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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