Sofia Courthouse, Sofia Bulgaria

 

My son Thomas Rule took this photograph of the Sofia Courthouse, when he was in Sofia Bulgaria in the fall of 2019. According to Wikipedia:

The need for a common building to house all the courts in Sofia was raised in 1926 with the foundation of the Judicial Buildings fund. Construction began in 1929 and finished in 1940. While it was the first structure in this strict monumental style in the city, it was followed by the Bulgarian National Bank in the 1930s and the Largo in the 1950s. The initial architectural plan was the work of Nikola Lazarov, later redesigned by Pencho Koychev. The Court House has a syenite plinth, a facing of white limestone and a noticeable cornice below the top floor. The four-storey building (with two additional underground floors) spreads over a ground area of 8,500 square metres and has 430 premises, of which 24 courtrooms, a library and a bank hall, totalling 48,000 square metres of used area.

The facade features five large gates and 12 columns. In its style, the Court House is eclectic, uniting several Classical themes, with a fourth floor instead of a baluster, as well as Roman and Byzantine style decorations on the doors, windows and corbels.

Suspension of Limitation Periods in British Columbia Ends March 25, 2021

The British Columbia Government suspended limitation periods effective March 25, 2020. A limitation period sets the time limit in which someone may file a lawsuit. Because of Covid-19, the B.C. Government suspended the limitation periods. So for example, if a two-year limitation period would have expired on say May 19, 2020, the limitation period did not expire, but has been extended until after the suspension is lifted. 

Now, it will begin to run again after March 25, 2021.

I am pleased to see that the suspension is ending. I never understood the rationale. Although Covid-19 has had a significant impact on the court system, causing delays in hearings, it did not significantly affect the ability to file claims in court. Limitation periods set the time limits for filing claims, rather than for having them heard in court. 

The suspension of limitation periods have in some cases caused delays in distributing estates, mainly because someone wishing to make a wills variation claim has 180 days from the date of probate to do so. The Wills, Estates and Succession Act provides for a 210-day waiting period, because someone making a claim has another 30 days to serve the personal representative with the Notice of Civil Claim. In some cases, the personal representative can get consents to an early distribution from those who are entitled to apply to vary a will. but in other cases, that is not feasible, either because they won't sign a consent or can't because they are minors.  In those cases, personal representatives need to wait for the 210 days to expire, but during the suspension, the limitation period of 180 days continues until after the suspension is lifted. Funds held in estates have been tied up at a time when the economy needs funds to flow. 

Kimberly Rule is Speaking to Canadian Bar Association B.C. Wills and Trusts Sections Tomorrow

Kimberly is presenting on the topic of proprietary estoppel  by video conference tomorrow at 4:15 pm.., November 17, 2020. Her presentation will include a discussion of the decision in Linde v. Linde, 2019 BCSC 1586, in which she successfully argued a  claim to a ranch based on proprietary estoppel. 

Powers of Attorney: Consider Allowing the Person You Appoint to Use Your Wealth to Support Your Spouse and Family

 

When acting as an attorney under an enduring power of attorney in British Columbia for someone who has lost the capacity to make her own decisions, the attorney must act in the best interest of the person who appointed her. The word “attorney,” in this context does not mean a lawyer, but rather the person appointed in the power of attorney. (If I may digress a little, although some refer to the attorney as the “power of attorney,” a power of attorney is actually the document, rather than the person appointed.) But whether you call her an “attorney” or “power of attorney,” the principle that she must act in the best interest of the person who appointed her generally makes sense. You don’t want to give someone the power of sell your house, or withdraw your investments to someone who is going to take your money or give it to someone else, leaving you impoverished. But as we will see, it is not always that straight forward.

 You may want to allow your attorney to use your funds to benefit others particularly your spouse, minor children and perhaps adult children. If you have a history of charitable giving, you may want to allow your attorney to continue to make donations if you are not longer capacitated. When spouses make powers of attorney, they often appoint each other. It is also common for spouses to pool at least some of their financial resources for their benefit as a couple, even when they keep many of their assets separate. When one spouse loses capacity, the other when acting as attorney may be placed in a conflict of interest by virtue of the fact that the management of the now incapacitated spouse’s assets may benefit the capacitated spouse who is the attorney.

This issue can and should be addressed in the power of attorney. In your power of attorney, you may relax the rule the the attorney must act in your best interest by expressly allowing the attorney to use some of your assets to benefit your spouse or others. You can include a clause allowing for gifts, which can be unlimited, or restricted to a certain amount or percentage of your assets annually. You can expressly provide that your attorney may make decisions to benefit himself, especially if the attorney is your spouse. When I take instructions to draft a power of attorney, I ask clients if they want to allow their assets to be used to benefit their spouses, and most do.

Unfortunately, most of the powers of attorney I have seen over the years do not address this issue. Many are simple one-page documents with no provisions allowing the attorney to use the power of attorney to support other family or to make any gifts. In some cases this may work just fine, but the difficulties for a spouse in a financially interdependent marriage or common-law relationship when the power of attorney is silent on this issue is illustrated in the case of Sommerville v. Sommerville, 2014 BCSC 1848.

Richard Craig Sommerville (referred to in the decision as “Craig”) appointed both his spouse, Isabel Sommerville, and his daughter Janet Sommerville as his attorneys. Either could act separately. His marriage to Isabel was his second marriage, and Janet was his daughter from a previous marriage.

Craig and Isabel Sommerville had a marriage agreement, which provided that each would have his and her separate assets, but the agreement also contemplated that they would have joint assets. Craig Sommerville owned the house they were living in, had larger investments and larger pensions. The agreement initially provided that if Craig Sommerville had to move out of the house because of ill health, Isabel would have to move out after a year, but they amended the agreement so that she would be able to stay in the house. Craig’s will provided that Isabel would be able to remain in the house after his death until she remarried or died. He left the residue of his estate to his four children.

Craig Sommerville had arranged for his pensions to go into a joint account with Isabel, who contributed a portion of her pension to the joint account. They used the joint account for their expenses. Craig also had investment income, including RRIFs, most of which was reinvested.

After Craig became ill, Janet Sommerville redirected his pensions into an account in his sole name, in contemplation that he may have to go into a care facility, which he subsequently did following a stroke. She did so without consulting Isabel first. Not surprisingly, Isabel disagreed, and Janet then brought a petition to court to seeking directions.

Janet Sommerville’s position was that the pension funds should be used first to pay for her father’s personal and care expenses, then expenses necessary to preserve the home, and then only to the extent that there is pension income left, the pension income could go into the joint account for Isabel’s use. Janet also sought to be mainly responsible for the management of Craig’s finances.

 Madam Justice Fisher summarized the duties of an attorney as set out in the legislation as follows:

 

[39]         An attorney’s duties are now enunciated in s. 19 of the Power of Attorney Act. Section 19 (1) essentially codifies the duties of a fiduciary to act honestly and in good faith, to exercise reasonable care, and to account to the donor, within the authority granted in the power of attorney. Section 19(2) specifies that an attorney making decisions about the donor’s financial affairs must act in the donor’s best interests, taking into account the donor’s “current wishes, known beliefs and values” and any directions contained in the instrument, and s. 19(3) requires an attorney to give priority “to the extent reasonable” to meeting the personal care and health needs of the donor.

Madam Justice Fisher rejected the argument made on Isabel’s behalf that an attorney could use the power of attorney for the benefit of the donor’s family in a manner analogous to a court appointed committee. She noted that the ability for an attorney to make gifts is set out in seciton 20 of the Power of Attorney Act is limited.

However, in exercising a power of attorney, you may consider the donor’s wishes including making provision for a spouse or other family member. She wrote:

[45]         In my view, s. 19 does not alter the attorney’s common law duty to act only for the benefit of the donor. However, the best interests of the donor are not to be considered in a vacuum. His “current wishes, known beliefs and values” may permit the attorney to continue to provide for a spouse or family member if there is clear and convincing evidence of an intention to do so, and it can be done without compromising the donor’s interests.

 Madam Justice Fisher found on the basis of Craig’s conduct in directing the pension income into the joint account, the terms of the marriage agreement and Craig’s will that he wished for Isabel to manage their family finances and he intended to share his pension income for their joint expenses.

At paragraph 72, Madam Justice Fisher issued directions under section 36 (1) of the Power of Attorney Act as follows:

1.       All of Craig’s pension funds should be deposited into a bank account in the joint names of both Isabel and Janet as attorneys for Craig. The funds currently held by Janet as attorney are to be deposited into such an account. The pension funds that are still being deposited into Isabel’s joint bank account should be re-directed into this new account. 

2.       Isabel is to continue to manage Craig’s finances and will responsible for running the bank account referred to in (1) and paying for Craig’s personal and health care expenses. Janet will be able to monitor the use of the account as a joint attorney. 

3.       In using the pension funds, Isabel is to give priority to Craig’s monthly personal and health care expenses. She may use pension funds that are not required for Craig’s personal and health care expenses in her discretion and for her own expenses. 

4.       While she continues to live in the Lochside residence, Isabel may use Craig’s investment income to pay expenses associated with the ownership of the home, which will include property taxes, insurance, utilities, repairs and maintenance. Otherwise, Isabel may not use Craig’s investment income for any purpose other than to supplement his personal and health care expenses if this becomes necessary. 

5.       If Janet has any concerns about how Craig’s income is being used, she is to consult with Isabel and is not to take any steps or make any directions without Isabel’s concurrence unless she considers it necessary to prevent Craig’s assets from being used improperly.

 

Continuing Legal Education: Wills, Estates and Trusts Conference

The British Columbia Legal Education Society is holding its Wills, Estates and Trusts Conference online this year on November 5 and 6. Genevieve Taylor, of Legacy, Tax + Trust Lawyers,  is chair of the Estate Planing Update 2020 on November 5, and Helen Low QC, of Faskin, Martineau, DuMoulin LLP is chair of the Estate Litigation Update 2020 on November 6.

I will be speaking at the Estate Litigation Update on "Bad Fiduciaries." 

For more information, here is the CLE link. 

Pirani v. Pirani

In a family trust, the trustees may be given the discretion to determine if and when to make payments to beneficiaries. The trustees may be given the power to decide to distribute the trust assets to any one or more of the beneficiaries, to the exclusion of others. Often the discretion is set out in very broad terms, such as “absolute and unfettered discretion.” In most cases, when trustees are given such powers, courts will not interfere with their decisions. However, the powers of trustees are not unlimited. They have a duty of loyalty to the beneficiaries, and in some cases the court may interfere with the trustees’ decisions if not made in good faith or in a conflict of interest. This is illustrated by the recent decision of the Supreme Court of British Columbia in Pirani v. Pirani, 2020 BCSC 974.

During the reign of Ida Amin, four brothers immigrated to Canada. There names were Mohammed Aly Pirani, Madatali Pirani, Pyarali Pirani and Haider Pirani. Only Haider Pirani is still alive. The Pirani brothers established a successful business through family owned companies owning and operating hotels in Canada and in the United States. The two main companies were Pirani Enterprises and Piramco Investments Ltd. In 1993, they arranged an estate freeze of their companies. An estate freeze involves exchanging shares that increase in value with the company for other shares that have a fixed value. New shares are then issued for a nominal amount of money. These new shares are initially worth only the nominal value, but if the company grows, the new shares will become worth more. Often the new shares are either distributed to other family members or held in a family trust, often for the next generations. This is what the four Pirani brothers did.

Each brother had a holding company that held the new growth shares in two family companies. The shares in each holding company were held in four separate family trusts, one set up for the children and grandchildren of each brother.

One of the trusts was created by Mohammed Aly Pirani. In the decision, this trust is referred to as the “MAP Trust.” Mr. Mohammed Pirani was one of the initial trustees of this trust, together with his wife, and his brother Haider Pirani. After Mohammed Pirani’s death, his nephew Mustaq Pirani became a trustee. Mohammed Pirani’s wife also died, but no other trustee was appointed. This trust held shares in a holding company 438702 B.C. Ltd. (“702”) The beneficiaries of the trust were his children Mehboob Pirani (referred to in the decision as Meb), Fareed Pirani, and Arshad Pirani, as well as his grandchildren, Meb’s son Imran Pirani, and Fareed’s daughters Sheliza Pirani and Zaida Pirani. You may notice that the trustees are not beneficiaries.

One of the other trusts is referred to as the Madatali Trust which held shares in another holding company, 438703 (“703”). The trustees were initially Madatali Pirani, Haider Pirani and Meb Pirani. When Madatali died, no new trustee was appointed. The beneficiaries of this trust were Madatali Pirani’s three children, Mustaq Pirani, Bashir Pirani and Najma. You will notice again that the trustees are not beneficiaries. You may also notice that Meb Pirani is a beneficiary of MAP Trust, and a trustee of the Madatali Trust, while Mustaq Pirani is a trustee of the MAP Trust and a beneficiary of the Madatali Trust.

Although the terms of the trusts provided for a termination after 80 years, in each case the trust deed allowed the trustees to terminate the trusts earlier if they considered it advisable to preserve the capital of the trusts because of taxation. Under the Income Tax Act, Canada, the trusts would be subject to a deemed disposition of the trusts assets 21 years after the trust was settled, which would have resulted in significant taxes on the shares of the holding companies. But if the trusts were rolled out of the trusts to the beneficiaries before the 21^st anniversary, the tax would be avoided (or really deferred until the beneficiaries sold the shares or died.

The trustees of each of each of the four trusts, including the MAP Trust and the Madatali Trust decided to wind-up the trusts by distributing the shares before the 21^st anniversary. 

In winding-up the MAP Trust, the trustees, Haider and Mustaq as the trustees decided to give Meb voting control over the holding company 702, and 45% of the equity, while giving Fareed and Arshad 20% of the equity each, and Meb’s son, Imran, 15% of the equity. There was a twist in the plan. The trustees decided to do another estate freeze, essentially freezing the value of the shares distributed to the beneficiaries, and creating new growth shares, all of which were distributed to Meb.  The effect was that Meb would have voting control over 702 and all of the future growth in value. Before implementing the plan, the trustees removed Fareed and Arshad as directors of 702. Directors’ resolutions would be required to create new shares and implement the estate freeze.

The trustees of the other trusts followed a similar plan in respect of the shares of the holding companies held in each trust. In the case of the Madatali Trust, the trustees gave Mustaq the voting control and growth shares. In each case, growth shares were given to those beneficiaries most active in the businesses.

To implement an estate freeze it is necessary to value the company shares. The value of the new freeze shares issued in exchange for the old growth shares needs to be determined.  An appraisal firm, Duff & Phelps were hired to appraise the shares. However, the valuation was based on the values of various real estate holdings owned by Pirani Enterprises and Piramco Investments Ltd. These valuations of real estate were not based on professional appraisals, but were estimates made by Mustaq Pirani, which Madam Justice Sharma found were unreliable, and likely too low. The effect of a low valuation would be to undervalue the freeze shares, with the effect that the new growth shares would be worth more than a nominal value at the time of the freeze.

Fareed Pirani, Arshad Pirani, Sheliza Pirani and Zaida Pirani, all beneficiaries of the MAP Trust sued Haider Pirani, Mustaq Pirani, who were the trustees, Meb Pirani and Imran Pirani, who were beneficiaries, and the holding company 702. They alleged the following:

a)    The MAP Trustees committed breach of trust and breach of fiduciary duty, and breached the applicable standard of care. The breaches arose from the MAP Trustees’ acting with mala fides, for an improper purpose while in a conflict of interest.

b)    The Defendants are liable for conspiracy, knowing assistance and knowing receipt.

c)     The MAP Trustees colluded with Meb to deliberately injure the plaintiffs. They acted in concert to deprive the plaintiffs of their entitlement to a share of the Family Business in a manner that was deliberate, high-handed and self-interested causing the plaintiffs to suffer loss and damage.

d)    702 and Meb are liable for oppression and breach of fiduciary duty because of their removal of Fareed and Arshad as directors and the creation of the class D shares.

I am going to focus on the allegations that the MAP Trustees committed breaches of their fiduciary duties, or in other words, their duties of loyalty to the beneficiaries, and that Meb knowingly assisted in the breach of fiduciary duties. 

The defendants denied the allegations. The claims were advanced by beneficiaries of the MAP Trust, and the defendants focused their defence on the terms of the trust, which as noted gave the trustees the discretion to wind-up the trust, and gave them a broad discretion on how to distribute the shares. The trustees of the MAP Trust, Haider and Mustaq were not beneficiaries of that trust, and they argued that they had no conflict of interest.

However, Madam Justice Sharma took a broader approach, and considered the overlapping roles of the trustees and directors of the holding companies. The trustees of the four trusts addressed the winding-up of the trusts before the 21- year deemed disposition in concert. They went further than distributing the shares by implementing new estate-freezes and determined the direction of the family business, without properly considering the interests of the other beneficiaries.

She wrote at paragraphs 281, 284 and 285:

[281]     It is important to analyze their conduct in context. It is materially significant that despite the existence of separate trusts and Numbered Companies, the Defendants created and implemented a plan that dealt with four trusts together. They chose to act collectively to address the 21 Year Rule.

[282]     The trustees decided to implement an estate freeze for the purpose of differentiating the type of shares they wanted to bestow amongst the beneficiaries of each trust. Although I make no finding on this, the quality and independence of a valuation of trust assets may have carried less significance if the trustees knew they would be equally dividing all trust assets. However, that was not the case. I add that Meb and Mustaq acknowledged that obtaining a fair and independent valuation of trust assets was vital to the process of winding up the trusts.

[283]     By no later than May 2013, the trustees of each trust had decided what percentage of the frozen value would be distributed to which beneficiaries. They had also decided upon whom they would confer the control and all future growth of each of the Numbered Companies: for 702 that person was Meb, and for 703 that person was Mustaq.

[284]     In my view, one cannot separate out the Defendants’ decision (as directors in the Family Business) to restructure the Numbered Companies, from their distribution decisions as trustees, which conferred all future growth in each company to only specific pre-determined beneficiaries.

[285]     To the extent the Defendants assert their decisions as trustees was somehow isolated from their decisions about the corporate reorganization, I do not find the evidence supports that conclusion. Specifically, Meb’s insistence that he had “no involvement” in the MAP Trustees’ decision to allocate to him all the future growth in 702 rings hollow on the facts of this case. The Defendants collectively made decisions about the running and future operations of the Family Business.

The Court found that the trustees placed themselves in a conflict of interest and breached their duties of loyalty to the beneficiaries, by failing to act in good faith. They did not consult with other beneficiaries, despite advice from one of their trust lawyers to do so. As set out in the reasons for judgment:

[194]     The Defendants received advice about options to address the 21 Year Rule, but also how to go about choosing one of the options. They were strongly advised to inform and seek the view of all adult beneficiaries before decisions were finalized. Why? Because legally their duty as trustees required them to approach the complex task of winding up of the trust and make decisions only in the best interests of all beneficiaries. I note they were also advised to do this to maintain family harmony (see above, para. 180), but this does not detract from the legal foundation for this advice.

[195]     Given the overlapping roles within the Family Business and family trusts, they needed to do something to address the existing conflicts. They were obliged to ensure their judgment was not swayed by self interest, or indeed anything not consistent with the best interests of all beneficiaries. They did not follow any of the advice they received from Mr. Fish at the outset. It is difficult to conclude how they discharged their fiduciary obligations without following that sound legal advice.

Madam Justice Sharma was critical of the manner in which the shares were valued for the purpose of the new estate freezes. She wrote:

[295]     Thus, Meb and Mustaq had a personal financial interest that favoured an underestimation of trust assets. That conflict was not imposed upon them. Instead, it was created by the Defendants’ joint decision to confer on Meb and Mustaq all future growth in their family’s Numbered Company. The vehicle of that distribution was the distribution of trust funds, but the decision to give themselves all future growth was made at the beginning of the process. Indeed, the decision not to equally share future growth amongst all the beneficiaries was why they had to create new classes of shares in the Numbered Companies before the distribution of trust funds.

[296]     The plaintiffs adduced evidence that seriously questioned the accuracy of Mustaq’s estimates. That evidence strongly suggests that for the SeaTac Property and the properties in North Vancouver, the value he gave to Duff & Phelps was grossly low. The Defendants failed to counter that evidence.

[297]     More troubling, on that very, issue both Meb and Mustaq mislead the Court (see above, paras. 77-88). I conclude, from that lack of evidence and that testimony, that it is more probable than not that both Meb and Mustaq believed the figures supplied by Mustaq were inaccurately low. Given their roles as directors they knew the impact of the corporate restructure. Therefore, they understood how an undervaluation would benefit them as compared to beneficiaries who were to receive only a portion of the trusts’ frozen value. They did nothing about that. That conduct is dishonest, not in good faith and a blatant breach of their fiduciary duties.

She concluded with respect to the breach of fiduciary duties at paragraph 346:

a)    I am satisfied that the plaintiffs established Haider and Mustaq were in a prima facie conflict as the MAP Trustees because of their overlapping roles. They failed to persuade me that they conducted themselves in good faith and with honesty in the face of that conflict. I conclude that Mustaq’s duty of loyalty was impaired by his self-interest. I conclude Haider and Mustaq breached their fiduciary duties to the plaintiffs. 

b)    I am persuaded that the evidence establish that Meb knowingly assisted Mustaq and Haider in their breach of their fiduciary duties. I also conclude his conduct was not in good faith because he was guided by his self-interest.

c)     With regard to the process of winding up of the family trusts and the steps taken to restructure the Numbered Companies, the Defendants acted collectively. I conclude they all were in a prima facie conflict from the outset of the process. Mustaq and Meb failed to persuade me that in light of that, they adhered to their duty of loyalty to all beneficiaries. I conclude their actions and decisions were influenced by their self-interest and their conduct was not in good faith throughout that process.  

She ordered that Meb and Mustaq give up what they gained by breaching their duties, by order the disgorgement of some of the shares that they received, as well as disgorgement of some of the shares Imran received from his father.

Proposed Legislation Recognizes Electronic Wills in British Columbia

The British Columbia Government has introduced legislation to allow digital wills. There are two main components of Bill 21 – 2020: Wills,Estates and Succession Amendment Act, 2020. First, if passed and brought into effect the legislation will provide that a will-maker may make a will digitally, and the witnesses may also sign digitally. Secondly, the legislation will allow the will to be witnessed remotely, in a manner similar to that provided by the emergency order during the Covid – 19 state of emergency.

The legislation amends section 37 of the Will, Estates and Succession Act, which sets out the formal signing and witnessing requirements for a valid will to recognized wills in electronic form by adding the following subsections:

(3) The requirement under subsection (1) (a) that a will be in writing is satisfied if the will is in electronic form.

(4) An electronic will is a will for all purposes of this Act and any other enactment.

A new section 35.3 recognizes electronic signatures:

35.3 (1) For the purposes of sections 37, 40, 43, 62 and 77,

(a) a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and

(b) a requirement for the signature of a person is satisfied by an electronic signature.

(2) Section 39 (1) [clarification of doubt about signature placement] does not apply to an electronic will.

(3) An electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.

Section 54.1 provides that to alter an electronic will, the will-maker must make a new will.

There is also a new section providing for how an electronic will is revoked (you don’t have to smash your computer):

55.1 (1) An electronic will or part of an electronic will is revoked only in one or more of the following circumstances:

(a) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, deleting one or more electronic versions of the will or of part of the will with the intention of revoking it;

(b) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;

(c) the circumstances described in section 55 (1) (a) and (b) [how to revoke will];

(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker's direction, if the court determines under section 58 [court order curing deficiencies] that

(i) the consequence of the act of the will-maker or the other person is apparent, and

(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.

(2) A written declaration made in accordance with section 55 (1) (b) may be in electronic form and signed with an electronic signature.

(3) For certainty, an inadvertent deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.

Section 35.2 is the section that will allow remote witnessing of wills. It says:

35.2 (1) In this Part, except in section 38, a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.

(2) For certainty, nothing in this section prevents some of the persons described in subsection (1) from being physically present and others from being electronically present when the action is taken.

(3) If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.

(4) Copies of a will in counterpart are deemed to be identical even if there are non-substantive differences in the format of the copies.

Section 35.2 will be retrospective to March 18, 2020.