The Agricultural Land Reserve: Prohibitions and
Limits onLand Development and Construction
In British Columbia, the Agricultural Land Reserve ("ALR") designates 4.6 million hectares of land for priority use in agriculture. Intended to protect valuable agricultural land across the province, this designation restricts the scope of construction and development activities that are permitted on ALR land as set out in the Agricultural Land Commission Act SBC 2002 C. 36 (the "Act") and the Agricultural Land Reserve Use Regulation B.C. Reg. 36/2022 (the "Regulation"). When acquiring, developing and building on land it is incumbent for a property owner to conduct due diligence investigations into the property's zoning and any other designations that may prohibit or limit their development plans for the property. Read the full article by David Giroday of Civic Legal LLP.

New BC Money Not Tied to 10 Cities on  
Government's 'Housing Target' List
A new pot of money announced Monday [August 28] for affordable home construction in B.C. will not be directly funnelled to the 10 municipalities put on a "housing target" list earlier this year by Housing Minister Ravi Kahlon to build more homes. The minister announced Monday that another round of applications via its $3.3-billion "community housing fund" is now open to municipalities, non-profits, First Nations and others to access money to build up to 3,500 units of housing. The cost of the 3,500 units wasn't disclosed, but it is estimated to be in the millions. The funds will go to any municipality or organization that is successful in its application for affordable housing projects across B.C., despite the government putting 10 cities on a housing target list in May. Read the BIV article.

Fired Municipal CFO Gets More than
$600,000 for Discrimination
"The test for discrimination is that [a protected characteristic] doesn't have to be the only reason or even the main reason for an action for it to be contrary to the BC Human Rights Code. If there's simply a taint of a discriminatory reason, then the entire action is discriminatory." So says Mike Hamata, partner at Roper Greyell in Vancouver, after a British Columbia municipality was ordered by a human rights tribunal to pay more than $600,000 to a former CFO because he was fired in part for being Black. The large damage award is an example of how employers can face different liability in a human rights context versus a wrongful dismissal civil claim, says Hamata. Read the full article by Jeffrey R. Smith on Canadian HRReporter.

FortisBC's Plan to Keep Burning Gas 
'Not Equitable,' Claims BC City
By September 2022, the City of Richmond noticed something wasn't right — several sections of a study that gauged the feasibility of using gas long into the future had been removed without any explanation. Commissioned by FortisBC, the BC government and the BC Bioenergy Network, the deleted passages presented the benefits of a counter-narrative in which heat pumps were found to be "six to eight times more efficient than heating with gas." Communications obtained by Glacier Media through a freedom of information request showed the full extent of those edits. FortisBC and the other members of the report's steering committee said the passages were removed because they were "out of scope, inaccurate or could not be substantiated by data reviewed during the study." In the first of this two-part series, Nanaimo city councillor Ben Geselbracht described the deletions as "misleading" and lying by omission. Read the BIV article.

LIBOA Announces Official Name Change to Local Government
Compliance & Enforcement Association of BC (LGCEA)
The Licence Inspectors' and Bylaw Officers' Association of BC (LIBOA) is proud to announce a name change to Local Government Compliance & Enforcement Association of BC (LGCEA). LIBOA, a leading organization in the bylaw profession, is pleased to announce its official name change to the Local Government Compliance & Enforcement Association of BC. The decision to adopt the Local Government Compliance & Enforcement Association of BC as our new identity came as a natural progression, mirroring the profession's expanding scope and evolving responsibilities. By aligning our vision with the shifting landscape of the bylaw profession, we aim to elevate the standards of compliance and enforcement practices, foster rewarding partnerships with stakeholders, and empower our members with the tools and resources they need to succeed in their critical roles. Source: https://www.bylawbc.ca/docs/lgcea_media_release_2023-08-24.pdf

2023 UBCM Annual Report
from UBCM
UBCM's 2023 Annual Report is now available. The Annual Report highlights the work undertaken by UBCM on behalf of its members over the past year. In addition to summaries of Executive and Committee accomplishments, the Report provides information on member programs and services including Local Government Program Services and the Canada Community Building Fund program.

Strengthening Local Emergency-evacuation,
Public-notification Planning
To keep people safer and more informed during emergencies, the Province is providing funding to 19 communities to develop and upgrade emergency-evacuation-route plans and public-notification plans. "Recent wildfires in remote regions of B.C. have put communities at risk of being cut off from the rest of the province, highlighting the need for good, advanced planning to ensure residents are able to evacuate safely," said Bowinn Ma, Minister of Emergency Management and Climate Readiness. "We also know that First Nations and local governments have the most up-to-date information to provide to people to keep them safe. These funds will help ensure British Columbians can leave the area safely when a disaster hits, and will improve emergency notification, alerts and communication to people during emergencies." More than $880,000 is being provided through the Community Emergency Preparedness Fund (CEPF) to communities to develop and update plans, such as local emergency-alerting systems, that provide information to people in the event of an emergency. Read the government news release.

Amendments to British Columbia's Securities Act
Grant BCSC New Powers
On July 17, 2023, legislative amendments to British Columbia's Securities Act (the Act), targeted at "modernizing" the statute and improving investor protection, came into force. The amendments are part of a broader package of legislative amendments under the Finance Statutes Amendment Act, 2023 (Bill 4), which also modifies the Pension Benefits Standards Act and the Pooled Registered Pension Plans Act. The amendments provide the British Columbia Securities Commission (BCSC) with stronger compliance and enforcement powers and provide the BCSC with additional collections-related tools. British Columbia has tried to cast itself as being at the forefront of capital market enforcement reforms, having introduced a number of additional tools to its enforcement arsenal. In 2019, for example, British Columbia introduced Bill 33 (Securities Amendment Act, 2019), (as we discussed here), which introduced wide-ranging amendments targeted at strengthening the enforcement powers of the BCSC, including expanding the BCSC's investigative authority, providing the BCSC with new collection powers, increasing penalties for offences under the Act, and codifying protections for whistleblowers. Read the full article by Ankita Gupa, Teresa Tomchak and Lawrence E. Ritchie with Osler, Hoskin & Harcourt LLP.

Inadvertently Caught in the Net – Deemed Dispositions
and the "Flipped Property" Rules
The recently enacted "flipped property" rules in the Income Tax Act (Canada) (the "Act") have wide ranging implications. Several tax practitioners have written about the problematic nature of the rules (see, for example: Evan Crocker and Kenneth Keung, "Related-Party Transfers and the Flipped Property Rules" (2023) 23:2 Tax for the Owner-Manager 6-8). In this blog, we describe a further issue, namely, the lack of exemptions applicable to certain deemed dispositions of trust property.

Overview of the Flipped Property Rules
By way of background, on December 15, 2022 the new "flipped property" rules were enacted into law (applicable in respect of dispositions that occur on or after January 1, 2023). The 2022 Federal Budget supplementary information describes the purpose of the flipped property rules as combatting the allegedly inappropriate reporting of business profits as capital gains and unjustified principal residence exemption claims on residential real estate.

Read the full article by Ken Jiang & Justin Shoemaker with Thorsteinssons LLP.

New Considerations when Seeking to Multiply Access to the
Lifetime Capital Gains Exemption
Proactive planning to multiply access to the lifetime capital gains exemption ("LCGE") for shares of a qualified small business corporation ("QSBC") or qualified family farm property ("QFFP") remains of ongoing interest to taxpayers and their family members that may be eligible to benefit. There is no apparent general opposition to such planning by the Canada Revenue Agency ("CRA") where it is carefully implemented through a family trust. However, there continue to be targeted audit challenges that must be carefully planned for (e.g., the CRA may assert that certain shares do not satisfy the detailed criteria to constitute QSBC shares at the relevant times). Moreover, in recent years, new considerations have arisen that should be taken into account when planning to multiply access to the LCGE. Read the full article by Andrew C. Bateman and Pierce Quaghebeur, CPA, CA with Miller Thomson.

Appeal Courts Stay the Course on Arbitration 
Clauses in Consumer Contracts
On August 4, 2023, the British Columbia Court of Appeal (BCCA) released companion decisions in Williams v. Amazon.com Inc. (Williams) and Petty v. Niantic Inc. (Petty). In both cases, the BCCA upheld partial stays of proposed consumer class actions, finding that arbitration agreements contained within electronic standard-form contracts were valid and enforceable. A week earlier, the Federal Court of Appeal similarly upheld a stay in Difederico v. Amazon.com Inc. — another proposed consumer class action involving similar facts — in favour of arbitration. These decisions confirm that, in the absence of clear legislative intervention to the contrary, arbitration agreements will generally be enforceable, even in standard form contracts of adhesion.

Background
In Williams, the plaintiff created an account with Amazon.ca to make purchases from Amazon's online marketplace. In doing so, he accepted Amazon's electronic conditions of use, which contained an agreement to arbitrate all disputes relating to the agreement. The plaintiff commenced a proposed class action in the British Columbia Supreme Court (BCSC) alleging, among other things, the defendants' business practices breached consumer protection legislation and the Competition Act.

Read the full article by By Karine Russell, Robin Reinertson, Laura Cundari and Victor Lima (Articling Student) with Blake, Cassels & Graydon LLP.

Department of Finance Releases Draft Legislation on Budget 2023
Proposals and Other Notable Tax Measures
On August 4, 2023, the Department of Finance released draft legislative proposals relating to certain measures that were announced as part of the 2023 federal budget ("Budget 2023") as well as other previously-announced measures. Included is draft legislation on the general anti-avoidance rule (GAAR), the alternative minimum tax (AMT), intergenerational business transfers, employee ownership trusts, , excessive interest and financing expenses limitations (EIFEL), global minimum tax (Pillar Two), digital services tax, and revised draft regulations for the luxury tax. A full list of the topics covered by the draft legislation is contained in the accompanying backgrounder. Read the full article by Sarah Faber and Justin Shoemaker with Thorsteinssons LLP.

CRA Releases New and Revised Mandatory Disclosure Forms
On July 24, 2023, the Canada Revenue Agency (CRA) released the new and revised forms applicable to the enhanced mandatory disclosure rules under the Income Tax Act (Canada) (the "Act"). The revisions to the mandatory disclosure rules and CRA guidance on the rules, which were enacted into law on June 22, 2023, are discussed in prior Tax Alerts. In respect of notifiable transactions and reportable transactions occurring after June 21, 2023, Form RC312 Reportable Transaction and Notifiable Transaction Information Return (2023 and later tax years) is an updated version of the RC312 Reportable Transaction Information Return. Read the full article by Rebecca Loo with Thorsteinssons LLP.

SEDAR+: How It Started vs. How It's Going
On July 25, 2023, the System for Electronic Data Analysis and Retrieval + (SEDAR+) was launched with the objective of consolidating and replacing the System for Electronic Data Analysis and Retrieval (SEDAR) platform, the National Cease Trade Order Database, the Disciplined List Database, certain paper-based filings and those in the British Columbia Securities Commission's eServices system and the Ontario Securities Commission's electronic filing portal. To date, SEDAR+ has experienced a number of technical difficulties, including performance issues, account activation service interruptions, fee calculation errors and restrictions on the functionality of its search features. Despite these technical difficulties, the Canadian Securities Administrators (CSA) have taken the position that SEDAR+ became available for filing on July 25, 2023, and did not extend the prior blanket order that enabled issuers to utilize alternative filing methods. Read the full article by Kristopher Miks and Thomas Moggan with Norton Rose Fulbright.

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

• 24-319 – Regarding National Instrument 24-101 Institutional Trade Matching and Settlement – Update and Staff Recommendation
• 81-104 – Repeal of National Instrument 81-104 Alternative Mutual Funds

For more information, visit the BC Securities website.

Management of Habitat for Species at Risk under FRPA
The Forest Practices Board has released an investigative report about the management of habitat for species at risk under the Forest and Range Practices Act (FRPA). The report examines the BC government's use of tools available under FRPA to protect habitat for species at risk and forest licensees' compliance with legal requirements.

In this investigation, the Board looked at a sample of areas where legal measures are in place for habitat protection and found that operational-level forest planning and practices were consistent with those legal requirements. Read the Forest Practices Board news release.

BC Court of Appeal Clarifies Environmental Due Diligence
Requirements When Assigning Purchase Agreements
The Court of Appeal in 0694841 B.C. Ltd. v. Alara Environmental Health and Safety Limited clarified the environmental due diligence requirements when assigning a purchase agreement to another party.

0694841 B.C. Ltd. ("069") entered into a purchase agreement for commercial property. As part of its due diligence, 069 hired Alara Environmental Health and Safety Limited (Alara) to conduct environmental assessments. Alara found that the property was free from environmental contamination. In its report, Alara included a disclaimer extinguishing itself from liability to third parties if the report was used by any entity, other than 069. Read the full article by Nicola Virk with Harper Grey LLP.

Understanding BC's New Soil Relocation Process
Planning to move soil for an upcoming project? You may be impacted by recent changes to BC's soil relocation process.

The province has officially moved away from 'soil relocation agreements', introducing new amendments to the Contaminated Sites Regulation which came into effect on March 1, 2023. A few of the major changes are explored below.

Soil Testing
Soil testing must now be conducted whenever 30 or more cubic meters of soil is relocated from a site where "commercial or industrial uses" have occurred. This testing will determine whether the soil is contaminated or uncontaminated, and depending on the soil quality, a different relocation process may apply.

Contaminated Soil
The relocation of contaminated soil is now regulated by the Environmental Management Act (EMA) and the Waste Discharge Regulations. Anyone planning to relocate contaminated soil must apply for waste discharge authorization under Part 2 of the EMA.

Read the full article by Nicola Virk with Harper Grey LLP.

Indigenous Law Update: What the B.C. Natural Resource
Sector Should Know About "Non-Treaty" Agreements
Summary
Government has increasingly turned to "non-treaty" agreements with Indigenous groups in British Columbia (B.C.). These "non-treaty" agreements (and the processes used to negotiate them) do not benefit from oversight by the B.C. Treaty Commission, so they can raise greater risks for businesses and tenure holders. This article discusses these risks, and some techniques that can be used to mitigate them.

Background
The B.C. Treaty Commission was established in 1992 to facilitate treaty negotiations among the Governments of B.C., Canada and participating Indigenous groups. At the time, it was considered an essential process to resolve the complex issue of Indigenous land claims, and the related question of who has authority to govern what in B.C. While the issues were not unique to B.C., they were most pronounced in B.C. given that historic treaties were never entered into for the majority of the province.

Yet, after more than 30 years, and more than a billion dollars in negotiating costs, the treaty commission process has produced very limited success. It has yielded only three modern treaties that are in implementation today. This is a small percentage of the more than 200 First Nations in B.C., and the more than 100 bands that have participated directly or indirectly in the treaty commission process.

Read the full article by Joanna Dawson, Cory Kent, Robin M. Junger, Julia Loney, Tim Murphy and Joan M. Young with McMillan LLP.

Bill S-5 – What You Need to Know
On June 13, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received Royal Assent. These amendments represent Canada's commitment to environmental protection and are the first comprehensive overhaul of the Canadian Environmental Protection Act (CEPA) since its inception in 1999. These changes are likely to have considerable effects on stakeholders in industries that utilize substances deemed toxic or that have the potential to be deemed as such. Read the full article by Mario Delgado with Whitelaw Twining.

Canada Broadens Pushback on 'Unfair,
Unjust' U.S. Softwood Lumber Duties
U.S. says Ottawa's 'stumpage fee' system amounts to unfair subsidies
Prime Minister Justin Trudeau's government is broadening its pushback against the latest U.S. decision to keep imposing duties on Canadian softwood lumber.

Trade Minister Mary Ng says Canada is launching challenges under the North American free-trade deal as well as before the U.S. Court of International Trade.

Nine days ago, Ottawa sought a judicial review of last month's Treasury Department assessment of the levies, which provided modest relief but maintained the combined duty rate at 7.99 per cent.

Ng says Canada remains open to negotiating a resolution to the decades-old dispute, which she calls "unfair, unjust and illegal," while arguing it increases housing costs. Read the CBC article.

Registering and Trading Compliance Carbon Credits
on British Columbia's Carbon Registry
What are compliance carbon credits? Carbon credits are traded on two kinds of markets: compliance markets and voluntary markets. Compliance markets are mandated and regulated through legislation and allow entities to purchase carbon credits with the goal of complying with their emissions reduction obligations. Voluntary markets function outside of a compliance regime and enable companies to voluntarily reduce emissions without an intended compliance purpose.

In British Columbia (BC), compliance carbon credit trading and use is governed by the Greenhouse Gas Industrial Reporting and Control Act (GGIRCA). Read the full article by Courtney Burton and Stewart Maier with Dentons.

2023 Wildfire Season: A Wake-up Call for Climate
Change Action and Transformative Reconciliation
The situation in Yellowknife, one of Canada's largest sub-Arctic cities, is a nightmare unfolding. Authorities have evacuated the entire population, an unparalleled situation in its history. As an Indigenous rights lawyer, the significance of this crisis for our legal system, environment, and relationship with the land is not lost on me. As we endure another record-breaking wildfire season, we must face the devastation and recognize the urgency of unified action.

Turtle Island's Record-Breaking Battle with Fire
Flames consume vast stretches of the Canadian landscape, threatening and besieging not only the capital city of the Northwest Territories but also causing evacuations in Dettah, N'dilo, Lytton, Adams Lake, West Kelowna, and other surrounding areas. These ferocious fires symbolize the horrors that climate change can unleash. It's not merely trees and structures in the path of destruction; it's an entire way of life at risk.

Read the full article by Nick Leeson with Woodward & Company LLP.

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

Water Sustainability Act

• Just Fish-Inn Inc. v. Assistant Water Manager [Dismissal Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

New Health Minister Says Pharmacare
Legislation Is Coming this Fall
Liberal agreement with NDP stipulates that pharmacare legislation must be passed by end of 2023. Prime Minister Justin Trudeau's new health minister says legislation to implement a universal pharmacare program will be tabled this fall. Passing legislation to establish a national universal pharmacare program by the end of the year is a condition of the House of Commons supply-and-confidence agreement between the Liberals and the NDP. To meet that deadline, the government's legislation will need to pass through the House of Commons and the Senate and undergo two committee studies before Parliament breaks in December. Read the CBC article.

Doctors of BC Provides Recommendations for
Improving Digital Health Solutions in BC
From Doctors of BC:
Digital health plays a vital role in how doctors deliver health care and support patient health today and into the future. However, the evolution of digital health solutions – such as EMRs, virtual care, patient portals, and electronic health records – hasn't been without its challenges, preventing these solutions from being utilized to their full potential. As the Ministry of Health moves its province-wide Digital Health Strategy forward, advocating for physician influence in shaping digital health planning and digital health solutions is a priority for Doctors of BC. In our new policy statement, Improving Digital Health Solutions in BC, we support the improvement of digital health solutions in a way that ensures they are beneficial to physicians, user groups, patients, and the health system. We are committed to engaging with members to ensure the physician voice is reflected throughout the process, to make certain any proposed digital health solutions align with your needs in a way that doesn't create more work or add to already existing burdens, and to support you in adopting and leveraging digital health solutions to improve your clinical workflow. Read the full news release by Doctors of BC.

Health Canada Releases Draft Pre-market Guidance for
Machine Learning Medical Devices
On Aug. 30, 2023, Health Canada released its anticipated draft guidance document on obtaining authorization for machine learning-enabled medical devices (machine learning medical devices). This publication seeks to assist manufacturers of class II, III, and IV machine learning medical devices who are submitting applications for, or amendments to, a Medical Device License. The guidance document outlines Health Canada's expectations for demonstrating the machine learning medical devices' safety and effectiveness requirements required under s. 10 of the Medical Device Regulations (MDR), and introduces a proposed mechanism for manufacturers to obtain pre-authorization for planned changes to one of its existing machine learning medical devices. Read the full article by Edona C. Vila and Benjamin Fuhrmann with Borden Ladner Gervais LLP.

BC Court of Appeal Upholds Dismissal of Doctor's 
Negligence Claim after Assault by Patient
The BC Court of Appeal has upheld the dismissal of a negligence claim filed by a doctor who sustained injuries from an assault by a psychiatric patient. In Sheoran v. Interior Health Authority, 2023 BCCA 318, Dr. Rajeev Sheoran sustained devastating injuries when he was assaulted in an interview room in the Inpatient Psychiatry Unit (IPU) of the Penticton Regional Hospital while caring for an involuntary patient, Gregory Nield. He alleged the negligence of the Interior Health Authority (IHA), the agency responsible for the management and operation of the hospital, contributed to his injury. Dr. Sheoran argued that IHA failed to address the risk of violence posed by patients like Nield. He attributed the assault to IHA's failure to discharge its duty to take reasonable care to ensure the workplace was as safe as reasonably possible. He alleged IHA "invited" him to conduct a high-risk assessment of Nield when it knew or ought to have known that its facilities were unsafe and inadequate for such evaluations. Read the full article by Angelica Dino on Canadian HRReporter.

BC Supreme Court Certifies Class Action Lawsuit against 
Hospital that Employed an Unlicensed Nurse
The BC Supreme Court has certified a class action lawsuit involving an unlicensed nurse who worked at the BC Women's Hospital and Health Centre (BCWH). In Massie v. Provincial Health Services Authority, 2023 BCSC 1275, Miranda Massie applied to certify an action as a class proceeding against the Provincial Health Services Authority (PHSA), which manages the programs and services at the BCWH. Massie alleged that she received care at the BCWH from Brigitte Cleroux, who turned out to be an unlicensed nurse. Massie commenced a class action lawsuit for legal claims arising from Cleroux's involvement with patient care while working at the BCWH. Massie sought to certify common issues in negligence, battery, breach of privacy, vicarious liability, and for damages, including aggregate and punitive damages. Read the full article by Angelica Dino on Canadian HRReporter.

Federally-Regulated Employers Required to Comply with New Graduated
Notice of Individual Termination Starting February 1, 2024
The federal government recently fixed February 1, 2024 as the day on which the Canada Labour Code ("Code") will be amended to establish a graduated notice of individual termination of employment for federally-regulated employees ranging between two and eight weeks, depending on the length of continuous employment with the employer. These changes were first introduced in the fall of 2018 by way of Bill C-86/ Budget Implementation Act, 2018, No. 2, but the coming into force date was unknown until recently.

Currently and until January 31, 2024, the federal termination provisions provide for a minimum of two weeks' notice or wages in lieu of notice, after three months of continuous employment with the employer. The transitional provision explains that if an employer gives notice of termination to an employee on January 31, 2024, that version of the Code applies to the employer and the employee in respect of individual termination. Then, effective the next day on February 1, 2024, employers will be required to follow the following graduated notice provisions under Part III of the Code. Read the full article by Michael Watt and Sarah Richmond with Alexander Holburn Beaudin + Lang LLP.

BC Court Finds Employee Voluntarily
Resigned from Employment
In Khangura v Lumberwest Building Supplies Inc., 2023 BCSC 1053, the Supreme Court of BC had to consider whether an employee was terminated without cause, or voluntarily resigned from his employment.

There were three emails from the employer to the employee at issue. The first email set out several concerns with the employee's work performance and referred to the employer's right to terminate for cause under the employment contract. The second email, sent six days later, said that it was to be considered 30 days' written notice to terminate the employment agreement. The third email, sent the next day, attached the first email and again set out the concerns with the employee's work performance.

The employee argued that he was terminated without cause through the email communications with the employer, which he understood to indicate the termination of their employment contract with 30 days' notice. Read the full article by Scott Marcinkow with Harper Grey LLP.

B.C. Seeking Public Input on Employment
Protections for Gig Workers
British Columbia is reaching out to the public on how to provide better working conditions for gig workers in the ride hailing and food delivery industries.

The provincial Ministry of Labour has released a discussion paper as part of its consultation process to assess whether certain gig work should be covered by the Employment Standards Act. The province said low, unpredictable pay, as well as worker safety and workers' compensation in case of becoming injured on the job are among concerns that have been identified, and pointed to a recent report from the Greater Vancouver Board of Trade estimated between 26,000 and 60,000 individuals performing work using ride-sharing or food delivery platforms in the province. Read the full article by Ian Burns on Law360 Canada.

Accessible Canada Act Draft Standard on
Employment Open For Public Review
Accessibility Standards Canada has released a public review draft of the Accessible Canada Act (ACA) Standard on Employment (the Draft Standard). Public feedback will be accepted until October 17, 2023. We encourage federally regulated employers to review the Draft Standard with a view to its application in their workplaces, and to offer feedback to inform any final version.

Accessibility Standards Canada (ASC) requires federally regulated organizations in both the private and public sectors to adopt and publish accessibility plans detailing the organization's policies, programs, practices, and services in relation to identifying and removing barriers faced by persons with disabilities. Employers are also required to create progress reports on accessibility plans and establish feedback processes for consulting on accessibility initiatives. Read the full article by Heather Cameron with Norton Rose Fulbright Canada LLP.

BC Court of Appeal Apportions 40% Liability to Driver
Who Swerved onto Shoulder, But Hit Car Anyway
A young lawyer who last year was awarded a $3.2-million award after being injured in a car accident in 2018 has also successfully appealed on the question of which parties should be held responsible and how much liability each should bear – the woman who hit her car from behind and the man who passed her on the shoulder to her right.

The court of appeal for British Columbia ruled [2023 BCCA 339] that the trial judge, in this case, erred in determining and applying the necessary standard of care in ruling that driver Daniel Pederson was not negligent when, in response to his anti-lock braking system activating, he drove onto the shoulder to pass the appellant in a bid to avoid his car colliding with another. Read the full article by Zena Olijnyk in the Canadian Lawyer.

B.C. Not Ready for Self-Driving Cars, Study Finds
British Columbians aren't quite ready for self-driving vehicles (SDVs) and will need a gradual transition to the new technology, according to new B.C. study.

"People who harbour anxiety or discomfort regarding new technology were more likely to hold a negative bias against SDVs," said Gurdiljot Gill, a civil engineering PhD candidate at the University of British Columbia who conducted the study.

"Similarly, residents in the Lower Mainland tended to adopt a more critical viewpoint, likely because there are more pedestrians in this urban region," Gill aid.

In a statement, B.C.'s Ministry of Transportation and Infrastructure cautioned B.C. laws do not yet permit driverless vehicles on the province's roads. Read the BIV article.

BC Court of Appeal Reduces Damages Award Due to
Evidence That Post-Accident Condition Will Improve
The BC Court of Appeal has reduced an award for future loss of housekeeping capacity due to expert prognosis that the plaintiff's post-accident condition will improve.

In Howes v. Liu, 2023 BCCA 316, Anna Liu was sitting in the front seat of her husband's vehicle when it was rear-ended by another car. Liu sustained a soft tissue injury to her lower back and a hip malalignment. As a result, she commenced a lawsuit against the defendants, Marnie Howes and Douglas Liu. Read the full article by Angelica Dino in the Canadian Lawyer magazine.

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

• CVSE 1052 Contacts – Notice to industry that the List of Contacts for use with Form CVSE1052 has been updated (August 15, 2023)
• NSC Bulletin 02-2023 – Publication of Carriers Cancelled for Cause
• NSC Notice 03-2023 – CMVs providing relief during the provincial state of emergency
• Circular 03-21 (EXPIRED) – Highway 4 Cameron Lake Bluffs Temporary HOS Exemption - EXPIRED

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:

News and updates

• Update report on impacts of Covid-19 on BC Passenger Transportation Industry
  In 2021, the Passenger Transportation Board launched an investigation to better understand the economic impacts of the Covid-19 pandemic and its effects on the passenger transportation industry in BC. The follow-up study, 2023 Update: Economic Effects of Covid-19 on the BC Passenger Transportation Industry, is available today and presents data and analysis conducted by professional economist Hara Associates. Read the full notice.
• Notice to licensees Re: potential changes to taxi rates regulation
  The Passenger Transportation Board is requesting feedback regarding potential changes to the regulation of taxi rates in BC. Read the full notice.
• Taxi rates request for feedback
  In response to the changing passenger transportation landscape in BC, the Passenger Transportation Board is considering changes to the taxi rates structure across the province. Read the full notice.
• Traffic congestion study to begin in Lower Mainland
  The Passenger Transportation Board has passed a motion to conduct a traffic congestion study in selected areas of the Lower Mainland, under section 7(1) of the Passenger Transportation Act. The study is being undertaken as a result of concern over the potential impact of passenger transportation on road congestion, particularly in high-density urban areas like Vancouver. Read the full notice.
• TLCI review of taxi rates
  Taxi licensees can request a 2023 TLCI taxi rate increase of up to 7.3%. The Passenger Transportation Board (Board) is now accepting completed TLCI request forms until the request deadline of September 17, 2023. Read the full notice.
• Board releases Annual Report 2022-2023
  The Passenger Transportation Board's Annual Report 2022-2023 is now available online. The Annual Report 2022-2023 describes the activities of the Board during the fiscal year April 1, 2022 to March 31, 2023. Read the full notice.

Applications Received

• 18217-23 – V.I.G. Ventures Ltd. (Classique Car Rental)
• 18260-23 – City & Country Taxi Service Limited (Yellow Cab of Victoria)
• 18278-23 – Hugh Robert Reginald McDonald (Nite Owl Transportation)
• 18365-23 – Quesnel Taxi Ltd.
• 18150-23 – Abass Tours & Transfer Inc.
• 18264-23, 18265-23 – Vantastic Rentals Limited (Now Shuttle)

Application Decisions

• 17754-23 – Tsawwassen Taxi Ltd. [Approved]
• 17970-23 – Gagandeep Singh Dhillon [Refused]
• 17860-23 – Rajinder Singh Atwal (Bluebird Cabs) [Approved]
• 17123-23 – Mebin Thomas (Super Cabs) [Approved in Part]
• 16754-23 – Entourage Limousine Service Ltd. [Refused]
• 17867-23 – Gunner Kervenly Kaiser (Kaiser Taxi Services) [Approved]
• 18424-23 TOP – Limousine Business Transportation, Limousine Vancouver Transportation, City Limousine Service [Approved]
• 18186-23 – Swiftsure Taxi Co. Ltd. (Yellow Cab Nanaimo) [Approved]
• 17865-23 – North Coast Trail Shuttle Ltd. [Approved]
• 17420-23 – Valley Shuttle, Comox Taxi [Approved in Part]
• 18482-23TOP – Vanride Shuttle Services Ltd. [Refused]

Visit the Passenger Transportation Board website for more information.

Workers Compensation Act Amendments 
Effective September 1, 2023, amendments made to the Workers Compensation Act by 2022 Bill 5, the Workers Compensation Amendment Act, 2022, were brought into force. The amendments require asbestos abatement contractors to be licensed to operate in British Columbia, and authorize WorkSafeBC to create a mandatory safety training program for workers and contractors who work with materials that may contain asbestos.

Upcoming Regulation Changes for Hazardous Drugs, 
Asbestos Abatement, and First Aid
Employers in many industries will be affected by upcoming changes to the Occupational Health and Safety (OHS) Regulation. This information gives employers an overview of these changes; however, you should review the relevant parts of the OHS Regulation to determine what updates are needed to your workplace health and safety policies and procedures. Read the full article by Sarah Ripplinger in the Fall 2023 issue of WorkSafe Magazine.

What Can You Do to Keep Your
Workers Safe on the Road?
Keeping your workers safe while they're behind the wheel starts long before keysare in the ignition.As an employer, you need to first identify driving-relatedhazards they face while driving for work. Then you must take the steps to reduce the risks to your workersand help keep them safe.Whether your workers drive full time, part time, oronly occasionally, road safety is an important part of your health and safety responsibilities. Read the full article in the Fall 2023 issue of WorkSafe Magazine.

2023 New or Revised ACGIH Threshold
Limit Values and BC Exposure Limits
The Occupational Health and Safety Regulation provides that, except as otherwise determined by WorkSafeBC, an employer must ensure no worker is exposed to a substance exceeding the Threshold Limit Values (TLVs) prescribed by the American Conference of Governmental Industrial Hygienists (ACGIH). Each year, the ACGIH publishes a list of substances for which they have set new or revised TLVs. When the new or revised TLVs for substances are adopted, these TLVs are referred to as BC Exposure Limits (ELs). Read the full article on WorkSafe BC.

Proposed Amendments to Policy on Cancer as a
Compensable Consequence
from WorkSafe BC
For cancer to be considered a compensable consequence of a traumatic injury, WorkSafeBC policy sets out five criteria that must be met. Our Policy, Regulation and Research Department is releasing a discussion paper with options on proposed amendments to update this policy to reflect current medical literature. You're invited to provide feedback on the discussion paper, with options on proposed amendments to policy on cancer as a compensable consequence, until 4:30 p.m. on Friday, October 20, 2023.

Court Denies Psychiatrist's Appeal after 
Assault by MMA Fighter Patient
The Court of Appeal for British Columbia recently dealt with a case involving a worker who appealed the dismissal of his negligence action against his employer. The worker, who was a psychiatrist, primarily argued that the trial judge erred in law by failing to ask whether the company discharged its duty to provide a safe workplace in the hospital. Around November 2014, the worker first met the patient, who had not been sleeping, had mood swings, and was erratic and confrontational, in the hospital emergency room. Days later, the worker again saw the patient and shared the opinion of the patient's general practitioner that he needed to be admitted to the hospital involuntarily under the Mental Health Act. Read the full article by Paulinet Tamaray with Canadian Occupational Safety.

WorkSafeBC – Proposed Amendments to OHS Regulation Part 6,
Substance Specific Requirements | Combustible Dusts
The proposed amendments to the OHS Regulation Part 6, Substance Specific Requirements relating toCombustible Dusts will include the requirement for a ‘qualified person' tobe consulted in many parts of the new regulation activities.The BC Forest Products Manufacturing industry including the ManufacturingAdvisory Group (MAG) and Wood Pellets Association of Canada providedvaluable feedback to the proposed Combustible Dust Regulations duringthe public consultation period which ended June 22, 2023. The regulationreview and revisions for Combustible Dust was a significant undertakingby WorkSafeBC. After many years of review and revisions, the final regulationwent from one (1) sentence in OHSR 5.81 to 33 sections in OHSRs 6.133 to6.167. Read the full article in the September 2023 issue of Forest Safety News.

Employer, Foreman Criminally Charged in 
Workplace Death in Burnaby 11 Years Ago
Eleven years after pipe-layer Jeff Caron was fatally crushed at a Burnaby worksite, criminal charges have been laid against his ex-foreman and the excavation company he worked for. J. Cote & Son Excavating Ltd. was charged on Aug. 17 with criminal negligence causing death and criminal negligence causing injury. David Green, Caron's foreman at the time of the accident, faces those charges as well as one charge of manslaughter. Read the BIV article.

WorkSafeBC Releases Policies on BC Employers'
New Return-to-Work Obligations
As we previously reported, the BC Government amended the Workers Compensation Act (the "WCA Amendments") to impose new obligations on BC employers in returning injured workers to their job. These changes will come into effect on January 1, 2024. As you may recall from our earlier blog post, the WCA Amendments create two new duties for workers and employers: the duty to cooperate and the duty to maintain employment of an injured worker. WorkSafeBC has since released a discussion paper with proposed policies to provide guidance on the new statutory duties (the "Draft Policies"). We provide a refresher on these new duties and highlight the notable items from the Draft Policies below. Read the full article by Michelle S. Jones and Miny Atwal with Lawson Lundell LLP.

OHS Policies/Guidelines – Updates
Policies – Occupational Health and Safety Regulation – August 15, 2023

OHS Policy R5.48-1 has been amended to reflect the current exposure limits for substances listed on the new or revised Threshold Limit Values for 2023 from the American Conference of Governmental Industrial Hygienists (effective August 23, 2022).

• R5.48-1 Controlling Exposure – Exposure Limits

Guidelines – Occupational Health and Safety Regulation – August 15, 2023

• Part 5 Chemical Agents and Biological Agents
  Table of Exposure Limits for Chemical and Biological Substances
  The table has been updated to reflect changes to OHS Policy R5.48-1 (amended August 15, 2023). Deletions are shown as strikethrough; additions and revisions are highlighted in green.
• Part 11 Fall Protection
  G11.6-1 Anchors
  This guideline has been updated to remove references to particular design and testing values within specific editions of standards to prevent potential misinterpretation or misapplication of the information.

Policies – Workers Compensation Act – September 1, 2023

The following policy item was issued to outline the process and criteria for WorkSafeBC to grant licences to asbestos abatement contractors. The requirements for asbestos abatement contractors to be licensed comes into effect on January 1, 2024.

• P2-59.03-1 Asbestos Abatement Licensing

Visit the WorkSafeBC website to explore this and previous updates.

Allocation, Allocation, Allocation: Court Sides with
Purchaser's Allocation of Purchase Price
Below the Assessed Value
When are parties permitted to allocate the fair market value for real property for the purpose of remitting property transfer tax? Here is a refresher on the principles of fair market value (FMV) in real property transactions following a recent BC Supreme Court case in which the parties were entitled to allocate FMV to a property at less than the assessed value.

1184369 B.C. Ltd. v. British Columbia, 2023 BCSC 546
The BC Supreme Court (BCSC) recently upheld a property transfer tax (PTT) appeal in connection with the purchase and sale of a small business in Vancouver in which both the business, and the two properties that the business was situated on, were included in the purchase and sale agreement.

Read the full article by Ben Westerterp and Lisa Harder with Lawson Lundell LLP.

Surveillance to Enforce Bylaws

Dear Tony:
In my condo there are numerous signs stating that video surveillance will be used to enforce bylaws and impose fines. I would  like to see this issue addressed as well as any other issues that might arise from use of these cameras. – JK, Vancouver Island

Dear JK:
Surveillance may be conducted in a variety of methods in a strata community such as video or audio surveillance, key FOBS and entry cards that track access and use of common property and common amenities. The Office of the Information and Privacy  Commissioner of BC sets out several conditions for surveillance that require disclosure of use and management of surveillance, as well as the requirement of the consent of each resident or a bylaw that permits the use of surveillance.

Read the full article by Tony Gioventu on Condo Smarts, published by CHOA.

Court of Appeal Findings on Contractual Interest and 
Impact of Cost-estimates in Cost-plus Contracts
Cost-plus contracts require the owner to pay for the costs actually incurred for all labour, subcontracted services, materials and other costs of performing the construction work, plus a fee that is designed to (among other things) compensate the contractor's time in managing and coordinating the work. A recent decision of the BC Court of Appeal, Highridge Homes Ltd. v. de Boer, 2023 BCCA 74, has clarified how certain clauses in cost-plus contracts will be treated. Specifically, clauses dealing with interest for unpaid amounts and the risk allocation of overages or extra costs above initial pricing estimates that are commonly incurred in cost-plus contracts. Read the full article by Rosalie A. Clark with Clark Wilson LLP.

Is a Lien Invalid if it Names a Non-Contracting Party as the
Lien Claimant? The Answer May Surprise You
It is well known that a lien claimant must strictly comply with the form prescribed by the Builders Lien Act, SBC 1997, c. 45 (the "Act"). BC Courts have previously found that deviations from the prescribed form of lien which affect the substance of the form will render a
claim of lien invalid, whereas deviations which do not affect the substance of the form can be remedied. Recently, in Klippenstein Development Corp. v Van Den Brink, 2023 BCSC 961, the Court dealt with the unusual circumstance in which the construction contract at issue did not name the lien claimant as a party to the contract. Read the full article by Dan W. Melnick and Rosalie A. Clark.

Tax Wealthy Homeowners to Fund Affordable
Housing, Says New BC Proposal
To improve affordable housing, a BC economist says the province needs a more progressive property tax system — one that raises levies on high-value properties and people who own multiple homes. Such a policy, says Alex Hemingway, will raise billions of dollars for public housing projects while simultaneously dampening home price growth over the long term. The policy proposal, laid out in a white paper published Wednesday with the Canadian Centre for Policy Alternatives of BC, comes as residential property values have grown a "staggering" $1.7 trillion over the past two decades, leading to greater inequality among those who own a home and those who don't, says Hemingway. Read the BIV article.