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.