By Ian Aikenhead, Q.C.
The Current Session
The Third Session of the 39th Parliament ended June 2, 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 main feature of the past months concerning the legislature, is that both major political parties have found new leaders, and there has been a sea change in the style of leadership amongst the parties. This may or may not bode well for trial lawyers and our clients. Although by law there should not be another provincial election until 2013, it is widely believed that there will be an election long before then.
Bills from the Third Session of the 39th Parliament
The Civil Forfeiture Amendment Act, 2011 (Bill 6), makes a number of changes to how assets, including cash, are foreited to the Crown. This is part of an ongoing government initiative to make criminals lose their assets, to the benefit of the government. It creates a new administrative procedure whereby the government can have specified property forfeited to it and sold by it, without commencing court proceedings (Part 3.1), and provides for disputes to be administered through a purely administrative procedure.
Various provisions are clarified concerning proceedings, presumptions and proof, as well as the powers, functions and duties of the Director. It creates a 10 year limitation for the director to commence a proceeding, and a 2 year limitation for a person to commence a proceeding against the government concerning an innocent failure to deliver a notice of dispute.
The Miscellaneous Statutes Amendment Act, 2011 (Bill 7), makes major changes to several acts, including the Adult Guardianship and Planning Statutes Amendment Act, 2007, including changing powers of attorney, clarifying when a property guardian may request delivery of property belonging to an adult, and allowing notaries as well as lawyers to provide for wills instructions including prohibiting delivery of the will to the property guardian.
There are also extensive changes to Advance Directives, Representation Agreements, and other matters relating to personal instructions and care. These are part of even larger changes to this area of practice which is to be implemented effective September 1, 2011, concerning powers of attorney and related directive documents generally. CLE and other organizations have been holding seminars on these somewhat complex changes, and anyone practicing in this area should review these various changes. One trial lawyer I know who practices in this area advises that the new regulations and statutory changes will make the cost to a client of preparing an enduring power of attorney considerably more expensive than before, due to the many questions and issues which have to be covered with the client before drafting or execution can take place.
There are also changes to the Family Maintenance Enforcement Act including a requirement that creditors and debtors notify the Director of any address changes, and the director can proceed without notice if an address change is not provided. Annual default fees are now debts which can be recovered as if they were orders of the court. The director no longer has to file a copy of the notice of attachment and the maintenance order with the court, but can require that the garnished amounts be remitted as set out in the notice of attachment. It makes filing maintenance orders with the land title offices more simple, and extends information sharing with other Acts.
The Prevention of Cruelty to Animals Amendment Act, 2011 (Bill 9), is largely based on recommendations from the Sled Dog Task Force, which concerned the sled dogs killed in Whistler. It adds a number of standards for care of animals, and substantially increases the penalties for animal cruelty. The maximum penalties are now a fine of up to $75,000 or imprisonment for 2 years, or both. There a significant changes in this legislation, and anyone dealing with business involving animals will want to alert clients to the fact that standards and exposures have changed.
The Wills, Estates and Succession Amendment Act, 2011 (Bill 10), also makes changes to the various estate laws, including clarifying inheritance rights of great-grandparents, rights to the spousal home of minors or mentally incompetent persons, the legal process of signing a will, how to revoke a will, and insolvent estates, as well as many other matters. This continues to be the government agenda to make significant amendments to estate law, not all of which will come into force on September 1, 2011.
The Police (Independent Investigations Office) Amendment Act, 2011 (Bill 12) is a long awaited piece of legislation which moves towards independent investigations of police officers. The Chief Director is to be a civilian, not a former member of the RCMP or other police force. The Police Complaint Commissioner is under a duty to report defined problems to this independent investigation office, and reports are to be made annually to the Attorney General. We will only know if this organization is going to fulfill its mandate on seeing what action it takes. It is my understanding that the provincial government cannot make laws controlling the actions of the RCMP, because the RCMP is a federal entity, although there has been discussion about the role of the RCMP concerning this legislation. We shall see.
The Miscellaneous Statutes Amendment Act (No. 2), 2011 (Bill 13) amends a number of acts including the Milk Industry Act, the Law and Equity Act (concerning common property of a strata), the Child, Family and Community Service Act (allowing extension of temporary custody orders, the Family Relations Act (extending the powers of social workers concerning custody of children apparently at risk), and a variety of environmental act amendments. The Insurance Corporation Act is amended to permit ICBC to receive fees collected under the Medicare Protection Act, and the Motor Vehicle Act is amended to provide for drivers’ licenses to indicate that the licence holders are beneficiaries under the Medicare Protection Act. The Motor Vehicle Act is also amended so that you only have to surrender your driver’s license when your new license is issued, not when you apply.
And finally, the Harmonized Sales Tax (HST) Initiative Vote and Referendum Act (Bill 4). No comment. If you have not heard enough about this issue by now, nothing that I can say will be of much assistance to you or your clients.
Ian Aikenhead, Q.C.
Previously published in the Trial Lawyers Association of British Columbia’s quarterly journal, The Verdict, in 2011. Reprinted with permission.