Legislative Watch Article for the Verdict Magazine – December 2011

By Ian Aikenhead, Q.C.

The Current Session

The Fourth Session of the 39th Parliament commenced October 3, 2011 and ended November 25, 2011 in Victoria. Since the last Legislative Watch column, a number of Bills have been passed which may be of particular interest to trial lawyers, and I will outline those in this article.

The past months have featured the new provincial political leaders developing their strategy for an election which most assumed would have occurred in the Fall of 2011. It did not. As a result, relatively little legislation of substance was originally put forward by the government, but as the session proceeded, several significant Bills were passed including the new Family Law Act.

Bills from the Third Session of the 40th Parliament

The Flathead Watershed Area Conservation Act (Bill 2) creates a mineral reserve, a coal reserve, restricts mining and development in that area, and prohibits the disposition of Crown Lands in that area. This is part of an ongoing international effort to protect the Flathead area that lies in both Canada and the US.

The Freedom of Information and Protection of Privacy Amendment Act (Bill 3) makes a large number of amendments to this legislation. It reduces the scope of the Act so that it does not apply to faculty teaching or research information from post-secondary institutions, does not apply to records available for purchase by the public, and does not apply to records of a service provider that is not related to the provision of services for a public body. This latter change will need to be worked out, as it may restrict the ability of legal counsel to obtain some records.

The amendments require a public body to provide the records in electronic form, if reasonable to do so. A public body will be required to provide documents within 60 days, although it is not clear how easily this will be enforced.

There are a number of changes to the provisions to prevent disclosure on the basis that it would be harmful to personal privacy, including the length of time a person has been deceased, a presumption that it is unreasonable to disclose a person’s evaluations, references or recommendations, and personal information provided in confidence. It does permit details regarding diplomas to be disclosed.

The amendments expand the reasons for which a public body may collect personal information, including evaluations, reduction in the risk of domestic violence, public events, and information collected by a provincial identity information services provider.

The amendments also expand the circumstances in which a public body may disclose personal information both inside and outside Canada.

And, of course, the Commissioner’s powers are once again expanded to conduct investigations and audits. You will note that the current powers of the Commissioner to conduct investigations and audits are little short of draconian with little if any restraint placed upon the Commissioner.

There are a number of other procedural changes concerning delegation of duties, setting out new rules, and setting up an information sharing code of practice, as well as permitting the Minister to create categories of records that would require ministries to release those records.

If you or your clients are affected by this freedom of information and privacy legislation, you will need to review these amendments carefully, as there are significant procedural and substantive changes. From my review, there do not seem to be substantial changes to the most common use of FOI legislation by trial lawyers, which is requesting file documents from ICBC, but that could change by regulation by the Minister under these new amendments.

The Offence Amendment Act, 2011 (Bill 4) makes changes to sentencing under provincial statutes. In particular, it permits a probation order to be imposed in conjunction with an intermittent sentence, and permits a probation order to be imposed instead of (or in addition to) a fine or term of imprisonment. It permits arrest without warrant for failure to comply with a probation order, and provides for some provisions of the Criminal Code to apply to these probation orders. There are a number of similar changes contemplated by these amendments, primarily to the issue of sentencing.

The Personal Property Security Amendment Act, 2011 (Bill 5) extends the ability of financial institutions to register security against licenses to manufacture, produce, sell, transport, grow, harvest or otherwise deal with personal property, as well as licenses to provide services, acquire personal property or grow Christmas trees. This new Act flows from a decision of the Supreme Court of Canada in Saulnier v Royal Bank of Canada 2008 SCC 58, where the court held that fishers’ commercial fishing licenses are “property” for the purposes of personal property security legislation. If you have clients doing business in the area of licenses, then it seems likely that they will be seeking your advice concerning their bank’s desire to register charges over those licenses, and potentially have the right to seize such licenses.

The Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2011 (Bill 6) makes a variety of amendments on the issues of bioenergy, woodlot licenses, Greenhouse Gas Reduction, permits of mineral or coal licenses, and stumpage calculation. There are also a number of changes to accreditation of foresters and others working in that industry. This Act also can allow the government to designate private land as a controlled recreational area if the timber on the private land is reserved to the government.

The Nurse Practitioners Statutes Amendment Act, 2011 (Bill 10) increases the ability of nurse practitioners to do a number of things, including certifying a prison inmate’s state of health, diagnosing psychological harm under the Crime Assistance Act, certify or provide evidence under the Employment Standards Act, and the Offence Act. Under the Motor Vehicle Act they may certify that a person is unable to wear a seatbelt, provide an opinion concerning a person’s comprehension or capacity to understand a demand from police for a blood sample, be legally protected from claims of making a report regarding unfitness to drive, and also now have a duty to report a patient who has a medical condition which would make it dangerous for the patient to drive. Nurse practitioners are now required to provide ICBC with medical reports upon demand by ICBC. There are a number of other provisions concerning nurse practitioners, and their duties and responsibilities are significantly expanded.

The Greater Vancouver Transit Enhancement Act (Bill 11) allows an increase in fuel tax by 2 cents per litre to fund the Evergreen Skytrain line and other transit improvements.

The Teachers Act (Bill 12) repeals the Teaching Profession Act and establishes new certification and discipline processes for public school teachers as well as independent school teachers. There will now be a BC Teachers Council, and a Disciplinary and Conduct Board, and a variety of other entities to deal with the certification and discipline of teachers. If you act for teachers, this will affect your clients’ rights significantly.

The Workers Compensation Amendment Act, 2011 (Bill 14) makes a number of amendments to this important legislation including reducing the time of cohabitation required on the death of a spouse from 3 to 2 years, and changes the test for “mental stress” so that it can now be the result of a cumulative series of work-related stresses, and not just an acute reaction to one event.

The Attorney General and Public Safety and Solicitor General Statutes Amendment Act (Bill 15) amends the Fraudulent Conveyance Act to remove the requirement that the conveyance be “by collusion, guile, malice or fraud”. Our Court of Appeal in Abakhan & Associates Inc. v. Braydon Investments Ltd. 2009 BCCA 521 ruled that these words should be removed to make it in accordance with the modern purpose and scheme of the Act. Put simply, it is now clear that you do not need to prove fraud to set aside a conveyance that has prejudiced your interests. The Jury Act is amended to disqualify all people with criminal records, or currently under a charge of a criminal offence, from sitting on a jury. It also allows the sheriff to obtain a criminal check on all prospective jurors. Jurors can now be summoned by sending a notice to their last known electronic address.

The most significant legislation which was introduced in this session was the Family Law Act (Bill 16) which has been passed, but not all of its sections have been proclaimed as of the writing of this column. What has come into effect immediately is the repeal of the obligation to support parents, and the repeal of one of the property agreements portion of the Family Relations Act (s. 120.1). The Ministry anticipates that it will be 12 to 18 months before the balance of this new Act will be brought into effect.

This is a mammoth piece of legislation in every respect, and will replace the Family Relations Act and change almost all other legislation affecting families. It is the result of years of consultation with the matrimonial bar, and has generally been met with positive comments from that bar. A full review of this legislation is beyond the scope of this column, and many legal education seminars will be held to discuss the new provision, however, I will outline some of the main features of this important Bill.

The best interests of the child will be the only consideration when decisions affecting a child are made. This includes the history of care of the child, the impact of family violence on the child, the child’s views (if appropriate to consider them), and other civil or criminal proceedings relevant to the child’s safety or well-being.

The Bill encourages and supports parents resolving family matters outside the courtroom through agreements, mediation, arbitration and parenting co-ordination.

Restraining orders will be replaced by protection orders concerning issues of family violence, which is defined, and breaches of any protection order will be a criminal offence.

The Bill attempts to ensure that children will have time with each of their parents by creating a number of remedies and by providing tools for non-compliance, including fines.

Pre-relationship property and inheritances will not be available to be divided as family assets. Only the increase in value of an asset brought into the marriage is divisible. This is one of the most substantial changes to the property laws under this Bill. The property division provisions will now apply to both married spouses and unmarried spouses who have resided in a marriage-like relationship for at least 2 years.

Parentage, particularly where assisted reproduction is used, is more closely defined, with a framework to make the appropriate determination.

The Miscellaneous Statutes Amendment Act (No. 3), 2011 (Bill 19) amends a number of Acts, but in particular, amends the Motor Vehicle Act such that ICBC may only issue a driver’s licence for a term not exceeding the time that a person is legally entitled to be in Canada. The Wildlife Act is amended to create an offence to intentionally feed or attract dangerous wildlife, and amend the licensing provisions of the Act.

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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