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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