By Ian Aikenhead, Q.C.
The Current Session
The Fourth Session of the 39th Parliament has continued into the spring session, and the legislature is still sitting in May 2012 when this article is being written. This spring session started off rather slowly, but in the latter stages of the session a large volume of bills have been introduced, many of which will be of particular interest to trial lawyers, and I will outline the main features of some of those.
Bills from the Fourth Session of the 39th Parliament
The Education Improvement Act (Bill 22) ends the teachers’ strike, and imposes a mediation process. It also amends the terms of what can be negotiated by teachers, and their working conditions, unilaterally.
The Prevention of Cruelty to Animals Amendment Act, 2012 (Bill 23) strengthens the powers of the Minister and changes the rights of review and appeals for persons affected by this legislation.
The Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2012 (Bill 26) amends the rights of individuals and reduces the obligations of “occupiers” of resource roads (often referred to as “logging roads”) such that users of these roads will do so at their own risk (see s. 14).
The Criminal Asset Management Act (Bill 28) establishes a comprehensive regime for the management of assets restrained, seized and forfeited under the Criminal Code and other statutes. The provincial crown has been much more diligent in recent years about pursuing the assets of law-breakers, and this legislation should simplify (from the view of the Crown) that process.
The Energy and Water Efficiency Act (Bill 32) repeals the Energy Efficiency Act, and allows the Minister and a Director to regulate energy performance standards for products, and require operators to submit energy reports. Inspectors may enter a place, but can only enter a private dwelling when consent is given or a warrant issued. Records must be produced to an inspector, or there are penalties. The limitation period for imposing penalties is 2 years.
The Justice Statutes Amendment Act, 2012 (Bill 33) permits the Court of Appeal to prescribe by regulation what types of orders can be appealed. The phrase “interlocutory order” is now dead, as it relates to what matters require Leave to Appeal. It is anticipated that the Rules of the Court of Appeal will be changed so that there will be a list of all of those matters for which no Leave to Appeal will be required, and all other matters will require leave.
The Chief Electoral Officer is no longer required to do a door-to-door enumeration. There are a number of changes concerning how to enforce Canadian judgements, including domestic trade agreements. There are changes to the Interjurisdictional Support Orders Act including: enforcing support orders by administrative bodies; reducing the time (from 18 months to 12 months) for a court to dismiss a support application that is not advanced fully by a claimant; and using the law of BC first for a support order (and if that finds no entitlement, then apply the law of the jurisdiction where the child normally resides). There are significant other changes to this support order legislation, and if you practice in this area, you will want to review this bill.
The Motor Vehicle Act is amended by Bill 33 to delegate authority to ICBC to regulate licence classes, and expand ICBC’s authority to set uses and restrictions for various licenses. It removes a person’s right to a show cause hearing when ICBC suspends or refuses to renew a driving school or trainer’s license, however it creates a right to appeal to the superintendent under those circumstances. Regulations are permitted to designate ICBC employees as constables or peace officers for the purpose of enforcing the Act and regulations.
The old Limitation Act is repealed by the new Limitation Act (Bill 34). This largely follows the 2010 White Paper from the government, with a number of exceptions. Many of the new provisions, and the various recommendations which form the background to these changes, have been controversial and hotly debated. The purpose of these comments is to highlight some of the major changes. However, counsel will want to review this bill in detail once it is passed and in force.
The features of the new Limitation Act include the following:
-the new Act does not apply generally to court proceedings, including appeals, judicial review applications, specified court proceedings, and court proceedings regarding aboriginal and treaty rights.
-the new Act does not apply to limitation periods established by an international convention or treaty, or specified claims for possession of land, or claims by parties in possession of collateral redeeming that collateral, sexual assault or misconduct claims, assault or battery of a minor or adult living in a dependent relationship with the alleged assaulter, child or spousal support claims, and limitation periods established under other enactments.
The main limitation period under the new Limitation Act is 2 years, except for the enforcement of civil judgements, which are governed by a 10 year limitation. You will recall that the main limitation period under the old Act was 6 years.
The limitation period begins to run on the day of the discovery of the claim. However, there are special discovery rules for fraud, recovery of trust property, demand obligations, redeeming security, contribution or indemnity, for successors, predecessors, principals and agents, minors, and persons under disability.
The running of limitation periods are suspended for minors or when a person is under disability.
There is an ultimate limitation period of 15 years (replacing the old period of 30 years). There is no longer a special reduced limitation period for hospitals and medical practitioners.
Limitations may be extended by an acknowledgement of liability, and potentially by court proceedings and outstanding enforcement processes.
The Animal Health Act (Bill 37) repeals other statutes and creates a positive duty for people in control of animals to not cause disease, but to train and equip employees, engage in preventative practices, comply with veterinary advice, not keep or deal with “affected animals” and comply with disease control orders. If you have clients dealing with animals, you will need to advise them of their significant duties under this new legislation. One aspect of this has become controversial, as it requires people not to disclose what they consider to be hazardous conditions concerning animals under some circumstances, and if they do they are liable to fines of up to $75,000 and imprisonment up to 2 years. Critics, including those concerned with civil liberties, believe that this may be used by the salmon farming industry, and other agricultural industries to “gag” critics, with threats of substantial fines.
The Legal Profession Amendment Act, 2012 (Bill 40) has been introduced at the request of the Law Society, largely to modernize the current act and to expand the powers of the Law Society.
Maximum fines for lawyers will be increased to $50,000, the Law Society will have powers to require non-lawyers to answer questions and produce documents in the course of their investigations, the Law Society will have the power to disbar lawyers convicted of serious crimes without a full hearing, and the Benchers (as opposed to the members) will set the annual fees.
The mandate of the Law Society will be strengthened concerning the protection of the public interest, while affirming the Society’s support and assistance of lawyers in fulfilling their responsibilities in the practice of law.
The reviews of hearing panel decisions will include board members who are not lawyers. The Law Society will be able to order an emergency suspension or imposition of practice restrictions, or require a lawyer to undergo a medical examination. Lawyers will be entitled to legal counsel throughout any disciplinary hearings, investigations or practice reviews, but will require the Law Society’s approval before resigning from the Law Society during such procedures.
The Miscellaneous Statutes Amendment Act (No. 2), 2012 (Bill 41) amends a significant number of acts. The Election Act is amended to disallow “pre-campaigning” during a sitting of the Legislature. There are changes to other legislation concerning the bylaws applying to engineers and geoscientists. The Land Title Act is amended to allow for party wall agreements to be registered against adjoining lands. This bill makes a number of changes to licencing requirements for catered events. The Police Act is amended to strengthen the powers of an Independent Investigation Officer concerning allegations against the police.
One of the more controversial bills to be introduced is the Civil Resolution Tribunal Act (Bill 44) which creates the Civil Resolution Tribunal as an alternative to court, but with essentially all of the powers and jurisdiction of the Small Claims Court. Lawyers are not allowed, unless for a person under disability or the Tribunal determines that it is in the interests of justice and fairness.
The critics of this bill point out that this appears to be in response to the ongoing dispute between the judiciary at all levels in BC and the government which has publicly criticized the judiciary as being inefficient, inaccessible, expensive and inflexible. The stated aim of this legislation is to create “accessible, speedy, economical, informal, and flexible” dispute resolution. Critics point out the irony that the government under s. 9 excludes itself as a possible party to the tribunal, so presumably the government would prefer more traditional justice for itself rather than this “tribunal justice”.
The tribunal is encouraged to use electronic communication tools to facilitate resolution of disputes, so critics have suggested this means it will deliver “dial-in-justice” or “dial-injustice” depending on the nature of the communication method.
Disputes under the Strata Property Act are specifically encouraged, and there are two phases to the tribunal proceedings: case management and hearing phases. Formality and technicality is to be discouraged.
Tribunal decisions can be filed in the Supreme Court or Provincial Court, and has the same force and effect as if it were a judgement of that court. The test for appeals from the tribunal are no evidence or “otherwise unreasonable”. A discretionary decision of the tribunal must not be set aside unless the decision is “patently unreasonable”. A breach of the common law rules of natural justice and procedural fairness is not sufficient to overturn a tribunal decision. The running of time under the Limitation Act is postponed regarding the tribunal process (see s. 14).
Critics have charged that while the goals of this legislation are laudable, bringing this bill forth at the tail-end of a long legislative session, with no prior consultation with the legal community, no input from the judiciary and what appears to be a lack of consideration for a number of issues of fundamental justice, in the same time frame as public criticism by the government of the judiciary, smacks of political opportunism. Why was this not introduced for discussion, and then discussed and voted on at the next session? Why is the government so apparently fearful of scrutiny?
If we water down justice far enough, when is it no longer justice?
The Motor Vehicle Amendment Act, 2012 (Bill 46) is a response to the Supreme Court of BC decision in Silvia v BC 2011 BCSC 1639, which determined that the automatic roadside prohibition under the Motor Vehicle Act infringed s. 8 of the Charter. These amendments intend to bring the act into accord with the Charter.
It requires a peace officer to inform the person of their right to a second sample with a screening device, with the lower of the two results prevailing.
The peace officer must include in her report the calibration information concerning the device. There are some further procedural changes to the prohibition process.
It is unclear if these changes will be sufficient to avoid a further successful Charter challenge. Stay tuned.
The Coastal Ferry Amendment Act, 2012 (Bill 47) makes a large number of changes to the manner in which our ferry system is operated, based on the recent Coastal Ferry Act Review Report. The Commissioner’s powers are broadened, and changes in the mandate are sufficient to allow the government to increase the subsidy to the ferries by an additional $80 million.
The Athletic Commissioner Act (Bill 50) creates an Athletic Commissioner for the province, who will regulate a variety of professional contests or exhibitions, including mixed martial arts events which are becoming more popular. Offences, penalties, and the power to make bylaws are defined. The government has made it clear that municipalities will still have the right to decide that they do not wish certain kinds of sporting events in their region.
The South Coast BC Transportation Authority Amendment Act, 2012 (Bill 51) gives authority to Translink to levy and collect fines for fare evasion, and supports those efforts by mandating ICBC to refuse to issue drivers licences to those with outstanding tickets from Translink. The government has announced that it is serious about collecting on these tickets, and will be taking steps to collect. With gates being installed in all of the Skytrain stations over the next short while, it is anticipated that rates of fare evasion may decline.
The Motor Vehicle Amendment Act (No. 2), 2012 (Bill 52) removes the fighting of traffic tickets from the courts to a tribunal which is to be known as the Driving Notice Review Board. This bill grants ICBC further powers to refuse to issue, or even to cancel, a driver’s licence if a person owes ICBC money for a driving ticket. “Resolution conferences” may be held by the superintendent in writing or by telephone. A Driving Notice Review Board is created which can determine if a ticket was valid. There is no appeal or review by a court of the Board’s decisions. Regulations and procedures are authorized for the functioning of this Board, including telephone conferences, video conferences, or attendances by other electronic means. Hearings are to be held in public, except when not practicable or desirable.
The Family Day Act (Bill 53) creates a public holiday to be held on a Monday in February. At the time of writing this article, a date is to be chosen after consulting by internet with the public. I will restrain myself from commenting on this bill.
The long-awaited legislation on repealing the HST has not yet been introduced, but apparently will be introduced before the end of this session. It will be of direct interest to trial lawyers for a variety of reasons, but commentary on that will need to come from accountants and tax lawyers more knowledgeable on the ramifications of the anticipated changes.
There have been other Bills passed in this session, but these are likely the ones that are of the most direct concern to trial lawyers.
Article 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.