Delegations to Council – A Charter Right?
For many civic election candidates and electors, the main event in an election campaign is the all-candidates meeting or forum, at which members of the public are invited to pose questions on civic matters and candidates are expected (and often eager) to provide fulsome answers. For some candidates, a preferred forum is an 'open house' at which the candidate makes a speech and fields questions, perhaps providing refreshments (cinnamon buns and coffee are apparently popular) to boost attendance. These events are often portrayed as hallmarks of electoral democracy. Small wonder, then, that once the campaign is over and the successful candidates take office, electors may show up at city hall with expectations that the accountability that was on display scant weeks earlier remains in operation, particularly when the local government has provided in its procedure bylaw for “delegations” to be heard at council meetings. Read the full article by Bill Buholzer in the September 2023 issue of the Young Anderson Barristers & Solicitors newsletter.

New Housing Plans and Legislation Announced for Fall
The BC government has announced that the fall legislative session will include introducing legislation in response to the housing crisis. The housing bills will be in accordance with the Homes for People action plan that was announced in spring. The legislation, along with other housing actions, is intended to address areas such as allowing secondary suites on properties currently zoned for single-family homes, strengthening enforcement of short-term rental rules, increasing multi-unit housing for middle income earners through zoning changes and speeding up the provincial and municipal permit processes for new homes. Quickscribe will provide the text of the new bills as they become available.

New Disaster Management Law Introduced to
Address Preparedness, Mitigation
Update: Bill 31, the Emergency and Disaster Management Act, was introduced on October 3, 2023. Quickscribe intends to publish an early consolidation of the new Act prior to its coming into force.

British Columbia's emergency management minister said the province will be ready to introduce “in the coming weeks” new laws to govern responses to increasingly frequent natural disasters such as wildfires and flooding. Bowinn Ma told a gathering at the Union of BC Municipalities' annual convention in Vancouver Tuesday [September 19] that laws will address the four phases of emergency management, ranging from preparedness and mitigation to response and recovery. Ma told BC's local politicians that the current Emergency Program Act focusing on disaster response has not been updated since 1993 and hasn't kept up with the increasing frequency of extreme weather brought on by climate change. Read the full article by the Canadian Press, published by Global News.

BC Controlled Substances Exemption Restricted at
Playgrounds, Water Parks, Skate Parks
Following advocacy by many local governments, British Columbia's controlled substance possession exemption has been further restricted, such that possession of small quantities of controlled substances for personal use will no longer be permitted in additional child-focused spaces. As of Monday, September 18, 2023, the Health Canada exemption that decriminalizes controlled substances in BC will no longer apply within 15 metres of:

• a playground play structure,
• a spray pool or wading pool, and
• a skate park.

Read the full client bulletin by Nick Falzon and Aidan Andrews with Young Anderson Barristers & Solicitors.

New Housing Targets for BC Communities & New Federal Initiatives
Public-notification Planning
As Quickscribe reported on May 31, the Housing Supply Act was brought into force to establish a framework for the provincial government to create housing targets for specified municipalities, and the province named the first ten communities that will be required to hit housing targets. Those housing target orders have now been announced and are effective October 1. The five-year targets for net new housing are:

• Abbotsford – 7,240 units
• Delta – 3,607
• Kamloops – 4,236
• Port Moody – 1,694
• Saanich – 4,610
• Vancouver – 28,900
• Victoria – 4,902
• North Vancouver – 2,838
• West Vancouver – 1,432
• Oak Bay – 664

A more detailed breakdown of housing target guidelines can be found here. The province has promised to provide resources for approval and permitting processes, as well as the Growing Communities Fund and capacity funding for local governments to meet the new density initiatives. More information can be found in their news release. In addition, the federal government recently announced measures intended to assist housing affordability, including a Canada Mortgage Bonds increase designated to new rental housing construction, the Housing Accelerator Fund and the proposed Affordable Housing and Groceries Act, which would remove GST on new rental housing.

Court of Appeal Affirms Zoning Decision on Stalled Development
Onni Wyndansea Holdings Ltd. v. Ucluelet (District), 2023 BCCA 342

In 2004, in exchange for promises of various community amenities including cash contributions and public trails, the District of Ucluelet rezoned roughly 375 acres of undeveloped land to authorize a comprehensive golf resort development. In 2020, long after the original developer had secured approval for a 30-lot bare land strata subdivision, constructed services for that subdivision, and gone bankrupt, the new owner signalled its intention to go ahead with marketing of the bare land strata lots. The District's Council responded by changing the zoning for the entire site, on the basis that the strata lots should not be developed in the absence of a new comprehensive plan. The owner argued that the District acted in bad faith or unreasonably in changing the zoning. In the alternative, the owner claimed non-conforming use. The BC Supreme Court sided with the District. The BC Court of Appeal has now dismissed the owner's appeal. Read the full client bulletin by Aidan Andrews with Young Anderson Barristers & Solicitors.

Financial Support Programs for People Displaced by
Extreme Weather Emergencies Outdated and
Unfair: Ombudsperson Report Finds
In a report released today [October 3], the BC Ombudsperson finds emergency support programs are outdated, under-resourced, inaccessible for vulnerable evacuees and poorly communicated and calls on government to take urgent action to better support people who are increasingly being displaced from their homes for long periods by extreme weather events. The report Fairness in a Changing Climate: Ensuring disaster supports are accessible, equitable and adaptable is a case study of government's response to the 2021 fires and floods that displaced thousands of people from their homes and communities, some to this day. While volunteers and communities came together to help evacuees, the events of 2021 showed that existing government programs are not meeting the demands that intensifying extreme weather presents. The report finds the current one-size-fits-all approach to emergency support services unfairly creates barriers for people to access the supports they need. Read the full news release on the British Columbia Ombudsperson website.

Cascading is Now Part of the Tax Landscape 
in the City of Vancouver
As provincial tax authorities seek new revenue streams to fund specific projects and help municipalities raise funds, consumers and businesses may feel more of a tax bite as new taxes and tax rate hikes may result in the provincial taxes becoming part of the GST base. Under section 154 of the Excise Tax Act (Canada), provincial taxes, duty and fees payable by a recipient of a supply of property or service generally form part of the GST/HST base. However, there is a carve out for provincial levies that are prescribed under the Taxes, Duties and Fees (GST/HST) Regulations. A provincial levy is prescribed if the total rates of all provincial taxes imposed on property or services that are calculated as a percentage of the value or price of the property or service and payable by the recipient of the supply of the property or service does not exceed the specified tax rate of the province. The specified tax rate is the greater of (i) 12% and (ii) the general sales tax rate in the province plus 4%. Read the full article by Randy Schwartz, Kassandra Grenier and Caine Chapman with McCarthy Tétrault LLP.

New Vision Connects Rural BC to a Stronger Future
The BC government has released StrongerBC: Good Lives in Strong Communities, a new vision that outlines investments to help build a brighter future for rural communities and the people who call them home. “If you're looking for people to help cut through the noise and get a job done, my bet will always be on the people who call rural B.C. home,” said Premier David Eby. “That's why I'm proud to have so many rural British Columbians on our government team. Together, working with community members, this vision for rural B.C. will connect people to the opportunities and services that will help them build a good life in the communities they love.”  Read the government news release.

Online Accommodation Taxes in This BC City   
Are Now Going to Help Renters
Nanaimo council is increasing funding for rent supplements and sending money to a local rent-bank program to help ensure low-income residents who have a home don't lose it. The programs are lifelines for people struggling to survive in poverty, Nanaimo Mayor Leonard Krog said Friday [September 15]. Someone who moves, for example, might have to pay a few hundred dollars for a damage deposit, address change and utility hookups, he said – which could be a financial disaster for some households. Read the BIV article.

British Columbia's Beneficial Ownership 
Transparency Register: Overview and
Status Update
As part of a global effort to improve corporate transparency and combat serious financial crime, private companies incorporated under the British Columbia Business Corporations Act (“BCBCA”) have been required to prepare and maintain a Transparency Register since October 1, 2020. The Register must list individuals who directly or indirectly control 25% or more of the shares or votes of the company and include certain personal information about them. The British Columbia legislature recently approved changes to the BCBCA that would require BC companies to submit certain information from their respective Transparency Registers to the BC Registrar of Companies for publication. As discussed below, the public registry is expected to be up and running by 2025. Read the full article by Denise Duifhuis with Stikeman Elliott LLP.

Gaudreau: Tax Planning Documents Are 
Discoverable (Subject to Privilege)
In the recent decision of Gaudreau v. R., the Tax Court of Canada ordered a taxpayer to disclose a tax memorandum prepared by an accounting firm. This decision serves as an important reminder that tax advice received from accountants is not protected by privilege. This case is also a reminder of the importance of attorney-client privilege in a transactional context. Gaudreau concerns a tax memorandum prepared by the taxpayer's accountants structuring a transaction as a “hybrid sale”. The CRA assessed the taxpayer on the basis that this transaction was subject to the specific anti-avoidance rule found in subsection 84(2) of the Income Tax Act. Read the full article by Domanic Bedard-Lapointe and Etienne C. Laplante with McCarthy Tetrault LLP.

Bill C-47: Federation of Law Societies of Canada
Challenges Amendments to the Income Tax Act
In April 2023, the federal government introduced Bill C-47, An Act to implement certain provisions of the budget. Bill C-47 proposed amendments to the Income Tax Act (the Act) mandatory disclosure rules in section 237.3 and added additional mandatory disclosure rules in 237.4 (the New Legislation). The effect of the New Legislation is to:

1. lower the threshold for what constitutes a “reportable transaction” for reporting purposes;
2. introduce reporting requirements for a new (but not yet fully defined) category of “notifiable transactions”; and
3. require all advisors, including notaries in Québec and barristers and solicitors, to file an information return in respect of a reportable or notifiable transaction, regardless of whether another person does so.

For additional information in respect of Bill C-47 BLG's article here. Read the full article by Ben Hardwicke-Brown with Borden Ladner Gervais LLP.

Quick Update – New EIFEL Regime
Context: As part of the avalanche of new draft legislation, the Department of Finance has released revised excessive interest and financing expenses limitation (EIFEL) rules.  The attached Excel is a high-level and technical summary of the new EIFEL regime.  The changes released last month are highlighted in red in the technical summaries (at the numbered tabs).

Effective dates and elections: The new EIFEL rules are far-reaching, difficult to digest, and fast approaching.  The rules will apply to many corporations for their taxation years beginning after October 1, 2023 (see Tab 2 – Excluded Entities), and several important elections will need to be considered:

Read the full article published by Ian Gamble with Thorsteinssons LLP.

Ripe or Rotten? Proposed BIA and CCAA Deemed Trusts for
Perishable Fruit and Vegetable Suppliers
Canadian insolvency law currently offers little protection to perishable fruits and vegetable suppliers (Produce Supplier) in the event of an insolvency or bankruptcy of a purchaser of such products. In response, the Canadian House of Commons, through a private members bill, Bill C 280, "An Act to amend the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act (deemed trust – perishable fruits and vegetables)" is fashioning a statutory deemed trust scheme that is intended to provide additional legal protections for unpaid suppliers of perishable fruits and vegetables. The House of Commons completed its second reading of Bill C 280 on May 17, 2023, and it is currently in committee for consideration. Read the full article by Sam Gabor and Natalie Gillespie with Gowling WLG.

Prime Minister Announces Proposed
Competition Law Changes
On September 14, 2023, Prime Minister Justin Trudeau made a public statement relating to issues of inflation, Canada's middle class and competition policy. The statement was focused on measures which are aimed at reducing the cost of housing across Canada, supporting small businesses and addressing the escalating cost of groceries. Notably, in the statement Trudeau announced that the government will be taking “immediate steps to enhance competition across the Canadian economy, with a focus on the grocery sector” in an effort to “help drive down costs for middle-class Canadians”. Specifically, Trudeau went on to note that the government intends to introduce a first set of legislative amendments to the Competition Act (the “Act”) to: Read the full article by Robin Spillette, Chris Margison & Tony Di Domenico with Fasken Martineau DuMoulin LLP.

Taxpayer Loses Appeal Rights Due to Canada 
Revenue Agency's Misguidance
This summer, the Tax Court of Canada (the Tax Court) dismissed a taxpayer's appeal in a decision that highlights the importance of strictly complying with all statutory tax filing obligations and notice requirements despite assurances by the Canada Revenue Agency (CRA) that strict compliance is not necessary.

Background
Generally, under the Income Tax Act (Canada), a taxpayer may object to a notice of assessment or reassessment of income tax issued by the Minister of National Revenue (the Minister) by serving a notice of objection, in writing, within 90 days after the day the Minister sent the relevant notice of assessment or reassessment. If this deadline is missed, the Minister may grant an extension at its discretion, as long as the taxpayer applies to the Minister for such an extension within one year after the deadline (and certain other conditions are met). If the Minister does not grant this extension, the taxpayer may apply to the Tax Court for the extension within 90 days of the day the Minister's refusal to extend was mailed to the taxpayer. The Tax Court may only grant an extension if the taxpayer met the one-year deadline for applying for an extension from the Minister.

Read the full article by Paige Donnelly and Brian Kearl with Dentons.

Canadian Securities Administrators Adopt Multilateral Instrument 93-101:
Derivatives—Business Conduct
The Canadian Securities Administrators (CSA) announced that the regulatory authorities of each jurisdiction in Canada, except for British Columbia, have adopted Multilateral Instrument 93-101, entitled Derivatives—Business Conduct (the Rule). The Rule will come into full force and effect on September 28, 2024. British Columbia is expected to adopt substantially similar rules at a later date, at which time the CSA anticipates Multilateral Instrument 93-101 will be converted to a National Instrument. Earlier drafts of the Rule had been opened for public comment in 2022 and 2017, as we wrote about at the time in our blogs, Securities Administrators Invite Public Comment on Proposed Business Conduct Rules for Derivatives Dealers and CSA Proposes New Canadian Derivatives Business Conduct Rules and Provides Update on Derivatives Registration Rules. Read the full article by Mark Powell, Simon Grant and David Wainer with Bennett Jones LLP.

Updates to BC Sales Taxes
The following updates to sales taxes were recently posted:

Provincial sales tax (PST)

• September 6, 2023
  Bulletin CTB 003, Audits, has been revised to clarify appeal information and update the mail and courier addresses for sending appeals.
• September 7, 2023
  Instructions to pay PST through electronic funds transfer and wire transfer have been updated to include the Ministry of Finance's physical address.
• September 20, 2023
  Bulletin PST 304, Thrift Stores, Service Clubs, Charitable Organizations and Societies, has been revised to:
  • Add information about calculating PST on items sold at fundraisers for a charitable purpose
  • Add qualifying electric bicycles and electric tricycles to the list of tax-exempt items
• September 28, 2023
  Bulletin PST 308, PST on Vehicles, has been revised to:
  • Include information on provincial and federal incentives for zero-emission vehicles (ZEVs)
  • Clarify that if you received a PST rebate on select machinery and equipment for PST paid on a ZEV purchased between September 17, 2020 and March 31, 2022, you may still qualify for some of the exemptions described in this bulletin
• September 29, 2023
  Effective October 1, 2023, the Regional District of Okanagan-Similkameen consisting of Electoral Area E, which includes Naramata, will begin collecting MRDT at a rate of 3%. The MRDT location map has been updated.
  For more information about MRDT, see our Accommodation page.
• October 4, 2023
  The Guide to completing the provincial sales tax (PST) return has been updated to include information about sales and leases made through an online marketplace facilitator.
  The Guide to completing the municipal and regional district tax (MRDT) return has been updated to include information about:
  • Sales and leases of accommodation made through a principal and agent relationship
  • Sales and leases of accommodation made through an online marketplace facilitator
  • The additional Major Events MRDT for the City of Vancouver

Motor fuel tax and carbon tax

• September 6, 2023
  Bulletin CTB 003, Audits, has been revised to clarify appeal information and update the mail and courier addresses for sending appeals.

Tobacco tax

• September 6, 2023
  Bulletin CTB 003, Audits, has been revised to clarify appeal information and update the mail and courier addresses for sending appeals.

For more information, visit the BC government website.

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

• 14-101 – Adoption of NI 14-101 Definitions and related consequential amendments
• 11-346 – Withdrawal of Staff Notices
• 44-102 – CSA Notice and Request for Comment Proposed Amendments to National Instrument 44-102 Shelf Distributions Relating to Well-known Seasoned Issuers
• 25-102 – Designated Benchmarks and Benchmark Administrators

For more information, visit the BC Securities website.

For more information, visit the BC Securities website.

The Legal Perspective
On November 25, 2021, the BC Legislature enacted Bill 23 – the Forest Statutes Amendment Act, 2021. While Bill 23 will make a variety of amendments to BC's forestry legislation, its primary focus relates to the operational planning and approval process under the Forest and Range Practices Act (FRPA). The changes made to this process are not yet in force, but will come into effect by order of the provincial cabinet.

Bill 23 introduces forest landscape plans (FLP) into the planning process, and authorizes the chief forester to establish FLPs by order. FLPs must identify a forest landscape area. A forest landscape area could correspond to a management unit (TSA or TFL, for example), though there is nothing that requires this. An FLP must also include outcomes in relation to various objectives specified in the legislation. An FLP may also include planning guidelines for forest operations plans (FOP) in relation to the location of cutblocks and roads, limitations on the size and configuration of cutblocks, and other requirements related to forest practices, silviculture systems and stocking standards. Read the full article by Jeff Waatainen in the Fall 2023 issue of BC Forest Professional.

Appeals: Decision Not to Appeal Amendments
to Okanagan-Columbia FSP
The Forest Practices Board has made the decision not to appeal a district manager's approval of amendments to BC Timber Sales' (BCTS) Okanagan-Columbia Forest Stewardship Plan (FSP) #771.

A member of the public requested that the Board appeal the Okanagan Shuswap District Manager's decision to the Forest Appeals Commission. The Board has the authority under the Forest and Range Practices Act (FRPA) to appeal certain government decisions to the Commission, including the approval of amendments to an FSP. The FSP amendments relate to a 1996 order establishing the Rose Swanson Mountain area as a sensitive area and setting objectives for its management (the Order).

Following a thorough review of BCTS's results and strategies in the FSP, the Board concluded that they represent a reasonable balance between timber harvesting and preserving recreational activities and values in the area. A summary of the Board's analysis is available here in an open letter addressing the request to appeal. Read the full notice from the Forest Practices Board.

Province Tackles Climate Change by Reducing
Single-Use Plastics in Tree Planting
Communities around the Province will see less plastic in landfills after three million single-use plastic tree seedling wraps, which support 45 million seedlings, are eliminated from the tree-planting process in 2024.

Following a successful trial of plastic removal for the growth of pine and spruce seedlings within the Cariboo region, run by the Ministry of Forests' BC Timber Sales, the Province will remove single-use plastic wraps for all pine, spruce and cedar tree seedlings. The 45 million plastic-free tree seedlings will support reforestation projects in every corner of the province. The elimination of the single-use plastic will be led by BC Timber Sales. Read the government news release.

B.C. Issues Environmental Certificate Approving Contentious
Roberts Bank Terminal Expansion Project
Project likely environmentally harmful, but certificate issued to safeguard provincial interests: B.C. gov't
The British Columbia government has issued an environmental assessment certificate for the contentious container port expansion project at Roberts Bank, despite acknowledging the project is likely environmentally harmful.

In a media release, the province said not granting the certificate would prevent B.C. from safeguarding provincial interests.

It noted that the project is almost entirely on federal land, within federal jurisdiction and already approved by Ottawa, and that "a decision not to issue a B.C. certificate could not prohibit the project from going forward." Read the CBC article.

Report Shows Pathway to Improve
Credential Recognition Process
The Province is releasing a new report that shows professional regulatory bodies made changes to improve credential-recognition processes for internationally trained professionals.

The review was carried out by the Office of the Superintendent of Professional Governance, which oversees regulatory bodies outside the health sector. The office reviewed five regulatory bodies as part of this report:

• Applied Science Technologists and Technicians of British Columbia (ASTTBC)
• British Columbia Institute of Agrologists (BCIA)
• College of Applied Biologists (CAB)
• Engineers and Geoscientists British Columbia (EGBC)
• Forest Professionals British Columbia (FPBC)

Read the government news release.

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

Environmental Management Act

• Richmond Steel Recycling Limited v. Director, Environmental Management Act [Final Decision – Appeal Dismissed]

Integrated Pest Management Act

• Larry Wartels, Canadian Christian Lobby, Kathryn McMullen, Dr. Jennifer Tynan, Lynne Mackie, Dan Peruzzo, Dr. Evan Frangou, Dino Pagliardi v. Administrator, Integrated Pest Management Act [Dismissal Decision – Application Granted; Appeals Dismissed]

Water Sustainability Act

• Triple W Farms Ltd. v. Water Manager [Preliminary Decision on Jurisdiction – Appeal Dismissed]
• Altherr & Schellenberg Cattle Co. Ltd. v. Assistant Water Manager [Consent Order]
• Michael Anderson v. Assistant Water Manager [Dismissal Order – Appeal Dismissed]
• Robert Macdonald v. Surface Water Protection Officer [Dismissal Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

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

Forest and Range Practices Act

• 367079 BC Ltd. DBA Pro-Link Logging v. Government of British Columbia [Dismissal Order – Appeal Dismissed]

Visit the Forest Appeals Commission website for more information.

Case Summary: The Respondent, a pharmacist, had his license cancelled
by the Appellant College of Pharmacists. The pharmacist successfully
appealed this decision to a judge of the Manitoba Court of Queen's Bench.
The College was unsuccessful in appealing the judge's decision to the
Manitoba Court of Appeal
Thorkelson v. College of Pharmacists of Manitoba, [2023] M.J. No. 222, 2023 MBCA 69, Manitoba Court of Appeal, August 9, 2023, D.M. Cameron, J.A. Pfuetzner and S.I. Perlmutter A.C.J. (ad hoc)

The respondent, Kristjan Eric Thorkelson, is a pharmacist (the “Pharmacist”). The Pharmacist was the beneficial owner of a group of related companies, CanadaDrugs.com Group of Companies (“CD.com Group”). The group included CanadaDrugs.com LP (“Canada Drugs”) and River East Supplies Ltd. (“River East”). River East carried on business in the United Kingdom. In 2011, River East purchased Avastin, a drug to treat cancer. River East sold the Avastin to a US-based medical clinic. River East and the Pharmacist soon learned that the Avastin lacked the active ingredient. The UK regulator determined there was no wrongdoing by River East or the Pharmacist. Health Canada also did not take any action. The Appellant, College of Pharmacists of Manitoba, investigated the matter in 2012 and did not pursue any professional misconduct charges against the Pharmacist. Read the full article by Scott Marcinkow with Harper Grey LLP.

Physician Assistants Are One Step Closer to
Joining BC's Health-care Workforce
Physicians and patients may soon have another resource in health care as consultation begins on bylaw changes to enable physician assistants to work in emergency departments in British Columbia. The College of Physicians and Surgeons of British Columbia (CPSBC), in consultation with the Ministry of Health, has posted the proposed bylaw changes online for public consultation and feedback within the next seven days. If approved, the amended bylaw will allow physician assistants to practise in emergency departments under the direction and supervision of physicians and will require them to register with the CPSBC. Read the government news release.

Rob Shaw: Province Dashes Planned Dashboard on
Impact of Drug Decriminalization
The BC government is backing away from a promised publicly-available dashboard on the impacts of decriminalization, saying it's constrained by the type of information available. Mental Health and Addictions Minister Jennifer Whiteside had promised a public website with data to be launched in July. Monthly disclosure was also a condition of the federal government's support for decriminalization in January. But Whiteside said in an interview that BC will share the impacts of decriminalization “in a different way.” Read the BIV article.

New Masking Rules for Health-care Settings in BC
Coming into Force Oct. 3, Officials Confirm
BC Provincial Health Officer Dr. Bonnie Henry and Health Minister Adrian Dix have announced that mandatory masking is returning to the province's health-care facilities as the number of COVID-19 cases continues to rise. Thursday's [September 28] news confirms details provided in a leaked government memo obtained by CBC a day earlier, which stated that "continuous masking by health-care workers, visitors, contractors and volunteers in all patient, client and resident care areas" will start Oct. 3. Henry said the rules will apply to facilities run by provincial health authorities, as well as long-term care homes. However, masks will not be required for all patients and long-term care residents. The leaked memo states that "patients, clients and residents will mask when directed by a health-care worker or based on personal choice." Read the CBC article.

BC Lawsuit Targets Drugmakers, Retailers for
Selling Ineffective Cold Medicine
BC resident Hardeep Dhaliwal is suing drugmakers and retailers for unjustly enriching themselves, and for misrepresenting how effective products with phenylephrine are at decongesting nasal passages. His action follows news earlier this month that a U.S. Food and Drug Administration advisory panel concluded that taking phenylephrine orally does not relieve nasal congestion because it metabolizes too quickly in the stomach to deliver benefits, unlike nasal sprays, which are effective. Read the BIV article.

Updates to the Canada Labour Code and its Regulations:
A Summary of Recent and Pending Changes
A number of changes to the Canada Labour Code (the "Code") and its regulations have recently come into effect or will be coming into effect over the next year. Many of these changes have been set for a long period of time, having been initiated primarily through the Budget Implementation Act 2018, No. 2.

We have provided below a summary of key, recent and pending changes to the legislation, along with action items to be considered for those federally regulated employers impacted by the updates. Read the full article by Tamara Ticoll with Stikeman Elliott LLP.

Termination for Cause Due to Breach of Fiduciary and
Other Implied Employment Duties
Chura v. Batten Industries Inc., 2023 BCSC 1040

The plaintiff, Chura, commenced an action alleging wrongful dismissal against her former employer, the defendant, Batten Industries Inc. ("Batten"). The action was dismissed in its entirety as the court found that Chura's conduct had breached her fiduciary and implied employment duties at common law.

This decision discusses issues of i) conflict of interests; ii) breach of fiduciary duties and common law employment duties; and iii) termination with cause. Read the full article by C. Ryan Chan with Harper Grey LLP.

Remote Work Arrangements: Simple, Right? Maybe Not
"Job Location - Remote" – a phrase not uncommon in job posting in the new post-pandemic world. With more and more workers looking to maintain their work from home status, remote work opportunities have multiplied and for some employers remote workers have become the norm, not the exception. In fact, in the hopes of attracting the best candidate for the job, many employers are opening up remote positions to workers living not just in the jurisdiction in which the business operates – but in other provinces and/or territories across Canada. After all, hiring a remote worker is simple, right?

From a workers' compensation perspective, maybe not.

This blog focuses on and provides a general overview of the workers' compensation issues that employers should consider before taking the plunge and hiring remote workers that reside in, and will work, from a province or territory that is not where the employer itself operates. Read the full article by Lucy Williams and Michelle S. Jones with Lawson Lundell LLP.

BC Supreme Court Tentatively Approves Certification of
Class Action Against Employer for Unpaid Vacation Pay
In an interesting development, the BC Supreme Court has recently tentatively approved certification of a class action in British Columbia against an employer.

The case involves a plaintiff who is a former BMO employee, who applied to bring a class action against BMO on behalf of non-unionized employees. Specifically, his claim is on behalf of other private wealth consultants and mortgage specialists who were paid variable compensation (i.e. commissions and bonuses on top of a base salary). The hearing was solely to determine whether the case could proceed as a class action rather than an individual action.

The plaintiff alleges that he and other members of the class were not given the vacation and holiday pay mandated under the Canada Labour Code and is claiming damages for breach of contract and breach of duty of good faith. Read the full article by Neal Parker with Harper Grey LLP.

Collecting Statutory Termination Pay: 3 Things
Every Employee Should Know
Losing a job takes a serious toll on an employee's life. Severance pay can alleviate the economic and personal blow of this situation, so employees in British Columbia must understand what they can expect if they lose their jobs.

When employers should pay statutory termination pay
Employers and employers may have a contract that specifies the payment and calculation of severance when the employment relationship ends. If this agreement is valid, the courts will typically enforce the parties' agreed-upon terms.

However, in the absence of a written agreement about the amount of notice of termination or severance to be paid to the employee, the BC Employment Standards Act sets minimum requirements for the amount of actual working notice, or alternatively payment in lieu of notice, that must be provided to an employee upon the termination of employment. The minimum required amount will vary depending on an employee's length of service, and may be as much as eight weeks. When an employee's employment ends immediately and they receive payment in lieu of notice, we describe this as "statutory termination pay".

Read the full article from Overholt Law LLP.

Winter Tire Rules Kick in October 1
Effective October 1st, people will be required to have winter tires on their vehicles on most British Columbia highways for safe travel during winter months. Drivers must equip their vehicles with winter tires if they plan to travel on certain B.C. highways:

• in the North;
• in the Interior;
• on the South Coast, such as the Sea to Sky Highway; and
• on Vancouver Island, such as the Malahat and highways 4, 14 and 28.

In BC, regulations state that an appropriate winter tire is defined as one with either the M+S or mountain/snowflake symbol and in good condition with a minimum tread depth of 3.5 millimetres. Drivers are encouraged to choose their tires based on the region and conditions in which they regularly drive.

Recent BC Case Highlights Personal Injury Law's Major
Shift Under No-Fault Auto Insurance: Lawyer
A recent ruling by British Columbia's Civil Resolution Tribunal has clarified what motor-vehicle accident victims can expect in restitution when it comes to some income replacement benefits while at the same time shining a spotlight on how the practice of personal injury law has changed in the province since the introduction of no-fault auto insurance.

In the decision filed on August 31, 2023, in the case of Nishimura v. ICBC (2023 BCCRT 748), vice-chair Andrea Ritchie denied an application by Karen Charlotte Nishimura to be compensated by the Insurance Corporation of British Columbia (ICBC) for the value of banked sick time she had to use up after being involved in an accident in 2021. Nishimura had been a passenger in the vehicle and needed to take time off work to heal from her injuries. Read the full article by Carolyn Gruske in the Canadian Lawyer.

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 (September 07, 2023)
• NSC Bulletin 02-2023 – Publication of Carriers Cancelled for Cause
• CVSE1016 – 9-Axle Logging Truck Routes

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

• Taxi rates request for feedback – update
  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.
• Leadership Transition at the Passenger Transportation Board
  The Passenger Transportation Board is pleased to announce that Baljinder Kaur Narang has been appointed as Board Chair, effective October 1, 2023. Read the full notice.

Applications Received

• 18327-23 – Kelowna Cabs (1981) Ltd.
• 18473-23 – Sunpreet Singh (Energetic Taxi Cab)
• 18576-23 – Entourage Limousine Service Ltd.

Application Decisions

• 17968-23 – Supreme Limousine & Chauffeur Service Ltd. [Approved in Part]
• 17342-23 – Arcadia Tours Inc. [Approved]
• 17650-23 – Russell Bertram Banister & Cheryl Anne Banister (Big Mountain Little Shuttle) [Approved]
• 17748-23 – Current Taxi Ltd. [Refused]
• 18569-23 PS TOP – Vanride Shuttle Services Ltd. [Refused]
• 16955-23 – 1202033 BC Ltd. (Cariboo Taxi) [Refused]
• 17963-23 – Robert John Lee Chisan (Rockwest Construction) [Approved]

Visit the Passenger Transportation Board website for more information.

New Workers Compensation Statutory Duties 
Coming to British Columbia in 2024
British Columbia is expanding legal protections for workers who, because of an injury that arose out of and in the course of their employment, are unable to earn full wages at their pre-injury work. Starting on January 1, 2024, employers engaging with such injured workers will have two new legislative obligations under the Workers Compensation Act (the WCA). The first duty, the duty to cooperate, requires injured workers and their employers to work with one another, and with WorkSafeBC, to facilitate a safe and timely return to, or continuation of, work. Read the full article by Chanelle Wong and Sarah Hanson with Norton Rose Fulbright.

Consultation on Proposed Amendments to Part 4 of the
Occupational Health and Safety Regulation
Our Policy, Regulation and Research Department is requesting feedback on proposed amendments to Part 4, General Conditions, sections 4.24 to 4.31.2 — Harassment and Violence, of the Occupational Health and Safety Regulation. The consultation phase provides stakeholders an opportunity to provide feedback before the proposed amendments are taken to public hearing. All stakeholder feedback is carefully considered and analyzed, and is provided to WorkSafeBC's Board of Directors as part of their decision-making process.

Proposed regulatory amendments under review:

• Part 4, General Conditions, sections 4.24 to 4.31.2 — Harassment and Violence

Feedback will be accepted until 4:30 p.m. on Tuesday, November 14, 2023.

BC Gives $4M Grant to Help Hurt People
Reintegrate into Workforce
In honor of British Columbia's Disability Employment Month, the National Institute of Disability Management and Research (NIDMAR) has received a substantial financial boost of $4 million. This funding injection will help people with disabilities or those recovering from injuries or mental health challenges, work towards recovery and safe reintegration into the workforce. September has been designated as Disability Employment Month in British Columbia to recognize the valuable contributions made by individuals with disabilities within the workforce while promoting resources and tools that assist employers in breaking down barriers to inclusion and creating more accessible workplaces. Read the full article by Shane Mercer with Canadian Occupational Safety.

Owners of Tugboat Ordered to 
Pay $310K for Fatal Sinking
The tugboat owners responsible for a fatal sinking near Kitimat, B.C., which claimed the lives of two individuals, have been ordered to pay $310,000 during a recent sentencing hearing in Prince Rupert, British Columbia. But instead of paying a typical fine, the judge has allowed for an alternate payment plan that would see the funds go to prevention programs. The incident occurred on February 10, 2021, when the tugboat Ingenika sank in treacherous conditions while attempting to tow a loaded barge through the icy waters of the Gardner Canal. Captain Troy Pearson, 58, and deckhand Charley Cragg, 25, lost their lives, while a third crew member, Zac Dolan, was rescued after spending hours in a life raft and subsequently hospitalized for hypothermia and frostbite. Read the full article by Shane Mercer with Canadian Occupational Safety.

OHS Policies/Guidelines – Updates
Guidelines – Occupational Health and Safety Regulation – September 14, 2023

The following guideline was issued:

• Part 19 Electrical Safety
  G19.15(1)-1 Use of GFCI outdoors in the film and performing arts industries

OHS Policies – Workers Compensation Act – September 15, 2023

Housekeeping changes were made to the following policy item:

• P2-90/91/92-1 Stop Work Orders

Visit the WorkSafeBC website to explore this and previous updates.

Residential Tenancy Act & Manufactured
Home Park Tenancy Act Amendments
On October 2, B.C. Reg. 184/2023 brought into force sections of the Tenancy Statutes Amendments Act, 2021, Bill 7, which amended the Residential Tenancy Act and the Manufactured Home Park Tenancy Act. Changes to both acts aim to improve the tenancy dispute process by allowing a director to initiate a review of matters in a notice as well as expanding the grounds for reviewing arbitrator decisions.

Announced Enhancements to the GST New
Residential Rental Property Rebate
On September 14, 2023, the Department of Finance Canada issued a news release (the “News Release”) regarding proposed legislation to be enacted in order to enhance the existing GST New Residential Rental Property (“NRRP”) rebate on certain new purpose-built rental property. The proposed modifications to the existing NRRP rebate aim to incentivize construction of new rental homes for Canadians. It is noteworthy that the enhancement rules provided for in the News Release apply only to the GST (5%) on the NRRP rebate (or, in provinces with harmonized sales taxes, to the equivalent federal part of the HST). In other words, the proposed rules do not affect the existing Ontario NRRP rebate regarding the provincial part of the HST on rental property that is situated in Ontario (which is available even if the fair market value of the housing is $450,000 or more) or to the provincial part of the HST on rental property located in the Atlantic provinces. Although the News Release indicates that the enhanced NRRP rebate should be effective as of its date of publication (September 14, 2023), the enhancement will not officially be in place until the implementing legislation has received royal assent. As of this writing, the Department of Finance Canada has not released a draft bill. Read the full article by Jean-Guillaume Shooner and Philippe St-Hilaire with Stikeman Elliott LLP.

High Bar to Establish Developer Breached Contract for 
Pre-Sale Condo Allowing Purchaser to Walk Away
During this period of rising interest rates and high inflation, some purchasers of pre-sale (also known as pre-construction) condominiums may be experiencing buyer's remorse as their closing date approaches. In many cases, purchasers signed contracts of purchase and sale years ago when economic conditions were different. Some purchasers may be tempted to not close by arguing the developer breached the contract in some way. The Supreme Court of British Columbia's (Court) decision in Wang v. Tianco Investment Group Inc. serves as a cautionary tale for such purchasers. It also provides comfort to developers that the bar remains high to establish that a developer breached a contract significantly enough to allow a purchaser to walk away from the deal. Read the full article by Michael Ventresca with Blakes.

BC Strata Fined Condo Owner More than $15K Because It
Misinterpreted Its Own Bylaws, Tribunal Rules
A strata has been ordered to reverse more than $15,000 in bylaw fines that were "unfairly" charged to a condo owner who rented out his unit, BC's Civil Resolution Tribunal has ruled. The decision, posted online Monday [September 25], notes that the owner said he was renting one room in his two-bedroom unit to a roommate – which the tribunal found was violating a bylaw that prohibited renting out all or part the unit to anyone except family and unless hardship had been established. But that's not why the strata said they began fining Berge Hamian $500 per week nearly two years ago, according to the decision. Read the CTV News article.

Underused Housing Tax Update: October 31 
Deadline and Guidance from CRA
As covered in our previous article on the Underused Housing Tax (“UHT”), the federal government of Canada has implemented a federal vacancy tax. In March 2023 the CRA gave an effective extension to file a return until October 31, 2023. This replaced the normal deadline of April 30. If you have not considered your obligations under this new tax, it is time to do so. The Canada Revenue Agency (“CRA”) has recently made some slight updates to to their UHT Notice 15. This notice provides the CRA's response to some frequently asked questions. Additionally, the CRA has released an interactive tool to help owners of residential property consider their UHT obligations. We discuss these updates below. Read the full article by St.John McCloskey and Emily Davies with Clark Wilson LLP.

Lien Filing Deadlines in the Absence of a Head Contract
A clear understanding of the time limits for filing a lien under the Builders Lien Act, SBC 1997, c 45 (the “BLA”) is critical for any construction professional in BC. Section 20 of the BLA provides that a claimant has 45 days from the date that either a certificate of completion has been issued, or the date that a “head contract” or the “improvement” is completed, abandoned or terminated to file a claim of builders lien. This 45 day deadline is strictly enforced given the significant impact of builders liens to owners and construction projects. In a 2022 decision of our court, Stoneworks Marble & Granite Ltd. v. Edgeline Construction Ltd., 2022 BCSC 1096, [Stoneworks], a material supplier filed a lien where there was no certificate of completion issued or “head contract”. The Court in that case found that the 45 day lien period began running on the completion of a material suppliers' scope of work. Recently, however, the BC Supreme Court in TDM Excavating & Contracting Ltd. v 1046416 B.C. Ltd., 2023 BCSC 944, [TDM Excavating] clarified the law on when the 45 day lien period will begin to run for work in the absence of a “head contract”. Read the full article by Rosalie Clark and Kim Do with Clark Wilson LLP.

Strata Prohibits EV Charging

Dear Tony:

I purchased my condo in 2019, and with it came two parking spaces assigned to the previous owner by the developer. Those  spaces were correctly disclosed to me on purchase, with no debate. I recently purchased an electric vehicle, but much to my dismay, was informed by the council president the strata corporation had adopted a bylaw in 2018 that prohibited charging of EV's and scooters in the parking area. The reason cited was the increased risk of fire and the strata did not believe it was fair the parking garage was going to be altered for fewer than 5% of the owners. Fast forward to 2023 and Bill 22. Because the  change in legislation now requires that a strata corporation cannot unreasonably refuse the installation of a charging station, is this bylaw even enforceable? Applying the bylaw would appear to be a significantly unfair refusal of my request. I have offered to pay for all costs, including an ongoing premium for electricity. – Marlena V, Burnaby

Dear Marlena:

There are a few basic principles of strata operations that apply to all bylaws. A bylaw is not enforceable to the extent that it:

1. contravenes this Act, the regulations, the Human Rights Code or any other enactment or law (including the Strata Property Act)
2. destroys or modifies an easement created under section 69, or
3. prohibits or restricts the right of an owner of a strata lot to freely sell, lease, mortgage or otherwise dispose of the strata lot or an interest in the strata lot.

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