Legislative Watch, January 2019

 

Background

The Fall Session of the 41st Parliament of British Columbia commenced in October 2018.  This column is being written in January 2019 and will consider bills which were introduced late in that Fall Session which may be of interest to members of the TLABC.  That session adjourned on November 27, 2018.

The Agricultural Land Commission Amendment Act, 2018 (Bill 52) makes substantial changes to this act based on a recent report to the government.  These changes include defining the distinction between agricultural land and the agricultural land reserve, changing the zoning rights and principles concerning these lands, restricting exclusions from the land reserve, and restricting the uses to be made of agricultural lands.

The Environmental Assessment Act (Bill 51) repeals the Environmental Assessment Act, and makes significant changes to the law in this area based on a Discussion Paper distributed earlier.  These changes included appointment of dispute resolution facilitators, alters the assessment process, require consent of an indigenous nation for some reviewable projects, requires various notifications, governs early engagement by many parties including indigenous nations, requires the assessment office to seek consensus with participating indigenous nations, and makes wholesale changes to many aspects of this legislation.  If any of your clients are affected by environment assessment, a close reading of this statute is essential.

The Health Sector Statutes Repeal Act (Bill 47) deals with a 2007 Supreme Court of Canada ruling on how contracting out, layoffs and bumping provisions in the prior law were unconstitutional, and the government of the day passed a 2008 bill which changed the legislation.  This new bill repeals the original legislation.

The  Human Rights Amendment Act, 2018 (Bill 50) fulfills an election promise of the current government to bring back an independent Human Rights Commissioner.  It makes substantial changes to other aspects of human rights in BC, including dealing with complaints, creating an Advisory Council, limiting the liability of the Commissioner, and creating powers of the Commissioner.

The Lobbyists Registration Amendment Act, 2018 (Bill 54) changes the title of the legislation to Lobbyists Transparency Act, and adds definitions to expand who must register, prohibits certain former cabinet ministers from lobbying, prohibits gift-giving by lobbyists, requires more detailed filing by lobbyists, and strengthens the powers of the Registrar.

 The Recall and Initiative Amendment Act, 2018 (Bill 53) amends definitions concerning recalls and most importantly provides that the fundraising rules that apply to elections under the Elections Act generally apply to recalls and initiatives.  There are also changes with respect to advertising and sponsorship of advertising, again to make those provisions similar or identical to those under the Election Act.

The Passenger Transportation Amendment Act, 2018 (Bill 55) was introduced to deal with the public demand for private transportation services from such companies as Uber.  It makes substantial changes to what will be allowed and what will not be allowed by way or private transportation provision in British Columbia.  A great deal of public discussion has taken place about whether this new legislation will (when made effective) will be too restrictive on new private operators, or whether it will destroy the current taxi industry.  It is difficult to tell which way the eventual regulations will take this legislation and what effect it will have on the current industry.

The Attorney General Statues Amendment Act, 2018 (Bill 57) amends a large number of statutes.  The Civil Resolution Tribunal Act is amended such that when any party applies in a court proceeding that an injury is “minor” the action is stayed until such time as the tribunal makes a determination on that issue.  As a transition matter, the tribunal has jurisdiction pursuant to the Small Claims Acct for claims arising from accidents before April 1, 2019.

The Negligence Act is amended so that an “action” includes proceedings brought to the Civil Resolution Tribunal.  The same applies to the Parental Liability Act, and the Workers Compensation Act.

The Class Proceedings Act is amended to provide at least 50% of any undistributed amount pursuant to a settlement is paid to the Law Foundation of British Columbia.

The Gaming Control Act is amended to strengthen the right of gaming facilities to refuse entry to “undesirable” patrons.

The Legal Professions Act is amended to add definitions concerning licensed paralegals, and the possible duties of such persons.  The benchers may make rules establishing their scope of practice.  This bill also allows a “society indemnification program” to be operated by the benchers and makes regulations concerning such a program.

There have been regulations introduced by the government concerning Bill 20 and 22, relating to the new procedures and rules governing damages for injury claims after April 1, 2019.  Those regulations have been discussed in detail in an excellent article by Nick Peterson in the Winter Issue #159 of the Verdict.  I recommend it to you as a clear statement of what we anticipate the law will be after April 1, 2019 (or for subrogated claims on or after May 17, 2018).  There will likely be further regulatory changes as the year progresses.

 Conclusion

As you can see, there has been significant new legislation introduced in the Fall session, and likely more to come in the Spring session which will commence in February 2019.

I would like to thank Stuart Rennie of the Canadian Bar Association for his help in providing some of the information contained in this column.  Any errors in interpreting this new legislation are entirely mine.

If you have concerns about these bills, or upcoming legislative matters, please contact one of the members of the TLABC Executive, who will be pleased to discuss matters with you.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.

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Legislative Watch, October 2018

 

Background

The Fall Session of the 41st Parliament of British Columbia commenced in October 2018.  This column is being written in October, about half way through this session. There are bills which are being considered by the government which may be of interest to members of the TLABC, which will be discussed in this column.

The Protection of Public Participation Act (Bill 32) was introduced in the Spring session for discussion purposes, and is being debated in this Fall session. This bill establishes civil procedures intended to discourage the use of litigation as a means to unduly limit expression on matters of public interest, commonly known as “SLAPP” lawsuits (Strategic Lawsuits Against Public Participation).  This bill is very similar to the Ontario legislation, which has been tested in both the trial courts and their Court of Appeal, where it has been open to various interpretations, some of which have been quite broad, in which defamation actions of any kind would be significantly restricted.  The more recent Court of Appeal decisions have been less draconian, and have allowed defamation lawsuits to proceed as we have known them over the past years unless the subject matter is truly “public interest”.

This bill provides that if it is a matter of “public interest”, by persons who have a direct interest in the matter, then that communication has “qualified privilege”.  If such is the case, the defendant can apply to have the entire claim dismissed.

The more controversial aspect of this bill is s. 2 which states that the provisions are retroactive, and apply to proceedings commenced before or after the Act comes into force.

If you act for clients in defamation proceedings, or if you have clients who make controversial and potentially defamatory comments, or who are on the receiving end of such comments, you will need to keep current as to the state of this legislation.

The Miscellaneous Statutes Amendment Act (No. 3), 2018 (Bill 36) amends over 20 statutes, including the Supreme Court Act. The main changes are to the statutory structure of the BC Supreme Court, outlining the powers of the Chief Justice, changing the provisions for appointing masters and their terms of office and duties, restricting masters and district registrars from doing other work, permitting district registrars to reserve decisions, setting out pension rules for some masters, and other changes concerning court administration.  These changes may not alter the practical day-to-day realities of dealing with the court, but are intended to allow the court to proceed with its overall mandate.

This bill also amends a number of statutes to allow chartered professional accountants to act as auditors for various organizations, and clarifies who may provide or perform professional accounting services.

This bill amends the Offence Act to permit the laying of an information by telecommunication, and amends the Public Guardian and Trustee Act to permit the PGT to act as a director of a company.

This bill makes a number of changes to the Safety Standards Act to broaden the Minister’s regulation making power, clarifies and broadens the powers of provincial safety managers, expands the registry, broadens the powers of safety orders, regulates advertising, and determines service provisions.

The Opioid Damages and Health Care Costs Recovery Act (Bill 38) creates a new statutory tort of an opioid-related wrong, and establishes that the government has a direct cause of action to recover the health care costs from those who have committed an opioid-related wrong.  Defendants will be jointly and severally liable for such costs.  Statistical evidence is admissible evidence to prove causation and quantifying the health care costs.  The Limitation Act is extended for these claims.  Apportionment of liability based on risk contribution is permitted.  This bill is retroactive.

This bill is to support the government’s previous promise to commence a class action lawsuit against more than 40 manufacturers and distributors of these opioid products for the damages the government claims these entities have caused the people of BC.

The Poverty Reduction Strategy Act (Bill 39) defines the government’s initiatives to reduce in the next 5 years, the overall poverty rate by 25% and the child poverty rate by 50%.  A number of commitments are made, including community engagement.  More specific measures will be announced in the Spring of 2019.

The Electoral Reform Referendum 2018 Amendment Act, 2018 (Bill 40) amends the referendum statute so that if the November 2018 referendum chooses a new proportional representation system for provincial elections, there must be a second referendum within 13 months after 2 general elections have been held under the new proportional representation system.

The Advanced Education Statute Repeal Act (Bill 41) repeals the Public Education Flexibility and Choice Act, which was ruled unconstitutional by the courts, by reason of depriving BC teachers of collective bargaining rights.

The Budget Measures Implementation (Employer Health Tax) Act, 2018 (Bill 44) imposes a 1.95% employer health tax on employers with a payroll over $500,000, with a sliding scale up to payrolls of $1.5 million.  Charitable or non-profit employers do not pay unless their payroll is over $1.5 million.  This bill gives the government the usual expected authority to recover amounts owing, delegation of the Commissioner’s powers, and information sharing.  Of course, there are penalties for non-compliance, including fines and potential imprisonment.

The Budget Measures Implementation (Speculation and Vacancy Tax) Act, 2018 (Bill 45) imposes a special tax for property owners who do not reside in a property, or where the property concerned is vacant.  For 2018 the tax is 0.5% on the property’s assessed value, and thereafter is 2% for foreign owners, 1% for Canadians, and 0.5% for BC permanent residents or citizens.  The provisions of this bill are somewhat complex, so if you or your clients think that this may apply, a close review of the bill and the exemptions is necessary.

The Temporary Foreign Worker Protection Act (Bill 48) is a detailed bill which attempts to protect the rights of temporary foreign workers.  The requirements of this bill cannot be waived.  The Director can issue licenses and suspend or cancel them.  Registration of foreign nationals is mandatory.  There are restrictions on recruiting practices.  Complaints can be investigated, with significant powers to the Director.  Amounts owed are liens which can be enforced.  The Employment Standards Tribunal has specific jurisdiction under this bill.

If any of your clients employ temporary foreign workers, a close review of this new bill is essential.

The Recall and Initiative Amendment Act, 2018 (Bill 53) makes a large number of changes to the recall and initiative legislation, particularly with respect to fundraising, limiting funds that can be raised, bringing it closer to how funds can legally be raised in other elections.

The Lobbyists Registration Amendment Act, 2018 (Bill 54) expands the public servants and past public servants and elected officials who are restricted from lobbying after leaving government.  More reports must be provided, on a more ongoing basis.  The name of the statute will be amended to the Lobbyists Transparency Act.  If you or your clients are doing anything that might be perceived as attempting to change government policy or plans, you will want to read this bill carefully, as it seems to attempt to cast a very wide net to encompass a great number of people and a large variety of activities.

The Professional Governance Act (Bill 49), repeals a number of statutes and replaces them concerning the governance of agrologists, technologists and technicians, applied biologists, engineers and geoscientists, and foresters.  The Office of the Superintendent of Professional Governance is created to govern these various professionals.  The current regulatory bodies are continued, but this bill gives the authority to the government to establish and amalgamate regulatory bodies concerning professions.

Conclusion

As you can see, there has been significant new legislation in this Fall session, only some of which bills have been discussed in this column.

I would like to thank Stuart Rennie of the Canadian Bar Association for his help in providing some of the information contained in this column.  Any errors in interpreting this new legislation are entirely mine.

If you have concerns about these bills, or upcoming legislative matters, please contact one of the members of the TLABC Executive, who will be pleased to discuss matters with you.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.

Posted in Uncategorized | Leave a comment

Legislative Watch, May 2018

 

Background

The Spring Session, the Third Session of the 41st Parliament of British Columbia, commenced in February 2018.  This column is being written before the end of that session, just a few days after the introduction of bills that will change how injured persons will be able to advance claims arising out of motor vehicle accidents in BC.  The TLABC is strongly opposed to these measures.  The purpose of this column is to describe as objectively as possible some of the main features of the changes.  The TLABC will be providing more detailed critiques of this new legislation in the weeks ahead, and will be challenging the government in a variety of ways concerning this legislation.

There are other bills which are being considered by the government which may be of interest to members of the TLABC, and those will also be discussed.

Bill 20 – The Insurance (Vehicle) Amendment Act, 2018

As an overview, this bill and the companion Bill 22, the Civil Resolution Tribunal Amendment Act, 2018, create a new procedure and legal structure for all persons injured in motor vehicle accidents which occur April 1, 2019 and later.

The main features are:

-restricts claims for “minor injuries”, as defined in the bill or subsequent regulations, so that non-pecuniary damages for pain and suffering are “capped” at $5,500;

-makes no statutory restrictions to claims for other heads of damages, such as past economic loss, future loss of capacity, future loss of opportunity, loss of housekeeping capacity, “in trust” claims, special damages, or cost of future care, all of which can be advanced as before, subject to Bill 22;

-Bill 22 expands the Civil Resolution Tribunal (“CRT”) so that it has the exclusive jurisdiction to:

– determine what is or is not a “minor injury”;

– deal with all Part VII accident benefit claims (including entitlement);

– Bill 22 also gives the CRT concurrent jurisdiction with the BC Supreme Court for all claims that have a value of less than $50,000;

-increases accident benefits payable by ICBC, including weekly temporary total disability payments, as well as increased payments for therapies and therapists, to reduce or eliminate “user fees”;

-eliminates “subrogated claims” by other benefit providers (except WorkSafe BC and MSP), including repayment of short or long term disability payments, medication or therapy expenses, etc.

-the CRT will allow lawyers to represent parties, and it is understood that ICBC will be represented by ICBC adjusters at the CRT;

-if an application to move a matter to the BC Supreme Court from the CRT is successful, but the ultimate result is less than the $50,000 CRT limit, recovery of fees and expenses will be limited to those recoverable through the CRT rules;

-the CRT will probably have separate rules for motor vehicle injury litigation to be determined by regulation, but includes the power to limit experts and to require a single joint expert.

The first portion of this significant bill increases the requirements for health care practitioners to provide reports to ICBC for injured persons (s. 28.1).  ICBC anticipates that Part VII rehabilitation and disability benefits will be increased significantly, requiring more reports to support these increased benefits.

The bill also changes how insurance certificates are issued and defined, presumably with other changes to come by regulation, to increase premiums for drivers who cause accidents, or have bad driving records.  Much of these sections deal with housekeeping issues, but as ICBC attempts to move towards their stated goal of “rate fairness” they are seeking authority to establish more equitable rates, based on a variety of factors, including a person’s driving record.  S. 34 and s. 35 update these various definitions, and detail specific factors for determining premiums (to be added by regulation).

S 45.1 of the Act is being amended to allow the government to regulate the amount payable to health care practitioners through agreements for services provided to injured persons.   These payments can vary according to different types or classes of health care practitioners, different classes of care, and different geographic areas.  These regulations must be reviewed at least once every 5 years, and the report placed before the Legislature.

S.72 is amended to state that disputes concerning payments under optional coverage “may or must” be submitted to arbitration. The regulations can set out whether it will be may or must for various optional coverage. (See also s. 45 which also deals with this issue.)

S. 82.2 is added to the Act to state that an injured person may not recover from ICBC a cost or expense of a health care practitioner which is in excess of the amount set by regulation. On the assumption that such fees will be both set by ICBC and normally paid by ICBC under Part VII, most claims for special damages will be reduced substantially.

S.83 eliminates subrogated claims by third parties (other than WorkSafe or MSP) who provide monies for the benefit of persons injured in motor vehicle accidents. This does not include monies paid under a third party liability insurance coverage, or health care services pursuant to s. 1 of the Health Care Costs Recovery Act. This does mean that the current practice of claims for payments by extended health providers such as ManuLife or Pacific Blue Cross for services provided to claimants will not be re-payable by ICBC.  Those extended health care providers will not be able to claim the monies back from claimants, as the claimants are not able to be paid such monies by ICBC.

S.83 is further amended by adding ss 5.1, which deals with the court deducting benefits paid or provided to the claimant, or for which the claimant is “entitled” but not “ascertained”. In making that determination, the court “may not consider the likelihood that the benefits will be paid or provided”. The court must still make an estimate of such future payments, pursuant to s. 83 (6).  This will create difficulties for lump sum future cost of care awards.  ICBC may well decide to continue Part VII benefits past settlement or trial in view of these various changes, including the tariff of therapy costs as described in s. 82.2 above.

S.94 is amended to expand the ability of Cabinet to make regulations concerning a wide variety of matters, including priority of claims, amounts payable to lessors of vehicles (and others) under s. 82.1 (2) (b), prescribing other issues concerning lessors or vehicle classes, and the definition of “benefits”. Also note s. 105, which allows for regulations to the entire Act, not just Part VII of the Act, which s. 94 authorizes.

“Minor Injuries”

The most significant portion of the new legislation concerns the new Part 7 of the Act (not to be confused with Part VII of the Regulations, being the accident benefit provisions).  Part 7 of the Act is as follows:

Part 7 – Minor Injuries

 101 (1) In this Part:

“accident” means an accident occurring in British Columbia that is caused by a vehicle or the use or operation of a vehicle as a result of which a person suffers bodily injury;

“claimant” means a person who claims damages for non-pecuniary loss for a bodily injury resulting from an accident;

“diagnostic and treatment protocol” means a protocol prescribed for the purposes of examining, assessing, diagnosing and treating a minor injury;

“minor injury” means a physical or mental injury, whether or not chronic, that

(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and {emphasis added}

(b) is one of the following:

(i) an abrasion, a contusion, a laceration, a sprain or a strain;

(ii) a pain syndrome;

(iii) a psychological or psychiatric condition;

(iv) a prescribed injury or an injury in a prescribed type or class of injury;

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a) is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b) meets prescribed criteria.

(2) Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a) the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b) the injury

(i) results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii) develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3) An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4) For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

Application of this Part

102 This Part applies to an accident occurring on or after April 1, 2019.

Limit on non-pecuniary loss for minor injuries

103 (1) Subject to subsection (2), the amount recoverable by a claimant as damages for non-pecuniary loss arising from one or more minor injuries suffered by the claimant in a single accident must be calculated or determined in accordance with the regulations.

(2) The amount recoverable by a claimant under subsection (1) must be reduced in proportion to the claimant’s degree of fault, if any, in the accident.

Power to make regulations under this Part

104 (1) Without limiting any power of the Lieutenant Governor in Council to make regulations under any other Part of this Act, the Lieutenant Governor in Council may make regulations under this Part as follows:

(a) respecting the examination and assessment of injuries, the determination of whether an injury is a minor injury and the onus of proof on such a determination;

(b) respecting the examination, assessment, diagnosis and treatment of minor injuries, including, without limitation,

(i) establishing or adopting procedures, guidelines, criteria, requirements or standards to be followed or met, as applicable, by claimants, insurers and prescribed health care practitioners, and

(ii) establishing time limits for the purposes of obtaining an examination, assessment, diagnosis or treatment;

(c) prescribing circumstances in which a prescribed diagnostic and treatment protocol applies and providing when a protocol no longer applies;

(d) governing the roles, in relation to a protocol, of claimants, insurers and prescribed health care practitioners and imposing limits on those roles;

(e) respecting treatment plans for a minor injury and respecting the number and type of treatments for a minor injury, including, without limitation, prescribing different numbers or types of treatments for different circumstances;

(f) respecting referrals, including referrals to a person in a prescribed class of persons, for the purposes of obtaining an opinion about

(i) the examination, assessment or diagnosis of an injury,

(ii) the treatment plan for a minor injury, or

(iii) the condition of a claimant;

(g) for the purposes of paragraph (f),

(i) prescribing a class of persons,

(ii) requiring the establishment of a register of persons in the class,

(iii) prescribing requirements and qualifications for persons in the class,

(iv) requiring treatment plans from persons in the class, and

(v) requiring reports from persons in the class and establishing the form of, and information to be included in, those reports;

(h) respecting procedures and conditions for the making of claims to, and the refusal and payment of claims by, an insurer, including, without limitation, establishing circumstances in which claims are deemed to have been approved;

(i) establishing forms for claims and treatment plans or authorizing the corporation to establish forms for claims and treatment plans;

(j) prescribing injuries or types or classes of injuries for the purposes of the definition of “minor injury” in section 101 (1);

(k) respecting criteria for the purposes of the definition of “permanent serious disfigurement” in section 101 (1);

(l) respecting criteria and prescribing a period for the purposes of the definition of “serious impairment” in section 101 (1);

(m) respecting circumstances in which an injury or an injury in a prescribed class of injuries, or a claimant or a claimant in a prescribed class of claimants, will be exempt from the application of section 101 (2);

(n) for the purposes of section 103 (1), respecting damages for non-pecuniary loss for a minor injury, including, without limitation, establishing

(i) an amount of damages or a limit on damages for a minor injury arising from an accident in which a claimant suffers

(A) a minor injury and an injury that is not minor, or

(B) only a minor injury, and

(ii) rates, formulas, rules or principles, including using a consumer price index published by Statistics Canada under the Statistics Act (Canada), for calculating or determining an amount of damages or a limit on damages.

(2) A regulation under subsection (1) (b) (i) may adopt by reference, in whole or in part and with any change the Lieutenant Governor in Council considers necessary, any procedures, guidelines, criteria, requirements or standards published by a body, or person with a professional designation, approved by the Lieutenant Governor in Council for the purposes of this section.

(3) Procedures, guidelines, criteria, requirements or standards adopted under subsection (2) may be adopted as they stand at the time of adoption or as amended from time to time.

(4) A regulation under subsection (1) (n) may be different in respect of accidents occurring on or after different dates or in different periods.

Commentary

There are a number of points that need to be highlighted.

First, if the injury is not listed under (b) of “minor injury”, it is not a “minor injury”, and compensation for such injury will be under traditional heads of damage in BC Supreme Court.

Second, it is open to the Cabinet to add a prescribed injury to that list by regulation.  The example given by the Attorney General is that in Alberta, with similar (but more narrow definitions of minor injury, and all by regulation) the list did not include TMJ claims, and Alberta experienced what has been described as a “TMJ epidemic”.  The government seeks “flexibility” to deal with such claims.

Third, injured persons may well have a “minor injury” as defined here, but have a claim for extensive cost of future care, future loss of capacity, past economic loss, loss of housekeeping capacity and special damages.  Only non-pecuniary damages are restricted to the proposed $5,500 cap.  All other damages remain the same (subject to what procedure can be used, subject to disbursements payable, and how future care will be paid for, which will be discussed below).

Fourth, there is a defence provided to ICBC of mitigation, which appears to place the burden on the claimant to establish that in seeking to define their injury as “non-minor” they followed treatment in accordance with a prescribed treatment protocol (s. 101 (2)).  These protocols may be set by regulation.

Fifth, it is not clear how the court or tribunal will interpret s. 101 (4) which suggests that even if the symptoms last for more than 12 months, the injury may still be considered “minor”.  The alternate interpretation is that if the basic injury itself does not resolve within 12 months, then it is no longer “minor”, but if the basic injury does resolve within 12 months, but a related condition continues, then it continues to be “minor”.  This is similar wording to other jurisdictions.  In theory, this means that if a claimant has soft tissue injuries which do not result in a “serious impairment”, but are accompanied by headaches, the fact that the headaches have not resolved within 12 months does not take the injury out of the “minor injury” category.  Of course, for the injury to include a “serious impairment” it must “meet prescribed criteria” in addition to lasting over 12 months.  The “prescribed criteria” will be defined by regulation, which we are advised should be announced shortly.

Sixth, the extensive powers of regulation under s. 104 make it difficult to determine exactly what the ultimate scheme will be, as almost every aspect of the new scheme can be changed by regulation.  This includes how an injury will be defined, what treatment plans are approved, how much is paid for treatment, who can provide that treatment, protocols of treatment, procedures for assessment of injuries, etc.  The government has stated that it is their intention to seek direction and agreement on all of these matters with the governing bodies of the health care practitioners concerned, and if they succeed in obtaining those agreements, then one would expect such protocols and treatment plans to be based on science.  However, if agreement eludes the government, there may be controversy about these matters which affect the treatment of injuries.

Seventh, the definition of “serious impairment” is somewhat vague, and is open to clarification by regulation.

All of these comments must be viewed in the context of Bill 22, which expands the Civil Resolution Tribunal to deal with all issues concerning “minor injuries”. [See below for a discussion of the CRT.]

Part 8 of this bill gives wide powers to the Cabinet to make regulations concerning almost all aspects of this legislation.  This bill is not a full definition or description of the new compensation  scheme.  The regulations, which may not be promulgated for many months, will govern many aspects of the practical results for injured persons.

For example, the manner in which ICBC deals with the expanded Part VII disability and rehabilitation benefits will presumably increase the short term financial and medical assistance provided to injured persons, and could also potentially affect how more seriously injured persons are compensated for claims for cost of future care.  It is possible that with the expanded coverage for rehabilitation benefits, and the potential limitation on the costs that health care practitioners will charge, that ICBC will insist on ongoing future care being paid as incurred, rather than with a lump sum payment for possible or probable future care needs.  If such a change were to occur, this would alter the payment of future rehabilitation benefits significantly.

The transitional provisions make only minor retroactive changes, all of which appear to be consistent with current legislative provisions.  These transition provisions expire in 2 years.

S.32 of this bill allows the government to increase lifetime rehabilitation benefits under Part VII to $300,000 effective retroactively to January 1, 2018, as previously announced by the government.

Bill 22 Civil Resolution Tribunal Amendment Act, 2018

The current Civil Resolution Tribunal (“CRT”) deals with most strata corporation disputes, civil claims under $5,000 and will be dealing with some society and cooperative disputes.  This legislation expands its jurisdiction to deal with minor injury claims, accident benefit claims, and related matters.

The CRT will have exclusive jurisdiction to determine whether a claim is a “minor injury” or not.  The CRT will also have concurrent jurisdiction with the BC Supreme Court to deal with all claims that are under $50,000, or another amount set by regulation.  The bill makes clear that if a claimant proceeds to the BC Supreme Court and obtains a judgment for less than $50,000 that claimant is only entitled to the costs and disbursements payable in the CRT, which we assume will be significantly less.

The relevant sections of the bill are contained in Division 7 of the proposed Act, as follows:

Division 7 – Accident Claims

 Definitions for Division – accident claims

132   In this Division:

“accident”,

(a) except in respect of the benefits referred to in section 133 (1) (a), has the same meaning as in section 101 [definitions and interpretation] of the Insurance (Vehicle) Act, or

(b) in respect of the benefits referred to in section 133 (1) (a) of this Act, has the same meaning as in section 1.1 [definitions] of the Insurance (Vehicle) Act;

“benefits” has the same meaning as in section 1.1 of the Insurance (Vehicle) Act;

“minor injury” has the same meaning as in section 101 of the Insurance (Vehicle) Act;

“tribunal limit amount” means the amount prescribed by regulation as the maximum amount that the tribunal may award in an accident claim in accordance with section 133 (1) (c) of this Act.

Claims within jurisdiction of tribunal for accident claims

133 (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:

(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;

(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;

(c) liability and damages, if the amount, excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.

(2) For the purposes of this Act, the tribunal

(a) has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and

(b) is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.

(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.

Claims beyond jurisdiction of tribunal for accident claims

134 (1) The tribunal does not have jurisdiction in relation to a claim that may be dealt with, by a court, under any of the following provisions of the Insurance (Vehicle) Act:

(a) section 18 (2) [financial responsibility in other provinces];

(b) section 42.1 [offence];

(c) section 68 [relief from forfeiture];

(d) section 77 (2), (8) and (9) [rights of insurer];

(e) section 78 [payment of insurance money into court];

(f) section 79 [defence if more than one contract].

(2) The tribunal does not have jurisdiction in relation to the following:

(a) a claim relating to liability and damages claimed under the Family Compensation Act in respect of a death;

(b) a claim to which the Arbitration Act applies.

Matters relating to tribunal limit amount

135 (1) It is presumed that the amount, excluding interest and any expenses referred to in section 49 [order for payment of expenses], that will be awarded for a minor injury in an accident claim described in section 133 (1) (c) is less than or equal to the tribunal limit amount unless a party establishes on the basis of satisfactory evidence that there is a substantial likelihood that the damages will exceed the tribunal limit amount.

(2) If a case manager, during case management, or the tribunal, during a tribunal proceeding, determines that the damages in an accident claim described in section 133 (1) (c) would likely exceed the tribunal limit amount,

(a) subject to the rules, the case manager or the tribunal may, on request of all parties to a dispute, provide to the parties a non-binding neutral evaluation of the likely amount of damages, and

(i) the parties may not disclose the evaluation

(A) to the court, or

(B) if the evaluation is provided by the case manager, to the tribunal, and

(ii) the parties may request a dismissal order in accordance with section 22 [parties may request consent dismissal order], or

(b) a party may request that the claim be continued in the Supreme Court.

(3) For certainty, subsections (1) and (2) do not limit the tribunal’s authority to refuse to resolve a claim that is not within the tribunal’s jurisdiction.

(4) If a party brings or continues any proceeding in the Supreme Court in respect of liability and damages in relation to an accident and the settlement or award is less than the tribunal limit amount, the costs, including disbursements, that may be ordered are limited to an amount that would have been permitted in the tribunal proceeding by order of payment of expenses under section 49 [order for payment of expenses].

Commentary

This is a dramatic change to how injured persons obtain compensation for their injuries in BC.

The CRT legislation makes it clear that adjudicators have security of tenure, and are not open to being removed without cause by the government during their term of office.  The CRT appears to be modelling itself after other independent tribunals which deal with claims affecting government finances, including WCAT and lumber tariff and environmental tribunals, which operate independently of government (in spite of being appointed by government).

Currently, the CRT does not have sufficient resources to deal with the tens of thousands of claims that they will potentially have to deal with.  The CRT will have to expand their current 6 full-time members and approximately 30 part-time adjudicators to a much larger number, with far more physical and human resources, in a short time frame to be ready for April 1, 2019.

Part of the stated ICBC initiative is that ICBC will pay more in Temporary Total Disability benefits under Part VII of the Regulations, pay all “reasonable” rehabilitation expenses such as physiotherapy in full without the need for injured persons to pay “user fees”, and together with the new caps in place this will lead to many more claimants settling directly with ICBC without needing legal assistance tribunal or court involvement.

ICBC is counting on this approach yielding significant financial savings, and, according to ICBC, more effective and immediate rehabilitation for persons with minor injuries.

The TLABC takes a dramatically different view of this, stating that the CRT is not truly independent in the same fashion as the judges of our courts who have life tenure, are not experienced in these areas, and that they will interpret claims of injured persons in an overly technical and restrictive fashion, rather than on a more humane basis.  There are a variety of other criticisms that are being advanced by the TLABC to this aspect of the new scheme of compensation.

The degree to which this new compensation scheme will be accepted by the public will likely turn on how effectively the CRT deals with the many cases that it will have to deal with.  There are thousands of tort injury claims advanced every year of less than $50,000, and many thousands of accident claims.  The CRT will deal with most, if not all of those.  The CRT will have the challenge of being able to provide the 3 month turnaround that the government is proposing it will accomplish, and to do so with justice being done, and seen to be done.

Other Bills from this Session of the Legislature

A number of tax bills have been introduced dealing with taxes that will affect homeowners, employers concerning MSP premiums, and a variety of other tax issues.  These will not be listed or discussed in this article, as they are of general interest, rather than specific interest to trial lawyers.

The Community Care and Assisted Living Amendment Act, 2018 (Bill 5), requires the medical health officers to publish information on their website regarding licensed and unlicensed community care facilities, including assisted living residence, child care, residential care, or recovery home facilities, and to make regulations concerning this information.

The Employment Standards Amendment Act, 2018 (Bill 6) extends maternity leave to 13 weeks from the current 11 weeks, extends unpaid parental leave for adoptive parents to 61 weeks from 35 weeks, extends unpaid parental leave for other parents to 62 weeks from 37 weeks, extends unpaid compassionate care leave to 27 weeks from 8 weeks (during 52 weeks), and extends unpaid leave regarding the death of a child from 3 days to 104 weeks.

The International Commercial Arbitration Amendment Act, 2018 (Bill 11), changes the definitions of a variety of terms including “arbitral award” and “BC Arbitration Centre, provides for electronic communication for arbitration agreements, clarifies the basis for challenging an arbitrator only for “real danger of bias”, exempts persons who act in arbitrations from having to be lawyers, and makes a number of consequential amendments to update this arbitration act.

The Public Service Amendment Act, 2018 (Bill 13) gives the Merit Commissioner the authority to conduct reviews of all public service dismissals for just cause, to ensure adherence to public service standards and legal requirements.  This is based on the Ombudperson’s report concerning the tragic health employees’ terminations of several years ago.  (See also Bill 28.)

The Public Interest Disclosure Act (Bill 28) results from the same Ombudperson’s report cited in Bill 13, and sets out a detailed method for the government to investigate, disclose, and report on various employment and termination matters, with protection for whistleblowers and for solicitor/client privilege.

The Tenancy Statutes Amendment Act, 2018 (Bill 12) changes the tenure of tenancy agreements under the Manufactured Home Park Tenancy Act, changes the tenure of other tenancy agreements and the compensation required to be paid on early ending of a tenancy, extends the notice period from 2 to 4 months for the landlord to provide notice to end a tenancy due to demolition, renovation, or conversion of the property, and makes a number of changes concerning the ending of tenancies and compensation payable by landlords.

The Workers Compensation Amendment Act, 2018 (Bill 9) adds some definitions, and adds a presumption for mental disorders resulting from a trauma at work, including PTSD, that provides for compensation for paramedics, policy, firefighters, sheriffs and correction officers, and further applies the cancer presumptions to firefighters employed by Canada.

The Family Maintenance Enforcement Amendment Act, 2018 (Bill 10) permits the Director to direct ICBC to cancel a driver’s licence for a person whose arrears under a maintenance order are $3,000 or more, and allows the Director further authority concerning drivers’ licenses.

The Class Proceedings Amendment Act, 2018 (Bill 21) allows for multi-jurisdictional class proceedings, updates class proceeding rules, creates rules for determining the appropriate jurisdiction for multi-jurisdictional class proceedings, and removes rules for opting in to a class proceeding.

The Miscellaneous Statues Amendment Act (No. 2), 2018 extends the time in the Infants Act for payment, property transfer and passing of accounts up to the date that the former ward attains 27 years of age, if the ward and the PGT have entered into a trusteeship agreement.  This bill also makes a variety of changes to the Societies Act concerning special resolution voting thresholds, requirements in minutes to include the text of each resolution, authorizations of the registrar to demand records, and a number of housekeeping amendments.  If you deal with societies in your practice, you will want to review the terms of this bill.

The Real Estate Development Marketing Amendment Act, 2018 (Bill 25) makes a number of changes to limit assignment of purchase agreements, particularly widely used in the condo market.  It requires more records to be kept, and allows orders to be made against developers who are not in compliance with the act, including penalties of up to $1.25 million.

The Child, Family and Community Service Amendment Act, 2018 (Bill 26) changes the definitions of “aboriginal child” to “indigenous child” and makes a number of changes concerning how the government and the Ministry and others are to treat indigenous children.  There are a large number of changes in this bill, and if you practice in this area you will need to review these changes very closely.

The Pill Press and Related Equipment Control Act (Bill 27) is designed to control the possession and sale of pill machines, which have been used increasingly in creating opioid street drugs, and particularly fentanyl which has killed hundreds of people over the past year.  Fines and prison terms are designated for breach of this bill.

The Voluntary Blood Donations Act (Bill 29) prohibits the payment of any inducements for the collection of human blood, with the exception of the government, Canadian Blood Services, research facilities, or prescribed persons.  There are fines of up to $500,000 for breaches by corporations.

Finally there are several bills concerning the federal legalization of recreational cannabis, the Cannabis Control and Licensing Act (Bill 30) and the Cannabis Distribution Act (Bill 31) (as well as Bill 17 discussed below).  This is complex legislation, with the creation of a whole government infrastructure to deal with controlling and licensing cannabis and cannabis products, as well as the distribution of those products.  There are numerous rules concerning where one can possess or use cannabis (not at or near school property), how many plants or grams one can possess in public (4 plants or 30 grams), smoking or vaping at bus stops or while operating a vehicle or boat, and a variety of other restrictions.  If your clients have public businesses you will want to advise them on these restrictions, as it is possible that individuals or corporate businesses could face fines of up to $100,000.

Bill 31 authorizes the government to buy and sell cannabis products and accessories, and deals with how the government can deal with cannabis revenue.

The Motor Vehicle Amendment Act, 2018 (Bill 17) is consequent to the cannabis legislation (Bills 30 and 31), and concerns offences due to driving while having a prescribed drug or substance.  It also allows screening devices to be used as evidence.

Conclusion

As you can see, there has been a veritable blizzard of new legislation in this Spring session, only some of which bills have been discussed in this column.  It is anticipated that there will also be a Fall session, so more legislation may be introduced then.

I would like to thank Stuart Rennie of the Canadian Bar Association for his help in providing some of the information contained in this column.  Any errors in interpreting this new legislation are entirely mine.

If you have concerns about these bills, or upcoming legislative matters, please contact one of the members of the TLABC Executive, who will be pleased to discuss matters with you.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.

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Legislative Watch, November 2017

 

A New Government

Since my last column, there was an election. Somewhat to the surprise of many, the Liberals were not successful in forming a government, and the NDP, with the support of the Green Party, have formed a government. Legislation from the new government commenced with the sitting of the 41st Parliament of British Columbia on September 11, 2017.

This column is being written in mid-November, when not all of the legislation of the government has been introduced, and no legislation has been brought forward for debate on the issue of any potential product change concerning ICBC, a matter of some interest to members of the Trial Lawyers Association of BC. A number of committees have been established to look into the significant deficit that ICBC has developed, but none have reported-out as yet. The Executive of TLABC will be keeping all members notified of new developments as they occur.

There have been a number of bills that have been introduced which will be of interest to members of the TLABC.

The New Legislation Being Introduced

The Election Amendment Act, 2017 (Bill 3) is the first overhaul of the Election Act in over 20 years, and makes major changes to how elections are funded in British Columbia. Union and corporate donations will no longer be allowed, and donations by individuals are limited to $1,200 per year. Loans to political parties are restricted, and fundraising events are also significantly restricted. As a transition, the government will pay political parties a certain amount per vote as a subsidy for the next several years. These changes are dramatic and draconian, but based on the debate during and after the most recent provincial election, it became apparent that BC was the “Wild West” in terms of electoral financing, and that no other province had such massive political donations, particularly from corporate donors.

If you are advising the local constituency association of a political party, or potential candidates for a political party, you will need to read this new legislation very carefully, as breach of the fundraising rules can potentially result in the loss of a legislative member’s seat.

The government has also introduced the Local Elections Campaign Financing Amendment Act, 2017 (Bill 15) which makes very similar changes to campaign financing in local municipal elections. Only donations by individuals directly to campaigns are allowed. No corporate, union or indirect donations are allowed, and no long-term loans save and except by financial institutions, mirroring the new rules for provincial election campaign financing.

The Constitution Amendment Act, 2017 (Bill 5) changes the fixed date for elections to the fourth Saturday in October, four years after the last election. This change has been proposed for some years, because the annual accounts of the government are not approved until at least late summer each year. With Spring elections, the governing party could be potentially “wrong” about representations made to the electorate in the Spring, but by the late summer the state of the government accounts and budget will be accurately stated. Of course, the current government is a minority government, and under our parliamentary system, an election could be held at any time that the government loses the confidence of the legislature.

Further electoral and constitutional changes are considered in the context of the Electoral Reform Referendum 2018 Act (Bill 6) which requires the government to hold a referendum on electing the legislature by some form of proportional representation by November 30, 2018. The specific wording of the legislation as to what will be binding on the government is as follows:

9 (1) The result of the referendum is binding on the government only if more than 50% of the validly cast ballots
(a) vote the same way on a question stated, if the question has the option of 2 answers, or
(b) are in favour of the same voting system, if a question has the option of more than 2 answers.

The form of the question has not been determined, but it is anticipated that there will be discussions around the province over the next year to assist the government in determining what the appropriate questions will be.

The Lobbyists Registration Amendment Act, 2017 (Bill 8) expands the definition of those public servants or politicians who cannot lobby the government for 2 years after leaving their position. The definition of such persons now includes all cabinet ministers, parliamentary secretaries, any individual who was employed in the member’s office, as well as all of the other people previously restricted from lobbying. The registrar may, on application, allow a person to lobby who is otherwise disallowed from lobbying.

The Provincial Court Amendment Act, 2017 extends the terms of sitting judicial justices to 12 years from the current 10 years. Almost 10 years ago, the government created and appointed a number of these judicial justices who have been assisting in Small Claims Court on cases involving smaller financial amounts. It appears that this program has been a success, and the government wishes to extend the terms while the program is reviewed further, particularly in the context of other changes that have recently occurred with the handling of smaller financial claims in Small Claims Court.

The Public Safety Statutes Amendment Act, 2017 makes a number of changes to the powers of impounding vehicles by peace officers if the driver of a vehicle is subject to a driving prohibition, and also creates “E-tickets” for serving individuals. If you deal with criminal charges arising out of breaches under the Motor Vehicle Act or the Offence Act, you will want to look closely and carefully at the details of this new bill.

The Tenancy Statutes Amendment Act, 2017 (Bill 16) makes a number of changes to ensure that manufactured homes and float homes are covered by the tenancy legislation, and restricts the ability of landlords to evict tenants on the end of a written lease. Various administrative penalties are authorized, and generally there is an attempt to tighten-up the rules concerning landlord and tenant law in British Columbia.

Conclusion

There will likely be further legislation introduced in this Fall session of the legislature, and there will be a Spring session, in which even more legislation will be introduced. This government was elected on a number of promises, and is clearly of the view that they have a mandate (subject to their minority status) to deliver a number of changes to the laws of BC.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.

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Legislative Watch, November 2015

 

The Legislative Watch

The fourth session of the 40th Parliament of British Columbia had a relatively unusual fall sitting, with the government wishing to pass further legislation concerning natural gas development and in particular liquid natural gas. The session has largely been taken up with accusations of negligence concerning the tragic death of children under the care of the government. There have been further allegations of senior members of the government not obeying the freedom of information legislation, by deleting documents that the Privacy Commissioner has previously stated should not be deleted.

In the midst of this political rancour, there have been a number of bills passed, some of which may be of importance to trial lawyers.

The New Legislation

The Family Maintenance Enforcement Amendment Act, 2015 (Bill 32) makes a number of changes to this important area of the law for family law practitioners.  The new legislation authorizes the director to reallocate payments among creditors, provides further reasons why a debtor is not liable to pay an annual default fee to the government, provides a six year limitation period for government claims for default, permits the director to serve a notice of attachment on persons who have indemnified other persons who owe money at to a debtor, allows the director to serve a document outside of BC with the same legal effect as if it were a notice of attachment, permits the court to issue an order to a person who is before the court whether or not the person is been summoned or apprehended under this Act, and permits the Provincial Court to enforce Supreme Court orders without the requirement of certification.

These changes should simplify some of the procedural matters that have been of concern to practitioners in the past, and will grant boader authority to the director.

The Motion Picture Amendment Act, 2015 (Bill 33) broadens the power of the director, repeals or replaces most of the previous legislative  definitions, permits the director to impose administrative penalties for contraventions, revises the director’s authority to approve or refuse to approve adult motion pictures, and generally sets up a relatively new regime to deal with movie censorship. There are a number of changes concerning fees and licenses to distribute motion pictures. If you are advising clients who were involved directly or indirectly in this business you will want to review these fairly dramatic changes.

The Red Tape Reduction Day Act (Bill 34) makes the first Wednesday in March each year as a Red Tape Reduction Day in British Columbia. This will not be a statutory holiday.

The Workers Compensation Amendment Act (No. 2), 2015 (Bill 35) makes a number of procedural changes concerning annual reports from the Board, alters the make-up of joint committees on health and safety, increases the duties of employers to notify the board of any accident involving a fire or explosion that had a potential for causing serious injury to a worker, requires specific steps to be taken for investigations, and in particular requires an employer to provide an investigation report within 30 days of any incident. These changes will place more burdens on employers and increase the amount of information that must be provided to workers, so if you do act for workers in the circumstances you will want to review these changes to advise your clients of their new rights.

The Auditor General for Local Government Amendment Act, 2015 (Bill 36) seeks to correct a number of problems that occurred arising out of the appointment of the first auditor general for local government. Local governments were not pleased with that auditor general, and ultimately neither was the government and apparently litigation ensued. This bill is designed to clarify the role of that auditor general and to allow that person to act more effectively. It remains to be seen if these changes will have the desired result.

The Miscellaneous Statutes Amendment Act (No. 2), 2015 (Bill 37) makes minor changes to a larger variety of acts, mostly correcting errors in the forms contained in those acts. The bills most likely to affect trial lawyers would include the Adult Guardianship Act, the Enforcement of Canadian Judgments and Decrees Act, the Health Care Costs Recovery Act, and the Ombudsperson Act. None of the changes appear to be substantive.

The Provincial Immigration Programs Act (Bill 39) creates a director of Provincial Immigration Programs, who administer these programs, which are joint agreements with Canada. The director will have statutory immunity, can review denied applicants, can share personal information with various bodies, and will have inspection powers as well as the ability to set fees.

The Miscellaneous Statues Amendment Act (No. 3), 2015 Bill 41) amends statutes concerning some educational institutions but of more interest to trial lawyers would be the changes to the Child, Family and Community Service Act to allow for the director to make agreements with young adults and extend certain support services to young adults. This change appears to follow the tragic deaths of a number of young people who had turned 19 and were no longer in the direct care of the government.

The Electoral Districts Act (Bill 42) is a very significant bill enacting the changes recommended by the 2015 Electoral Boundaries Commission Final Report, and creates two new electoral districts in the Lower Mainland and makes boundary changes to 48 of the 87 electoral districts that will exist at the time of the next election in 2017. It is always important for trial lawyers to know who their local legislative representatives are so that the interests of clients are properly advanced by legislative changes which may occur. In this case, both the major political parties have agreed with the various changes to electoral boundaries. However, it has been suggested in the legislature as part of the debate on this bill that a number of these boundary changes are not constitutional in that they create electoral districts which are not in keeping with the size and numbers of electors as set down in the Supreme Court of Canada cases. It remains to be seen if anyone will challenge this legislation.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, previously published in the Verdict magazine.

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Legislative Watch, August 2015

 

The Legislative Watch

The 4th Session of the 40th Parliament of British Columbia had an unusual summer sitting in July of 2015.  The government’s intention was to pass legislation concerning the proposed LNG industry.  The government also introduced a late bill to amend the powers of the Ombudsperson.

Although these bills may not be of direct consequence to most trial lawyers, it has caused me to consider what implications the LNG industry may have for lawyers in the province, and more generally what is happening in our profession.  Following the discussion of these bills are some observations concerning the demographics of our profession that may be of interest.

The New Legislation

The Ombudsperson Amendment Act, 2015 (Bill 31) was introduced by the government after they requested the new Ombudsperson (Jay Chalke) to investigate the firing of a number of Health Ministry workers who worked with medicine approval issues.  Tragically, one of the fired employees committed suicide, and most of the others have ultimately received compensation and an apology from the government.  A previous investigation by the government could not determine who had fired these people, let alone why. The Act overrides the privilege of confidentiality supplied to any person by another enactment in relation to an investigation of the Ombudsperson referred by the Legislative Assembly or any of its committees. The hope is that Mr. Chalke will be able to identify what happened, and make recommendations so that a similar incident will not happen in the future.

The Liquefied Natural Gas Project Agreements Act (Bill 30) provides a framework for Petronas and potentially other proponents of LNG facilities to build such facilities, with the government agreeing to bind itself and future governments to limiting the taxes payable by such proponents. The current provincial government was elected two years ago with a platform of raising billions of dollars in revenue for the province through the development of a globally competitive LNG industry in British Columbia. The model for success was the Heritage Fund of Alberta, with the idea that this new LNG revenue stream would pay for a great deal of social programs and assist in the development of the more rural areas of BC in a positive fashion.

We all are aware that BC sits on top of oceans of natural gas. Most people are supportive of developing that resource, but only if done responsibly and on the proper terms and conditions. Some are concerned about a variety of environmental issues, including carbon-creation and the resulting global warming; others are concerned that the concessions in this bill to the potential development companies are too great; and yet others are concerned that BC’s opportunity to be first to market has passed, that countries such as Australia have the edge due to geography, and that there will be no significant market for LNG in the foreseeable future.

As I was contemplating the potential effects a successful LNG might have on our province and profession, my thoughts began to focus on what is happening in our profession, and what follows are some of these thoughts.

Some Comments on the Demographics of the Legal Profession in BC

Whether or not the LNG industry brings the billions of dollars to the provincial coffers that the government predicts, changes are coming to our province and our profession.  It may be useful to start with a simple outline of where the profession is currently in terms of demographics.

Using very rough figures, and based on the latest Law Society information from December 2013, there are about 11,000 practising lawyers in BC, approximately 1/3 women and 2/3 men.  31% of all lawyers practise civil litigation.  The next largest group practise corporate law (22%).

Over 53% of lawyers practise in firms of less than 5 lawyers, and the majority of them are single practitioners.  Less than 15% of lawyers work in firms of over 50.

Although in recent years as many (or more) women than men have been called to the bar, women drop out of practice more often, and the Law Society and others have attempted to deal with this in a variety of ways, none particularly successful.

Geographically, over 55% of lawyers practice in Vancouver County, over 12% practise in Westminster County, almost 10% practise in Victoria County, and almost 10% practise outside of BC.

The entire remainder of the province is served by about 1,400 lawyers, or just 13% of all lawyers.

We are told that lawyers in smaller communities tend to be older, on average, than those in Greater Vancouver.  A significant number are reaching, or have passed, normal retirement age.  The Law Society has been commenting for several years on the difficulty such lawyers have finding young lawyers to take over their practices. The Law Society has even implemented programs to encourage law students to complete their articles in smaller communities.

If LNG is going to produce the economic impact that is predicted, we should, in theory, witness a disproportionate amount of job and wealth creation in those rural communities located near LNG sites compared to urban centers. At the same time, there will be significant pressure on the government to provide more services to those communities from whence the wealth comes. The logical corollary for the profession is an increased need for legal services in rural communities that are already underserved.

Part of the problem, as I see it, is that there is a pervasive belief by law students at UBC and Victoria and perhaps elsewhere that if you are not practising law in a large law firm in downtown Vancouver, you are not really practising interesting and lucrative law, but instead dealing with mundane issues and just scraping by.

Of course, most of us know that not to be the truth. Whatever positive comments you can make about large law firms, they do not have the monopoly on interesting cases, nor clients that need legal assistance, nor financial success.

The late Dean George Curtis of UBC told me that he used to informally keep up with the financial success of graduates, and found that there was a curious inverse relationship between academic success at law school, and financial success as a lawyer (with exceptions, of course).

There is also an old joke that asks what do you call two lawyers sitting in a school gymnasium on a Friday night?  The answer is “the heart of a community”.  Lawyers provide an immense amount of volunteer work, particularly in smaller communities.

What this all means, in my view, is that we as trial lawyers have to do a better job of educating law students and young lawyers that there are wonderful opportunities for young lawyers in small firms, in smaller communities, and particularly in communities distant from Vancouver.

Large Vancouver law firms do not have a monopoly on good counsel.  There are excellent counsel in small firms and in small communities, and the financial as well as professional rewards can be greater in such firms.

There is a large demographic change coming.  Those of us who are baby-boomers need to offer help and mentoring to the millennials who are coming into our profession.  Some of our fellow lawyers are concerned that we are losing the heart of our profession by focussing increasingly on fees and technology, and getting away from the true nature of our profession, which is helping those that require assistance.  I agree that there is a risk of this, but if we as trial lawyers make a concerted effort to move forward with the times, keeping the best part of our helping profession, we can make a positive difference to our province as the winds of change blow.

A Modest Suggestion

Next time you are discussing matters with a law student or young lawyer or another lawyer of your vintage, talk to them about your experience and your hope for the profession, and tell them why you are practising law, and ask them what it is that they want to contribute to the profession and our community.  This is a discussion which we need to have.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.

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Legislative Watch, March 2014

 

The Current Session

The Second Session of the 40th Parliament of British Columbia is still sitting in March 2014 when this article is being written.  Since the last full session of the legislature, an election was held with surprising (for some) results, and a government with a fresh mandate.  So far there have not been a lot of “block-buster” bills of direct effect to trial lawyers, but a number of changes have been introduced which you may want to know about.

Bills from the Second Session of the 40th Parliament of British Columbia 

The Missing Persons Act (Bill 3) provides the authority for police to access records and search premises in specified circumstances when the police are conducting a missing person investigation.

The Laboratory Services Act (Bill 7) enacts the Laboratory Services Act, an Act that will

•remove laboratory services as benefits administered under the Hospital Insurance Act and the Medicare Protection Act,

•provide a single legislative framework to govern the provision of laboratory services as benefits, and

•provide flexibility for the administration and delivery of laboratory services through a mix of models.

The Off-Road Vehicle Act (Bill 13) repeals and replaces the Motor Vehicle (All Terrain) Act, R.S.B.C. 1996, c. 319, updating that Act’s vehicle registration scheme, vehicle operation rules, compliance and enforcement provisions and regulation-making authorities in relation to off-road vehicles.  This is a lengthy Act which provides significant authority to officers to top and inspect vehicles, and to seize them for evidence or safety.  Regulations will allow licensing and restrictions on operating these vehicles.

The Justice Statutes Amendment Act (Bill 14) is omnibus legislation amending a variety of Acts, including the Adult Guardianship Act, the new Family Law Act, the Family Maintenance Enforcement Act, the Patients Property Act, the Police Act, the Provincial Court Act, the Public Guardian and Trustee Act, the Trustee Act, the new Wills, Estates and Succession Act, and several others.  There is no common denominator or theme that runs through these various amendments, and it is unclear why the politicians are lumping so many various changes within this type of omnibus legislation.

The Adult Guardianship Act will require that notice be given to adults, spouses and near relatives before issuing a certificate of incapability concerning the adult, and that they be provided with any certificate.  It clarifies that the PGT cannot be the property guardian if the adult has a committee.  There are significant other changes to the rights of adults and their families in these circumstances, and if your practice includes such clients, you will want to take a close look at these amendments.

The Family Law Act, which is just in force in 2013 is amended to clarify how trusts are dealt with as well as gifts, and codifies jurisdictional issues concerning other forums.  It is also amended concerning the interaction of agreements respecting the division of property and debt and the choice of rules that may apply.  It strengthens the ability of protection orders concerning the right to prohibit weapons or firearms.

The Patients Property Act is amended to define “committee”, to clarify who are “patients”, and extends certain rights that patients may have, including the issue of hearings.

The Provincial Court Act removes the requirement that a judge be satisfied beyond a reasonable doubt before excluding a child or a party from the courtroom.

There are a large number of relatively minor amendments to the newly in force Wills, Estates and Succession Act (universally referred to as WESA).  These include amended definitions of “nominee” and “representation grant”, “spouse” (subject to separation and reconciliation), distribution of intestate’s estate to grandparents and their descendants, what parts of alterations to a will are part of a will, and a variety of changes clarifying the duties and role of the Public Guardian and Trustee.  It seems unfortunate that so many changes are required so quickly after the long introduction of this legislation, but if you practice in this area, you will need to read these changes carefully.

The Liquor Control and Licensing Amendment Act, 2014 (Bill 15) is a complete overhaul of the licensing authority and rules in British Columbia, intending to bring the control and sale of alcohol into the 21st century.  Most of the changes are technical, allowing the government to make further regulations, and giving further authority to the General Manager.  It is difficult at this stage to see what precisely these changes will bring, although the government has announced that alcohol sales in grocery stores will be allowed, and that private liquor stores will be able to transfer their license from one part of the province to another.  The regulations (not yet in place) will provide the important details.

The Miscellaneous Statutes Amendment Act, 2014 (Bill 17), amends a number of statutes.

Various statutes are amended to allow for various accountants to be called “Chartered Professional Accountant” or “CPA” which is the new designation for C.A.s, CGAs, CMAs, etc.

The Adoption Act is amended to clarify when the director may place a child for adoption, and when the director must notify the PGT or the Director of Child Protection of an adoption order.

There are some similar amendments to the Child, Family and Community Service Act clarifying that a “parent” does not include a prospective adoptive parent, and granting the director certain rights concerning adoptions.

There are some potentially more controversial changes to the Real Estate Development Marketing Act, where definitions and requirements under the disclosure statements are amended.  The concern here is that these amendments appear to allow greater powers to the developers to obtain deposit monies of purchasers, and reduce the rights of a purchaser to rescind when relevant facts are not disclosed to the purchaser.  These, and other changes in these amendments appear to weaken the rights of purchasers who have been provided inaccurate information relating to the purchase, and strengthen the rights of developers.  As you may be aware, there has been considerable high profile litigation over purchasers refusing to complete over the past several years, and these amendments may affect significantly the rights of your clients in such circumstances.

There are a number of changes to the Vital Statistics Act, mostly technical in nature, including a removal of the requirement that you provide a “baptismal certificate” when applying to amend a child’s given name.  It will be easier for transexuals to apply for a change of gender under the regulations.

The Workers Compensation Act is amended with the positive change that “heart disease” and “heart injury” are added as occupational diseases so that firefighters who suffer from heart conditions will be presumed to be caused by their work duties, unless the contrary is proven.

The Water Sustainability Act (Bill 18) repeals most of the Water Act and sets out a new method of dealing with water in British Columbia.  It applies to both stream water and ground water, and mandates the consideration of environmental flow needs.  These changes are significant.  The concern raised by critics is that this will allow the licensing of water at extremely low rates, although the government argues that many industries (including those selling bottled water) are obtaining water essentially for free under the current water regime.  The regulations (not yet established) will likely give the important details of how these plans will be implemented.

Article by Ian Aikenhead, Q.C.

Previously published in the Trial Lawyers Association of British Columbia’s quarterly journal, The Verdict, in 2014.  Reprinted with permission.

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Legislative Watch, December 2014

 

The Current Session

Since the last column, the Spring session of the BC Legislature has ended, and there has been a Fall session, being the 3rd Session of the 40th Parliament of British Columbia.  There has been some new legislation of interest to trial lawyers, and some changes in the practice that I will discuss.

Bills from the Second and Third Session of the 40th Parliament of British Columbia

The Animal Health Act (Bill 19) repeals and replaces a number of acts relating to animal diseases and fur and game farms and bees.  It attempts to harmonize the licensing and regulation of duties concerning people who deal with animals, and to restrict the possibility of spreading disease and environmental toxins.  There are regulations concerning the collection and use of information, and a system is being put in place to trace animals, animal products and related goods to reduce the transmission of animal diseases.  There are, of course, administrative penalties for breach of the Act.

The Local Elections Campaign Financing Act (Bill 20) and the Local Elections Statutes Amendment act, 2014 (Bill 21) makes significant changes to how municipal and local elections are run and financed.  Generally, my sense is that this brings the procedures closer to those of the provincial elections, both in running elections and in the financing obligations.  The most immediate change was changing the term of council members to 4 years from 3 years.  Some of the changes apply to Vancouver, but not all.  For those of you giving advice to political clients, you will need to read these statutes very carefully to keep your clients from being led astray by their political enthusiasms.

There are two bills which affect public transit in the Lower Mainland, Bills 22 and 23, which allow for a referendum to take place on funding public transit in the lower mainland, and a number of changes to public transit procedures.  These are mostly to do with the internal management of transit authorities and audit procedures, etc. and will have little direct impact, from my reading of these bills, on trial lawyers and their legal clients.

With the commencement of the 3rd Session, some further bills have been introduced, including the Greenhouse Gas Industrial Reporting and Control Act (Bill 2) which is part of the over-all government plan to regulate (and encourage) the LNG industry in British Columbia.  It regulates and requires reporting of all operations concerning the coal and liquid natural gas industries with respect to greenhouse gas emissions.  The industry can obtain “emission offset units”.  A registry is established to provide for these units and credits relating to these units, and to track compliance and publish information.  There are penalties of up to $1.5 million, or even imprisonment for 2 years.  Directors and agents of the corporations can be held personally liable.  If you act for such clients, they should be aware of their new potential liability.

The Container Trucking Act (Bill 5) creates the office of Commissioner to deal with the issues which had culminated in a lengthy Vancouver port strike in 2014, and to allow the Commissioner to regulate rates and fuel surcharges.  There appear to be some jurisdictional and contractual issues which have been over-looked by this legislation, and not everyone seems to be in agreement with following this approach, but the Commissioner may be able to persuade involvement by all in this important industry for our economy.  If you have trucker clients, you will want to become familiar with the issues addressed in this Bill.

The Liquified Natural Gas Income Tax Act (Bill 6) creates a tax regime for LNG facilities to be built in BC.  There has been considerable public discussion about LNG and the tax regime.  Although there was heated debate in the legislature, the Opposition ultimately voted for the tax regime proposed by the government.  As of the writing of this column, it is not clear whether the tax regime will be conducive to LNG investment in the province, particularly with falling oil and gas prices internationally.  This Bill does set out some fairly complicated rules on how to compute operating income and losses, as well as net income.  There are references to the inter-play with the Income Tax Act of Canada, and how trusts are to be taxed.

The Miscellaneous Statutes Amendment Act (No. 2) (Bill 4) amends a number of statutes.

The Agricultural Land Commission Act is amended to restrict the ability of local governments to regulate local uses of farm land, and generally to restrict the regulation ability of local governments in this area.

The Gaming Control Act will allow the government to vary conditions of gaming licenses, and to impose new conditions regarding the selling of lottery tickets, gaming services, etc.

The Police Act is amended to allow specialized policing and law enforcement (which municipalities may be required to pay for), to create records for specialized service providers and create liability protection for such people.

Finally, a private members bill has been passed by the legislature, a rather rare occurrence.  This is the Terry Fox Day Act (Bill M203) which establishes the second Sunday after Labour Day as Terry Fox Day in British Columbia.  It received Royal Assent on November 27, 2014, and is now the law of British Columbia.  It will not provide for a day off work for workers, but will be a recognition of a person who is now known internationally for the efforts that have occurred started by his run across Canada.

Other bills have been passed, but they do not appear to be significant to the practice of most trial lawyers.

Other Changes in Law and Practice

A major change in the area of personal injury practice is that effective April 30, 2014, the “discount rate” for calculating the present value of the loss of future earnings has changed from 2.5% to 1.5%, and for calculating the present value of the future cost of care from 3.5% to 2.0%.

To show the significance of this change, an example might be useful.  If a 25 year old male plaintiff, with an annual loss for his working life of $50,000 to age 65 were to be paid before May 2014, he would be entitled to an award of approximately $1,269,000 for his economic loss.  The same 25 year old would now be entitled to approximately $1,506,000.

If that 25 year old plaintiff had an annual future cost of care need of $10,000 per year for his expected life of 53 years, before May 2014 he would be entitled to an award of approximately $243,000.  Today, under the new discount rate he would be entitled to an award of approximately $328,000.

These are substantial differences, and need to be kept in mind in assessing the value of claims which have components of future damages.

For those who practice in the areas of wills and estates, the law is undergoing even further changes.  Effective December 1, 2014, some provisions of the Adult Guardianship and Plannig Statutes Amendment Act, 2007 will be implemented.  These changes concern the obtaining of a certificate of incapability, or “statutory property guardianship”, and include procedures for conducting assessments of incapability.  This is an out of court process by which the Public Guardian and Trustee can become responsible for the affairs of an incapable person.

The ultimate changes to court-ordered guardianship have been passed by the legislature, but are not yet in force.  The “committee” structure is still in place.  The government has advised that they will be bringing in the changes which have been passed by the legislature some years ago, but no date has been set.

Article by Ian Aikenhead, Q.C.

Previously published in the Trial Lawyers Association of British Columbia’s quarterly journal, The Verdict, in 2014.  Reprinted with permission.

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Legislative Watch, March 2013

 

The Current Session

The Fifth Session of the 39th Parliament is still sitting in March 2013 when this article is being written. This spring session has been filled with a great deal of pre-election partisan bickering, but there have been some bills introduced which will be of particular interest to trial lawyers, and I will outline features of some of those.

Bills from the Fifth Session of the 39th Parliament

The Provincial Sales Tax Transitional Provisions and Amendments Act, 2013 (Bill 2) recreates the old PST with the end of the HST on April 1, 2013.  Based on my understanding of the transition provisions, the disruption to litigation legal practices should be relatively minor compared to the discombobulation when the HST was introduced and proportional fees had to be determined.  You will have received materials from various accounting firms by now, and there is also information on the government website.  The Law Society is apparently intending to provide some helpful information.  At this stage, it appears that accounts rendered before April 1, 2013 will have HST payable, and accounts thereafter will have PST and GST payable, regardless of when the services were rendered.  Your accountant’s assistance will be necessary.

The Local Government Statutes Amendment Act, 2013 (Bill 6) allows municipalities to send various notices, including tax notices, electronically, and makes a number of amendments to the Vancouver Charter to expand the powers of the City of Vancouver concerning regulation of hours of business, paying for parking meters by credit card (we thought that had occurred some time ago), and allowing electronic notices to be sent.

The Emergency and Health Services Amendment Act (Bill 7) changes the name of the old Act to this new name “Emergency Health Services Act” and similarly changes the name of the Commission and various related entities.  It allows greater regulation of emergency medical personnel, and provides such personnel with liability protection unless they have conducted themselves in bad faith.  It does not stop vicarious liability for their actions.  If you have potential claims in negligence concerning emergency medical personnel, you should have a close look at this new legislation.

The Miscellaneous Statutes Amendment Act, 2013 (Bill 8) has a large number of changes, some quite controversial.  In particular, the proposed changes to land tenure under the Forest Act were so criticized that they have been withdrawn by the government.

This Bill amends the Child, Family and Community Service Act by changing the definitions concerning when a child is in need of protection, so that it includes the situation where the child is emotionally harmed by living with domestic violence.  It expands the powers of the Director to conduct assessments and take other steps.  Further rights are provided concerning review by the Information and Privacy Commissioner of decisions of the Director (and others) and there are prohibitions concerning anyone disclosing information obtained under this Act.

There are changes to the Forensic Psychiatry Act so that employees no longer are required to be members of the BC Public Service.  This, together with Bill 18, the Health Authorities Amendment Act, 2013, has created implications for members of the BC Nurses’ Union and other unions, and has raised some controversy amongst unions and in the media.

There are now restrictions on the “unnecessary use” of pesticides for cosmetic purposes.  An outright ban has been advocated by some, but this Bill only restricts such uses.

There are a variety of changes to the Liquor Control and Licensing Act including allowing charities to auction liquor, and allowing certain people to donate liquor for such charitable purposes.

The Medicare Protection Act has been amended to allow for “snow birds” and others to be out of BC for more than 6 months and still keep their BC medicare coverage.

The Pacific Salmon will now be the official fish of BC.

The Seniors Advocate Act (Bill 10) establishes a “Seniors Advocate” for BC.  Aside from the picky English language advocates decrying the absence of an apostrophe in the name, other critics have declared this a simple electoral ploy, citing the fact that there is no real budget to offer any new services for the benefit of seniors.  However, the “Seniors Advocate” has a range of duties including advising the government on seniors’ issues, identifying and analyzing systemic challenges of seniors, collaborating with the providers of services for seniors, promoting awareness, and recommending changes to the government.  An advisory council will be established, and staff will be hired.

The Criminal Records Review Amendment Act, 2013 (Bill 11) makes broad-ranging changes to the Criminal Records Review Act.  Fees are changed, who gets notified is changed, decisions can be reconsidered, and criminal record check verifications are added.  This Bill requires employers to insist on record checks of employees every 5 years, and prohibits certain people from working with children or vulnerable adults.  There are a large number of changes to the Act, so if you have clients who are potentially affected by this legislation, you need to take a closer look at the many specific procedural and substantive changes.

The Community Safety Act (Bill 12) creates a Director of Community Safety with broad powers.  Anonymous and confidential complaints can be made to the Director, who may investigate, and if he or she is satisfied that a community or neighborhood is adversely affected by activities, then they can either resolve the matter informally, or apply to the Supreme Court for a Community Safety Order affecting a property.  The powers can include terminating a tenancy agreement.  If a person violates the confidentiality of the complaint, or does not comply with a Community Safety Order, or provides false information or hinders the Director, that person is liable to a fine of $10,000 or 6 months in prison, or both, on the first offence.  There is a two year limitation period

It is not clear what this Director will do in practice, or the extent to which complaints will be made, or acted on.  It remains to be seen if this will be the Orwellian nightmare that some critics have suggested, or whether this is an electoral politics ploy, or whether this will be a practical solution to bothersome and pesky neighbours making life difficult for people in a neighbourhood.

The Auditor General Amendment Act, 2013 (Bill 14) increases the maximum term of the BC Auditor General from 6 years (with an additional 6 year extension) to one term only of 8 years.  This resulted from the controversy over the re-appointment, or failure to re-appoint, the current Auditor General, who has now quit and is leaving the province.

The Justice Reform and Transparency Act (Bill 15) establishes a Justice and Public Safety Council which is required to plan and report on suggestions for the improvement of the justice and public safety sectors of society to improve the functioning of the justice system in BC.  It makes some changes to the administration of the courts, including the terms and powers of the chief judges and the “senior judges” (formerly “part time judges”) of the Provincial Court.  This Bill also gives the Director of police services additional powers concerning the collection, disclosure and analysis of matters pertaining to policing and law enforcement.  These changes are the result of recent reports on the justice system, and discussions with various partners within the justice system.

The Pooled Registered Pension Plans Act (Bill 16) allows for the creation of pooled registered retirement pension plans.  Administrators licensed under this Bill can create such plans for employees and self-employed persons in BC.  This allows small businesses, including lawyers and law firms, to take advantage of a small pension plan, similar to relatively recent changes by the Federal government in this area.  If you are interested in setting up a pension plan, but are not in a large firm, you may wish to discuss this possibility with an accountant.

The Senate Nominee Election Act (Bill 17) allows for an election of persons by general election to the Canadian Senate, or at least to be nominated by the public for a list to be provided to the Prime Minister.  As a long proponent of the abolition of the Senate I will make no comment on the merits of this Bill.  The government advises that they will not be holding such an election at this time.

Other Legislative Changes

By the time that you read this, the Family Law Act will have come into force (effective March 18, 2013) which changes both the substantive and procedural law of BC concerning marriage and other marriage like relationships, and obligations to children. There have been changes to the Rules of Court in the BC Court of Appeal, BC Supreme Court and BC Provincial Court.  A number of publications from Continuing Legal Education, and seminars in support of those publications have already occurred, and more are on the way.  It is arguable how significant these changes will be in practice, but there are certainly some procedural changes that need to be studied, and the law of division of property has had some substantial changes.  These have been discussed in previous columns, and the CLE material should be reviewed to assist legal counsel in determining the significance of these changes for clients.

The Limitation Act will be in force effective June 1, 2013.  This column has discussed the many changes to this important Act previously, but the changes are numerous and significant.  The government has produced some useful material which can be accessed on their website at:

http://www.ag.gov.bc.ca/legislation/limitation-act/2012.htm

A few of the changes include:

-the “basic limitation period” is now 2 years (except the 10 year limitation for the enforcement of civil judgements), rather than the previous 2, 6 or 10 years;

-the “ultimate limitation period” is now 15 years rather than the previous 30 years;

-there are alternate “factors affecting limitation periods” including counter-claims, enforcement, and acknowledgment of liability;

-there is still a suspension of the running of limitation periods while a person is a minor or under disability;

-there are powers to make regulations, which could change some aspect of these limitations;

-there are changes to the concepts of “discovery” which may affect the running of limitation periods.

All legal counsel should familiarize themselves with the provisions of this new Limitation Act.

Finally, there is no longer any requirement that you deliver a Notice to Mediate to the Dispute Resolution Office of the Ministry of the Attorney General.  (BC Reg. 76/2013) This will cut down on the paper flowing concerning Mediations.

Article by Ian Aikenhead, Q.C.

Previously published in the Trial Lawyers Association of British Columbia’s quarterly journal, The Verdict, in 2013.  Reprinted with permission.

 

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Legislative Watch, May 28, 2012

By Ian Aikenhead, Q.C.           

The Current Session

The Fourth Session of the 39th Parliament has continued into the spring session, and the legislature is still sitting in May 2012 when this article is being written. This spring session started off rather slowly, but in the latter stages of the session a large volume of bills have been introduced, many of which will be of particular interest to trial lawyers, and I will outline the main features of some of those.

Bills from the Fourth Session of the 39th Parliament

The Education Improvement Act (Bill 22) ends the teachers’ strike, and imposes a mediation process.  It also amends the terms of what can be negotiated by teachers, and their working conditions, unilaterally.

The Prevention of Cruelty to Animals Amendment Act, 2012 (Bill 23) strengthens the powers of the Minister and changes the rights of review and appeals for persons affected by this legislation.

The Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2012 (Bill 26) amends the rights of individuals and reduces the obligations of “occupiers” of resource roads (often referred to as “logging roads”) such that users of these roads will do so at their own risk (see s. 14).

The Criminal Asset Management Act (Bill 28) establishes a comprehensive regime for the management of assets restrained, seized and forfeited under the Criminal Code and other statutes.  The provincial crown has been much more diligent in recent years about pursuing the assets of law-breakers, and this legislation should simplify (from the view of the Crown) that process.

The Energy and Water Efficiency Act (Bill 32) repeals the Energy Efficiency Act, and allows the Minister and a Director to regulate energy performance standards for products, and require operators to submit energy reports.  Inspectors may enter a place, but can only enter a private dwelling when consent is given or a warrant issued.  Records must be produced to an inspector, or there are penalties.  The limitation period for imposing penalties is 2 years.

The Justice Statutes Amendment Act, 2012 (Bill 33) permits the Court of Appeal to prescribe by regulation what types of orders can be appealed.  The phrase “interlocutory order” is now dead, as it relates to what matters require Leave to Appeal.  It is anticipated that the Rules of the Court of Appeal will be changed so that there will be a list of all of those matters for which no Leave to Appeal will be required, and all other matters will require leave.

The Chief Electoral Officer is no longer required to do a door-to-door enumeration.  There are a number of changes concerning how to enforce Canadian judgements, including domestic trade agreements.  There are changes to the Interjurisdictional Support Orders Act including: enforcing support orders by administrative bodies; reducing the time (from 18 months to 12 months) for a court to  dismiss a support application that is not advanced fully by a claimant; and using the law of BC first for a support order (and if that finds no entitlement, then apply the law of the jurisdiction where the child normally resides).  There are significant other changes to this support order legislation, and if you practice in this area, you will want to review this bill.

The Motor Vehicle Act is amended by Bill 33 to delegate authority to ICBC to regulate licence classes, and expand ICBC’s authority to set uses and restrictions for various licenses.  It removes a person’s right to a show cause hearing when ICBC suspends or refuses to renew a driving school or trainer’s license, however it creates a right to appeal to the superintendent under those circumstances.  Regulations are permitted to designate ICBC employees as constables or peace officers for the purpose of enforcing the Act and regulations.

The old Limitation Act is repealed by the new Limitation Act (Bill 34).  This largely follows the 2010 White Paper from the government, with a number of exceptions.  Many  of the new provisions, and the various recommendations which form the background to these changes, have been controversial and hotly debated.  The purpose of these comments is to highlight some of the major changes.  However, counsel will want to review this bill in detail once it is passed and in force.

The features of the new Limitation Act include the following:

-the new Act does not apply generally to court proceedings, including appeals, judicial review applications, specified court proceedings, and court proceedings regarding aboriginal and treaty rights.

-the new Act does not apply to limitation periods established by an international convention or treaty, or specified claims for possession of land, or claims by parties in possession of collateral redeeming that collateral, sexual assault or misconduct claims, assault or battery of a minor or adult living in a dependent relationship with the alleged assaulter, child or spousal support claims, and limitation periods established under other enactments.

The main limitation period under the new Limitation Act is 2 years, except for the enforcement of civil judgements, which are governed by a 10 year limitation.  You will recall that the main limitation period under the old Act was 6 years.

The limitation period begins to run on the day of the discovery of the claim.  However, there are special discovery rules for fraud, recovery of trust property, demand obligations, redeeming security, contribution or indemnity, for successors, predecessors, principals and agents, minors, and persons under disability.

The running of limitation periods are suspended for minors or when a person is under disability.

There is an ultimate limitation period of 15 years (replacing the old period of 30 years).  There is no longer a special reduced limitation period for hospitals and medical practitioners.

Limitations may be extended by an acknowledgement of liability, and potentially by court proceedings and outstanding enforcement processes.

The Animal Health Act (Bill 37) repeals other statutes and creates a positive duty for people in control of animals to not cause disease, but to train and equip employees, engage in preventative practices, comply with veterinary advice, not keep or deal with “affected animals” and comply with disease control orders.  If you have clients dealing with animals, you will need to advise them of their significant duties under this new legislation.  One aspect of this has become controversial, as it requires people not to disclose what they consider to be hazardous conditions concerning animals under some circumstances, and if they do they are liable to fines of up to $75,000 and imprisonment up to 2 years.  Critics, including those concerned with civil liberties, believe that this may be used by the salmon farming industry, and other agricultural industries to “gag” critics, with threats of substantial fines.

The Legal Profession Amendment Act, 2012 (Bill 40) has been introduced at the request of the Law Society, largely to modernize the current act and to expand the powers of the Law Society.

Maximum fines for lawyers will be increased to $50,000, the Law Society will have powers to require non-lawyers to answer questions and produce documents in the course of their investigations, the Law Society will have the power to disbar lawyers convicted of serious crimes without a full hearing, and the Benchers (as opposed to the members) will set the annual fees.

The mandate of the Law Society will be strengthened concerning the protection of the public interest, while affirming the Society’s support and assistance of lawyers in fulfilling their responsibilities in the practice of law.

The reviews of hearing panel decisions will include board members who are not lawyers.  The Law Society will be able to order an emergency suspension or imposition of practice restrictions, or require a lawyer to undergo a medical examination.  Lawyers will be entitled to legal counsel throughout any disciplinary hearings, investigations or practice reviews, but will require the Law Society’s approval before resigning from the Law Society during such procedures.

The Miscellaneous Statutes Amendment Act (No. 2), 2012 (Bill 41) amends a significant number of acts.  The Election Act is amended to disallow “pre-campaigning” during a sitting of the Legislature.  There are changes to other legislation concerning the bylaws applying to engineers and geoscientists.  The Land Title Act is amended to allow for party wall agreements to be registered against adjoining lands.  This bill makes a number of changes to licencing requirements for catered events.  The Police Act is amended to strengthen the powers of an Independent Investigation Officer concerning allegations against the police.

One of the more controversial bills to be introduced is the Civil Resolution Tribunal Act (Bill 44) which creates the Civil Resolution Tribunal as an alternative to court, but with essentially all of the powers and jurisdiction of the Small Claims Court.  Lawyers are not allowed, unless for a person under disability or the Tribunal determines that it is in the interests of justice and fairness.

The critics of this bill point out that this appears to be in response to the ongoing dispute between the judiciary at all levels in BC and the government which has publicly criticized the judiciary as being inefficient, inaccessible, expensive and inflexible.  The stated aim of this legislation is to create “accessible, speedy, economical, informal, and flexible” dispute resolution.  Critics point out the irony that the government under s. 9 excludes itself as a possible party to the tribunal, so presumably the government would prefer more traditional justice for itself rather than this “tribunal justice”.

The tribunal is encouraged to use electronic communication tools to facilitate resolution of disputes, so critics have suggested this means it will deliver “dial-in-justice” or “dial-injustice” depending on the nature of the communication method.

Disputes under the Strata Property Act are specifically encouraged, and there are two phases to the tribunal proceedings: case management and hearing phases.  Formality and technicality is to be discouraged.

Tribunal decisions can be filed in the Supreme Court or Provincial Court, and has the same force and effect as if it were a judgement of that court.  The test for appeals from the tribunal are no evidence or “otherwise unreasonable”.  A discretionary decision of the tribunal must not be set aside unless the decision is “patently unreasonable”.  A breach of the common law rules of natural justice and procedural fairness is not sufficient to overturn a tribunal decision.   The running of time under the Limitation Act is postponed regarding the tribunal process (see s. 14).

Critics have charged that while the goals of this legislation are laudable, bringing this bill forth at the tail-end of a long legislative session, with no prior consultation with the legal community, no input from the judiciary and what appears to be a lack of consideration for a number of issues of fundamental justice, in the same time frame as public criticism by the government of the judiciary, smacks of political opportunism.  Why was this not introduced for discussion, and then discussed and voted on at the next session?  Why is the government so apparently fearful of scrutiny?

If we water down justice far enough, when is it no longer justice?

The Motor Vehicle Amendment Act, 2012 (Bill 46) is a response to the Supreme Court of BC decision in Silvia v BC 2011 BCSC 1639, which determined that the automatic roadside prohibition under the Motor Vehicle Act infringed s. 8 of the Charter.  These amendments intend to bring the act into accord with the Charter.

It requires a peace officer to inform the person of their right to a second sample with a screening device, with the lower of the two results prevailing.

The peace officer must include in her report the calibration information concerning the device.  There are some further procedural changes to the prohibition process.

It is unclear if these changes will be sufficient to avoid a further successful Charter challenge.  Stay tuned.

The Coastal Ferry Amendment Act, 2012 (Bill 47) makes a large number of changes to the manner in which our ferry system is operated, based on the recent Coastal Ferry Act Review Report.  The Commissioner’s powers are broadened, and changes in the mandate are sufficient to allow the government to increase the subsidy to the ferries by an additional $80 million.

The Athletic Commissioner Act (Bill 50) creates an Athletic Commissioner for the province, who will regulate a variety of professional contests or exhibitions, including mixed martial arts events which are becoming more popular.  Offences, penalties, and the power to make bylaws are defined.  The government has made it clear that municipalities will still have the right to decide that they do not wish certain kinds of sporting events in their region.

The South Coast BC Transportation Authority Amendment Act, 2012 (Bill 51) gives authority to Translink to levy and collect fines for fare evasion, and supports those efforts by mandating ICBC to refuse to issue drivers licences to those with outstanding tickets from Translink.  The government has announced that it is serious about collecting on these tickets, and will be taking steps to collect.  With gates being installed in all of the Skytrain stations over the next short while, it is anticipated that rates of fare evasion may decline.

The Motor Vehicle Amendment Act (No. 2), 2012 (Bill 52) removes the fighting of traffic tickets from the courts to a tribunal which is to be known as the Driving Notice Review Board.  This bill grants ICBC further powers to refuse to issue, or even to cancel, a driver’s licence if a person owes ICBC money for a driving ticket.  “Resolution conferences” may be held by the superintendent in writing or by telephone.  A Driving Notice Review Board is created which can determine if a ticket was valid.    There is no appeal or review by a court of the Board’s decisions.  Regulations and procedures are authorized for the functioning of this Board, including telephone conferences, video conferences, or attendances by other electronic means.  Hearings are to be held in public, except when not practicable or desirable.

The Family Day Act (Bill 53) creates a public holiday to be held on a Monday in February.  At the time of writing this article, a date is to be chosen after consulting by internet with the public.  I will restrain myself from commenting on this bill.

The long-awaited legislation on repealing the HST has not yet been introduced, but apparently will be introduced before the end of this session.  It will be of direct interest to trial lawyers for a variety of reasons, but commentary on that will need to come from accountants and tax lawyers more knowledgeable on the ramifications of the anticipated changes.

Conclusion

There have been other Bills passed in this session, but these are likely the ones that are of the most direct concern to trial lawyers.

Article by Ian Aikenhead, Q.C.

Previously published in the Trial Lawyers Association of British Columbia’s quarterly journal, The Verdict, in 2012.  Reprinted with permission.

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