Legally Speaking with Michael Mulligan

An application to find a union in civil contempt for breaching an injunction against making noise while picketing at three Vancouver Airport Hotels failed because of the wording of the injunction, which only prohibited noise above 75bBA if made by various specified devices.

The evidence demonstrated that the noise was above the prohibited threshold but not if it was produced by specifically prohibited items: drums,  microphones, speakers or megaphones.

Also on the show, costs were awarded against a strata corporation that embarked on ill-conceived litigation without a 3/4 majority vote to replace a building roof.

The case confirms that even though one of the owners who were taken to court had a lawyer assist them pro bono, and others were self-represented, this is not a reason to deny costs being awarded.

The reason for this is that costs are not only intended to help pay the legal expenses of a successful party, but they also serve other purposes: deterring frivolous actions or defences, encouraging conduct that saves time, encouraging settlement and the careful assessment of the strengths or weakness of cases.

The judge dealing with the costs award further concluded that the strata corporation's lack of budget to pay costs also had no relevance.  If a court order is made to pay costs, and they are not paid, an order could be obtained to remove the funds from the strata corporation's bank account regardless of any budgetary considerations.

Finally, the judge concluded that the owners who were awarded costs would not be required to contribute to the expense incurred by the strata corporation.

Finally, on the show, the BC Court of Appeal has determined that the definition of a "person with a mental disorder" in the Mental Health Act includes someone who isn't displaying symptoms of the mental disorder when their involuntary detention is being reviewed.

The Mental Health Act permits the involuntary treatment of people who have a mental disorder and who are a threat to themselves or others.

The case involved a man with an extended history of paranoid psychosis and self-harming behaviours for which he had been repeatedly hospitalized and certified for involuntary treatment. The behaviours would include cutting and burning himself.

The police had repeatedly taken the man to the hospital for treatment. He would receive antipsychotic medication that successfully prevented self-harm, but once released, the man would stop taking the medication and harm himself again.

The Court of Appeal concluded that the definition of a "person with a mental disorder" should be interpreted in accordance with the purpose of the act and the fact that the symptoms of a mental disorder were being controlled by medication at the time of a review didn't mean that the person no longer met the definition.

Follow this link for a transcript of the cases and links to the cases discussed. 

Most criminal offences in Canada involve prohibitions on doing things that would harm others.  It is rare that the criminal law will require someone to do something.

An exception to this is the offence of failing to provide the necessities of life.

It is a criminal offence for a list of people, including parents, foster parents, and spouses to not provide the necessities of life.

It also requires anyone who is in charge of someone who cannot withdraw from that situation "by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge" to provide them with the necessities of life.

In the tragic case discussed the Court of Appeal allowed a sentence appeal by the Crown to increase a sentence imposed on a woman who worked as a caregiver for a 55-year-old woman who had Down Syndrome.

The woman with Down Syndrome stopped eating and slowly starved to death. The caregiver, relying on advice from the woman's mother, didn't arrange for medical assistance.

The case was unusual in that the caregiver had no animosity towards the woman she was caring for: they had a good relationship for more than 18 years and she mistakenly thought she was doing the right thing in not arranging for medical assistance.

While the Court of Appeal increased the sentence from a 12-month conditional sentence (house arrest) to a 15-month jail sentence, because the conditional sentence had already been served, the caregiver would not actually be required to go to jail.

Also on the show, a prosecution for criminal contempt for blocking a logging road by sitting on a tall tripod is discussed.

The issue in the case was whether the person sitting on the tripod had been properly served with a copy of the injunction not to block the road.

The police officer involved read a summary of the injunction to the person on the tripod and then left a copy of the injunction on the ground underneath the tripod, where it remained for an hour and a half until the police returned and arrested the man.

The court concluded that the man on the tripod had been properly notified of the injunction as it was drawn to his attention and he could have climbed down from his perch to read it but chose not to.

Finally, on the show, the war crimes prosecutions that took place in Nuremberg Germany following WWII are discussed.

The trial represented an alternative to summarily executing the prisoners as Stalin wanted to.

The trials involved four judges. One each from the USA, the UK, France and Russia.

The opening statement by the lead US Prosecution, Robert Jackson, began with this:

"The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason."

While most of the accused were convicted, and many of them were sentenced to death by hanging, three of the accused were found not guilty.

Follow this link for a transcript of the show and links to the cases discussed.

What if you found yourself at the receiving end of a judicial system, prosecuted for a fatal accident with no evidence of intoxication, excessive speeding, or aggressive driving? This is the tragic reality for a 21-year-old driver with no history of bad driving or criminal record, facing a heart-wrenching sentencing decision. Join us as we unravel this case with Michael Mulligan,  with Mulligan Defense Lawyers. Michael helps us explore the implications of prosecuting cases where there are no apparent signs of bad driving, the delicate balance between law and justice, and the societal impact of such sentencing decisions.

Delving further into the world of complicated legal concepts, we navigate the labyrinth of vicarious liability in the context of a class action against ICBC.

The case involved an employee of ICBC selling personal contact information associated with the license plates of cars parked at the British Columbia Justice Institute where police and other public safety employees are trained.

The information was used to target the houses of the vehicle owners including with arsons and shootings. 

Mulligan unravels the factors courts consider in these instances and the implications of ICBC's appeal and whether is was wise for ICBC to attempt to avoid liability in the circumstances of this troubling case.

We also shed light on an intriguing case of a man appealing his sentence, dissecting the elements that come into play when a person asks for bail pending the hearing of a sentence appeal.

Unlike a person seeking bail prior to trial, someone who has been plead guilty and been sentenced no longer enjoys the presumption of innocence.

This episode promises to leave you with a fresh perspective on the intricacies of the law and the delicate balance between justice, liability, and compensation.

Follow this link for a transcript of the show and links to the cases discussed. 

The Supreme Court of Canada has upheld the double murder conviction for a  man who insisted on representing himself at trial. He was so disruptive that the trial judge removed him from the courtroom multiple times and then shut off his microphone on the closed video connection he had to the courtroom.

The accused in the case would not ask questions of witnesses or make submissions and would, instead, express various conspiracy theories about the FBU, the U.S. Army, and mind control.

The trial judge eventually appointed an amicus to ensure a fair trial for the man.  An amicus is a lawyer a judge appoints to assist with a trial. Importantly, they are not a lawyer for the accused person.

The Supreme Court of Canada confirmed that trial judges have broad discretion to appoint an amicus, and the judge can determine their role.

In this case, the amicus was appointed to ask questions of the Crown witnesses so that the jury could hear an alternative to the prosecution's version of the case.

The Supreme Court of Canada concluded that there wasn't a miscarriage of justice when the judge didn't ask the amicus to make a closing submission to the jury after the accused would only talk to the jury about various conspiracy theories, telling the jury that "the FBI understands and believes [his] testimony, understands the situation at hand, the breached of national security."   

Also, on the show, a case involving a sailboat that broke away from its morning, sunk, and was subsequently recovered and disposed of by the Bowen Island Municipality is discussed.

The man who owned the boat successfully sued the municipality for disposing of the wrecked boat because the municipality didn't get permission from the Receiver of Wreck.

Pursuant to the Canada Shipping Act,  someone who takes possession of wreck must report it to the Reciever of Wreck and then do what the Receiver of Wreck directs.

In this case, the sailboat wreck was disposed of without permission.

The boat owner had claimed $95,000 but only received $5,000. There were two reasons for this. First, the owner's only evidence about the value was based on his estimate, which included the value of his labour working on the boat. Second, many of the lost things, such as upholstery, clothing and bedding, were lost because the boat sank and not because the municipality disposed of the wreck pulled up from the seafloor.

The trial judge also took some issue with the boat owner's credibility because, in a previous case involving the same boat, he claimed that he did not own the boat and that it belonged to his sister.

Finally, a case involving the administration of an estate is discussed on the show.

Someone administering an estate has a fiduciary obligation to the estate's beneficiaries: this means that decisions need to be made in their best interests.

In this case, the administrator was denied permission to purchase a property owned by the estate for less than its appraised value.  This kind of self-dealing is prohibited, except in rare circumstances, unless all of the beneficiaries provide fully informed consent.

Follow this link for a transcript of the case and links to the cases discussed.

Starting in 2012, the Gabriola Island Local Trust started a legal effort to have an elderly couple remove a seawall that protects their waterfront property because it was less than 30 meters from the ocean.

At a trial of the matter, the Gabriola Island Local Trust lost the case because the judge concluded there was a common-law right to protect property from erosion.

The Island Trust didn't like that outcome and so appealed to the BC Court of Appel, which eventually overturned the first judge's order concluding that the Province of BC had authority, that it delegated to the Island Trust, to prohibit the seawall regardless of the impact on erosion.

Following two additional years of litigation, the seawall was still in place and the Island Trust asked the BC Court of Appeal to start imposing fines for civil contempt of the order.

During the intervening time, the wife who co-owned the property with her husband was diagnosed with dementia and passed away. Her 87 year old husband has numerous physical ailments and the couple's adult daughter had moved back to BC from Ontario in an attempt to help with the seawall issue.

The daughter obtained an environmental and geotechnical assessment report which indicated that removing the seawall could cause environmental harm to the shoreline and would require the removal of several mature trees which had roots that had grown into the seawall.

Unfortunately, the BC Court of Appeal judge dealing with the case concluded that the court no longer had any authority to change the order that required the seawall to be removed.

The daughter then approached 10 different contractors to have the seawall removed. All but one denied to do the work and the one that did attend concluded his equipment wasn't adequate for the job.

The daughter then tried to remove the seawall herself using a sledge hammer and jackhammer but was unsuccessful. She concluded the concrete structure was "about as strong as the Great Pyramid of Giza."

As a result of all of this, the BC Court of Appeal judge imposed a smaller fine than was requested for contempt: $2,500. He also suggested that if the seawall wasn't removed by the end of October there could be another $7,500 fine imposed.

How the case of the immovable seawall plays out may depend on the continued health of the remaining 87 years old owner. The order for removal was made against only his late wife and him.

Also, on the show, an ongoing case of an Iranian Refugee who escaped that country and came to BC in 1995 is discussed.

The man was successful and, in 2019 was able to purchase a home in West Vancouver for $6.6 million.

The man had applied to become a Permanent Resident of Canada on three occasions, with the last application being filed in January of 2017.

Because it took the government until February of 2022 to grant him Permanent Resident Status he was changed $1.32 million pursuant to the BC property speculation tax that is intended to discourage people from other countries speculating in BC real estate.

The legislation that imposes the tax requires it to be applied to anyone who isn't a Canadian citizen or Prominent Resident.

While the man involved is making a challenging constitutional argument against the tax, the real issue is that it cannot have been intended to apply to refugees who have lived in BC for 24 years.

The case demonstrated the need to amend the legislation.

Follow this link for a transcript of the show and links to the cases discussed. 

The episode begins by discussing the decision to discontinue a prosecution arising from a  Nanaimo business owner who gets shot after trying to retrieve his stolen property from a homeless camp.

Crown Counsel has a duty to only approve and proceed with criminal charges where there is a substantial likelihood of conviction.

 In the case involving the business owner who was shot while attempting to recover property from a homeless camp in Nanaimo, further police investigation revealed that the initial allegations made by the business owner were not accurate.

The business owner initially claimed the is attended the homeless camp unarmed, with three other men, to look for stolen property.

Further police investigation revealed that the business owner attended with six or seven other men and that he and others in the group were armed with batons, a 2x4, and bats of broomsticks. They were also wearing protective gear and gloves with hardened knuckles.

The police investigation also uncovered a video of the business owner hitting a camper in the head with a baton. The business owner had also thrown a camper and his girlfriend down an embankment.

The business owner stopped operating with the police.

The new information uncovered by the police made it clear that self-defence would be a real issue at trial. Where self-defence is an issue, the Crown would need to prove, beyond a reasonable doubt, that it was not applicable.

Given the inaccurate report made by the business owner and the evidence uncovered by the police that the business owner was armed and had hit a camper on the head with a baton and thrown two people down an embankment, the Crown concluded there was no longer and substantial likelihood of a conviction for an offence relating to shooting him.

Also, on the show, two separate pieces of litigation between the BC Government and virtually all of the lawyers who work for the government are discussed.

The first case arises from a dispute between the BC Government and the Crown Counsel Association. This case involves the obligation of the government to negotiate with the Crown Counsel Association over the terms of employment for Crown Counsel,  assigned to conduct bail hearings on weekends and holidays. 

Following the expiry of an agreement with the Crown Counsel Association, the BC Government took the position that it could unilaterally dictate the terms of employment. The Crown Counsel Association took this issue to arbitration and won: the Arbitrator ordered the government to negotiate.

Not liking this result, the BC Government is attempting to get a judge to overturn the arbitrator's decision rather than engaging in negotiations.

The second case discussed involves virtually all lawyers working for the BC Government who are not Crown Counsel. These lawyers voted overwhelmingly to join a union called the British Columbia Government Lawyers Association.

The government didn't like the idea of these lawyers having their own union, so it passed legislation forcing them to join a  union called the Professional Employees Association.

The lawyers involved didn't want to be a  part of this union, and the union, for its part, didn't want to represent a group of people who didn't want to join it.   

This has resulted in the British Columbia Government Lawyers Association suing the BC Government on behalf of the government lawyers alleging that forcing membership in the unwanted union violates the constitutional right to freedom of association guaranteed by section 2 (d) of the Charter.

Follow this link for a transcript of the show and links to the cases discussed.  

In British Columbia, it's illegal to produce milk and sell it to anyone other than the Milk Marketing Board.

The Milk Marketing Board sets wholesale prices, intended to guarantee a profit for milk farmers, and sets quotas for how much milk a farmer can sell.

Farmers who produce more milk than their quota can be required to dump it down the drain.

As a result of this system, consumers in British Columbia pay 25 - 30 % more for milk than it costs in the United States.

Since 2022, milk prices have been increased three times and retail prices have risen by 15%.

To preserve this system the Milk Marketing Board conducts surveillance of farmers to ensure they don't try to sell any extra milk.

In the case discussed the Milk Marketing Board conducted 19 days of surveillance on a single farmer and determined that he had been selling extra milk to someone else. 

 The Milk Marketing Board imposed a $195,184 fine on the farmer and then tried to cancel his quota three days after he filed an appeal of the decision.

On appeal to the BC Farm and Industry Review Board, the fine was reduced to $3,000 and the application to cancel the farmer's milk quota was denied. The farmer was ordered to pay $33,000 to cover the cost of the investigation and surveillance.

Unhappy with this outcome, the Milk Marketing Board appealed again and was successful in having the case sent back to the Review Board to consider a higher fine.

Also on the show,  a lawsuit alleging that Roundup caused a man's cancer is discussed.

The man's legal argument is a novel one: he has sued three retailers who sold him Roundup over a 30-year time period based on an alleged breach of the Sale of Goods Act.

The Sale of Goods Act requires goods to be fit for their intended purpose and the man is alleging that if the herbicide caused his cancer it didn't meet this requirement.

The man suing the retailers filed a request to have the case decided by a jury. This was opposed by the defendant retailers, who alleged that the case involved a complicated legal question and that the scientific and medical evidence would be too complicated for a jury. The judge hearing the case agreed with this argument so the issues will be decided by the judge alone, without a jury.

Finally, human rights case involving a teacher from Ontario who applied for a licence to work in BC is discussed.

Following the teacher's application, concerns arose with respect to his ability to communicate in English arose and he was asked to take an English exam. He refused to take the test, alleging that it amounted to discrimination based on his ethnic origin.

The human rights complaint and now two appeals have rejected the teacher's claims on the basis that there was no evidence the requirement to take the English exam was motivated by his ethnic origin rather than a concern about his language proficiency.

Follow this link for a transcript of the show and links to the cases discussed.

Do you ever wonder what happens when a small claims lawsuit is baseless?

Unlike in Supreme Court, judges cannot award costs to the successful party in Small Claims Court.

Costs are intended to both cover some of the legal and other expenses related to a court case. They can also encourage the settlement of meritorious claims and discourage needless litigation. 

There is, however, a Small Claims Court rule that permits a judge to award a penalty of up to 10% of the amount claimed if someone proceeds to trial with a claim that has no prospect of success. This 10% penalty can be applied to each party that has a baseless claim brought against them.

On the show, a baseless claim made by the purchasers of a home against the couple who sold it is discussed, along with the resulting penalty imposed by the trial judge who concluded the plaintiffs were simply trying to get someone else to pay for renovations they decided to do.

Also, on the show, a claim against Google and Apple is discussed. The small British Columbia company was unable to pursue a claim against the large tech companies alleging an overcharge for advertising because of an arbitration clause included in the online agreement to purchase the online ads.

Large companies often insert arbitration clauses into user agreements to avoid being sued.

Because arbitration can be expensive and requires claims to be made individually, rather than as a class action, these provisions can stop claims completely because they become too expensive to pursue individually.

Lastly, we step into the world of murder cases, and autopsy photos.

Because judges have an obligation to determine if a piece of evidence would be more prejudicial than probative of an issue in a case, they need to determine if gruesome autopsy photos should be shown to a jury.

If, for example, the only issue in a murder case was whether the accused was the person who committed a murder, showing jurors disturbing photos of a dissected body would likely serve no purpose.

If, however, the issue was whether the amount of force used in self-defence was excessive, it might be very important for jurors to see images of a fatal injury.

In the case discussed, the number of photos was reduced by agreement, and the judge ordered that a particularly disturbing photograph that included late stages of the autopsy dissection be cropped to only show the injury at issue in the case.

Follow this link for a transcript of the show and links to the cases discussed. 

For most of Canada's history, vagrancy was a criminal offence.

While the wording of the vagrancy laws changed from time to time. As of 1972, there were two different forms of vagrancy.

The first form of vagrancy made it a criminal offence to beg or be found in a public place without apparent means of support.

The second form of vagrancy prohibited people convicted of sexual offences from loitering near parks, playgrounds, school yards or public parks. 

The case that ultimately determined the second type of vagrancy was unconstitutional arose from Beacon Hill Park in Victoria. It involved a man previously convicted of sexual offences involving children being found twice near a playground in the park. The man had a camera with a telephoto lens. When he was arrested for vagrancy, the camera was seized. When the film was developed, it included pictures focusing on the "crotch area of young girls playing in the park with their clothing in disarray."

A five-four majority of the Supreme Court of Canada found the second form of vagrancy unconstitutional because it was overly broad.

Vagrancy was subsequently removed from the Criminal Code.

Also on the show: a report from the Judicial Council of BC indicated a dwindling number of applications for jobs as a Provincial Court Judge in British Columbia.

From an average of 37 applications per year, in 2022, only 23 people applied. 

Why are potential candidates shying away? Is it because of the less than satisfactory remuneration? For over a decade, the BC provincial government has repeatedly overruled decisions of an independent commission that is supposed to set the salaries for judges.     

We draw parallels between the earnings of these judges and those of family doctors and other government officials.

Also on the show is an exploration of the duty-to-defend clause in insurance contracts.

Follow this link for a transcript of the show and links to the cases discussed.   

Do you know the ins and outs of the Residential Tenancy Act? Join us for an enlightening conversation with Barrister and Solicitor Michael Mulligan as we uncover a recent court decision involving changes to BC's residential tenancy legislation and how an elderly landlord diagnosed with cancer almost found himself responsible for paying former tenants $34,180.

The elderly landlord had his son helping rent the top part of the home he shared with his wife. When he was diagnosed with cancer, the son provided the tenants with two months' notice to end the rental so that his parents utilize both the upstairs and downstairs of the home to accommodate relatives staying over to assist with caregiving.

The Residential Tenancy Act was amended to permit former tenants to obtain 12 months' rent if they are required to move out and the "landlord" doesn't occupy the property.

The adjudicator who awarded the former tenants the money confused two definitions of who a "landlord" can be. For most purposes, a "landlord" can include someone helping a property owner rent a property. To determine who must move into a property to avoid paying 12 months' rent to a former tenant, however, this term has a different definition.

Most contracts don't end up with disputes in court because both parties to an agreement want to enter into them. As the government has imposed increasing conditions on residential tenancy agreements to assist existing tenants, disputes have increased.

Provisions that can result in large financial awards to tenants, like the one discussed on the show, will likely deter property owners from renting a part of their home in the first place.

But that's not all — we also discuss a court of appeal case where a couple blamed their real estate agent for not providing sufficient warning about the potential consequences of not completing a deal.

If, as in this case, someone enters into a contract to purchase a property and then changes their mind and doesn't complete the deal, they can be liable to pay the seller and difference between what they agreed to pay and what another buyer eventually pays. In the case discussed, that was $100,000.

The effort to shift blame to the real estate agent for not providing a clearer warning about failing to complete the deal was unsuccessful because the would-be buyers made it clear that there was no circumstance in which they would have followed through and completed the deal. As a result, no warning from the real estate agent would have made any difference.

Follow this link for a transcript of the show and links to the cases discussed.