). Read the full article by Thorsteinssons LLP & Alexander Demner & Gloria Wang.

Further Update on Employee Stock Options
On November 30, 2020, the Department of Finance ("Finance") released its 2020 Fall Economic Statement which included draft legislation (the "2020 Proposals") refining previous proposed amendments to the taxation of employee stock options. The changes had been anticipated, and are based on previous draft legislation released on June 17, 2019 (the "2019 Proposals"), summarized in more detail in our update of June 27, 2019. Finance had announced on December 19, 2019 that the 2019 Proposals, which were to be effective January 1, 2020, would be delayed. The 2020 Proposals reintroduce them with some notable modifications and clarifications. If the 2020 Proposals are passed in their current form, they will apply to employee stock options (a term inclusive of options to acquire units in a mutual fund trust) granted on or after July 1, 2021. The 2019 Proposals, by contrast, were to become effective January 1, 2020. Importantly, the 2020 Proposals would preserve treatment under the current rules for option agreements made on or after July 1, 2021 that result from an exchange of options (originally granted prior to July 1, 2021) to which subsection 7(1.4) of the Income Tax Act (Canada) (the "Act") applies. Read the full article by Mark Firman with Stikeman Elliott LLP.

Fall Economic Statement 2020 – Key Tax Announcements
On Nov. 30, 2020, The Honourable Chrystia Freeland tabled the Fall Economic Statement 2020 (the Statement). The Statement proposes short-term pandemic relief measures, including more support for families and those working remotely from home, as well as extensions of the Canada Emergency Wage Subsidy (CEWS) and the Canada Emergency Rent Subsidy (CERS). The Statement also provides a preview of longer-term initiatives aimed at tackling this year's $381 billion fiscal deficit. Of note, the Government announced that it will impose GST/HST on many digital products, goods supplied through fulfillment warehouses, and platform-based short-term accommodation and that it is moving forward with the previously announced $200,000 annual limit on employee stock options eligible for the stock option deduction. Read the full article by Ryma Sachedina, Elizabeth Egberts, Joseph Marando, Craig J. Webster, Braek Urquhart, Shannon James, Beverly Gilbert, Pamela L. Cross with Borden Ladner Gervais LLP

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

• 51-518 – BC Instrument 51-518 Temporary Exemption from Certain Business Acquisition Report Requirements
• 25-302 – CSA Staff Notice 25-302 - Matters Relating to CDOR, LIBOR and Other Interest Rate Benchmarks
• 51-361 – CSA Multilateral Staff Notice 51-361 Continuous Disclosure Review Program Activities for the fiscal years ended March 31, 2020 and March 31, 2019

For more information visit the BC Securities website.

PST Bulletins – December 1st
The following PST Bulletins were published by the government on December 1st:

Bulletin PST 003, Small Sellers, has been revised to clarify that you do not qualify as a small seller if you sell vapour products in the ordinary course of your business.

Bulletin PST 004, Direct Sellers and Independent Sales Contractors, has been revised to clarify that exclusive products cannot be vapour products.

Bulletin PST 204, Bicycles and Tricycles, has been revised to update the Converting Bicycles to Electric-Assist section to:

• Clarify how PST applies to electric conversions
• Correct an error in the example regarding the child seat

Bulletin PST 312, Gifts, has been revised to clarify that PST applies to vapour products at the rate of 20%.

Visit the "What's New in BC Sales Taxes" website for more information.

Forest and Environment News:

Early Consolidation of Contaminated Sites Regulation & EMA
For your convenience, Quickscribe has published an early consolidated version of the Contaminated Sites Regulation, B.C. Reg. 375/96, and Environmental Management Act as they will read on February 1, 2021, once Bill 17, Environmental Management Amendment Act, 2019, comes into law. Originally introduced in May 2019, Bill 17 intends to streamline and simplify site identifications while capturing contaminated sites that were previously left unregulated. Among other changes, there is a new requirement that a site disclosure statement be submitted to the registrar as opposed to the director. The operator and owner of the property now have added responsibilities to ensure the person associated with the contaminated site is captured in the disclosure requirements. The amendments will allow for more focus on ministry resources on high-risk sites and overall compliance verification and enforcement, with the overall result of increased protection for human health and the environment. The changes address issues raised during the initial consultation with industry, other ministries, local governments and Indigenous nations across the province. These and other early consolidated legislation can be found on the "Special Early Consolidations" page via the left navigation on Quickscribe.

Federal Government Introduces Bill C-12 to Mandate
2050 Net-Zero Emission Requirements
On November 19, 2020, the federal government introduced Bill C-12, the Canadian Net-Zero Emissions Accountability Act, the latest in a series of federal government initiatives aimed at satisfying Canada's obligations under the Paris Agreement, which establishes the framework for national greenhouse gas emission reduction targets to attain net-zero emissions by 2050.

The main features of Bill C-12 include:

1. the requirement to set national greenhouse gas emission reduction targets for each milestone year of 2030, 2035, 2040, and 2045, culminating in a national net-zero emission target by 2050;

Read the full article by Thomas McInerney, Sharon Singh, Radha Curpen, Parker Mckibbon and Kenryo Mizutani With Bennett Jones LLP.

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

Water Sustainability Act

• Kulwinder Singh Gill; Avninderjit Kaur Gill v. Assistant Water Manager [Consent Order – Appeal Dismissed with Directions]

Wildlife Act

• Chad Sjodin, Hanna M.K. Buchanan, 1002670 BC Ltd., Scott B. Campbell v. Director, Wildlife and Habitat Branch [Summary Dismissal Decision – Appeals Dismissed]

Visit the Environmental Appeal Board website for more information.

Health News:

Review Recommends Steps to Solve Widespread
Racism in BC Health Care
Indigenous people in British Columbia are exposed to widespread racism that often results in negative experiences at the point of care, inequitable medical treatment, physical harm and even death, the independent review into Indigenous-specific discrimination in the province's health-care system has found. Informed by the voices of nearly 9,000 Indigenous patients, family members, third-party witnesses and health-care workers, as well as unprecedented analysis of health data, the review found clear evidence of pervasive interpersonal and systemic racism that adversely affects not only patient and family experiences but also long-term health outcomes for Indigenous peoples. The report, In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in BC Health Care, concludes that this problem is widely acknowledged by many who work in the system, including those in leadership positions. The report makes 24 recommendations to address what is a systemic problem, deeply rooted in colonialism. Read the full government news release.

Access to PharmaNet
Effective December 1, changes to the Information Management Regulation require all new users who need PharmaNet to deliver direct patient care to enrol in PRIME. 

Discriminatory on the Basis of Mental Illness
After a year's delay due in part to the pandemic, Parliament is considering a bill to change the Medical Assistance in Dying (MAiD) regime to comply with the Truchon ruling in Quebec. The province's Superior Court has granted the federal government an extension until December to update its legislation to conform to the ruling. The Canadian Bar Association has taken the position that the bill doesn't go far enough toward addressing the Truchon ruling, as well as the Supreme Court of Canada decision in Carter that initially struck down the federal prohibition on physician-assisted dying. "The government is doing its best with the limited time that they have to respond to the Truchon decision," says David Roberge, a partner at McCarthy Tétrault in Montreal and member of the CBA's End of Life Working Group. "And overall, they consulted a lot of people and they've taken into account a lot of points of view, as much as they could, but the exclusion of all persons with mental illness is likely to be constitutionally challenged." Read the full article by Dale Smith, published in the CBA National.

COVID-19: More than 100 Fines Issued in BC to
People Breaking Health, Quarantine Orders
A total of 105 fines – totalling more than $100,000 – have been issued to individuals since late August for breaking health orders or federal quarantine rules. The rundown of tickets being issued was shared Tuesday evening [November 11] in a statement from the BC government formally extending the province's state-of-emergency declaration. Read the Vancouver Sun article.

Changes to COVID-19 Legislation
On November 24, M425/2020, the Use of Face Coverings in Indoor Public Spaces (COVID-19) Order, was made and incorporated as a provision in the COVID-19 Related Measures Act. The Violation Ticket Administration and Fines Regulation was also updated to set out the fines for contravening specific provisions of the Order:

Labour and Employment News:

Harvey v Gibraltar – The Latest Development in the Test for
Discrimination on the Basis of Family Status in BC
The BC Human Rights Tribunal's (the "Tribunal") decision in Harvey v. Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193 ("Harvey"), is the latest in a series of cases clarifying the test for discrimination on the basis of family status in BC.

Ms. Harvey and her husband both worked the same 12-hour shift at Gibraltar Mines Ltd. ("Gibraltar"). Upon returning from maternity leave in 2017, Ms. Harvey asked her supervisor if she and her husband could work different shifts, so that they could access childcare. She proposed two options that would allow them to work slightly different hours but continue to share some time off. Her supervisor rejected these proposals and suggested instead that Ms. Harvey or her husband switch to an opposing 12-hour shift, either permanently or until they could find a better childcare solution. Ms. Harvey rejected this suggestion on the basis that working opposite shifts would negatively affect their family. She then brought a claim alleging that Gibraltar failed to accommodate her by denying her request and discriminated against her on the basis of family status, marital status, and sex, contrary to s. 13 of the BC Human Rights Code, RSBC 1996, c. 210 (the "Code"). Gibraltar applied to have the complaint dismissed, arguing that the facts pled did not disclose a breach of the Code, that the complaint had no reasonable prospect of success, and that it would not further the purposes of the Code, pursuant to ss. 27(1)(b), (c) and (d)(ii). Read the full article by Abigail Cheung and Heather Mallabone with McCarthy Tétrault LLP.

Supreme Court of Canada Clarifies Scope of
Adverse Effect Discrimination
In Fraser v. Canada (Attorney General), 2020 SCC 28, the Supreme Court of Canada found that a workplace policy of the RCMP amounted to unlawful discrimination because it indirectly institutionalized and perpetuated a long-standing source of economic disadvantage for women.

The case involved three female RCMP officers who participated in a job-sharing program in order to work reduced hours when their children were young. The RCMP had a pension "buy-back" policy which allowed officers who had taken a leave from work to "buy back" pension credits to erase gaps in full-time service. The RCMP informed the three officers that the job-sharing program constituted part-time work, and as a result, the officers could not benefit from the pension "buy-back" policy. The Supreme Court of Canada found that the RCMP's policy amounted to unlawful adverse effect discrimination. Read the full article by Titus Totan & Alice Wang (Articling Student) with DLA Piper.

When Can Employees Claim
Payment for Travel Time?
It is not uncommon for disputes to arise about employees' eligibility for payment for travel time. Employment law regarding travel time can be complicated. Therefore, British Columbia employers are advised to draft a company policy that includes information about travel time in the employment contracts when new staff members are appointed.

Here is what the BC Employment Standards Act says about paid and unpaid travel time:

Commute time:
The time spent travelling to and from work is not regarded as work time. It is important to note that this applies even if the worker drives a company vehicle or if another employee or the employer picks up the worker.

Read the full article published by Overholt Law and posted in Labour and Employment Law on Thursday, November 26, 2020.

Local Government News:

ALR Update: What Local Governments Need to Know
The regulations under the Agricultural Land Commission Act have undergone significant and swift recent changes, with potentially far-reaching effects on local governments' powers and limitations when it comes to regulating in respect of farm lands within their jurisdiction. Examples of such changes are the changes to the application process to exclude land from the Agricultural Land Reserve and new land-use regulations for land designated within the Agricultural Land Reserve. This update will discuss these recent changes and potential issues of which local governments should be aware. Download the PDF article published by Bill Buholzer, Elizabeth Anderson and Steven Shergill of Young Anderson Barristers & Solicitors.

Vancouver Council Unanimously Approves Motion to
Seek Decriminalization of Drug Possession
If approved by Ottawa, city would become first in Canada to decriminalize simple possession. Vancouver city councillors have voted unanimously in favour of a motion to ask the federal government for the legal power to decriminalize simple possession of illicit drugs. The vote Wednesday night [November 25] means the city will ask the federal government for an exemption from the Controlled Drugs and Substances Act to allow the possession of small amounts of illegal substances within the city's boundaries.

If successful, Vancouver will become the first jurisdiction in Canada to decriminalize simple possession. Mayor Kennedy Stewart said Wednesday that he was grateful for the support of councillors, as well as the advocacy of drug users and their allies who have been pushing for decriminalization for years. Read the CBC article.

The Limitation Defence in the Public Authorities Context:
A Tool for Disposing of Claims Summarily
The civic functions performed by many public authorities put their employees in routine contact with members of the public. As can be expected, their public-facing nature will consequently make these public bodies and their employees the target of some frivolous litigation. The finite time and financial resources available to address these nuisance claims are an unfortunate reality that strains the legal budgets of public authorities and acts as a drain on the use of limited court resources. Addressing and disposing of such claims in a time and cost-sensitive manner is in the best interest of the public authority so that these organizations and their legal counsel can focus their time and resources on more pressing legal matters.

While every claim is subject to the general two-year limitation period in the Limitation Act, local government defendants have access to additional, shorter statutory periods that apply in certain circumstances. Legal counsel acting in the defence of public authorities should be familiar with the various statutory limitation periods that apply to public bodies and how these can be used to promptly dispose of court actions or threats of litigation. When a plaintiff or their counsel make the fatal error of missing a statutory limitation period it will almost certainly act as a bar to their claim and insulate the public authority from liability and further litigation.

On November 3, 2020 reasons were released in the Supreme Court of British Columbia case Nungwana v. Canada (Attorney General), 2020 BCSC 1634, which provides a clear example of when the limitation defence can be utilized to promptly dispose of a claim made against a public authority. Read the full article by Josh Krusell with Stewart McDannold Stuart.

Coquitlam Granted Leave to Appeal in Fortis Dispute
The BC Court of Appeal has approved a City of Coquitlam application to appeal an order by the BC Utilities Commission (BCUC) that allowed Fortis to abandon a decommissioned gas pipeline running through City lands. The order had directed the City and Fortis to share the cost of removing the pipeline to allow for the installation of municipal infrastructure. UBCM provided an affidavit to the Court in support of Coquitlam that advanced the argument this was an application that could impact local governments across British Columbia.

UBCM involvement in legal appeals is limited to instances where the matter in dispute could have a broad impact to other local governments in British Columbia. The City was granted leave to appeal in a ruling by the BC Court of Appeal on October 7. The Court of Appeal ruling references the UBCM affidavit in its decision as follows, including the need for greater jurisdictional clarity over decommissioned infrastructure and the consequences of the BCUC decision for local government budgets and planning. Read the UBCM article.

COVID-19 Resilience Infrastructure Stream
On December 1, 2020, the Ministry of Municipal Affairs and Emergency Management BC announced the launch of the new $136 million COVID-19 Resilience Infrastructure Stream (CVRIS) under the Investing in Canada Infrastructure Program (ICIP).

The CVRIS will support projects that focus on retrofits, rehabilitation and upgrades to existing local government and indigenous community buildings, COVID-19 response infrastructure, active transportation and disaster mitigation. Read UBCM article.

How are the Courts Approaching the Duty of Care in
Negligence Claims Against Local Governments
Recent decisions indicate that the courts are more reserved in their approach to the question of whether local governments owe a duty of care in cases where claimants have sought to extend municipal negligence liability beyond traditional areas such as building inspection and road maintenance. Additionally, for the first time in over 20 years the Supreme Court of Canada is taking on a municipal negligence case that raises the important question of whether the policy/operational analysis should be retained to determine when municipal decisions are immune from a duty of care. The prospect for significant change in the law of municipal negligence law from these cases will be considered. Download the full PDF article by Barry Williamson and Sarah Strukoff, Articled Student, with Young Anderson Barristers & Solicitors.

Funding & Resources Update
Applications are currently being accepted for the following funding programs. A complete and chronological listing (by intake deadline) of currently offered Local Government Program Services grants is also available on the UBCM website.

Community Emergency Preparedness Fund: Upcoming intake deadlines for CEPF funding streams:

• Emergency Support Services – January 29, 2021
• Flood Risk Assessment, Flood Mapping and Flood Mitigation Planning – February 26, 2021
• Emergency Operations Centres and Training – March 26, 2021

Regional Community to Community Forums: The goal of a Regional C2C Forum is increased understanding and improved overall relations between First Nations and local governments. Forum events are intended to provide a time and place for dialogue to build on opportunities, support reconciliation efforts, and resolve issues of common responsibility, interest or concern.

Read the full UBCM article.

CVSE Bulletins & Noticess
The following notice was posted recently by CVSE:

• CT Notice 06/20 – Planned System Outage 6 pm November 28th to 6 pm November 29th Will Interrupt the Issuing of Overheight and Overwidth Permits

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

Occupational Health & Safety News:

Challenges Faced by Public and Private Sector
Vehicle Drivers in the Age of COVID-19
Opinion
Predictions have "contactless" journeys as a safer alternative to help people limit their interactions with key touchpoints in public travel. In places like the UK, for example, limiting the circulation of hard money, is just one such attempt to promote safe travel. This comes as an answer to rising safety concerns. In the UK, taxi death rates involving COVID-19 are one of the highest compared to other occupations, according to official figures. Yet, when it comes to transportation – public, private, or commercial – this once bustling sector is still evolving to understand how it keep can both passengers and drivers protected. Read the full article by Fraser Rankin and published on the Canadian Occupational Safety website.

WorkSafe BC Updates Guidelines – (November 13)
– from WorkSafeBC:
A number of Occupational Health and Safety regulation guidelines were updated on November. These include:

Guidelines – Occupational Health and Safety Regulation

• Part 3 Rights and Responsibilities
• G3.11 Emergency circumstances (retired)
• Part 5 Chemical Agents and Biological Agents
• G5.53-1 Workplace monitoring (revised)
• G5.53-4 Occupational hygiene methods acceptable to WorkSafeBC (revised)
• Part 18 Traffic Control
• G18.3 Interim Traffic Management Manual (retired)
• Part 20 Construction, Excavation and Demolition
• G20.2.1(1) and (2) Notice of project for hazardous substances - Ongoing asbestos work (revised)
• Part 24 Diving, Fishing and Other Marine Operations
• G24.1-4 Dive site – Definition (revised)

New and revised guidelines are posted for a 60-day preliminary period, during which time the stakeholder community may comment and request revisions. Visit WorkSafe BC Updates page for these and other changes.

Property and Real Estate News:

A "Rent" Subsidy That's Not Just for Tenants: A Guide to the
New Canada Emergency Rent Subsidy
On November 19, 2020, the new federal Canada Emergency Rent Subsidy ("CERS") was enacted into law by Bill C-9, An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy) receiving Royal Assent. The CERS takes effect as of September 27, 2020 and continues to June 2021. Note that Bill C-9 only provides details for the first 12 weeks of the program, so details may change after December 19, 2020. Prime Minister Justin Trudeau announced today that applications will open on Monday, November 23, 2020.

A few highlights about the CERS:

• It is not limited to rent, but can also subsidize the carrying costs of business property:
  Despite its name, the CERS does not only subsidize commercial rent paid by tenants. It also subsidizes certain carrying costs (mortgage, insurance, property tax) paid by owners of property used in connection with a business, other than property used primarily to earn rental income (which will generally disqualify commercial landlords).

Read the full article by Christopher Ross, Richard Lord and Adrienne Woodyard with DLA Piper LLP.

Significant Risks to Buyers and Sellers of Residential Tenant Occupied Property which are not
Addressed in the Typical Standard Form Real Estate Contract
In the last several years, our province has implemented significant measures intended to protect tenants of residential housing. Some of this legislation has inadvertently exposed another group of vulnerable consumers, buyers and sellers of residential housing, to risks never seen before in the context of the sale of residential property which is occupied by a residential tenant.

This article discusses the most common and significant sources of risk the author has started to see develop rapidly in BC since the recent legislative change. This article also provides suggestions about how to mitigate that risk until there is greater industry awareness about the issue, and further legislative reform. Read the full article by Michael Drouillard with Harper Grey LLP.

British Columbia's New Land Owner Transparency Act
British Columbia's Land Owner Transparency Act ("LOTA") is coming into force effective as of November 30, 2020. LOTA creates a land owner transparency registry for ownership of real property in BC and imposes disclosure obligations on both existing and new owners of real property. Due to its expansive scope, we anticipate that LOTA will have a significant impact on most owners of real property or interests in real property in BC including individuals, corporations, partnerships and trusts. This bulletin will summarize the key provisions of LOTA and its regulations.

On May 16, 2019, LOTA passed third reading in the legislative assembly of BC and received Royal Assent. On September 20, 2020, the Lieutenant Governor of BC signed Order in Council 549 containing the Land Owner Transparency Regulation (the "Regulation") and bringing LOTA and the Regulation into force effective on November 30, 2020. Read the full article by Catherine Gibson and Robert Dallakyan with DLA Piper.