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.

Posted in Uncategorized | Leave a comment

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.

Posted in Uncategorized | Leave a comment

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.

Posted in Uncategorized | Leave a comment

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.

Posted in Uncategorized | Leave a comment

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.

 

Posted in Uncategorized | Leave a comment

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.

Posted in Uncategorized | Leave a comment

“In Trust” Claims

By Ian Aikenhead, Q.C. Courts make in-trust awards as a separate head of damage, to compensate the plaintiff’s individual family members for their housework, nursing, and domestic assistance to the injured plaintiff. This award of damages is distinct from an … Continue reading

More Galleries | Leave a comment

General Damages for Pain and Suffering, or Non-Pecuniary Damages

By Ian Aikenhead, Q.C. When a person is injured they will be entitled to different kinds of damages from the court.  The first is general damages for pain and suffering, or what the courts call “non-pecuniary damages” because they are … Continue reading

More Galleries | Leave a comment

Cost of Future Care

By Ian Aikenhead, Q.C. The test for establishing a claim for cost of future care has been stated as follows: The test for determining the appropriate award under the head of cost of future care, it may be inferred, is … Continue reading

More Galleries | Leave a comment

Loss of Future Income-earning Capacity

By Ian Aikenhead, Q.C. Damages for loss of future earning capacity are awarded usually in cases in which the plaintiff’s injuries result in permanent physical disabilities or permanent intellectual deficits. However, it is not only continuing physi­cal or intellectual limitations … Continue reading

More Galleries | Leave a comment