Background
The Spring Session, the Third Session of the 41st Parliament of British Columbia, commenced in February 2018. This column is being written before the end of that session, just a few days after the introduction of bills that will change how injured persons will be able to advance claims arising out of motor vehicle accidents in BC. The TLABC is strongly opposed to these measures. The purpose of this column is to describe as objectively as possible some of the main features of the changes. The TLABC will be providing more detailed critiques of this new legislation in the weeks ahead, and will be challenging the government in a variety of ways concerning this legislation.
There are other bills which are being considered by the government which may be of interest to members of the TLABC, and those will also be discussed.
Bill 20 – The Insurance (Vehicle) Amendment Act, 2018
As an overview, this bill and the companion Bill 22, the Civil Resolution Tribunal Amendment Act, 2018, create a new procedure and legal structure for all persons injured in motor vehicle accidents which occur April 1, 2019 and later.
The main features are:
-restricts claims for “minor injuries”, as defined in the bill or subsequent regulations, so that non-pecuniary damages for pain and suffering are “capped” at $5,500;
-makes no statutory restrictions to claims for other heads of damages, such as past economic loss, future loss of capacity, future loss of opportunity, loss of housekeeping capacity, “in trust” claims, special damages, or cost of future care, all of which can be advanced as before, subject to Bill 22;
-Bill 22 expands the Civil Resolution Tribunal (“CRT”) so that it has the exclusive jurisdiction to:
– determine what is or is not a “minor injury”;
– deal with all Part VII accident benefit claims (including entitlement);
– Bill 22 also gives the CRT concurrent jurisdiction with the BC Supreme Court for all claims that have a value of less than $50,000;
-increases accident benefits payable by ICBC, including weekly temporary total disability payments, as well as increased payments for therapies and therapists, to reduce or eliminate “user fees”;
-eliminates “subrogated claims” by other benefit providers (except WorkSafe BC and MSP), including repayment of short or long term disability payments, medication or therapy expenses, etc.
-the CRT will allow lawyers to represent parties, and it is understood that ICBC will be represented by ICBC adjusters at the CRT;
-if an application to move a matter to the BC Supreme Court from the CRT is successful, but the ultimate result is less than the $50,000 CRT limit, recovery of fees and expenses will be limited to those recoverable through the CRT rules;
-the CRT will probably have separate rules for motor vehicle injury litigation to be determined by regulation, but includes the power to limit experts and to require a single joint expert.
The first portion of this significant bill increases the requirements for health care practitioners to provide reports to ICBC for injured persons (s. 28.1). ICBC anticipates that Part VII rehabilitation and disability benefits will be increased significantly, requiring more reports to support these increased benefits.
The bill also changes how insurance certificates are issued and defined, presumably with other changes to come by regulation, to increase premiums for drivers who cause accidents, or have bad driving records. Much of these sections deal with housekeeping issues, but as ICBC attempts to move towards their stated goal of “rate fairness” they are seeking authority to establish more equitable rates, based on a variety of factors, including a person’s driving record. S. 34 and s. 35 update these various definitions, and detail specific factors for determining premiums (to be added by regulation).
S 45.1 of the Act is being amended to allow the government to regulate the amount payable to health care practitioners through agreements for services provided to injured persons. These payments can vary according to different types or classes of health care practitioners, different classes of care, and different geographic areas. These regulations must be reviewed at least once every 5 years, and the report placed before the Legislature.
S.72 is amended to state that disputes concerning payments under optional coverage “may or must” be submitted to arbitration. The regulations can set out whether it will be may or must for various optional coverage. (See also s. 45 which also deals with this issue.)
S. 82.2 is added to the Act to state that an injured person may not recover from ICBC a cost or expense of a health care practitioner which is in excess of the amount set by regulation. On the assumption that such fees will be both set by ICBC and normally paid by ICBC under Part VII, most claims for special damages will be reduced substantially.
S.83 eliminates subrogated claims by third parties (other than WorkSafe or MSP) who provide monies for the benefit of persons injured in motor vehicle accidents. This does not include monies paid under a third party liability insurance coverage, or health care services pursuant to s. 1 of the Health Care Costs Recovery Act. This does mean that the current practice of claims for payments by extended health providers such as ManuLife or Pacific Blue Cross for services provided to claimants will not be re-payable by ICBC. Those extended health care providers will not be able to claim the monies back from claimants, as the claimants are not able to be paid such monies by ICBC.
S.83 is further amended by adding ss 5.1, which deals with the court deducting benefits paid or provided to the claimant, or for which the claimant is “entitled” but not “ascertained”. In making that determination, the court “may not consider the likelihood that the benefits will be paid or provided”. The court must still make an estimate of such future payments, pursuant to s. 83 (6). This will create difficulties for lump sum future cost of care awards. ICBC may well decide to continue Part VII benefits past settlement or trial in view of these various changes, including the tariff of therapy costs as described in s. 82.2 above.
S.94 is amended to expand the ability of Cabinet to make regulations concerning a wide variety of matters, including priority of claims, amounts payable to lessors of vehicles (and others) under s. 82.1 (2) (b), prescribing other issues concerning lessors or vehicle classes, and the definition of “benefits”. Also note s. 105, which allows for regulations to the entire Act, not just Part VII of the Act, which s. 94 authorizes.
“Minor Injuries”
The most significant portion of the new legislation concerns the new Part 7 of the Act (not to be confused with Part VII of the Regulations, being the accident benefit provisions). Part 7 of the Act is as follows:
Part 7 – Minor Injuries
101 (1) In this Part:
“accident” means an accident occurring in British Columbia that is caused by a vehicle or the use or operation of a vehicle as a result of which a person suffers bodily injury;
“claimant” means a person who claims damages for non-pecuniary loss for a bodily injury resulting from an accident;
“diagnostic and treatment protocol” means a protocol prescribed for the purposes of examining, assessing, diagnosing and treating a minor injury;
“minor injury” means a physical or mental injury, whether or not chronic, that
(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and {emphasis added}
(b) is one of the following:
(i) an abrasion, a contusion, a laceration, a sprain or a strain;
(ii) a pain syndrome;
(iii) a psychological or psychiatric condition;
(iv) a prescribed injury or an injury in a prescribed type or class of injury;
“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;
“serious impairment”, in relation to a claimant, means a physical or mental impairment that
(a) is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and
(b) meets prescribed criteria.
(2) Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if
(a) the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and
(b) the injury
(i) results in a serious impairment or a permanent serious disfigurement of the claimant, or
(ii) develops into an injury other than an injury within the definition of “minor injury” in subsection (1).
(3) An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.
(4) For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.
Application of this Part
102 This Part applies to an accident occurring on or after April 1, 2019.
Limit on non-pecuniary loss for minor injuries
103 (1) Subject to subsection (2), the amount recoverable by a claimant as damages for non-pecuniary loss arising from one or more minor injuries suffered by the claimant in a single accident must be calculated or determined in accordance with the regulations.
(2) The amount recoverable by a claimant under subsection (1) must be reduced in proportion to the claimant’s degree of fault, if any, in the accident.
Power to make regulations under this Part
104 (1) Without limiting any power of the Lieutenant Governor in Council to make regulations under any other Part of this Act, the Lieutenant Governor in Council may make regulations under this Part as follows:
(a) respecting the examination and assessment of injuries, the determination of whether an injury is a minor injury and the onus of proof on such a determination;
(b) respecting the examination, assessment, diagnosis and treatment of minor injuries, including, without limitation,
(i) establishing or adopting procedures, guidelines, criteria, requirements or standards to be followed or met, as applicable, by claimants, insurers and prescribed health care practitioners, and
(ii) establishing time limits for the purposes of obtaining an examination, assessment, diagnosis or treatment;
(c) prescribing circumstances in which a prescribed diagnostic and treatment protocol applies and providing when a protocol no longer applies;
(d) governing the roles, in relation to a protocol, of claimants, insurers and prescribed health care practitioners and imposing limits on those roles;
(e) respecting treatment plans for a minor injury and respecting the number and type of treatments for a minor injury, including, without limitation, prescribing different numbers or types of treatments for different circumstances;
(f) respecting referrals, including referrals to a person in a prescribed class of persons, for the purposes of obtaining an opinion about
(i) the examination, assessment or diagnosis of an injury,
(ii) the treatment plan for a minor injury, or
(iii) the condition of a claimant;
(g) for the purposes of paragraph (f),
(i) prescribing a class of persons,
(ii) requiring the establishment of a register of persons in the class,
(iii) prescribing requirements and qualifications for persons in the class,
(iv) requiring treatment plans from persons in the class, and
(v) requiring reports from persons in the class and establishing the form of, and information to be included in, those reports;
(h) respecting procedures and conditions for the making of claims to, and the refusal and payment of claims by, an insurer, including, without limitation, establishing circumstances in which claims are deemed to have been approved;
(i) establishing forms for claims and treatment plans or authorizing the corporation to establish forms for claims and treatment plans;
(j) prescribing injuries or types or classes of injuries for the purposes of the definition of “minor injury” in section 101 (1);
(k) respecting criteria for the purposes of the definition of “permanent serious disfigurement” in section 101 (1);
(l) respecting criteria and prescribing a period for the purposes of the definition of “serious impairment” in section 101 (1);
(m) respecting circumstances in which an injury or an injury in a prescribed class of injuries, or a claimant or a claimant in a prescribed class of claimants, will be exempt from the application of section 101 (2);
(n) for the purposes of section 103 (1), respecting damages for non-pecuniary loss for a minor injury, including, without limitation, establishing
(i) an amount of damages or a limit on damages for a minor injury arising from an accident in which a claimant suffers
(A) a minor injury and an injury that is not minor, or
(B) only a minor injury, and
(ii) rates, formulas, rules or principles, including using a consumer price index published by Statistics Canada under the Statistics Act (Canada), for calculating or determining an amount of damages or a limit on damages.
(2) A regulation under subsection (1) (b) (i) may adopt by reference, in whole or in part and with any change the Lieutenant Governor in Council considers necessary, any procedures, guidelines, criteria, requirements or standards published by a body, or person with a professional designation, approved by the Lieutenant Governor in Council for the purposes of this section.
(3) Procedures, guidelines, criteria, requirements or standards adopted under subsection (2) may be adopted as they stand at the time of adoption or as amended from time to time.
(4) A regulation under subsection (1) (n) may be different in respect of accidents occurring on or after different dates or in different periods.
Commentary
There are a number of points that need to be highlighted.
First, if the injury is not listed under (b) of “minor injury”, it is not a “minor injury”, and compensation for such injury will be under traditional heads of damage in BC Supreme Court.
Second, it is open to the Cabinet to add a prescribed injury to that list by regulation. The example given by the Attorney General is that in Alberta, with similar (but more narrow definitions of minor injury, and all by regulation) the list did not include TMJ claims, and Alberta experienced what has been described as a “TMJ epidemic”. The government seeks “flexibility” to deal with such claims.
Third, injured persons may well have a “minor injury” as defined here, but have a claim for extensive cost of future care, future loss of capacity, past economic loss, loss of housekeeping capacity and special damages. Only non-pecuniary damages are restricted to the proposed $5,500 cap. All other damages remain the same (subject to what procedure can be used, subject to disbursements payable, and how future care will be paid for, which will be discussed below).
Fourth, there is a defence provided to ICBC of mitigation, which appears to place the burden on the claimant to establish that in seeking to define their injury as “non-minor” they followed treatment in accordance with a prescribed treatment protocol (s. 101 (2)). These protocols may be set by regulation.
Fifth, it is not clear how the court or tribunal will interpret s. 101 (4) which suggests that even if the symptoms last for more than 12 months, the injury may still be considered “minor”. The alternate interpretation is that if the basic injury itself does not resolve within 12 months, then it is no longer “minor”, but if the basic injury does resolve within 12 months, but a related condition continues, then it continues to be “minor”. This is similar wording to other jurisdictions. In theory, this means that if a claimant has soft tissue injuries which do not result in a “serious impairment”, but are accompanied by headaches, the fact that the headaches have not resolved within 12 months does not take the injury out of the “minor injury” category. Of course, for the injury to include a “serious impairment” it must “meet prescribed criteria” in addition to lasting over 12 months. The “prescribed criteria” will be defined by regulation, which we are advised should be announced shortly.
Sixth, the extensive powers of regulation under s. 104 make it difficult to determine exactly what the ultimate scheme will be, as almost every aspect of the new scheme can be changed by regulation. This includes how an injury will be defined, what treatment plans are approved, how much is paid for treatment, who can provide that treatment, protocols of treatment, procedures for assessment of injuries, etc. The government has stated that it is their intention to seek direction and agreement on all of these matters with the governing bodies of the health care practitioners concerned, and if they succeed in obtaining those agreements, then one would expect such protocols and treatment plans to be based on science. However, if agreement eludes the government, there may be controversy about these matters which affect the treatment of injuries.
Seventh, the definition of “serious impairment” is somewhat vague, and is open to clarification by regulation.
All of these comments must be viewed in the context of Bill 22, which expands the Civil Resolution Tribunal to deal with all issues concerning “minor injuries”. [See below for a discussion of the CRT.]
Part 8 of this bill gives wide powers to the Cabinet to make regulations concerning almost all aspects of this legislation. This bill is not a full definition or description of the new compensation scheme. The regulations, which may not be promulgated for many months, will govern many aspects of the practical results for injured persons.
For example, the manner in which ICBC deals with the expanded Part VII disability and rehabilitation benefits will presumably increase the short term financial and medical assistance provided to injured persons, and could also potentially affect how more seriously injured persons are compensated for claims for cost of future care. It is possible that with the expanded coverage for rehabilitation benefits, and the potential limitation on the costs that health care practitioners will charge, that ICBC will insist on ongoing future care being paid as incurred, rather than with a lump sum payment for possible or probable future care needs. If such a change were to occur, this would alter the payment of future rehabilitation benefits significantly.
The transitional provisions make only minor retroactive changes, all of which appear to be consistent with current legislative provisions. These transition provisions expire in 2 years.
S.32 of this bill allows the government to increase lifetime rehabilitation benefits under Part VII to $300,000 effective retroactively to January 1, 2018, as previously announced by the government.
Bill 22 Civil Resolution Tribunal Amendment Act, 2018
The current Civil Resolution Tribunal (“CRT”) deals with most strata corporation disputes, civil claims under $5,000 and will be dealing with some society and cooperative disputes. This legislation expands its jurisdiction to deal with minor injury claims, accident benefit claims, and related matters.
The CRT will have exclusive jurisdiction to determine whether a claim is a “minor injury” or not. The CRT will also have concurrent jurisdiction with the BC Supreme Court to deal with all claims that are under $50,000, or another amount set by regulation. The bill makes clear that if a claimant proceeds to the BC Supreme Court and obtains a judgment for less than $50,000 that claimant is only entitled to the costs and disbursements payable in the CRT, which we assume will be significantly less.
The relevant sections of the bill are contained in Division 7 of the proposed Act, as follows:
Division 7 – Accident Claims
Definitions for Division – accident claims
132 In this Division:
“accident”,
(a) except in respect of the benefits referred to in section 133 (1) (a), has the same meaning as in section 101 [definitions and interpretation] of the Insurance (Vehicle) Act, or
(b) in respect of the benefits referred to in section 133 (1) (a) of this Act, has the same meaning as in section 1.1 [definitions] of the Insurance (Vehicle) Act;
“benefits” has the same meaning as in section 1.1 of the Insurance (Vehicle) Act;
“minor injury” has the same meaning as in section 101 of the Insurance (Vehicle) Act;
“tribunal limit amount” means the amount prescribed by regulation as the maximum amount that the tribunal may award in an accident claim in accordance with section 133 (1) (c) of this Act.
Claims within jurisdiction of tribunal for accident claims
133 (1) Except as otherwise provided in section 113 [restricted authority of tribunal] or in this Division, the tribunal has jurisdiction in a dispute, in respect of an accident, over a claim concerning one or more of the following:
(a) the determination of entitlement to benefits paid or payable under the Insurance (Vehicle) Act;
(b) the determination of whether an injury is a minor injury for the purposes of the Insurance (Vehicle) Act;
(c) liability and damages, if the amount, excluding interest and any expenses referred to under section 49 [order for payment of expenses], is less than or equal to the tribunal limit amount.
(2) For the purposes of this Act, the tribunal
(a) has exclusive jurisdiction in respect of claims described in subsection (1) (a) or (b) of this section, and
(b) is to be considered to have specialized expertise in respect of claims described in subsection (1) (c) of this section.
(3) For certainty, a person may make a request for tribunal resolution in more than one tribunal proceeding relating to an accident.
Claims beyond jurisdiction of tribunal for accident claims
134 (1) The tribunal does not have jurisdiction in relation to a claim that may be dealt with, by a court, under any of the following provisions of the Insurance (Vehicle) Act:
(a) section 18 (2) [financial responsibility in other provinces];
(b) section 42.1 [offence];
(c) section 68 [relief from forfeiture];
(d) section 77 (2), (8) and (9) [rights of insurer];
(e) section 78 [payment of insurance money into court];
(f) section 79 [defence if more than one contract].
(2) The tribunal does not have jurisdiction in relation to the following:
(a) a claim relating to liability and damages claimed under the Family Compensation Act in respect of a death;
(b) a claim to which the Arbitration Act applies.
Matters relating to tribunal limit amount
135 (1) It is presumed that the amount, excluding interest and any expenses referred to in section 49 [order for payment of expenses], that will be awarded for a minor injury in an accident claim described in section 133 (1) (c) is less than or equal to the tribunal limit amount unless a party establishes on the basis of satisfactory evidence that there is a substantial likelihood that the damages will exceed the tribunal limit amount.
(2) If a case manager, during case management, or the tribunal, during a tribunal proceeding, determines that the damages in an accident claim described in section 133 (1) (c) would likely exceed the tribunal limit amount,
(a) subject to the rules, the case manager or the tribunal may, on request of all parties to a dispute, provide to the parties a non-binding neutral evaluation of the likely amount of damages, and
(i) the parties may not disclose the evaluation
(A) to the court, or
(B) if the evaluation is provided by the case manager, to the tribunal, and
(ii) the parties may request a dismissal order in accordance with section 22 [parties may request consent dismissal order], or
(b) a party may request that the claim be continued in the Supreme Court.
(3) For certainty, subsections (1) and (2) do not limit the tribunal’s authority to refuse to resolve a claim that is not within the tribunal’s jurisdiction.
(4) If a party brings or continues any proceeding in the Supreme Court in respect of liability and damages in relation to an accident and the settlement or award is less than the tribunal limit amount, the costs, including disbursements, that may be ordered are limited to an amount that would have been permitted in the tribunal proceeding by order of payment of expenses under section 49 [order for payment of expenses].
Commentary
This is a dramatic change to how injured persons obtain compensation for their injuries in BC.
The CRT legislation makes it clear that adjudicators have security of tenure, and are not open to being removed without cause by the government during their term of office. The CRT appears to be modelling itself after other independent tribunals which deal with claims affecting government finances, including WCAT and lumber tariff and environmental tribunals, which operate independently of government (in spite of being appointed by government).
Currently, the CRT does not have sufficient resources to deal with the tens of thousands of claims that they will potentially have to deal with. The CRT will have to expand their current 6 full-time members and approximately 30 part-time adjudicators to a much larger number, with far more physical and human resources, in a short time frame to be ready for April 1, 2019.
Part of the stated ICBC initiative is that ICBC will pay more in Temporary Total Disability benefits under Part VII of the Regulations, pay all “reasonable” rehabilitation expenses such as physiotherapy in full without the need for injured persons to pay “user fees”, and together with the new caps in place this will lead to many more claimants settling directly with ICBC without needing legal assistance tribunal or court involvement.
ICBC is counting on this approach yielding significant financial savings, and, according to ICBC, more effective and immediate rehabilitation for persons with minor injuries.
The TLABC takes a dramatically different view of this, stating that the CRT is not truly independent in the same fashion as the judges of our courts who have life tenure, are not experienced in these areas, and that they will interpret claims of injured persons in an overly technical and restrictive fashion, rather than on a more humane basis. There are a variety of other criticisms that are being advanced by the TLABC to this aspect of the new scheme of compensation.
The degree to which this new compensation scheme will be accepted by the public will likely turn on how effectively the CRT deals with the many cases that it will have to deal with. There are thousands of tort injury claims advanced every year of less than $50,000, and many thousands of accident claims. The CRT will deal with most, if not all of those. The CRT will have the challenge of being able to provide the 3 month turnaround that the government is proposing it will accomplish, and to do so with justice being done, and seen to be done.
Other Bills from this Session of the Legislature
A number of tax bills have been introduced dealing with taxes that will affect homeowners, employers concerning MSP premiums, and a variety of other tax issues. These will not be listed or discussed in this article, as they are of general interest, rather than specific interest to trial lawyers.
The Community Care and Assisted Living Amendment Act, 2018 (Bill 5), requires the medical health officers to publish information on their website regarding licensed and unlicensed community care facilities, including assisted living residence, child care, residential care, or recovery home facilities, and to make regulations concerning this information.
The Employment Standards Amendment Act, 2018 (Bill 6) extends maternity leave to 13 weeks from the current 11 weeks, extends unpaid parental leave for adoptive parents to 61 weeks from 35 weeks, extends unpaid parental leave for other parents to 62 weeks from 37 weeks, extends unpaid compassionate care leave to 27 weeks from 8 weeks (during 52 weeks), and extends unpaid leave regarding the death of a child from 3 days to 104 weeks.
The International Commercial Arbitration Amendment Act, 2018 (Bill 11), changes the definitions of a variety of terms including “arbitral award” and “BC Arbitration Centre, provides for electronic communication for arbitration agreements, clarifies the basis for challenging an arbitrator only for “real danger of bias”, exempts persons who act in arbitrations from having to be lawyers, and makes a number of consequential amendments to update this arbitration act.
The Public Service Amendment Act, 2018 (Bill 13) gives the Merit Commissioner the authority to conduct reviews of all public service dismissals for just cause, to ensure adherence to public service standards and legal requirements. This is based on the Ombudperson’s report concerning the tragic health employees’ terminations of several years ago. (See also Bill 28.)
The Public Interest Disclosure Act (Bill 28) results from the same Ombudperson’s report cited in Bill 13, and sets out a detailed method for the government to investigate, disclose, and report on various employment and termination matters, with protection for whistleblowers and for solicitor/client privilege.
The Tenancy Statutes Amendment Act, 2018 (Bill 12) changes the tenure of tenancy agreements under the Manufactured Home Park Tenancy Act, changes the tenure of other tenancy agreements and the compensation required to be paid on early ending of a tenancy, extends the notice period from 2 to 4 months for the landlord to provide notice to end a tenancy due to demolition, renovation, or conversion of the property, and makes a number of changes concerning the ending of tenancies and compensation payable by landlords.
The Workers Compensation Amendment Act, 2018 (Bill 9) adds some definitions, and adds a presumption for mental disorders resulting from a trauma at work, including PTSD, that provides for compensation for paramedics, policy, firefighters, sheriffs and correction officers, and further applies the cancer presumptions to firefighters employed by Canada.
The Family Maintenance Enforcement Amendment Act, 2018 (Bill 10) permits the Director to direct ICBC to cancel a driver’s licence for a person whose arrears under a maintenance order are $3,000 or more, and allows the Director further authority concerning drivers’ licenses.
The Class Proceedings Amendment Act, 2018 (Bill 21) allows for multi-jurisdictional class proceedings, updates class proceeding rules, creates rules for determining the appropriate jurisdiction for multi-jurisdictional class proceedings, and removes rules for opting in to a class proceeding.
The Miscellaneous Statues Amendment Act (No. 2), 2018 extends the time in the Infants Act for payment, property transfer and passing of accounts up to the date that the former ward attains 27 years of age, if the ward and the PGT have entered into a trusteeship agreement. This bill also makes a variety of changes to the Societies Act concerning special resolution voting thresholds, requirements in minutes to include the text of each resolution, authorizations of the registrar to demand records, and a number of housekeeping amendments. If you deal with societies in your practice, you will want to review the terms of this bill.
The Real Estate Development Marketing Amendment Act, 2018 (Bill 25) makes a number of changes to limit assignment of purchase agreements, particularly widely used in the condo market. It requires more records to be kept, and allows orders to be made against developers who are not in compliance with the act, including penalties of up to $1.25 million.
The Child, Family and Community Service Amendment Act, 2018 (Bill 26) changes the definitions of “aboriginal child” to “indigenous child” and makes a number of changes concerning how the government and the Ministry and others are to treat indigenous children. There are a large number of changes in this bill, and if you practice in this area you will need to review these changes very closely.
The Pill Press and Related Equipment Control Act (Bill 27) is designed to control the possession and sale of pill machines, which have been used increasingly in creating opioid street drugs, and particularly fentanyl which has killed hundreds of people over the past year. Fines and prison terms are designated for breach of this bill.
The Voluntary Blood Donations Act (Bill 29) prohibits the payment of any inducements for the collection of human blood, with the exception of the government, Canadian Blood Services, research facilities, or prescribed persons. There are fines of up to $500,000 for breaches by corporations.
Finally there are several bills concerning the federal legalization of recreational cannabis, the Cannabis Control and Licensing Act (Bill 30) and the Cannabis Distribution Act (Bill 31) (as well as Bill 17 discussed below). This is complex legislation, with the creation of a whole government infrastructure to deal with controlling and licensing cannabis and cannabis products, as well as the distribution of those products. There are numerous rules concerning where one can possess or use cannabis (not at or near school property), how many plants or grams one can possess in public (4 plants or 30 grams), smoking or vaping at bus stops or while operating a vehicle or boat, and a variety of other restrictions. If your clients have public businesses you will want to advise them on these restrictions, as it is possible that individuals or corporate businesses could face fines of up to $100,000.
Bill 31 authorizes the government to buy and sell cannabis products and accessories, and deals with how the government can deal with cannabis revenue.
The Motor Vehicle Amendment Act, 2018 (Bill 17) is consequent to the cannabis legislation (Bills 30 and 31), and concerns offences due to driving while having a prescribed drug or substance. It also allows screening devices to be used as evidence.
Conclusion
As you can see, there has been a veritable blizzard of new legislation in this Spring session, only some of which bills have been discussed in this column. It is anticipated that there will also be a Fall session, so more legislation may be introduced then.
I would like to thank Stuart Rennie of the Canadian Bar Association for his help in providing some of the information contained in this column. Any errors in interpreting this new legislation are entirely mine.
If you have concerns about these bills, or upcoming legislative matters, please contact one of the members of the TLABC Executive, who will be pleased to discuss matters with you.
Article by Ian Aikenhead, Q.C.
Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.
