Company and Finance News:

Is the Burden of Proof in Tax Litigation
Always on the Taxpayer?
Burden of proof is a complex subject in Canadian tax litigation and has been heavily debated in recent years. While many mistakenly think the concept can be summarized by the often-heard phrase "the burden of proof in tax matters is on the taxpayer," it is actually much more complicated and has many exceptions. While the general rule is that the factual assumptions made by the tax authorities in support of assessments are presumed to be valid and the prima facie burden to "demolish" the assumption is on the taxpayer, some assumptions are not presumed valid: for example, factual assumptions that are not within the exclusive knowledge of the taxpayer. A recent interlocutory decision issued by the Tax Court of Canada ("TCC") on February 22, 2022 in the case of Hong Kong Style Café Ltd. directly addresses whether certain factual assumptions made by the tax authorities in support of assessments were deemed to be valid. Read the full article by Marie-Hélène Tremblay with Miller Thomson LLP.

CRA Clarifies when Gifts or Awards
Given to Employees Are Taxable
Generally, gifts and awards given by employers to their employees are taxable. The Canada Revenue Agency's (CRA) administrative policies identify conditions under which some of these benefits may not be taxable. The CRA has recently updated its administrative policy (effective for 2022 and subsequent years) on when gifts, awards, and long-service awards provided by employers to their employees, will not be considered taxable benefits. Taxation will depend on the nature and amount of the gift. Read the full article by Pamela L. Cross and Asma Bouali with Borden Ladner Gervais LLP.

Prioritizing the Workers
Company pension plans will soon get super-priority in bankruptcy and insolvency matters. But the new rules could impact the lending environment in Canada, critics say.
Quietly, with almost no public attention, a major change to Canada's bankruptcy and insolvency legislation has come a step closer to reality.

This week, the House of Commons Finance Committee gave clause-by-clause approval to Bill C-228, a private member's bill that will give company pension plans a super-priority in the case of bankruptcy and insolvency. It means that when a company goes bankrupt or applies for a plan of arrangement under the Companies' Creditors Arrangement Act (CCAA), pension fund deficits will go to the front of the line, ahead of secured creditors when funds are distributed. In addition, some severance pay will also get a super-priority. Read the full article by Alan Freeman on CBA National.

Successful Remission Order Application – Refund
Obtained Despite 10 Year Limitation Period
A taxpayer request to the Canada Revenue Agency ("CRA") for a remission order is generally considered a method of last resort, when all other available options to obtain tax relief have been exhausted. The CRA's website states that a remission order is a rare and extraordinary measure, which will only be considered in exceptional circumstances, and the decision to grant remission is fully at the CRA's discretion. The purpose of remission is to provide full or partial relief from federal tax, interest or penalties, where relief is warranted but can't be achieved under applicable tax laws, through an assessment or other actions. Read the full article by Pierre G. Alary with Gowling WLG.

Khanna – Federal Court of Appeal Provides Useful
Guidance on Gross-negligence Penalties
Khanna v. The Queen, 2022 FCA 84 is an important decision of the Federal Court of Appeal (the "FCA") on the topic of gross-negligence penalties imposed under subsection 163(2) of the Income Tax Act (Canada) (the "Act"). The decision highlights two key points in relation to the burden of proof to be met by the Minister of National Revenue (the "Minister") for the imposition of gross-negligence penalties: (1) the Minister must establish that a taxpayer was grossly negligent, even in cases involving indirect audit methods such as a net-worth analysis; and (2) the Minister must meet this burden with respect to each taxpayer under an audit project. Read the full article by Chris Canning of Thorsteinssons LLP.

When The Chips Are Down – BC Court of Appeal Provides Guidance on
Force Majeure, Frustration and Declaratory Relief
In Interfor Corporation v Mackenzie Sawmill Ltd ("Interfor"), the British Columbia Court of Appeal (the "BCCA") dismissed an appeal from a summary trial decision ordering declaratory relief. Interfor confirms that the presence of a force majeure provision does not displace the doctrine of frustration; rather, a force majeure provision can signal whether the parties foresaw the events alleged to have frustrated the contract. Interfor also teaches that a force majeure provision that permits a party to "discontinue or curtail delivery" without liability does not permit the party to terminate its obligations permanently.

Background
In this case, Interfor Corporation ("Interfor") sued Mackenzie Sawmill Ltd. ("MSL") and other related parties (collectively, the "Defendants") alleging that MSL breached a 2006 Chip Supply Agreement ("CSA") to supply wood chips to Interfor.

New Trust Reporting Requirements Necessitate Careful
Review of Trust Provisions by the End of the Year
Proposed trust reporting rules have been further delayed until the 2023 taxation year. For reasons indicated in this article, it is essential that the terms of all trusts be carefully reviewed and, in certain cases, updated prior to December 31, 2022. We caution our readers to consider the practical implications of the new rules.

Background
In the 2017 federal budget, the Department of Finance announced the government's intention to consider implementing tax reporting requirements for trusts in order to obtain beneficial ownership information. This would help the government to determine taxpayers' tax liabilities and to effectively counter aggressive tax avoidance as well as tax evasion, money laundering and other illegal activities. As it currently stands, it has been possible for taxpayers to use trusts to avoid disclosing ownership information.

Presently a trust that does not earn income or make distributions is generally not required to file an annual return of income commonly known as a T3 return. Read the full article by Mark A. Potechin TEP, Jenny Du and Katie Taylor with DLA Piper.

Retroactive Legislation to Confirm BC PST
Will Not Apply to Federal Luxury Tax
The BC government intends to introduce retroactive legislation in Budget 2023 to confirm that the federal luxury tax that applies to certain vehicles, aircraft and vessels is not subject to PST. The Small Business Guide to PST and the following bulletins have been updated to clarify that PST does not apply to the federal luxury tax, if applicable. Read the government announcement.

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

• 21-403 – Access to Real-Time Market Data
• 96-303 – Derivatives Data Reporting Transition Guidance
• 45-106 – Adoption of Amendments to National Instrument 45-106 Prospectus Exemptions to introduce the Listed Issuer Financing Exemption
• 25-307 – CSA Staff Notice of Approval 25-307 Recognition of New Self-Regulatory Organization of Canada
• 25-308 – CSA Staff Notice of Approval 25-308 Approval and Acceptance of Canadian Investor Protection Fund

For more information visit the BC Securities website.

Forest and Environment News:

In March 2022, the Province released its Declaration on the Rights of Indigenous Peoples Action Plan. This plan included the following two action items to be completed between 2022 and 2027:

• Co-develop with Indigenous Peoples a new distinctions-based fiscal relationship and framework that supports the operation of Indigenous governments, whether through modern treaties, self-government agreements or advancing the right to self-government through other mechanisms. This work will include collaboration with the government of Canada.
• Co-develop and implement new distinctions-based policy frameworks for resource revenue-sharing and other fiscal mechanisms with Indigenous Peoples.

The implementation of these two action items began recently when the Province released a discussion paper to outline its approach to implementation and plan for engagement with First Nations. The initial focus for implementation will be on the forestry industry. Read the full article by Amy Carruthers and Heather Sorenson with Fasken Martineau DuMoulin LLP.

What's in Canada's New Climate
Adaptation Strategy?
Canada has released its first ever unified plan to adapt to a changing climate and confront the flooding, increasingly intense wildfires, and deadly heat waves that have already begun to devastate parts of the country in recent years.

The long-awaited National Adaptation Strategy, released Thursday [November 24], comes with $1.6 billion in new federal funding meant to help maintain and climate-proof public infrastructure, reduce the impacts of climate-driven disaster, and restore ecosystems that act as a bulwark against natural cataclysm. The money is also meant to support workers, the economy and protect people's health. Read the BIV article.

BC Government Accelerates Salvage
of Fire-Damaged Trees
The B.C. government is responding to a plea from B.C.'s pulp and paper sector to increase access to fire damaged trees.

"A new approach to provincial forestry agreements will lead to faster action on harvesting areas damaged by wildfire, provide more timber for mills and set up faster reforestation through the leadership of First Nations," the B.C. Ministry of Forests said in a press release.

New Wildfire Salvage Opportunity Agreements (WSOA) will allow for direct award of forestry licences to First Nations for salvaging timber damaged by wildfire. Read the BIV article.

December 2022 Forest Safety News
Read the Winter Edition of the Forest Safety Newsletter from the BC Forest Safety Council.

Professional Logging Truck Driver Training
Will Benefit Indigenous People, Youth
Eight eligible British Columbians will receive skills training to prepare them for employment as professional logging truck drivers in the North Okanagan and Shuswap area.

The Ministry of Social Development and Poverty Reduction's Community and Employer Partnerships (CEP) project focuses on providing occupational training and work experience for Indigenous people and youth.

"This project is empowering Indigenous people and youth by giving them new job opportunities in the professional logging sector," said Nicholas Simons, Minister of Social Development and Poverty Reduction. "Participants who graduate from the program will receive the skills they need to find rewarding careers as professional logging truck drivers in the North Okanagan and Shuswap area." Read the full government news release.

Government Actions Regulation Orders
The following Orders and notices were recently posted and signed under the authority of the Government Actions Regulation 582/2004 impacting various Ungulate Winter Ranges and Wildlife Habitat areas:

• Ungulate Winter Range
  Notice is hereby given that Ungulate Winter Range (UWR) U-4-002 in the Rocky Mountain Resource District and Selkirk Resource District, are established for mountain goat in the Kootenay Boundary Region. The Order was signed on November 7, 2022 under the authority of sections 9(2) and 12(1) and 12(2) of the Government Actions Regulation (B.C. Reg. 582/2004) for the Forest and Range Practices Act and section 31 of the Environmental Protection and Management Regulation (B.C. Reg. 200/2010) of the Oil and Gas Activities Act. Details of the Orders may be obtained from the Land Use Policy, Planning and Ecosystems Division, Kootenay Boundary Region, Ministry of Land, Water and Resource Stewardship, No. 401 - 333 Victoria Street, Nelson, BC V1L 4K3. The Government Action Regulation Order, accompanying map and spatial files may also be obtained from:
  https://www.env.gov.bc.ca/wld/frpa/uwr/approved_uwr.html [no24]
• Ungulate Winter Range
  Notice is hereby given that the boundary of Unit UWR051 in Ungulate Winter Range U-1-004 in the Campbell River Natural Resource District was amended on November 18, 2022 by order made under authority of sections 9(2) and 12(1) of the Government Actions Regulation (B.C. Reg. 582/2004). Details of the order may be obtained from the Ecosystems Section, West Coast Region, Ministry of Land, Water and Resource Stewardship, 2080 Labieux Road, Nanaimo, BC V9T 6J9, or from the following website:
  http://www.env.gov.bc.ca/wld/frpa/uwr/approved_uwr.html [no24]
• Ungulate Winter Range
  Notice is hereby given that the boundary of Unit Q06e_B in Ungulate Winter Range U-1-014 in the Campbell River Natural Resource District was amended on November 15, 2022 by order made under authority of sections 9(2) and 12(1) of the Government Actions Regulation (B.C. Reg. 582/2004). Details of the order may be obtained from the Ecosystems Section, West Coast Region, Ministry of Land, Water and Resource Stewardship, 2080 Labieux Road, Nanaimo, BC V9T 6J9, or from the following website:
  http://www.env.gov.bc.ca/wld/frpa/uwr/approved_uwr.html [no24]
• Wildlife Habitat Areas
  Notice is hereby given that the boundary of Wildlife Habitat Area 1-499 in the Campbell River Natural Resource District was amended on November 18, 2022 by order made under authority of Sections 9(2) and 10(1) of the Government Actions Regulation (B.C. Reg. 582/2004). Details of the order may be obtained from the Ecosystems Section, West Coast Region, Ministry of Land, Water and Resource Stewardship, 2080 Labieux Road, Nanaimo, BC V9T 6J9, or from the following website:
  http://www.env.gov.bc.ca/cgi-bin/apps/faw/wharesult.cgi?search=show_approved [no24]

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

Water Sustainability Act

• Christian Friedinger v. Water Manager [Final Decision – Appeal Dismissed]
• Enfys Pooler v. Assistant Water Manager [Stay Application – Denied]

Visit the Environmental Appeal Board website for more information.

Forest Appeals Commission Decisions
The following Forest Appeals Commission decision was made recently:

Wildfire Act

• Duffy Damgaard v. Government of British Columbia [Preliminary Decision – Application to Adjourn Granted; Appeal Not Dismissed]

Health News:

Diabetes Patients in BC Face Unreasonable Challenges
Getting Vital Drug through PharmaCare, Doctors Say
BC doctors who treat diabetes say they've been forced to jump through hoops to get coverage for potentially life-saving drugs, including making patients try cheaper but more dangerous alternatives first. Dr. Ali Zentner, a Vancouver specialist in internal medicine and obesity, said game-changing new drugs and devices for diabetes patients have appeared in recent years. That includes pharmaceuticals like Ozempic for people with Type 2 diabetes, which also helps with weight loss and reduces the chance of heart attack or stroke and continuous glucose monitoring, which tracks glucose levels every few minutes. Read the CBC article.

BC's Pandemic Response Showed "Resilience", Can
Improve on Preparedness, Transparency: Report
An independent review and consultation of the B.C. government's operational response to the COVID-19 pandemic has concluded that the province was unprepared, but showed "resilience, balance, and nimbleness." It also highlighted concerns in a number of key areas, including transparency, co-ordination and trust in government. The 150-page report, which did not include recommendations, was released on a Friday afternoon, with media given just an hour to digest it before putting questions to the province's public safety minister. Read the Global News article.

"Emotionally, It Was Very Hard": Parents from Rural BC
Community Share Challenges Relocating to Give Birth
20 rural maternity sites closed in 20 years, says Health Ministry, forcing parents to travel far for birth. Giving birth to her first child cost Darci Kostiuk almost $4,000. Kostiuk lives in Port McNeill, near Vancouver Island's northern tip, which lacks a health facility with maternity and birthing services. In the weeks leading up to her first child's birth in 2019, she had to travel almost 200 kilometres southeast to Campbell River, where the closest health facility which performs C-sections is located. There, she had to live temporarily out of a hotel. Kostiuk is one of over a thousand expecting parents from rural communities in British Columbia who are advised to relocate, at their own expense, in the weeks before giving birth due to a lack of maternity care where they live. Read the CBC article.

Labour and Employment News:

What Employers Need to Know About Proposed
Amendments to British Columbia's
Workers Compensation Act
The Government of BC recently introduced Bill 41, the Workers Compensation Amendment Act (No. 2), 2022 (Bill 41), proposing a number of significant changes to the BC Workers Compensation Act (the WCA), with the stated goal of restoring fairness and bringing a more "worker-centric" approach to BC's workers' compensation system.

While many of the proposed changes build upon recent amendments to the WCA as part of ongoing efforts to bring BC's workers' compensation system in line with other Canadian jurisdictions, some of the changes are completely new and, if enacted, will have a significant impact on the rights and duties of employers in BC.

Most notably, the proposed amendments will establish a new legal duty requiring employers to re-employ injured workers and make any necessary changes to the work or workplace to accommodate their successful return to work, up to the point of undue hardship. In particular, employers and workers will be required to work together, as well as with the Workers' Compensation Board (the Board), to facilitate the worker's return to their pre-injury work if possible or to other suitable work if not. Read the full article by Tomasz Cerazy with Dentons LLP.

Bill C-228: A Problem for Defined
Benefit Pension Plans
Bill C-228 proposes an impact on lender priorities that may have other negative effects
Canadian insolvency statutes accord super priority to certain liabilities in insolvency proceedings, bumping them above the interests of secured creditors. Pension entitlements and benefits do not enjoy this super priority. Bill C-228 (the "Bill") attempts to change this. On Nov. 23, 2022, the House of Commons unanimously passed Bill C-228. The Bill will now be sent to the Senate for consideration. Although it is a private member's bill, Bill C-228 has the support of the three opposition parties in Parliament.

At present, employer pension liabilities only have super priority under the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act to the extent that they are:

1. unpaid amounts deducted from employee remuneration for contribution to the pension fund, or
2. unpaid "normal costs" or other unpaid amounts that the employer was required to contribute to the pension fund or administrator under a defined contribution provision or registered pension plan respectively.

Read the full article by Christopher N. Alam and Ovo Efemini with Gowling WLG.

BC Court of Appeal Rules That CERB is NOT Deductible
from Wrongful Dismissal Damages
In Yates v Langley Motor Sport Centre Ltd (2022 BCCA 398) Justice Bauman finally definitively answered the issue of whether or not CERB payments received by a terminated employee are deductible from wrongful dismissal damages that cover the same time period.

The answer was NO, they are not deductible and thus the windfall goes to the benefit of the employee, not the employer. The analysis was largely based on social policy. Read the full article by Barry Fischer, with Barry Fisher Arbitration & Mediation.

Case Summary: Court of Appeal Agrees It Was Not Patently
Unreasonable for BC Human Rights Tribunal to Summarily
Dismiss Appellant's Discrimination Complaint Following
His Termination for Using Dating Apps to Hook Up with
Male Students On Campus Where He Worked
Conklin v. University of British Columbia, [2022] B.C.J. No. 1827, 2022 BCCA 333, British Columbia Court of Appeal, September 22, 2022, M.V. Newbury, G.B. Butler and J. DeWitt-Van Oosten JJ.A.

Appellant's employment as an academic advisor for the University of British Columbia (UBC) was terminated for cause based on his conduct surrounding his use of private dating applications. He used the apps to arrange romantic and sexual interactions with other men, including UBC students, while living on campus. UBC terminated his employment on the basis that he acted in a conflict of interest and his conduct amounted to a fundamental breach of his employment obligations. The appellant filed a complaint with the BCHRT alleging discrimination based on sexual orientation. His complaint was summarily dismissed under s. 27(1)(c) of the Human Rights Code after the BCHRT determined there was no reasonable prospect that the complaint would succeed. His application for reconsideration of that dismissal was denied. Read the full article by Kara L. Hill with Harper Grey LLP.

Recent Amendments to Canadian Human
Rights Commission's Complaint Rules
Bottom Line
The Canadian Human Rights Commission ("CHRC") has amended and updated its Complaint Rules. The new rules apply to all complaints received by the CHRC after October 19, 2022, and to any complaint that has entered a new stage of the CHRC's complaint process as of October 19, 2022.

As the CHRC's jurisdiction arises from the Canadian Human Rights Act, these changes are relevant to only federally regulated employers. Read the full HR Law bulletin by Lucas Mapplebeck with Filion Wakely Thorup Angeletti LLP.

10 Paid Sick Days Now a Reality
With the start of December, the much-anticipated 10 days of paid sick leave for private sector workers in Canada's federally regulated sector is now a reality.

Calling it "a significant milestone," the government says the permanent change to the Canada Labour Code will improve working conditions for nearly one million workers. Read the full article by Sarah Dobson with the Canadian Lawyer.

Local Government News:

The Duty to Consult: What Will It Take for
Municipalities to Come within the Scope?
To date, municipalities have largely escaped a common law duty to consult. Jurisprudence from a decade ago attached the duty to the provincial Crown directly, finding that, among other things, municipalities lacked both the resources and legislative authority necessary to discharge the duty to consult. Courts are increasingly scrutinizing the conduct of agents, including administrative regulatory tribunals, acting on behalf of the Crown. Since municipalities are creatures of provincial statutes, one might argue that they are sui generis agents of the provincial Crown. While municipalities do not currently fall within the scope of the common law duty to consult, their roles and responsibilities in carrying out Crown conduct are continually expanding. Given their ever-growing nature, it would be timely and helpful for municipalities and Indigenous groups alike for the Supreme Court of Canada ("SCC") to examine this issue directly. Read the full article by Cam Cameron, Joshua Shoemaker, Kelsey Buchmayer, Michael S. Polowin, Roberto Aburto and Krystal Taylor with Gowling WLG.

Regulatory Requirements for Municipal Utility Corporations:
Recommendations from the British Columbia Utilities Commission
In recent decades local government utility corporations have proliferated in British Columbia and provided a mechanism through which municipalities and regional districts have been able to provide energy utility services to its residents through a legally distinct corporate entity owned and operated by the local government. With local governments increasingly electing to exercise their statutory authority under section 185 of the Community Charter to incorporate local government corporations as a vehicle through which they can provide energy utility services to its residents, inquiries into whether such local government corporations may be regulated under the Utilities Commission Act (the "Act") or are exempt from its statutory requirements became a priority for the British Columbia Utilities Commission (the "Commission"). On November 10, 2022, the Commission released the stage 1 report (the "Report") of the Inquiry into the Regulation of Municipal Energy Utilities. The Report addresses (1) whether a local government corporation wholly owned and operated by a local government and providing energy utility services exclusively within that local government's boundaries, meets the municipal exclusion set out in the Act and (2), if not, whether the provision of such energy services should be regulated under the Act. Read the full article by David Giroday with Civic Legal LLP.

Labour, Employment & Human Rights: Odds and 
Ends [Local Government Perspective]
There were various labour, employment and human rights cases and new legislation this past year that impact local governments as employers. Local governments are also experiencing changes to the workplace caused by the increased demand and ability to work remotely. The cases discussed below cover a wide area including union representation rights, employee privacy rights, whether an individual is an employee or independent contractor, and discrimination on the basis of family status and colour. We also discuss obligations and issues to consider with remote working arrangements and a local government's obligations under the Accessible British Columbia Act and the Accessible British Columbia Regulation which came into effect this year. Read the full article by Carolyn MacEachern and S. Michelle Blendell with Young Anderson Barristers & Solicitors.

Province Introduces Bill 43, Housing Supply Act –
If You Don't Build It, They Will Come
The BC government has introduced Bill 43 – 2022, the "Housing Supply Act" to the legislature, with the stated intention of providing "a framework for housing targets to be established for specified municipalities, and for the minister or Lieutenant Governor in Council to take certain actions if housing targets are not met." The proposed legislation represents a significant incursion by the Province into local land use and planning authority, and provides the authority for the Province to directly override the decisions of municipal councils, including the power to enact a bylaw in the name of a municipality. According to the Province's press release, the legislation "enables compliance options as a last resort, should municipalities with the highest need struggle to create the conditions that are necessary to ensure housing gets built". The use of "struggle" in this context is curious, since it glosses over the real possibility of a direct clash between local priorities and provincial priorities. Bureaucratic euphemisms aside, Bill 43 sets up a potential showdown between municipal councils and the Province over the very shape and character of communities. No matter the party holding power in Victoria on any given day, the implications of Bill 43 for municipalities are unclear, and much detail about the new regime remains unknown at this time. Read the full article by Michael Hargraves with Stewart McDannold Stuart.

Safer Communities Action Plan Announced
The Safer Communities Action Plan was announced on November 20 as a strategy to reduce violent crime, particularly repeat offences. It contains measures focused on both enforcement and intervention, in six main areas:

• The creation of violent offender response teams to monitor and investigate high risk repeat offence cases. The teams are expected to be launched in spring 2023.
• The addition of mental-health crisis response teams, intended to allow police to focus on crime
• A new model of addictions care at St. Paul's Hospital, based on recommendations in the LePard-Butler report released earlier this fall
• New Indigenous Justice Centres to offer information, advice, support, and representation for Indigenous People, some of which should open next year
• New legislation, expected in spring 2023, meant to target proceeds of crime, which will enable civil forfeiture of unexplained wealth
• A revised bail policy that asks judges to detain suspected repeat violent offenders, unless they are satisfied the risk to public safety is low. The new policy took effect on November 22.

Further aspects of the action plan were announced on November 24, when the Province promised to invest $230 million over the next three years towards hiring officers to fill vacancies in rural police detachments and for specialized RCMP units.

Codes of Conduct and More: Elected
Officials Behaving Badly
Most professionals are held accountable for their conduct through legislative mechanisms. Lawyers must comply with a Code of Professional Conduct passed by the Law Society under the Legal Profession Act. Doctors, nurses, dentists, and many other health professionals are governed by self-regulated colleges under the Health Professions Act. Similar self-regulation also exists for architects, agrologists, acupuncturists, automotive refinishing technicians, applied science technologists…and the list goes on. Under these schemes, conduct that falls below the expected standard can be punished by a variety of disciplinary sanctions, ranging from a simple warning letter to suspension or expulsion from the profession. Read the full article by Reece Harding and Nick Falzon with Young Anderson Barristers & Solicitors.

Second Chance to Apply for Connectivity
Funding Opens Dec. 16
[Updated Nov. 21, 2022, for clarification]
The second intake of the provincial connectivity funding program, Connecting Communities BC, will open for applications on Dec. 16, 2022. The program supports expanding high-speed internet services to under-served rural, remote and Indigenous communities in British Columbia. Read the government information bulletin.

New Ministry of Housing
On November 22, Premier Eby announced that housing will become its one standalone Ministry. The announcement reflects the government's intent to tackle the housing crisis in British Columbia. The new Minister of Housing will be named once Eby announces his cabinet on December 7, 2022.

Motor Vehicle and Traffic News:

Other proposed changes support increased passenger safety by granting authority to the registrar of passenger transportation to prevent ineligible people from driving passenger-directed vehicles, as well as clarifying the type of evidence a driver must produce to confirm eligibility to drive the vehicle.

The Bill also clarifies the authority of the Passenger Transportation Board when setting out the terms and conditions for licensing service providers of commercial passenger vehicles. For more information, read the government news release.

BC Court of Appeal Overturns Guilty Verdict
Against Driver of Vehicle That 'Fishtailed'
The British Columbia Court of Appeal has ordered a re-trial of a guilty verdict handed down to the driver of a jeep involved in an accident that killed one passenger and seriously injured two others.

In R. v. Rogers, 2022 BCCA 346, Brennan Rogers was driving three friends in his jeep to a campsite near Deroche, BC. Rogers lost control of the jeep and it plunged down a steep embankment on the right side of the road. One passenger died at the scene and two others were injured. Rogers was found guilty of dangerous driving causing death and two counts of dangerous driving causing bodily harm. The trial judge ruled that Rogers had intentionally tried to "drift" or fishtail his vehicle at a turn in the road, and that this attempt amounted to a marked departure from the standard of care expected of a reasonable driver in the circumstances. Read the full article by Angelica Dino in the Canadian Lawyer.

Autonomous vehicles: Cross Jurisdictional
Regulatory Perspectives Update
Since the release of our regulatory perspectives article in 2021, there have been a variety of regulatory and policy developments around the world regarding the use of autonomous vehicles (AV or AVs).

In addition to highlighting recent developments for the operation of AVs in Japan, the U.K., the European Union, the U.S., and China, jurisdictions of South America, Australia, New Zealand and India are poised to make significant strides in developing regulatory landscapes conducive to the development of autonomous vehicles. Read the full article by Greg Rafter, Marin Leci and Yi Liu with Borden Ladner Gervais LLP.

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

• NSC Bulletin 01-2022 – Publication of Carriers Cancelled for Cause
• Circular 02-22 – Allowances for Hydro Vac Trucks with Front Mounted Hose Reels Under General Authorization and Letter of Authorization Trial

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

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

Industry Updates & Advisories

• Final Deadline to Activate Additional Taxis
  The Board is issuing a final activation deadline of December 31, 2022. Licensees will have until this date to activate additional vehicles, or they will no longer be valid.
• Vancouver Cruise Ship Schedule for TNS and Taxi Operators
  As the 2022 cruise season commences in Vancouver, TNS and Taxi Licensees are reminded to review their terms and conditions of licence and the cruise schedule. The Board will continue its efforts to ensure that any changes or amendments are posted in the Weekly Bulletin and on the website.

Applications Received

• 15856-22 – 1044943 B.C. LTD (Yellow Cab)
• 15839-22 – transfer from J. Nijjer Holdings Ltd. (Sun Star Shuttle) to 1123910 B.C. Ltd. (Contractor Post Office)
• 15952-22 – transfer from Sadaq Ali Rajput (Bluebird Cabs) to Bluebird Cabs, Ltd.
• 15632-22 – PG Airport Shuttle Service Ltd.
• 16105-22 – transfer from Rider Express Transportation Corp. to Uray Transportation Inc. (Rider Express)
• 15091-22 – Charles Keay Inc. (Skeena Taxi)
• 15932-22 – Four Seasons Limo Services Ltd.
• 16183-22 – City Star Limousine Service Ltd.
• 15465-22 – 1229652 BC Ltd. (Kitimat Taxi)
• 15466-22 – 1229652 BC Ltd. (Kitimat Taxi)

Application Decisions

• 16177-22 PS TOP – Apex Limousine Incorporated. [Approved]
• 15689-22 & 15834-22 (combined transfers) – transfers from Baldev Singh Bhela and Ali Etemadi-Shad to Bluebird Cabs Ltd. [Approved]
• 15148-22 – transfer from Asif Ahmed to Victoria Taxi Transportation Ltd. [Approved]
• 15717-22 – Evergreen Taxi LTD. [Approved]
• 15837-22 – Titanic Holdings Ltd. (Bluebird Cabs) [Approved]
• 16214-22 TOP – Vanride Shuttle Services Ltd. [Approved]
• 15942-22 – Pawan Kumar Kohli (Bluebird Cabs) [Approved]

Visit the Passenger Transportation Board website for more information.

Occupational Health & Safety News:

Federal Government Noes Not Owe Duty of Care to
Woman Injured by Explosion: BC Court of Appeal
The federal government does not owe a duty of care to a woman who was injured by an accidental explosion, despite the government's power to license and regulate operations of explosives, the British Columbia Court of Appeal has ruled. In Canada (Attorney General) v. Frazier [2022 BCCA 379], Sabrina Frazier was injured by an explosion that occurred in a nearby building undergoing renovations. She filed a claim against the Minister of Natural Resources, alleging that the minister was responsible for regulating the licensing and operation of explosives and that the minister knew or ought to have known that the explosives in the building were a risk to public safety and could cause serious injury and loss. She asserted that the minister owed her a private law duty of care. Read the full article by Angelica Dino with Canadian Occupational Safety.

BC Further Expands Cancer Coverage for Firefighters
Firefighters will now have easier access to workers' compensation benefits and support services in recognition of their higher risk of developing work-related cancers. "Firefighters are there for us when we are at our most vulnerable, and we need to be there for them when they need us," said Premier John Horgan. "Their job places them in risk of exposure to toxic materials. If they get sick or hurt on the job, they deserve to have every support we can provide." The Province is amending the Firefighters' Occupational Disease Regulation under the Workers Compensation Act (WCA) by adding two cancers – pancreatic and thyroid – to the existing list of cancers and heart diseases that firefighters are at increased risk of developing. Read the government news release.

Consultation on Proposed BC Exposure Limits (ELs) Based on the
New or Revised 2019 and 2020 ACGIH TLVs for
Selected Chemical Substances
Each year, the American Conference of Governmental Industrial Hygienists (ACGIH) publishes a list of substances for which they have set new or revised Threshold Limit Values (TLVs). A TLV is an airborne concentration of a chemical substance where it is believed that nearly all workers may be exposed over a working lifetime and experience no adverse health effects. TLVs may be expressed as an 8-hour time-weighted average (TWA), 15-minute short-term exposure limit (STEL), or ceiling limit. Before adopting new or revised TLVs published by the ACGIH, WorkSafeBC reviews relevant data on health effects and the availability of validated sampling methods. WorkSafeBC also consults with stakeholders on potential implementation issues. WorkSafeBC's existing BC Exposure Limits (ELs) continue to be in effect until the Board of Directors makes a decision on which new or revised ACGIH TLVs to adopt as BC ELs. Read the full article by WorkSafeBC. 

Signs and Symptoms that an Employee Has a Drug Issue
How to identify if an employee is impaired in the workplace
The holiday season has arrived, and many people will be celebrating with friends, family, and coworkers. Sometimes those festivities include alcohol as well as the use of both legal and unsanctioned illegal drugs. While substance use should always be responsible, sometimes it can spill over to other aspects of life, like the workplace. It is imperative health and safety professionals know how to recognize the signs and symptoms of a problem with drugs and alcohol. The Canadian Centre for Occupational Health and Safety (CCOHS) says impairment on the job can be the difference between life and death. "Many aspects of the workplace require alertness, and accurate and quick reflexes. An impairment to these qualities can cause incidents and interfere with the accuracy and efficiency of work." Read the full article by Shane Mercer with CCOHS.

Measurement of Earnings Loss —
Wage Inflation Adjustment Factor
from WorkSafeBC:
On November 23, 2022, WorkSafeBC's Board of Directors approved an amendment to policy in Item C6-40.00, Section 196 Permanent Partial Disability Benefits, of the Rehabilitation Services & Claims Manual, Volume II, to clarify the factor used to adjust earnings for inflation in calculating a loss of earnings award is based on the change in annual average of wages and salaries in B.C. Read the article on WorksafeBC.

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

• Regulated and Unregulated Health Professionals SARS-COV-2 Influenza Immunization – November 4, 2022 (PDF, 413KB)
• Emergency Medical Assistants Influenza Immunization – November 4, 2022 (PDF, 308KB)

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

OHS Policies/Guidelines – Updates

Guidelines – Occupational Health and Safety Regulation

November 29, 2022

The following guideline was issued:

• Part 8 Personal Protective Equipment and Clothing
  • G8.3 Ensuring adequate fit of personal protective equipment

Revisions were made to the following guidelines:

• Part 6 Chemical Agents and Biological Agents – Biological Agents
  • G6.34-2 Risk assessment, engineering and administrative controls, and personal protective equipment
• Part 7 Radiation
  • G7.19(4)-2 Exposure to non-ionizing radiation – Lasers
• Part 11 Fall Protection
  • G11.4 Belts and harnesses
• Part 30 Laboratories
  • G30.4 Plumbing

Policies – Workers Compensation Act

December 01, 2022

The following policies have housekeeping amendments resulting from Bill 41, the Workers Compensation Amendment Act (No.2), 2022, in effect on November 24, 2022:

• P2-95-1 – Criteria for Imposing OHS Penalties
• P2-95-10 – OHS Penalty Warning Letters

Property and Real Estate News:

Amendments Introduced to Limit Strata Restrictions
Bill 44, the Building and Strata Statutes Amendment Act, 2022, was introduced this month [November] and came into force on November 24. Amendments to the Strata Property Act ban or limit certain bylaws that strata corporations can make, including rental restriction bylaws. While newer stratas were already banned from restricting owners from renting units, this Bill extended that ban to stratas formed before 2010 as well. It also limits age restriction bylaws to those with a minimum age of 55 or older, in order to preserve seniors communities but increase housing for families with children. Bill 44 was introduced along with Bill 43, the new Housing Supply Act, which will allow the province to set housing targets for municipalities, with the intent to increase available housing for renters as well. Both bills are intended to combat housing shortages in BC. In addition, the Bill makes changes to the Strata Property Act as well as the Building Officials' Association Act to allow meetings and bylaw approvals to be conducted by electronic means, making permanent temporary measures that were introduced because of the COVID-19 pandemic.

Condo Smarts: Impact of BC Legislation Changes on  
Rentals, Age Restriction Bylaws
Rental bylaws and all current age restriction bylaws that are not 55 and over will no longer be enforceable.

Dear Tony:
With the changes coming to strata rentals, will the current strata corporations somehow be grandfathered? We currently have two ongoing enforcement issues regarding rentals. How do we deal with the enforcement issues if the bylaws are no longer enforceable?

Read the full article published in The Province.

Building and Strata Statutes Amendment Act  
In a marvel of efficiency, the BC government introduced into the legislature and made into law, the Building and Strata Statutes Amendment Act, SBC 2022, c 41 (the "BSSAA") last week. In addition, it seems the government ignored CHOA's concerns, which were sent by letter on November 21, 2022. Most of the concerns involved the ban on rental restrictions and its disproportionate impact on smaller, self-managed communities and the lack of evidence that rental restrictions resulted in a decrease of affordable housing. With barely any time for debate and the public to react, the government amended the Strata Property Act (the "Act") by:

• removing a strata corporation's right to create rental restriction bylaws;
• removing a strata corporation's right to create age restriction bylaws other than 55+; and
• allowing electronic attendance at annual and special general meetings without requiring a specific bylaw.

In this edition of Stratagies, we will discuss the impact of these changes. Read the full article by Veronica Franco, Juan Pablo Mendez Campos and Kyle Gough with Clark Wilson LLP.

Can You Take the Heat? A Look at
BC's Upcoming Cooling-Off Period
In an effort to slow a then-frothy residential real estate market, the Province adopted amendments to the Property Law Act on April 25, 2022 to establish a new homebuyer rescission regime in BC. [See Quickscribe's early consolidation.] These amendments provide buyers of residential real estate with a mandatory "cooling-off period" following execution of a purchase agreement, giving them more time to consider their offers, ensure financing, and conduct due diligence on the property (including obtaining a home inspection). On July 21, 2022, the Government of British Columbia announced the Home Buyer Rescission Period Regulation (the "Rescission Regulation"), which sets out further details regarding the cooling-off period. These new homebuyer rights will come into effect on January 1, 2023. [Please note, the effective date of these amendments was changed to January 3, 2023 by B.C. Reg. 220/2022.] Read the full article by Edward L. Wilson, Jillian Epp, Nicholas R. Shon with Lawson Lundell LLP.

British Columbia Court of Appeal Stops Eviction of 
Tenant with Bad Behaviour until Appeal Heard
The British Columbia Court of Appeal has granted a stay order in favour of a tenant who was about to be evicted from low-cost housing due to her alleged abusive and discriminatory behaviour against other tenants. In Campbell v. The Bloom Group, 2022 BCCA 364, Ellen Campbell rented a residential unit on Nelson Street in Vancouver which was operated by a not-for-profit housing services provider. The property was designated as affordable housing for low and moderate-income tenants. Campbell's primary source of income was a monthly disability benefit payment of $1,400. Read the full article by Angelica Dino on Canadian Lawyer.

Canada's Foreign Home Buyer Ban Explained – How It Works, 
Who Will Be Affected, and What We Still Don't Know.
Beginning January 1, 2023, the federal government's Prohibition on the Purchase of Residential Property by Non-Canadians Act (the "Act") will come into effect across Canada, resulting in what is being referred to as the foreign home buyer ban. The practical effect of the Act is that individuals who meet the definition of "non-Canadian" will not be permitted to purchase residential real estate for at least two years. The Act may also impact various Canadian citizens who offer their services in the residential real estate market. Read the full article by Rebecca Dickson of Pushor Mitchell LLP.