Company and Finance News:

Federal Government Releases Draft 
"Underused Housing Tax" Legislation
The federal government provided its 2021 Economic and Fiscal Update on December 14, 2021. Amidst numerous new legislative measures introduced was the newly-proposed underused housing tax (the "UHT"). Draft legislation, in the form of a new Underused Housing Tax Act (the "UHTA"), was released after a consultation process that occurred in August and September 2021. Each follows a brief backgrounder provided in the 2021 Federal Budget. The UHT forms a part of the federal government's stated efforts to counter speculative transactions and undesired vacancy in Canadian residential real estate. Certain provinces and municipalities have implemented legislative measures aimed at curtailing real estate speculation and vacancy over the past six years. However, the UHTA is the first federal statute aimed at vacant homes and foreign owners. The following is an overview of the draft UHTA and a comparison to similar existing provincial and municipal measures. Read the full article by Zheting Su with Thorsteinssons LLP.

A Relief But Not a Reprieve: The CRA Postpones the
New Federal Trust Reporting Rules
On January 14, 2022, the Canada Revenue Agency (the "CRA") announced the postponement of the new federal trust reporting regime that was set to come into effect for the taxation year ending on December 30, 2021. This news likely comes as a relief to many trustees who were grappling with the onerous new filing and disclosure requirements ahead of the upcoming T3 filing deadline for trusts with a December 2021 year-end. With this announcement, trustees can now safely file their 2021 T3 tax returns in accordance with the current rules and without any additional reporting obligations. However, this deferral should not be taken as a warrant to become complacent. Read the full article by Michael Scott, TEP and Jessica Dorfmann of Clark Wilson.

Amendments to the Societies Act
[For your convenience, Quickscribe has published a red text early consolidation of the Societies Act as it will read when Bill 19 comes into force.]

On October 28, 2021, Bill 19 – 2021: Societies Amendment Act, 2021 ("Bill 19") received royal assent in British Columbia, introducing amendments to the Societies Act (British Columbia) (the "Act"). This post outlines some of the notable changes. As at the date of this post, many of the amendments are not yet in force and will come into effect by regulation. The government of British Columbia has indicated that it will provide a notice period for upcoming changes. Bill 19 introduces the following changes in respect of a society's directors or senior managers. Read the full article by Shannon Tseng and Paul Jon of Alexander Holburn Beaudin + Lang LLP.

How Long Is Too Long? BC Court of Appeal Interprets the 
Meaning of "Commercially Reasonable Best Efforts" in
Obtaining Regulatory Approval
Contracts of purchase and sale for land are often conditional on obtaining regulatory approval. Such contracts will often include language requiring a party to use "best efforts" or "reasonable commercial efforts" to obtain the required approvals. Courts will apply different standards when assessing a party's efforts, depending on the specific language used in the contract. Parties, and their counsel, therefore, ought to carefully consider the contractual language they choose to describe such obligations. The need for careful drafting and prompt performance was recently highlighted by the BC Court of Appeal in Sutter Hill Management Corporation v. Mpire Capital Corporation. At issue was the interpretation of a purchaser's contractual obligation to use "commercially reasonable best efforts" to obtain regulatory approvals "as soon as possible". The Court found that, in the context, the purchaser had breached that obligation as a result of a delay of a matter of weeks, attributable to the purchaser's counsel. Read the full article by Kate Macdonald and Luke Morassut with McCarthy Tétrault.

New Amendments to Auditor Oversight
Rules Require Access to Audit Working
Papers of Component Auditors
Changes to National Instrument 52-108 Auditor Oversight and its Companion Policy (the Amendments) require auditors that perform a significant portion of a reporting issuer's audit work to provide the Canadian Public Accountability Board access to audit working papers, particularly in foreign jurisdictions.

• The Amendments introduce the concept of the "significant component auditor", which is a component auditor that meets certain specified significance thresholds (as outlined below).
• A reporting issuer will be required to give notice in writing to a significant component auditor permitting the provision of access to the Canadian Public Accountability Board (CPAB) to its audit work if requested by CPAB.
• A reporting issuer will also be required to give notice in writing to a significant component auditor providing permission to enter into an agreement with CPAB governing access to its audit work (a CPAB access agreement) if this access is not voluntarily provided to CPAB upon its request.

Read the full article published by Stikeman Elliott LLP.

New BC Rules for Contaminated Sites May
Significantly Impact Businesses
On February 1, 2021, amendments to British Columbia's Environmental Management Act and Contaminated Sites Regulation [came] into force, changing the process for identifying contaminated sites in B.C. The changes will capture more contaminated sites and will impose more requirements on those who own or operate on contaminated land, including an automatic site investigation and reporting requirement. In this bulletin, we highlight the more significant changes and flag upcoming additional changes to the soil relocation regime that are expected later this year. Read the full bulletin by Tony Crossman, Paulina Adamson and David Hillier, Articling Student of Blakes.

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

• 51-107 – CSA Notice and Request for Comment Proposed National Instrument 51-107 Disclosure of Climate-related Matters
• 81-101 – Adoption of Amendments Reducing Regulatory Burden for Investment Fund Issuers – Phase 2, Stage 1
• 52-108 – CSA Notice of Publication Amendments to National Instrument 52-108 Auditor Oversight and Changes to Companion Policy 52-108 Auditor Oversight
• BC Notice 2022/01 – New Email Address for the Commission Hearing Office
• 81-334 – CSA Staff Notice 81-334 ESG-Related Investment Fund Disclosure
• 81-105 – Multilateral CSA Notice of Amendments to National Instrument 81-105 Mutual Fund Sales Practices and Related Consequential Amendments relating to Prohibition of Deferred Sales Charges for Investment Funds
• 93-101 – CSA Notice and Third Request for Comment: Proposed National Instrument 93-101 Derivatives: Business Conduct – Proposed Companion Policy 93-101 Derivatives: Business Conduct
• 41-101 – CSA Notice and Request for Comment Proposed Amendments to National Instrument 41-101 General Prospectus Requirements, National Instrument 81-101 Mutual Fund Prospectus Disclosure, and Related Proposed Consequential Amendments and Changes and Consultation Paper on a Base Shelf Prospectus Filing Model for Investment Funds in Continuous Distribution
• 94-101 – CSA Notice of Publication – Amendments to NI 94-101 Mandatory Central Counterparty Clearing of Derivatives and Changes to CP 94-101
• 24-318 – Preparing for the Implementation of T+1 Settlement

Forest and Environment News:

BC Court of Appeal Confirms that the Rule of Law is the
Dominant Public Interest in Injunction Proceedings
In Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26, the BC Court of Appeal ("BCCA") confirmed that upholding the rule of law continues to be the dominant public interest in determining the outcome of injunction proceedings involving civil disobedience against a private entity. This decision affirms that private entities can seek and rely on the protection of injunctions when their legal rights are being infringed by acts of civil disobedience. Read the full article by Kevin O'Callaghan, Niall Rand and Paige Mueller with Fasken Martineau DuMoulin LLP.

Contaminated Sites Litigation: New Law on
Recovery of Legal Costs
The BC Court of Appeal has spoken, providing fresh guidance on recovering your legal fees and remediation costs when pursuing those responsible for contamination under the Environmental Management Act: Victory Motors (Abbotsford) Ltd. v. Actton Super-Save Gas Stations Ltd., 2021 BCCA 129. This case dealt with two neighbouring sites contaminated by gas that leaked from fuel storage tanks on one of the sites. The Appellant companies owned the sites, one was owned by Victory Motors and the other by Jansen Ltd. The respondent, Super-Save, was one of many historical operators of the gas station. Read the Environmental Law Update article published by Richard Bereti, Una Radoja and Nicola Virk with Harper Grey LLP.

US to Reduce Tariffs on Most Softwood Producers,
Raise Them for West Fraser
With its latest preliminary review on Canadian softwood lumber shipments, the U.S. Department of Commerce is indicating it will reduce tariffs for most Canadian producers but increase them for BC-based West Fraser. The department announced yesterday the combined countervailing and anti-dumping duties for most lumber companies will be reduced from 17.91 per cent to 11.64 per cent. West Fraser's new rate will be 13.09 per cent, a bump up from its current 11.14 per cent. Read the full article published by Canadian Forest Industries.

BC Watershed Security Strategy Could
Put Province on the "Cutting Edge"
The BC government has rolled out the early stages of a water security strategy meant to protect the province's freshwater resources from drought, flooding and long-term shortages. The BC government has kickstarted a plan it says will protect the province's freshwater from climate change – step one, ask British Columbians to weigh in. In a discussion paper released Tuesday [January 25], the Ministry of the Environment and Climate Change Strategy outlined 10 goals under a new Watershed Security Strategy and Fund. Read the BIV article.

Environmental Law Update: Moving
Dirt In BC – New Rules
The Government of British Columbia is in the process of revamping laws around soil relocation with the objective of reducing the complexity of the existing rules, facilitating compliance, and limiting the amount of soil that ends up in landfills. To achieve these objectives, amendments have been proposed to the Environmental Management Act ("EMA"), the Contaminated Sites Regulation ("CSR"), and the Waste Discharge Regulation ("WDR"). The amendments to the EMA received Royal Assent in March 2020 and will come into force when the other regulatory amendments are finalized and adopted. Stakeholder feedback on the proposed amendments to the CSR and WDR are currently under review and final consideration is targeted for this year. Read the full article by Richard Bereti and Nicola Virk with Harper Grey LLP, published in the firm's Environmental Law Update.

Canadian Product Stewardship and EPR: 
A Review of 2021 and Beyond
Provincial governments (and non-governmental agencies) have been busy implementing various innovative waste management programs to divert waste away from landfills. In 2021, important changes were implemented across all product categories, including tires, batteries, electronic products, packaging and printed paper, beverage containers, and hazardous and special products. Key changes include: i) new programs in jurisdictions that formerly did not have programs, ii) expanded product lists for existing programs, iii) shifts from product stewardship models to extended producer responsibility ("EPR") models, and iv) expanded regulatory enforcement mechanisms and activity. Read the full article by Mark Youden, Emma Hobbs and Lauren Mar with Gowling LG.

BC Forest Watchdog Recommends Improving
Forest Management to Protect Water
A report by the Forest Practices Board says that at least a third of the public complaints it has received since 1995 have involved the potential for forestry and range practices to affect water, including drinking water, the integrity of ecosystems, as well as public infrastructure and private property. It says that while the board usually found forest licensees were in compliance with provincial laws, gaps in legal requirements mean that forestry activities, including harvesting and the construction of forest service roads, can contribute to the risk of landslides, flooding and other water-related problems downstream. Read the Journal of Commerce article.

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

Water Sustainability Act

• Geoffrey Fox v. Assistant Water Manager [Final Decision – Order Confirmed in Part; Appeal Dismissed]

Health News:

Health Canada Finally Restores
Access to Psychedelics
After much anticipation in the industry, the regulatory amendments restoring access to restricted drugs under Health Canada's Special Access Program (the "SAP") finally came into force. The Regulations Amending Certain Regulations Relating to Restricted Drugs (the "Amendments") were published on January 5, 2022 and came into force on the same day, generating much excitement in the healthcare space. Read the full article by Jean-Raphael Champagne (Partner) and Sirena Reslan Ramadan (Summer Student) with Fasken Martineau DuMoulin LLP.

B.C. Supreme Court Declines to Strike Province's 
Class Action Claims to Recover Healthcare Costs
and Damages Related to Opioid Epidemic
In August 2018, the Province of British Columbia (Province) commenced a class action on behalf of itself and other provincial and federal governments against approximately 50 pharmaceutical manufacturers, wholesalers, and distributors of opioid-related products (defendants). Through a variety of statutory and common law causes of action, the Province seeks to recover healthcare costs and damages since 1996 that resulted from the opioid epidemic – which the Province alleges was created by the defendants' wrongful conduct in their manufacture, marketing, distribution, or sale of opioid-related products in Canada.

On January 4, 2022, the British Columbia Supreme Court (Court) in British Columbia v Apotex Inc, 2022 BCSC 1 dismissed the defendants' various motions to strike the Province's claims (with some exceptions). The Court also granted the Province's motion to further amend its pleadings (which generally sought to clarify or provide further particulars to its existing claims, add the new claim of public nuisance, and add several new defendants). Read the full article by Jie Fei (Christina) Pan with Smart & Biggar LLP.

BCCDC Changes Guidance of Self-isolation and
Managing COVID-19
The agency made sweeping changes to its COVID-19 guidance this week. The BC Centre of Disease Control (BCCDC) is clarifying new guidance on its website regarding self-isolation recommendations and how to manage COVID-19 illness after its amendments created widespread confusion. On Wednesday (Jan. 19), the BCCDC quietly updated its advice on close contacts and self-isolation recommendations regarding vaccinated and unvaccinated individuals. Read the Business in Vancouver article.

Labour and Employment News:

Check Out Time: Court Certifies Class Action for Dismissal of
Hotel Employees due to the Pandemic
Over the past two years, there have been many unexpected changes at the workplace because of the COVID-19 pandemic, with many employers across various industries electing to implement mandatory workplace vaccinations, make unilateral changes to the job responsibilities of their employees or terminate some workers altogether. These changes have resulted in some affected employees bringing litigation against their employers. Recently, a group of hourly employees terminated for COVID-19 related reasons proposed to bring a class action proceeding against their prior employer. While class actions are not new in British Columbia, employment related class claims have been extremely rare. In this recent example, the BC Supreme Court (the "Court") certified the claim as a class proceeding, allowing a class of former hotel employees to bring a variety of claims collectively against their employer. Read the full article by Joan Young, Juliana Ho, and Kristen Shaw (Articled Student) with McMillan LLP.

Do No-hire Clauses in Franchise Agreements
Violate the Competition Act?
On November 9, 2021, the Supreme Court of British Columbia allowed an application by Tim Hortons to dismiss a novel claim by a plaintiff alleging that "no-hire" clauses contravene the federal Competition Act. In Latifi v. The TDL Group Corp., 2021 BCSC 2183 (Latifi), the court held that the plaintiff's allegation that the scope of the Competition Act should be expanded to regulate such clauses did not have a reasonable prospect of success, and the plaintiff's claim with respect to the Competition Act was accordingly dismissed. Read the full article by Blair Rebane and Nikhil Pandey with Borden Ladner Gervais LLP.

Time Out: British Columbia Arbitrator
Dismisses Untimely Grievance
In TC, Local 213 and Wolseley Canada Inc ("Wolseley"), the arbitrator enforced a collective agreement's time limit clause to dismiss an untimely grievance.[1] This decision is a rare example of an employer successfully enforcing timeliness obligations to dismiss a late grievance and overcome the obstacle of having the grievance characterized as a "continuing contravention" (i.e., the employer's contravention of a collective agreement is continuous and thus the grievance is not subject to timeliness requirements). Read the full article by Kris R. Noonan and David M. Price with Stikeman Elliott LLP.

An Employee's Right to Disconnect After Hours
This month, Ontario became the first Canadian jurisdiction to require many employers to create a policy relating to an employee's right to disconnect after hours. This "right" is often understood as the right of an employee not to be expected to engage in business activity outside of working hours (e.g. answering work calls or emails). These new rules in Ontario were enacted pursuant to Bill 27, the Working for Workers Act 2021 and apply to employers with at least 25 employees. Employers have until June 2, 2022 to establish their policy if they had 25 employees on January 1, 2022. The required content for the policies has not yet been specified. Read the full article by Scott Marcinkow with Harper Grey LLP.

Local Government News:

• a new requirement for local governments to consider developing or updating codes of conduct,
• the enabling of local governments to determine specific notice methods for public notice requirements, and
• streamlining the development approvals process.

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

Industry Updates & Advisories

• Board directs Registrar to commence review of Taxi and TNS licensees
  On January 14, 2022 the Passenger Transportations Board sent a direction notice to the Registrar of Passenger Transportation to immediately commence a review on the status of all existing transportation network services (TNS) approved licensees and those taxi companies that were part of the COVID-19 deferral program.
• Deadline Extended to Activate Additional Taxis
  In light of the ongoing impact of the COVID-19 pandemic, the Board is further extending the deadline to activate additional taxis until May 12, 2022. This extension applies to Taxi Modernization vehicles or additional vehicle decisions made by the Board after March 2020 and the vehicles were not activated due to COVID-19. The Board previously issued advisories granting extensions until August 2021 and February 2022.

Applications Received

• 13974-21 – Transfer of Licence: PDVA (Taxi)
• 13854-21 – Green Coast Ventures Inc. (Whistle!)
• 13913-21 – Transfer to Bluebird Cabs, Ltd. from Akouri, Therese Hayek
• 13773-21 – Transfer to Bluebird Cabs, Ltd. from Gill, Joginder Singh

Application Decisions

• 7992-19 – Joyage Tours Corporation [Refused]
• 10336-20 TNS – Swiftsure Taxi Co. Ltd., Duncan Taxi Ltd., Comox Taxi Ltd., Oceanside Taxi Ltd. [Refused]
• 11721-21 – Blackcomb Taxi & Limousine Service Ltd. [Refused]
• 13591-21 – REHFELDT, Herbert Ernst (Coast Taxi) [Approved]
• 13590-21 – Rehfeldt, Herbert Ernst [Approved]
• 11605-21 – Top Choice Limousine Services Ltd. [Approved in part]
• 12616-21 TNS – Cloudamart Inc. [Refused]

Visit the PT Board website for more information.

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

• Notice 01-22 – Oversize and Overweight Restrictions for Hwy 1 Between Hope and Spences Bridge
• Notice 06-21 – Oversize Permit Restrictions for Travel on Hwy 3, Hwy 1 and Hwy 5A
• Commercial Transport Procedures Manual – Commercial Transport Procedures Manual has been updated

Occupational Health & Safety News:

What Happened?
The worker was employed as a warehouse production worker commencing November 20, 2018. She was also the on-site occupational first aid attendant. On January 4, 2019, one of the owners of the company advised the worker that some of the warehouse staff were not correctly shutting down the machinery, including closing off the nitrogen cylinder safety valves. After this discussion, the worker suspected that her recent symptoms of burning eyes and a sore throat could be due to an exposure to nitrogen gas. On January 8, 2019, the worker reported her concerns to her supervisor and exercised her right to refuse unsafe work due to a potential nitrogen gas leak. She subsequently left the workplace as she felt unsafe.

• Gatherings and Events – January 27, 2022 (PDF, 571KB)​
  • Medical Reporting Form: COVID-19 Vaccine Medical Deferral – January 19, 2022 (PDF, 636KB)
• Workplace Safety – January 20, 2022 (PDF, 383KB)
• School Staff Member Vaccination Status Information Reporting – January 17, 2022 (PDF, 401KB)
• Food and Liquor Serving Premises – January 17, 2022 (PDF, 482KB)
• Regulated and Unregulated Health Professionals SARS-CoV-2 Immunization Order – January 9, 2022 (PDF, 467KB)
• Emergency Medical Assistants SARS-CoV-2 Immunization Order – January 9, 2022 (PDF, 295KB)
• Medical Reporting Form: COVID-19 Vaccine Medical Deferral – January 19, 2022 (PDF, 636KB)
• Medical Reporting Form: COVID-19 Vaccine Medical Deferral – January 19, 2022 (PDF, 636KB)
• Food and Workplace Safety – January 20, 2022 (PDF, 383KB)

Guidance:

• Indoor Exercise, Fitness, & Dance Class Facility COVID-19 Guidance – January 27, 2022 (PDF, 370KB)
• Guidance for Courthouse Users During the COVID-19 Pandemic – January 14, 2022 (PDF, 384KB)

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

WorkSafeBC's Board of Directors ordered the deletion of the the following policy items to reflect amendments to the Occupational Health and Safety Regulation. These deletions are effective February 1, 2022.

• R16.25-1 Operation and Maintenance (Fuel Tank Filler and Vent Outlet Locations) [deleted]
• R16.33-1 Protective Structures (Hydraulic Excavators) [deleted]
• R16.34-1 Rollover Protective Structures (Pipe Layers) [deleted]
• R16.36-1 ROPS Certification (Sweep Arms) [deleted]

Guidelines – Workers Compensation Act:

Published on January 1, 2022

The following guideline has CPI adjustments effective January 1, 2022, as well as an editorial revision to align with amendments to the OHS Regulation:

• G-P2-94-1 OHS citations

Published on January 17, 2022

Editorial revisions were made to the following guidelines.

• Part 3 - Rights and Responsibilities
• G3.16 First aid assessment

• Part 7, Division 2 - Vibration Exposure
• G7.11-2 Exposure limits - Whole-body vibration
• G7.13 Exposure control plan

The following policies were updated to reflect CPI adjustments, effective January 1, 2022:

• P2-94-1 - OHS Citations
• P2-95-4 - Non-Exclusive Ways to Impose Financial Penalties
• P2-95-5 - OHS Penalty Amounts
• P5-251-1 - Claims Costs Levies

Property and Real Estate News:

BC Government Provides Guidance on
LOTA Interpretation
The BC Government ("Government") recently provided updated guidance for interpreting the Land Owner Transparency Act, SBC 2019, c. 23 ("Act"), which came into force on November 30, 2020. Under the Act, any person or entity that will acquire an "interest in land" will need to make a disclosure filing called a transparency declaration, identifying whether the registered owner of the interest in land is a "reporting body". If the registered owner is a reporting body, it will be required to file a transparency report in addition to the transparency declaration, which will include certain information about the registered owner and the "interest holders," which are the individuals that are the indirect or beneficial owners of the interest in land. Alternatively, any person or entity that is a "reporting body" and already owns an "interest in land" will only need to file a transparency report disclosing the applicable interest holder information by November 30, 2022. For more information, see our article on the Act coming into force or our article on the public Land Owner Transparency Registry. Read the article by Matthew Singerman, Dani Marshall, Juan Pablo Mendez Campos and Kim Brown with Clark Wilson LLP Clark Wilson.

What Happens When a Party to a Contract 
Involving Real Estate Dies?
What happens when an individual buyer or seller dies prior to the completion of a transaction involving real estate? This blog post discusses the complications that can arise in real estate transactions where there is a piece of land under contract and the individual seller or buyer dies prior to the completion of the transaction. At common law, a contract may be discharged or set aside on the ground of frustration where an unforeseen event renders the contract physically or commercially impossible to fulfill. Courts have considered whether the death of a party to a contract for a real estate transaction amounts to frustration of the contract, but have held that the contract will only be frustrated if there is some personal aspect of the deceased that was central to the contract. In a 1996 case called Butterfield v Todd Estate, the deceased had entered into an agreement with the plaintiff to jointly purchase a property and share the mortgage and maintenance payments. Read the full article by Jisoo Vis, Meaghan Partridge, Peter J. Roberts, QC with Lawson Lundell LLP.

Can't Have Your Cake and Eat It Too: The Importance of
Following Your Construction Contract Terms
It is all too often during a construction project that issues will arise with respect to delays or extras. Conwest Contracting Ltd. v. Crown and Mountain Creations Ltd., 2021 BCSC 2116, ("Conwest") affirms the importance of developers and contractors following their contracts to the letter in navigating these issues. If parties do not strictly follow the terms of the contract and disputes arise, courts may rely on party conduct as an interpretive guide – including pre-contract conduct that a party may not have fully considered when signing the contract. Read the full article by Denny Chung and Buck Hughes with Clark Wilson LLP.