Company and Finance News:

Capital Gains Taxation in Canada:
History and Potential Reforms
The origin of capital gains taxation in Canada can be traced to the Carter commission, appointed in September 1962 to thoroughly review the Canadian tax system. Extensive debate ensued. In 1966, the commission's report recommended, among other things, that a tax be imposed on capital gains. The commission acknowledged that the taxation of capital gains would be a "radical reform" of the Canadian tax system. Its rationale was that capital gains should be taxed in the same manner as other sources of income, such as employment income, rent, dividends, and interest. The commission's views in this regard have often been summarized as "a buck is a buck is a buck." Three years later, the government published a white paper setting out definitive proposals for, among other things, the imposition of a capital gains tax. Read the full article by Catherine (Cathie) Brayley, Miller Thomson LLP, Vancouver and Lesley Kim, Gowling WLG, Calgary.

BC Court of Appeal Decision Reminds Parties to
Contracts to Read Before Signing
Written contracts are an essential tool in confirming the terms of an agreement between two parties following an apparently successful negotiation. Yet too often parties treat such agreements as mere formalities, signing them on the assumption that they reflect their understanding of the previously negotiated agreement. A recent decision of the B.C. Court of Appeal, 1001790 BC Ltd. v 0996530 BC Ltd., 2021 BCCA 321, highlights the perils of doing so.

Facts
The appellants, 0996530 BC Ltd. and Chia Hwei Lin (the Borrowers) were lent money by the respondent, 1001790 BC Ltd. (the Lender), with the loan secured by a mortgage over several properties. After the Borrowers failed to repay, the Lender commenced foreclosure proceedings. Some of the mortgaged properties were sold, and the Borrowers repaid the Lender the $250,000 that both parties agreed was the outstanding principal on the loan. However, the Lender also stated that $325,721.50 in interest was owed, plus legal costs, and the Borrowers disagreed.

Read the full article by David Gruber and Benjamin Reedijk with Bennett Jones LLP.

CSA Approve SRO Rule Amendments Consistent with
Client Focused Reform Project
The Canadian Securities Administrators (CSA) have recently approved amendments to IIROC's Dealer Member Plain Language Rule Book (IIROC Rules) consistent with the CSA's client focused reform (CFR) project. Among other things, the amendments to the IIROC Rules: (i) provide exemptions from know-your-client (KYC), know-your-product (KYP), suitability determination, and product due diligence obligations in respect of certain account types, such as order execution only and direct electronic access accounts; (ii) update account appropriateness rules to provide consistency with CSA suitability amendments and CFR rules; and (iii) update suitability requirements to incorporate language that is uniform with the CSA's CRF suitability requirements. Guidance outlining IIROC's expectations regarding compliance with product due diligence and KYP obligations was also released. Read the full article posted on the Stikeman Elliott Knowledge Hub.

British Columbia Updates Its Corporate Laws to
Accommodate Electronic Meetings
Satisfying the requirements of British Columbia's Business Corporations Act (BCBCA) for holding regular and special meetings of directors and shareholders, while also complying with public health restrictions during the COVID-19 pandemic presented many challenges. BC companies were prohibited from holding in-person meetings in the traditional manner due to gathering restrictions, but still had to comply with the regime for holding meetings set out in the BCBCA and a company's articles. Read the full article published by Dentons.

Canadian Securities Administrators Propose Changes to 
"Primary Business" Financial Disclosure Requirements
On August 12, 2021, the Canadian Securities Administrators (the "CSA") published a notice and request for comment on their proposed changes to Companion Policy 41-101CP to National Instrument 41-101 General Prospectus Requirements ("Companion Policy 41-101CP"). The goal of the proposed changes is two-fold: (1) to provide a uniform interpretation of issuers' "primary business" financial statement reporting requirements in long form prospectuses across all CSA jurisdictions, and (2) to clarify what historical financial information is required in an initial public offering ("IPO") prospectus.

Background
In April 2017, the CSA sought industry consultation to identify and consider areas of securities legislation that would benefit from regulatory change. Specifically, industry stakeholders suggested that the CSA revisit the requirement imposed by Form 41-101F1 – Information Required in a Prospectus ("Form 41-101F1") that an issuer include historical financial statements for each entity considered the "primary business" of said issuer.

Read the full article by Patrick Boucher, Andrew Parker, Wendi A. Locke, Michael J. Eldridge and Paul Santache with McCarthy Tetrault LLP.

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

• 94-102 – Publication for Comment - CSA Notice and Request for Comment - Proposed Amendments to National Instrument 94-102 Derivatives: Customer Clearing and Protection of Customer Collateral and Positions
• BC Notice 2021/04 – Adoption of National Instrument 45-110 Start-up Crowdfunding Registration and Prospectus Exemptions and BC Notice 2021/04 Updated Template for Schedule 1 of Form 45-106F1 Report of Exempt Distribution
• 21-330 – Joint Canadian Securities Administrators/Investment Industry Regulatory Organization of Canada Staff Notice 21-330 – Guidance for Crypto-Trading Platforms: Requirements relating to Advertising, Marketing and Social Media Use

For more information, visit the BC Securities website.

Forest and Environment News:

Six Months Remain for Groundwater
Users to Apply for Licence
A deadline for select groundwater users is less than six months away. March 1, 2022, is the deadline to apply for a water licence for those who were using groundwater from a well or dugout on or before Feb. 29, 2016, for non-domestic purposes such as irrigation, commercial or industrial use. A water licence is not required for a household well or groundwater used for domestic purposes, such as watering lawns and gardens. Domestic groundwater users are encouraged to register their well for free. Existing groundwater users who have not applied by the deadline will be unlicensed and must stop using groundwater after March 1, 2022, until a licence is obtained. They will be treated as a new user and will not receive recognition for their historical date of first use. That historical date is important because during water shortages, older licences get priority access to water. Missing the deadline could be costly and may include fines for unlicensed use of groundwater. Read the government news release.

BC Government Expected to Introduce
Old-growth Logging Reforms
The Opposition Liberals and Greens are expecting the BC government to introduce policy reforms to old-growth logging during the current six-week legislative session, and the forests minster says changes are coming. Katrine Conroy says the Forestry Act will be amended and changes will go beyond the issue of old-growth logging that has seen more than 1,100 arrests at Fairy Creek. Read the CTV News article.

Climate Change Cited as Reason to Deny Injunction
Extension over Logging in BC
Teal Cedar Products Ltd. has applied for a one-year extension to its Fairy Creek injunction. Public concerns over climate change should play a large part in deciding whether a British Columbia forestry company is granted an injunction extension against protests over the logging of old-growth forests, a court heard Wednesday [September 15]. The B.C. Supreme Court must weigh the environmental importance of protecting old-growth trees in the Fairy Creek area of Vancouver Island as opposed to considering the economic interests of Teal Cedar Products Ltd., which has applied for a one-year extension to the injunction, lawyer Steven Kelliher said. Read the CBC News article.

Marine Protected Area Network off BC Coast Could Provide a
Template: West Coast Environmental Law
The federal government's plan to conduct public consultations for a Marine Protected Area network off the coast of British Columbia could provide a template for how to manage oceans in the face of climate and ecological uncertainty, says Michael Bissonnette, a staff lawyer with West Coast Environmental Law. Read the full article by Zena Olijnyk published by Canadian Lawyer.

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

Environmental Management Act

•  Mount Polley Mining Corporation v. Director, Environmental Management Act [Final Decision – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Health News:

BC Lawyers Mull Alternative Approach to
Substance Abuse Discipline
BC's legal profession regulator's board Sept. 24 will debate adopting an alternative discipline process for lawyers dealing with mental health and substance abuse issues. A report to Law Society of BC board members – or benchers – recommends the adoption of a different process than is used in other complaint and discipline cases, many involving allegations of professional misconduct. The goal of the suggested process, the board was told, is to individualize the regulatory response and focus on support, treatment, practice interventions and other remedial measures. Read the full BIV article by Jeremy Hainsworth.

Canada Moves to Protect its Supply of Medications and
COVID-19 Protective Equipment
On September 1, 2021, the Government of Canada published amendments to help address the shortage of drugs and medical devices in Canada. In particular, the Regulations Amending Certain Regulations Concerning Drugs and Medical Devices (Shortages) amend the Food and Drug Regulations and Medical Devices Regulations (the "Amendments"). The Amendments extend and modify certain measures already in place through two interim orders (IOs): the Interim Order Respecting Drug Shortages (Safeguarding the Drug Supply) and Interim Order No. 2 Respecting Drugs, Medical Devices, and Foods for a Special Dietary Purpose. They have been made with the stated intention to help track, prevent and mitigate shortages of key health products in Canada, including drugs and medical devices. Read the full article by Daa Jospe and Jean-Raphael Champagne with Fasken Martineau DuMoulin LLP.

Case Summary: College's Decision to Terminate Physician's Assessment
Was Reasonable Given Concerns about Patient Safety [Alberta]
Sandhu v College of Physicians and Surgeons of Alberta, [2021] A.J. No. 883, 2021 ABQB 494, Alberta Court of Queen's Bench, June 28, 2021, C.M. Jones J.
Dr. Sandhu was a foreign-trained physician who sought the approval of the College of Physicians and Surgeons of Alberta (the "College") to practice family medicine in Alberta. The process involved a practice readiness assessment ("PRA"), a process which was commenced but not completed. The assessor found Dr. Sandhu's performance to be unsatisfactory in 24 of 36 assessment notes created. The PRA was terminated after the assessor informed the College he was concerned about patient safety and refused to continue as Dr. Sandhu's assessor. The College provided Dr. Sandhu with an opportunity to respond to the assessor's feedback. Dr. Sandhu attributed his underperformance to being inadequately oriented in an unfamiliar environment and bias by his assessor. He was subsequently informed that his application for registration was refused for failing to complete the PRA. The College's Appeal Panel found the decision was reasonable and procedurally fair. Read the full article by Joanne Barnum with Harper Grey LLP.

BC Naturopath Claims College Can't Stop Him from
Selling Fecal Transplants to Treat Autistic Kids
A Fraser Valley naturopath has filed a legal action against his professional regulator, alleging it doesn't have the power to stop him from producing fecal transplants in his BC lab to administer to autistic children in Mexico. Last month, the College of Naturopathic Physicians of BC ordered Jason Klop to stop producing pills or enemas made from human feces, saying it was necessary to take "extraordinary action" to protect the public while an investigation is underway. In response, Klop has filed a petition in B.C. Supreme Court asking for a judge to step in and quash the college's action. That document includes allegations that the college has overstepped its powers by setting guidelines outside its jurisdiction to regulate the practice of naturopathy. The college, it says, "has no mandate to purport to protect patients who are receiving treatment in Mexico or any other place outside British Columbia or otherwise restrict the treatment choices of patients outside British Columbia." As for the regulation of fecal transplant products, Klop argues that's the domain of Health Canada. Read the CBC article.

Labour and Employment News:

Fired Worker Awarded $30K after Restaurant 
Co-worker Used Wrong Pronouns
Human rights tribunal found the worker had been discriminated against because the restaurant failed to address the employee's misgendering, which led to an altercation and the later termination. A non-binary transgender restaurant employee in Gibsons who was fired after complaining to the owners about being called "she" and "sweetheart" by the bar manager has been awarded $30,000 by the B.C. Human Rights Tribunal, which upheld a discrimination complaint. The decision was the first involving a complaint by a non-binary transgender employee who uses gender-neutral (they/them) pronouns. The "hefty" award is a "signal to employers," said the complainant's lawyer, Adrienne Smith. "It should be a signal that employers need to be respectful. Correct pronouns for individuals are not optional. Employers are not free to address people by the pronouns they choose to." Read the Vancouver Sun article.

Amending Employment Agreements:
Don't Forget Consideration
In the recent decision of Matijczack v. Homewood Health Inc., 2021 BCSC 1658 (Homewood Health), the BC Supreme Court confirmed that employers must provide consideration to make amendments to existing employment agreements enforceable. Following a 2018 decision from the BC Court of Appeal (Rosas v. Toca, 2018 BCCA 191), the law relating to consideration for contractual amendments has been in flux. The Homewood Health decision makes it clear that consideration is required in the employment context. Read the full article by Nicole K. Skuggedal and Rita Mahil with Lawson Lundell LLP.

Options for BC's Permanent Paid Sick
Leave Available for Comment
British Columbians are invited to have their say on three proposed options for permanent paid sick leave shaped by their responses to the first phase of consultation. "Over the past several weeks, thousands of workers and employers have completed surveys to give us valuable information on their current sick-leave benefits, if any, and what is needed," said Harry Bains, Minister of Labour. "Informed by those surveys, we are inviting British Columbians to once again have their say." Between Aug. 5 and Sept. 14, 2021, more than 26,000 surveys were completed by workers and employers. Feedback from the online surveys and the options paper will help create a made-in-B.C. permanent paid personal illness and injury leave that will be fair, balanced and reasonable for everyone. Read the government news release.

Impact of September 30th Federal Holiday
For the first time, September 30 will mark the National Day for Truth and Reconciliation. This public holiday under the Federal Holidays Act and the Canada Labour Code is meant to give federal public servants and federally regulated employees an opportunity to recognize the legacy of residential schools. Employees will receive general holiday pay depending on the method that they earn their wages. For most employees, their holiday pay will be equal to at least one-twentieth (1/20) of the wages, excluding overtime pay, that they earned in the four-week period immediately before the week in which the general holiday occurs. Note: This is not a public holiday in any of the provinces or territories covered by provincial employment/labour standards legislation. However, several provinces/territories have decided to observe this holiday as a commemoration day or a public holiday for provincial or territorial government employees while they study covering this holiday as a public holiday under employment/labour standards legislation. This holiday also has an impact on payroll. Read the full article by Marie-Yosie Saint-Cyr, published by First Reference.

Local Government News:

Approving Officer Liability and 
Section 219 Releases
Local governments, and the Province as well, will welcome two recent Court of Appeal decisions arising from the approval of a subdivision in Sechelt that was ordered to be evacuated following a serious subsidence event. The decisions deal with approving officer liability and the permissible scope of s. 219 covenants required as a condition of subdivision approval. As the branch of government responsible for subdivision approval in the rural areas of the province that present some of the sketchiest terrain for subdivision, the Ministry of Transportation may be particularly relieved. On the general question of approving officer liability, addressed in Held v. Sechelt 2021 BCCA 350, the key issue for the Court in the subdivision lot owners' negligence claim against Sechelt's approving officer was whether, in negligence law, an approving officer owes a "duty of care" to persons who suffer harm in circumstances such as these, solely on the basis that the harm is foreseeable at the time the approval decision is made. Read the full article by Bill Buholzer with Young Anderson Barristers and Solicitors.

Emergency Management Legislation
Expected in Fall 2022
The provincial government has extended the timeline for introducing new emergency management legislation to Fall 2022. This comes after a summer of extreme weather, devastating wildfires, and increased drought conditions, requiring considerable attention and response efforts. Read the UBCM article.

Prince George Bylaw Targets Homeless People 
"Scapegoats" the Poor, Says Expert
A northern British Columbia city is enacting new restrictions meant to erase the homeless from its core, intensifying the grief that COVID-19 and the overdose crisis have already inflicted on those with nowhere to live, an expert says. The bylaw recently passed by Prince George council has tight restrictions on the homeless and is another example of how municipalities are increasingly using harsh regulations to force street people from public spaces, critics said. It is now an offence to solicit within 10 metres of a restaurant, daycare, liquor store or a vehicle at a traffic stop, among other places. Open air burning in a park or a street is also among prohibited activities. Read The Globe And Mail article.

Province Seeks Feedback on
Accessible British Columbia Act
With the passing of the Accessible BC Act, the Ministry of Social Development and Poverty Reduction is seeking feedback regarding which organizations within the public sector and quasi-public sector the Act should apply to. Interested parties can provide feedback before October 15. The Accessible BC Act (the Act) received Royal Assent on June 17, 2021. This new legislation establishes a statutory framework for government to work with people with disabilities and the broader community to identify, remove, and prevent barriers that impede the full participation of people with disabilities in their communities. Read the UBCM article.

Conflict of Interest or Community of Interest? Court
Interprets the "Electors Generally" Exception
The recent decision of the BC Supreme Court in Redmond v. Wiebe, 2021 BCSC 1405 provides interesting insight into the interpretation of the "community of interest" exception to the conflict of interest rules in the Vancouver Charter and Community Charter. The respondent was a councillor and a part owner of a restaurant and bar in the City of Vancouver. The petitioners, a group of electors, alleged that the respondent was in a conflict of interest position when he participated in and voted on a motion related to expanding patio seating to assist restaurants and bars during the COVID-19 pandemic (the "Temporary Patio Program"). The petitioners sought to disqualify Mr. Wiebe on the basis that he failed to disclose his conflict of interest and contravened the required restrictions on participation. Section 145.3 of the Vancouver Charter, which is equivalent to section 101 of the Community Charter, restricts councillors from voting on matters in which they have a direct or indirect pecuniary interest. Section 145.6(1) of the Vancouver Charter, the equivalent of s. 104(1) of the Community Charter, identifies certain exceptions to these restrictions, including the "community of interest" exception at issue in this case. Read the full article by Julia Tikhonova & Nick Falzon with Young Anderson Barristers and Solicitors published in the special UBCM Conference Newsletter Volume 32 – Number 3.

Motor Vehicle & Transportation News:

Passenger Transportation Board Concludes Investigation on the Impact of the
COVID-19 Pandemic on the BC Passenger Transportation Industry
On April 20, 2021, the Board exercised its discretion pursuant to section 27(3)(b) of the Passenger Transportation Act, to initiate an investigation on the effects of the COVID-19 pandemic on the passenger transportation industry (the "COVID-19 Board Investigation"). This Investigation was concluded on September 17, 2021. The Board initiated this Investigation under the Uber Canada Inc.'s application to expand its current area of operation from the Lower Mainland to all regions in BC, and Facedrive Inc.'s application to operate a ride hailing service in Region 1, i.e. the Lower Mainland (collectively referred to as the "Main Applications"). The Board was concerned that it did not have sufficient empirical data to properly consider whether there was public need for the services applied for and whether granting the applications would promote sound economic conditions, given the impact of the pandemic. Read the full article published by the PTB.

Designated Winter Tire & Chain Routes – Now Required
Winter tires or chains are required on most routes in British Columbia from October 1 to April 30. For select highways not located through mountain passes and/or high snowfall areas, tire and chain requirements end March 31. These routes are marked with regulatory signs posted on highways throughout the province. We reserve the right to restrict travel at any time of the year depending on road conditions. Link to government website for more information.

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

• VI Bulletin 03-21 – Motorcycle Inspections

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

Occupational Health & Safety News:

"Technically, That's Fraud": BC Doctor Outlines 
Criteria for Vaccine Exemption Letters
Shortly after BC's vaccine passport system was announced, Dr. Shane Barclay said, the requests for medical letters for vaccine exemptions started to come in. "It took quite a bit of time to cover the reasons why and convince people they didn't meet the criteria," said Barclay, a general practitioner and medical director at Sun Peaks Community Health Centre. In a letter to his patients this week, Barclay said no exemption letters will be written unless they met the criteria set out by health authorities. Read the CTV News article.

BC Rejects Recommendation to Allow WorkSafeBC to
Make Special Payments to Workers for Its Errors
BC Ombudsperson Jay Chalke conducted an investigation into errors made by WorkSafeBC in terminating monthly injury-benefit payments to a cabinetmaker who had lost the tips of some of the fingers on his left hand. The BC government has rejected a call by the BC Ombudsperson to permit WorkSafeBC to voluntarily make payments to an injured worker for mistakes made by the provincial safety insurance agency. BC Ombudsperson Jay Chalke conducted an investigation into errors made by WorkSafeBC in terminating monthly injury-benefit payments to a cabinetmaker who had lost the tips of some of the fingers on his left hand. The cabinetmaker, only identified as Mr. Snider, was forced to go back to work in 2011 when his payments ended even though the grip in his left hand was impaired. A week after he returned to the job, he more seriously injured his hand, when a thumb and three of his fingers were fully or partially cut off by a saw blade. A WorkSafeBC review division ultimately found that safety agency was wrong to have terminated the injured worker's benefits after the first injury. Read the Vancouver Sun article.

BC Human Rights Commissioner Issues Guidance on
Proof of Vaccination amid COVID-19
Since the initial release of the BC Office of the Human Rights Commissioner's guidance on proof of vaccination amid the COVID-19 pandemic, there has been an upward trend among BC employers implementing mandatory vaccination policies, a lawyer says. In some cases, they put such policies in place because they have been required to, while in other cases they have chosen to do so, says Monty Verlint, a labour and employment law partner at Littler Mendelson P.C. Read the full article by Bernise Carolino published by Canadian Lawyer.

WorkSafeBC Cracks Down on Fall Protection Violations
WorkSafeBC has issued a number of fines to companies flouting working at heights regulations, exposing workers to dangerous and potentially deadly falls. Rana Siding and Gutters Ltd. was recently fined $2,851.95 by WorkSafeBC. During an inspection of a worksite in Surrey, BC, where the firm was installing gutters at a three-storey townhouse complex under construction, WorkSafeBC noticed a worker installing gutter pipes from the top of a ladder – with no system of fall protection in place. This means that the worker was exposed to a fall risk of about 4.9 metres (or 16 feet). Read the full article by Maia Foulis, published on the Canadian Occupational Health and Safety website.

New Public Health Orders
The Public Health Office (PHO) recently issued the following Orders, Notices & Guidance:

Orders:

• Face Coverings (COVID-19) – September 28, 2021 (PDF, 308KB)
• COVID-19 Vaccination Status Information and Preventive Measures Order – September 27, 2021 (PDF, 513KB)
• Gatherings and Events – September 10, 2021 (PDF, 417KB)
• Food and Liquor Serving Premises – September 10, 2021 (PDF, 402KB)
• Post-secondary Institution Housing COVID-19 Preventive Measures – September 9, 2021 (PDF, 440KB)
• COVID-19 Vaccination Status Information and Preventive Measures Order – September 9, 2021 (PDF, 500KB)
• Face Coverings (COVID-19) – September 2, 2021 (PDF, 308KB)
• Residential Care Staff COVID-19 Preventive Measures PHO Order – September 2, 2021 (PDF, 444KB)

Medical Health Officer Orders:

• Gathering and Events Regional Measures (COVID-19) Order for Fraser Health Authority – September 28, 2021 (PDF, 352KB)
• Gatherings and Events – Interior Health COVID-19 Order – September 13, 2021 (PDF, 472KB)
• Gatherings and Events COVID-19 Order for Northern Health Authority – September 7, 2021 (PDF, 106KB)

Medical Health Officer Notices:

• Notice of Repeal of the Food and Liquor Serving Premises – Central Okanagan COVID-19 Order – September 13, 2021 (PDF, 383KB)
• Notice of Repeal of the Mandatory Masks/Face Coverings – Interior Health COVID-19 Order – September 1, 2021 (PDF, 384KB)

Guidance:

• Valid contraindications and deferrals to COVID-19 vaccination – September 15, 2021 (PDF, 211KB)

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

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

OHS Guidelines – Occupational Health and Safety Regulation

Editorial revisions were made to the following guidelines (Published September 30, 2021).

• Part 5 Chemical Agents and Biological Agents
• G5.86 Water supply
• Part 29 Aircraft Operations
• G29.0 Aircraft operations – Jurisdiction

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

Trudeau Vows 2-Year Ban on Foreign Homebuyers,
End To Blind Bidding If Re-Elected
Prime Minister Justin Trudeau promised to introduce a two-year ban on foreign home buyers to tackle housing affordability in Canada if he's re-elected.

The proposed restriction is an attempt to cool a housing market that has soared during the COVID-19 pandemic. Surging prices have become a central issue in the campaign for the Sept. 20 vote, in which Trudeau hopes to regain a majority in parliament, with all three major parties promising crackdowns.

"You shouldn't lose a bidding war on your home to speculators. It's time for things to change," Trudeau said at a campaign event in Hamilton, Ont., about 40 miles southwest of Toronto. "No more foreign wealth being parked in homes that people should be living in."

Outrage over housing affordability is increasingly directed at foreign buyers, especially in Vancouver, whose real estate has become increasingly popular among non-resident buyers from China and Hong Kong. Read the Financial Post article.

Court Finds Notice of Termination of Contract to Subcontractors
Not Required to Start Lien Filing Period
The Builders Lien Act, S.B.C. 1997, c. 45 (the "BLA") establishes mandatory deadlines for the filing of builders liens against title to land in British Columbia. One of the triggers for the commencement of the lien filing period is termination of the "head contract" made between the owner and the "head contractor" for an improvement (that is, a contractor who is engaged to do all or substantially all the work respecting an improvement). If a claim of lien is not filed before the expiry of 45 days from the date of termination of the head contract, then lien is extinguished. Read the full article by Mark Danielson with Pushor Mitchell.

Five Tips to Prevent Breaches of the Duty of Honest Performance
in Commercial Real Estate Transactions
The current pandemic has no doubt set the stage for the introduction of interesting and important statutory changes and case law. This is particularly true for the commercial real estate market. With all the volatility in this sector, it is critical for parties to keep in mind the lessons learned in the landmark Supreme Court of Canada (Court) decisions of Bhasin v. Hrynew (2014) (Bhasin) and C. M. Callow Inc. v. Zollinger (2020) (Callow). In Bhasin, the Court recognized a duty of honest performance and set out the organizing principle of good faith contractual performance, which requires parties to act "honestly and reasonably and not capriciously or arbitrarily" when performing their contractual responsibilities. Callow then applied the principle of good faith and the duty of honest performance to a dispute relevant to the commercial real estate world involving the termination of a maintenance contract for a condominium. Read the article at Blake, Cassels & Graydon.

Recent Additional School Tax Decision has Implications
for B.C.'s Development Firms and Landowners
A recent decision by British Columbia's Property Assessment Appeal Board (the "Board") on the application of the additional school tax (the "AST") may have implications for landowners and property development firms in the Province.

The decision arose from a dispute filed by Musqueam Indian Band ("Musqueam") in connection with its leləm̓ masterplanned community development (the "Development"), a multi-phase mixed use project within the University Endowment Lands which, when completed, will provide 1,200 housing units, including rental and affordable housing, as well as retail space, a community centre and a daycare. Musqueam already paid regular property taxes, but disputed the AST payable in respect of the Development, which would have resulted in an additional $2.2 million in taxes. The AST, which applied starting in 2019, is a surcharge on residential properties valued at more than $3 million. Read the full article by Matthew Singerman and Jimmy Zhang with Clark Wilson.

The Duty of Good Faith in Commercial Tenancy Disputes
The recent decision of ARC Digital Canada Corp. v. Amacon Alaska Development Partnership, 2021 BCSC 1612 ("ARC Digital") demonstrates that the doctrine of good faith continues to be a strong cause of action in disputes between commercial parties.

The Facts
In ARC Digital, Amacon Alaska Development Partnership (the "Landlord") leased commercial premises to ARC Digital Canada Corp. (the "Tenant"). At the time of the events, the lease between the parties had over 1.5 years remaining on it, with an option for a five-year renewal. As the Landlord planned to redevelop the property, the parties agreed to amend the lease to provide for an early termination date (the "Termination Date") in exchange for the Landlord providing financial assistance to the Tenant to move to the new premises.

Read the full article by Anna Sekunova and Kim Brown with Clark Wilson.