Highlights of the 2015 Practice Checklists Manual

Practice Checklists Manual

The 2015 update reflects legislative amendments, new case law, and changes in practice. Each checklist is current to the date indicated at the beginning of that checklist. The following highlights are not exhaustive; see the checklists for more details. General points include: 

  • Law Society Rules. On July 1, 2015, revised and consolidated Law Society Rules came into effect.
  • Articled students as commissioners. Effective September 1, 2015, articled students and temporary articled students are commissioners for taking affidavits in British Columbia for the purposes of s. 60(1) of the Evidence Act, R.S.B.C. 1996, c. 124. Principals, who are responsible for students’ actions, must ensure students understand the import of acting as a commissioner.
  • Code of Professional Conduct for British Columbia (the “BC Code”). Rule 3.6-3, commentary [1] regarding the duty of candour owed to clients respecting fees and other charges for which a client is billed was amended in June 2015. Effective July 2015, rule 3.7-9 requires that a lawyer promptly notify the client, other counsel, and the court or tribunal of the lawyer’s withdrawal from a file.

I. Corporate/Commercial 

General duty of honesty in contractual performance. In Bhasin v. Hrynew, 2014 SCC 71, the court recognized a new general duty of honesty in contractual performance, under which parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of a contract. 

Amendments to the Business Corporations Act, S.B.C. 2002, c. 57 (the “BCA”). On royal assent to the Societies Act, S.B.C. 2015, c. 18, amendments to ss. 5, 124, 356, 357, 360, 364.1 (with respect to restorations), 426, and 433 of the BCA came into effect on May 14, 2015. Under the Chartered Professional Accountants Act, S.B.C. 2015, c. 1, amendments to ss. 205 and 221 of the BCA, with respect to qualified persons authorized to act as auditors, were in force June 24, 2015 (B.C. Reg. 114/2015). 

New West Partnership Trade Agreement. On January 6, 2015, the first Protocol of Amendment was signed, resulting in amendments that clarify labour mobility language and dispute resolution provisions.  

Changes to the Partnership Act, R.S.B.C. 1996, c. 348. The Societies Act and the Finance Statutes Amendment Act, 2012, S.B.C. 2012, c. 12, both include amendments to the Partnership Act, which are not yet in force. It is strongly recommended that practitioners verify the status of all amendments to the Partnership Act prior to drafting any partnership agreement. 

II. Criminal 

Parliament made extensive and significant changes to the Criminal Code, R.S.C. 1985,
c. C-46, which came into effect in late 2014 and early 2015. 

Victims’ rights 

  • Victims Bill of Rights Act, S.C. 2015, c. 13. In force July 22, 2015, except for ss. 45 to 51 (some of which came into force on July 23, 2015, by order of the Governor in Council), the Act provides rights to victims regarding access to information, protection, participation, and restitution. The Act makes many changes to the Criminal Code, including broadening the definition of “victim” and requiring the court, when making a bail order under s. 515, to consider the safety and security of every victim of the offence. 
  • Canada Evidence Act, R.S.C. 1985, c. C-5. Under the amended s. 4(2), spouses are competent and compellable to testify for the prosecution in all cases, although the spousal privilege in s. 4(3) remains in force with respect to communications during the marriage between the witness and the accused. 
  • No-contact orders. Under An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders), S.C. 2014, c. 21, in force September 19, 2014, no-contact orders with victims and witnesses are now mandatory for all conditional sentence orders (“CSOs”) and probation orders, unless the victim or witness consents to contact or there are “exceptional circumstances”. 

Sentencing: amendments and case law 

  • Assaults of public transit operators. An Act to amend the Criminal Code (assaults against public transit operators), S.C. 2015, c. 1, in force February 25, 2015, adds s. 269.01 to the Criminal Code, creating a codified aggravating factor on sentencing for threatening or assaulting a “public transit operator”.
  • Assaults of police officers and protection of service animals. The Justice for Animals in Service Act (Quanto’s Law), S.C. 2015, c. 34, came into force on June 23, 2015. Section 270.03 requires that sentences for assaults on police officers be made consecutive to any other sentence for other offences arising from the same event or series of events. It also creates a new offence, in s. 445.01, of killing, maiming, or harming “law enforcement”, “military”, and “service” animals.
  • Firearms offences. The Common Sense Firearms Licensing Act, S.C. 2015, c. 27, in force June 18, 2015, amends various Criminal Code provisions relating to firearms, adding a subcategory of “non-restricted firearms”, strengthening the firearms prohibitions for offenders in domestic violence cases, and expanding the prohibitions under ss. 109 and 110.
  • Constitutionality of three- and five-year minimum sentences under Criminal Code, s. 5(2)(a)(i) and (ii). In R. v. Nur, 2015 SCC 15, the court held both mandatory minimum sentences for firearms convictions under s. 95(1) to be unconstitutional because they offend the right not to be subjected to cruel and unusual treatment or punishment as guaranteed by s. 12 of the Charter of rights and Freedoms, and cannot be saved by s. 1 (but upheld the two respondents’ sentences). 

Anti-terrorism Act, 2015, S.C. 2015, c. 20. In force June 18, 2015, the Act amends several federal statutes relating to terrorism, national security, and intelligence. It creates a new Criminal Code offence, in s. 83.221, of advocating or promoting the commission of terrorist offences, and provides a new scheme allowing authorities to seize and/or destroy terrorist propaganda. 

Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29. In force July 17, 2015, amends several federal statutes, including the Criminal Code. It creates a number of marriage-related offences, including forced and underage marriages; removing children from Canada for such unions; and celebrating, aiding, or solemnizing such marriages. The Act also provides a new definition of “provocation” in s. 232, applicable in homicide cases where an accused seeks to have murder reduced to manslaughter. 

Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25. In force December 6, 2014, the Act represents a revised approach to the criminalization of prostitution-related conduct of various kinds and is designed to prevent the exploitation of prostitutes without, for the most part, criminalizing the conduct of prostitutes themselves. A number of mandatory minimum sentences apply to customers of prostitutes. 

Protecting Canadians from Online Crime Act, S.C. 2014, c. 31. In force March 9, 2015, the Act creates a new offence of publishing or distributing an “intimate image” of another person without their consent. The legislation also modernizes the Criminal Code’s terminology to reflect modern forms of communication, and amends a number of other Code provisions relating to other offences involving the use of computers. 

Response to the Supreme Court of Canada Decision in R. v. Shoker Act, S.C. 2011, c. 7. The Act and accompanying regulations came into force (SI/2014-105) on March 31, 2015. The legislation amends the Criminal Code to provide lawful authority to take bodily samples to ensure that conditions prohibiting the consumption of illicit drugs and alcohol, which are included in the majority of all probation orders, conditional sentences, and peace bonds under ss. 810, 810.01, 810.1, and 810.2, can be effectively monitored for compliance. However, a province’s Attorney General must give written notice to the Attorney General of Canada of the sampling regime and system to be used in that province before any sampling can occur; as of August 1, 2015, the Attorney General of British Columbia had not given such written notice. 

Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9. In R. v. Evans, 2015 BCCA 46, the court held that the self-defence provisions in effect before the Citizen’s Arrest and Self-defence Act came into force on March 11, 2013, should apply to incidents occurring before that date, and the new provisions apply prospectively to incidents occurring after they came into force.  

Limits on the scope of a preliminary inquiry. In R. v. S. (M.P.), 2014 BCCA 338, the court held that a sexual assault complainant may not be cross-examined about past sexual history at a preliminary inquiry under the exception in s. 276(2) of the Criminal Code. In R. v. Cowan, 2015 BCSC 224, the court held that the accused does not have the right to cross-examine police officers whose evidence relates solely to an anticipated Charter of Rights and Freedoms application to exclude evidence to be made later at trial; the preliminary inquiry judge may restrict evidence to that relating solely to the commission of the offence. 

Supreme Court of Canada interpretation of tertiary ground under Criminal Code, s. 515(1)(c). In R. v. St-Cloud, 2015 SCC 27, the court held that the tertiary ground is not limited to exceptional cases, unexplainable crimes, the most heinous of crimes, or certain classes of crimes, and outlined the correct approach under s. 515(10)(c). Also, bail reviews under ss. 520 and 521 are not de novo hearings. 

Constitutionality of Controlled Drugs and Substances Act, s. 5(3)(a)(i)(d). In R. v. Lloyd, 2014 BCCA 224, the court set aside the Provincial Court’s declaration that the one-year mandatory minimum sentence under s. 5(3)(a)(i)(D) offends s. 12 of the Charter of Rights and Freedoms, and found it unnecessary to address the constitutionality in the context of the case. The Supreme Court of Canada has granted the accused leave to appeal.  

III. Family

Family Law Act, S.B.C. 2011, c. 25. There were amendments to ss. 52, 83 to 85, 105 to 108, and 182 and 183 of the Family Law Act made in the Justice Statutes Amendment Act, 2014, S.B.C. 2014, c. 9, effective May 26, 2014. 

Supreme Court Family Rules, B.C. Reg. 169/2009. The Supreme Court Family Rules were amended in numerous ways pursuant to B.C. Reg. 104/2015, effective July 1, 2015. 

Incapacity and adult guardianship legislation. Amendments to the Power of Attorney Act, R.S.B.C. 1996, c. 370 and Representation Agreement Act, R.S.B.C. 1996, c. 405, in effect March 25, 2015 (Justice Statutes Amendment Act, 2015, S.B.C. 2015, c. 6), provide for termination, for purposes of those statutes, of a marriage or a marriage-like relationship, upon separation of spouses, if a spouse is, respectively, an attorney or representative. 

Family Homes on Reserves and Matrimonial Interests or Rights Act, S.C. 2013, c. 20. The Act came into full effect on December 16, 2014 (see SI/2013-128). It applies to First Nations that have not enacted their own matrimonial real property laws, in regard to married and common-law spouses living on reserve land where at least one spouse is a First Nations member or an “Indian” within the meaning of s. 2(1) of the Indian Act, R.S.C. 1985, c. I-5. 

IV. Immigration 

Refugee Appeal Division access for DCO claimants. Section 110(2)(d.1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”), which denied access to the Refugee Appeal Division (“RAD”) for refugee claimants from a designated country of origin (“DCO”), violates s. 15(1) of the Charter of Rights and Freedoms and is not saved by s. 1: Z.(Y.) v. Canada (Citizenship and Immigration), 2015 FC 892. DCO claimants now have access to the RAD. 

Pre-removal risk assessment bar constitutional. The Federal Court upheld the constitutionality of s. 112(2)(b.1) of the IRPA, which provides that, with some exceptions, a person may not apply for a pre-removal risk assessment until 12 months after the rejection of his or her refugee claim, or 36 months in the case of applicants from a DCO (Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2015 FC 774). The Federal Court of Appeal has not yet ruled on the constitutionality of s. 112(2)(b.1). 

People smuggling. On February 16, 2015, the Supreme Court of Canada heard arguments on the interpretation and constitutionality of the IPRA, s. 37 (B306 v. Canada (Public Safety and Emergency Preparedness), Doc. 35685; B010 v. Canada (Citizenship and Immigration), Doc. 35388; J.P., et al. v. Canada (Public Safety and Emergency Preparedness), Doc. 35688; and Hernandez v. Canada (Public Safety and Emergency Preparedness), Doc. 35677). The decision is under reserve. 

Administrative changes to processing. On July 2, 2015, the Immigration Appeal Division issued a notice regarding administrative changes to the appeal process, including: seeking confirmation from the appellant of their intent to proceed when the case has been in the inventory for a long time; a one-step abandonment process; and a streamlined process when there is no reasonable prospect of success on the appeal.

V. Litigation

Amendments to Court Rules, Practice Directions, and Administrative Notices 

  • Supreme Court Civil Rules, B.C. Reg. 168/2009. Amendments to Forms 15, 16, 40, and 80 in Appendix A, and to probate rules and forms, came into effect July 1, 2015 (B.C. Reg. 103/2015).
  • Supreme Court Practice Directions and Administrative Notices. PD-44, Requirement for Appearance List (January 5, 2015), requires an appearance list on certain matters. PD-47, Model Orders (August 1, 2015), provides a link to model orders in effect. AN-12, Bankruptcy Proceedings before a Registrar in Bankruptcy (April 1, 2015), sets out the procedures to be followed in all hearings set before a registrar in bankruptcy.
  • Court of Appeal Rules, B.C. Reg. 297/2001. Amendments pursuant to B.C. Reg. 134/2015, effective July 24, 2015, inter alia, replace “indigent status” in Rule 38 with “an order that no fees are payable”; repeal and replace Rule 56 regarding orders that no fees are payable; and amend Forms 9, 19, 23, and 25.
  • Small Claims Rules, B.C. Reg. 261/93. Amendments pursuant to B.C. Reg. 135/2015, effective July 30, 2015 and October 31, 2015, repeal provisions under Rule 7.2—Mediation for Claims up to $10,000.

Order for sale granted with order nisi. Reliable Mortgages Investment Corp. v. Longiye, 2015 BCSC 903, is authority for the proposition that an order nisi may be granted with an order for conduct of sale that would take effect after the expiry of the six-month redemption period without need for a further application.

Transfer of proceedings. Under s. 21 of the Law and Equity Act, R.S.B.C. 1996, c. 253, the court may, in the proper circumstances, order, before or after the commencement of the foreclosure proceeding, that foreclosure proceedings be continued in, or transferred to, a jurisdiction other than that specified in s. 21: Island Savings Credit Union v. Brunner, 2014 BCCA 449.

Civil Resolution Tribunal. It is anticipated the Civil Resolution Tribunal (“CRT”) will be operational in 2016. Under amendments made in the Civil Resolution Tribunal Amendment Act, 2015, S.B.C. 2015, c. 16, participation in the CRT process will be mandatory for specified types of strata and small claims disputes (though the Provincial Court may order that the CRT not adjudicate or help to settle a “tribunal small claim” in specified circumstances, and the Supreme Court may order that the CRT not resolve a “strata property claim” in specified circumstances). Those provisions will come into force by regulation. 

VI. Real Estate

New LTSA fee listings and electronic form templates. As of November 1, 2015, new LTSA fees for its services came into effect. Several of the electronic land title form templates were updated in 2015; see www.ltsa.ca for the valid versions of land title forms acceptable for filing electronically.

Strata disputes. Under the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25, and the Civil Resolution Tribunal Amendment Act, 2015, S.B.C. 2015, c. 16, participation in the CRT process will be mandatory for specified types of strata disputes, although the Supreme Court may order that the CRT not resolve a “strata property claim” in specified circumstances. Those provisions will come into force by regulation. 

PST, GST, HST. As of April 1, 2015, the temporary 2% post-HST transition tax on new home construction is no longer payable. 

VII. Wills and Estates

Incapacity and adult guardianship legislation. Amendments to the Power of Attorney Act, R.S.B.C. 1996, c. 370 and Representation Agreement Act, R.S.B.C. 1996, c. 405, in effect March 25, 2015 (Justice Statutes Amendment Act, 2015, S.B.C. 2015, c. 6), provide for termination, for purposes of those statutes, of a marriage or a marriage-like relationship, upon separation of spouses, if a spouse is, respectively, an attorney or representative.

Law Society Rules. Lawyers acting as personal representatives and trustees outside the practice of law, where the appointment derives from practice, are relieved of some, but not all, of the responsibilities to the Law Society in that regard, while maintaining the Society’s ability to regulate and audit lawyers’ compliance (see Rules 1, 3-53, 3-55, 3-75, and 3-87).

Family Homes on Reserves and Matrimonial Interests or Rights Act. Sections 14 and 34 to 40 of the Act, in force December 16, 2014, pertain to the consequences of the death of a spouse or common-law partner.