Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan:

As schools attempt to reopen for in-person instruction, amidst increasing COVID-19 infection rates, disputes between separated parents over sending children back to school have started showing up in court. 

Disputes of this kind are analyzed based on the best interest of the child. 

In a recent case of this kind, despite the increased risk to a grandparent, and mother of the father’s new domestic partner, a court-ordered that the child return for in-person instruction. 

The court noted that both parents were first responders: a nurse and a police officer. This work already resulted in an increased risk of COVID-19 infection for the potentially impacted family members. 

The child also had some special needs and the court found he could benefit from the social interaction made possible by returning to in-person school. 

Also discussed is the use of parenting coordinators to resolve minor parenting disputes that otherwise end up in court where there is high conflict family litigation. 

Parenting coordinators can be appointed by a court to settle minor parenting disputes and to serve as an intermediary for communications between separated parents and, if necessary, correct them for tone and contents.

Also discussed are the concepts of pre and post-judgment interest as well as the addition of management fees for lump sum awards. 

Management fees are intended to pay for the professional financial management of lump-sum awards. There can be a spectrum of such assistance, which can be necessitated in circumstances such as where a plaintiff suffered a head injury and would, as a result, be incapable of managing an award to pay for their future needs.

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

Legally Speaking with Michael Mulligan is live on CFAX-1070 every Thursday at 10:30 am. 

This week on Legally Speaking with Michael Mulligan:

A claim for an alleged breach of contract to rent a property so as to permit it to be used as an Airbnb is denied on the basis that the short-term rentals are not lawfully permitted.

Contracts involving illegal activity are not enforceable in court. You can't sue if someone breaches an agreement to pay for illegal drugs, for example. 

This same issue can arise where there are contracts intended to evade taxation by paying cash.

Also discussed in the case is the concept of duress.

In order to constitute a defence to the enforceability of a contract, duress requires more than one party taking advantage of a superior bargaining position. For duress to be established there must be coercion of the will of the contracting party and the pressure must be exercised in an unfair, excessive or coercive manner. 

Next on the show, a British Columbia Court of Appeal decision dealing with the certification of a class action against the Peoples Trust Company is discussed. 

The class action arose as a result of the company maintaining an unencrypted copy of a database on its webserver. The database contained customer information including names, addresses, email addresses, telephone numbers, dates of birth, social insurance numbers, occupations, and more. Patches were not installed to update the software on the server, leaving it vulnerable to known exploits, which were taken advantage of in a cyber-attack that originated in the People’s Republic of China. 

As with many class actions, defendants often spend a great deal of legal effort resisting the certification of a claim, during which a judge would determine is a case should proceed as a class action. 

One of the helpful changes that have been made to the law concerning class actions that are commenced in British Columbia is that judges can now certify a class action on an “opt-out” basis for people who do not live in British Columbia. Prior to this change, people outside the province would need to actively “opt-in” if they wished to participate.

Finally, a case concerning pay for judges should be determined is discussed. 

Because judges are often called upon resolve disputes that involve the government, it would not be appropriate to have judges negotiating with the government over their pay. 

In order to avoid this, there is an independent commission that periodically recommends changes to judges’ salaries and working conditions. 

Unfortunately, in British Columbia, there is a long history of the government overruling decisions of the independent commission. This has resulted in litigation before Supreme Court Judges who are not impacted by the decisions. 

In order to reject a decision of the independent commission, there needs to be a rational reason for doing so. This was found to be lacking when the Legislative Assembly rejected the 2016 recommendations by the Judicial Compensation Commission. 

Given this long and unsatisfactory way in which this issue has been dealt with, it would be better if the independent commission was free to set judge’s salaries without affording a mechanism for the government to interfere with the outcome of this process, short of amending the legislative scheme.

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

This week on Legally Speaking with Michael Mulligan:

Two fathers have filed a petition in the British Columbia Supreme Court to prevent schools from reopening without adequate COVID-19 safety protocols.

In order to permit schools to reopen, the latest provincial Public Health Act order that sets out safety requirements for virtually any public gathering simply exempts schools. 

The protocols that schools are excluded from include measures such as wearing masks, allowing sufficient space for social distancing, and not having gatherings of more than 50 people.

Having been exempted from the Public Health Act order, schools have “guidance” from the British Columbia Centre for Disease Control which states “There is limited evidence of confirmed transmission within school settings.” 

This is despite the reported COVID-19 outbreaks in schools, shortly after reopening, in Germany, Israel, the United Kingdom, and the United States.

The children of both fathers, as well as their families, have pre-existing conditions. They point out that children, including theirs, have siblings so that school cohorts can be multiples of what’s intended because of contact at home. 

The application for an injunction is scheduled to be heard the week of September 14th.

Also discussed is the COVID-19 Related Measures Act. 

This act included provisions that prohibit civil claims arising from COVID-19 infection.

The regulations passed pursuant to the act prohibit any claims for damages that result from COVID-19 infections resulting from, amongst other things, educational endeavours. 

As a result, if a student, or family member, is infected or dies no compensation would be available.

Finally, a wrongful dismissal claim is discussed.

A long-term employee of a manufacturing company refused to wear a safety hat on the basis that she claimed it caused headaches. Despite repeated requests, the employee did not provide medical information to substantiate this claim and she was eventually fired. 

The judge concluded that failing to wear protective equipment provided cause to dismiss the employee. 

This result is important in the context of employers requiring employees to wear masks.

Follow this link for links to the cases and pleadings discussed as well as a transcript of the episode. 

This week on Legally Speaking with Michael Mulligan:

In 2018 a BC man made an agreement to sell 50 bitcoins for $10,700 each for a total of $535,000. The purchaser didn’t complete the purchase of the bitcoin, so the prospective seller sued.

The person who was sued claimed that he didn’t enter into the contract personally, but did so on behalf of a company, Einstein Exchange Inc. that went bankrupt and ceased operations in October of 2019.

When someone enters into a contract on behalf of a corporation, they are not personally responsible for it. You can’t successfully sue Tim Cook if your Apple computer stops working.

While it may be more difficult to determine on what basis someone is contracting with a very small business, the case discussed involves one of the basic principles of civil litigation: when you sue or sue someone, there is an obligation to list and exchange all relevant documents.

Unlike in a criminal case, where the accused person has a right to remain silent, in a civil case the parties are required to list and provide all relevant documents with each other. This disclosure requirement is intended to promote the resolution of disputes over money.

In the case discussed on the show, the defendant was ordered to provide a complete list of relevant documents and to confirm it was complete by swearing an affidavit.

Since this dispute began, the price of bitcoin has gone up and down but is now more than $15,000. Had the plaintiff just kept his 50 bitcoin they would have been worth more than $770,000.

Also discussed is a criminal case involving guns and ammunition located in a car stopped by the police.

Police officers are permitted to stop a vehicle at any time to ensure compliance with the Motor Vehicle Act including that the driver is licensed, has insurance, and is sober.

Police officers are not, however, permitted to arbitrarily stop vehicles to investigate a suspicion of criminal conduct.

In the case discussed, the judge concluded that the police officer who stopped the car lied about his reason for doing so. A second police officer that attended and testified provided markedly different evidence about what occurred.

The judge concluded that the vehicle was not stopped to ensure compliance with the Motor Vehicle Act. As a result of this conclusion, and because the officer involved was untruthful about what occurred, the evidence that was located was excluded from consideration in the trial and the passenger in the car was acquitted.

Finally, a family law case concerning an application for spousal support and the division of property following a ten-year relationship where the couple spent seven years sailing around the world.

In order to start a family court case in British Columbia, there must be a substantial connection to the province. A judge would also need to conclude that British Columbia is the most convenient jurisdiction for the case to proceed.

In the case discussed, even though the claimant was living in Portugal, and the respondent was living on the sailboat, at the time the action was commenced, because a substantial part of the respondent’s property was in British Columbia, the case was allowed to proceed.

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

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. 

This week on Legally Speaking with Michael Mulligan:

A long-running neighbour dispute over garbage, grass clippings, dog feces, a dead snake on a trampoline, and a retaining wall consumes 13 days of court time and results in a $16,000 award.

One of the feuding neighbours spray painted and then jackhammered a concrete retaining wall that protruded a few inches onto his property.

Absent a danger to life, or some other emergency, the law doesn’t permit a property owner to engage in a self-help remedy such as destroying property that crosses onto their lot.

In this case, the property owner that destroyed the wall was ordered to pay $16,000 in damages.

Rather than destroying the retaining wall, an application could have been brought in Supreme Court to modify the property line and provide compensation.

Also discussed is a case that considers the difference between Dangerous Offender and Long-Term Offender designations.

If someone is determined to be a Dangerous Offender, they can be sentenced to an indefinite period of incarceration.

In contrast, if there is a reasonable possibility of eventual control of risk in the community, someone can be designated as a Long-Term Offender and would be sentenced to a definite period of incarceration, to be followed by up to 10 years of supervision.

The large majority of Dangerous Offender designations are as a result of convictions for sexual offences where the offender “has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.”

The final case discussed on the show involved the successful appeal of an order that a lawyer pay costs for an unsuccessful application in a high conflict estate case.

The dispute had gone on so long, the lawyer's client had also passed away.

While there is authority to require a lawyer to pay costs this requires a finding of “reprehensible” conduct that amounts to a “serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on [their] part, that is deliberate”.

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

In 2011 a black, 22-year-old, UBC student went to the upper deck of a SkyTrain station to meet a friend. As he was not planning to ride the SkyTrain, he did not purchase a ticket, despite being in a “fare paid” zone. When he received a message from his friend, advising of a change of plans, he started to walk down the stairs at the SkyTrain station. 

Two transit police officers approached the student, and after a five-minute discussion, wrongly concluded he had provided a false name. They told him that he was under arrest and grabbed his wrists. One of the officers attempted to scoop the student’s legs out from under him. 

The student began to run away and, at that point, one of the officers tackled and punched him. One officer then drew his baton and struck the student ten times in the head, neck, and back causing a six-inch laceration to the back of his head and lacerations to his hands, arms and back.

The officers falsely claimed that the student was drunk in public and had assaulted them.

One of the officers eventually plead guilty to a criminal charge of assault causing bodily harm. 

Following a convoluted and delayed disciplinary process, precipitated by an overly complicated Police Act disciplinary process, the Police Complaints Commissioner ordered a public hearing.

The police officer who had been convicted of assault causing bodily harm successfully challenged the order for a public hearing on the basis that it would be an abuse of process and unreasonable. 

The Court of Appeal has now allowed an appeal by the Police Complaints Commissioner to permit the public hearing to proceed, despite the complex and delayed process, because of the significant public interest in having the complaint addressed in full, in a public hearing. 

Also, on the show, a Supreme Court of Canada case concerning judicial salaries, and cabinet confidentiality is discussed.

Judges are supposed to be independent of the government. This is important because they frequently decide cases where the government is a party to the dispute. In order to maintain independence from the government, it would be inappropriate for judges to be negotiating with the government over their salary. 

You wouldn’t want a judge to be deciding a case concerning the government to be in the middle of salary negotiation with the government.

To avoid this problem, there are independent commissions in each province that recommend changes to Provincial Court Judges’ salaries. In British Columbia, however, there is a long and unfortunate history of the government refusing to implement the recommendations of the independent commission. This has produced much litigation, before different judges, who are federally appointed.

One of these disputes, concerning access to cabinet documents related to the salary dispute, was recently decided by the Supreme Court of Canada.

Finally, on the show, an unsuccessful appeal by the University of British Columbia over a $1.15 million fine pursuant to the Fisheries Act is discussed. The university was convicted after a contractor working for the university allowed some ammonia in the cooling system at the UBC ice rink to escape and get into a storm drain, that got into a ditch, which got into a creek, that fish “frequent”.

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

Legally Speaking with Michael Mulligan is live on CFAX 1070 eery Thursday at 10:30 am.

As a result of the City of Victoria deciding not to enforce a bylaw that prohibits camping in Beacon Hill Park, 78 structures have been erected in the park. 

Following weeks of complaints from nearby residents, and other people wishing to use the park, the City of Victoria obtained an interim injunction requiring people living in the park to remove the structures form portions of the park that are environmentally sensitive, or of cultural significance. 

The Friends of Beacon Hill Park Society is not satisfied with the interim injunction and wish to have all of the structures that have been erected by people camping in the park removed. 

The City of Victoria only owns Beacon Hill Park pursuant to the terms of a trust. The 1882 trust requires the park "to be maintained and preserved...for the use, recreation and enjoyment of the public."

On the show, an 1884 court decision by Chief Justice Begbie, is discussed. At that time the City of Victoria had permitted an agricultural pavilion to be constructed in the park. This was found to be contrary to the terms of the trust and had to be removed.

In 1998, another court decision held that the City of Victoria could not allow a music festival to be held in the park as it would have involved an area of the park being fenced off and tickets being sold for entry. This was also found to be contrary to the terms of the trust as it would exclude people without tickets from using and enjoying the fenced-off section of the park. 

The Friends of Beacon Hill Park Society intends to argue that permitting people to erect semi-permanent structures in the park is also contrary to the terms of the trust.

When someone holds property pursuant to a trust, they can only use the property in accordance with the terms of the trust. It is not theirs to do with as they wish. 

While there are usually time limits on how long the terms of a trust can restrict the way property can be used, as a result of the rule against perpetuities, these time limits do not apply to dispositions of property made by the provincial government. Because Beacon Hill Park was given to the City of Victoria by the provincial government, there is no time limit on how long the trust conditions apply for. 

Also discussed is a class action against ICBC as a result of an employee of ICBC selling personal information to drug dealers. 

The ICBC employee was selling address, and other personal information, associated with the licence plates of vehicles parked at the Justice Institute in New Westminster. The drug dealers concluded that people parked there were likely police officers. 

The drug dealers were using the address information to vandalize, start fires, and shoot at the homes of the people identified by the ICBC employee. 

Despite admitting what the employee was doing, ICBC has been attempting to stop the class action in various ways, with a host of legal arguments. 

Most recently, ICBC attempted to third party the drug deals. Because ICBC did so out of time, and without obtaining permission from the court, this tactic was not permitted. 

The various ways ICBC has attempted to avoid legal responsibility for the conduct of its employee is cause for concern in the context of current plans to establish a monopoly no-fault insurance system which would allow ICBC to decide how claims would be handled without any meaningful oversight by the courts.

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

Jury trials have proven to be the most challenging parts of the justice system in the age of COVID-19. 

The Court of Appeal has been conducting appeals using Zoom. The Provincial Court has been conducting sentencing and judicial interim release hearings by telephone conference. Both the Provincial Court, and the Supreme Court, have been utilizing video connections for witnesses, and relatively simple modifications to courtrooms have permitted safe in-person trials to resume.

The challenge for jury trials starts with the process of selecting juries. 

Prior to COVID-19, hundreds of potential jurors would attend the courthouse and several juries would be selected from this jury pool. Such a process would no longer be safe. 

The process contemplated by a recent practice directive will divide the jury selection process into two parts. On one day the names of potential jurors will be drawn at random. On a second day, contemplated to be a Saturday so as to minimize the number of people at the courthouse, the potential juror whose names were drawn will be required to attend in small groups, at staggered times. 

Juries will be selected from the smaller groups and once all of the jury spots have been filled, prospective jurors in later groups will be advised they do not need to attend the courthouse.

The next issue to be solved is safety during the course of a trial. This will involve modification to courtrooms, by way of physical separation or plexiglass barriers. Where this cannot be achieved, given the physical limitations of courtrooms, other facilities such as theatres, hotel meeting rooms, or university lecture facilities will be utilized. Many of these facilities are not otherwise in use due to COVID-19 restrictions.

The final physical requirement for the resumption of jury trials is the need for a sufficiently large room for jury deliberations. Ideally, this would include private bathroom facilities. Juries need to be able to deliberate privately while ensuring sufficient separation for all of the members of the jury.

The direction from the British Columbia Supreme Court is that jury trials will recommence on September 8th.  This mandate is requiring an assessment of what physical modifications will be possible in existing courtrooms so as to determine whether jury trials will need to move into alternative venues.

Also discussed on the show is a recent case dealing with the time period police are permitted to keep evidence, without a charge be approved.

Finally, a court case involving an application for a cannabis sales licence is discussed. While the licence needs to be issued by a provincial government agency, that process cannot proceed unless the municipality in which the store would be located submits a report. In the case of an application for a licence in Sidney, the municipality did not file the required report at all. The lack of a report from the municipality stopped the licence application altogether. On a review in court, Sidney was ordered to submit the required report, so that the licence application could proceed.

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

This week on Legally Speaking with Michael Mulligan:

When are the police permitted to arrest or detain someone?

In the context of discussions concerning unbiased policing and identification checks, various common circumstances that do permit a police officer to arrest or detain someone are discussed:

1)    If they have reasonable grounds to believe they have committed a criminal offence.

2)    If they have reasonable grounds to believe someone is about to commit an offence.

3)    For “investigative detention”, short of an arrest, where a police officer has reasonable grounds to suspect an individual is connected with a particular crime. 

4)    If there is an outstanding warrant.

5)    In order to issue a ticket: the leading case on this is from Victoria. It involved a man who rode his bike through a red light and then refused to identify himself so as to permit a police officer to write him a ticket. The case went all the way to the Supreme Court of Canada. The man rode his bike from Victoria to Ottawa for the hearing but was unsuccessful.

6)    Pursuant to provincial mental health legislation, when someone is believed to be a danger to themselves or others.

7)    Where someone is in a “state of intoxication” in a public place, pursuant to provincial liquor legislation.

8)    At any time someone is driving a vehicle, in order to ensure sobriety, licence, insurance coverage, or any other requirement of the Motor Vehicle Act. 

Where someone is not driving a vehicle, or subject to a lawful arrest or detention, there is no general obligation to talk to the police or provide identification. 

Police officers are, however, permitted to talk to anyone they wish. They may also ask questions or request identification. There is not a corresponding obligation to answer questions or produce the requested identification, absent circumstances such as those discussed.

The challenge for someone who is approached by a police officer and asked for identification is that it can be difficult to know if the police officer has the legal authority to arrest or detain them. Some people may also feel intimated or obliged to comply with a request for identification.

On January 15, 2020, pursuant to the Police Act, the Province of British Columbia issued a Provincial Policing Standard that set out criteria for police identification checks to ensure that they are conducted in an unbiased way, and not based on personal characteristics.

The unfortunate reality in British Columbia, and elsewhere, is that there is a correlation between ethnicity and the probability of being asked for identification by the police. 

It is also true that someone who is impoverished, homeless, or addicted to drugs or alcohol, is much more likely to come to the attention of the police and be subject to a request for identification.

There is an overrepresentation of minority groups, including aboriginal people, who are experiencing homelessness, poverty, and drug or alcohol addiction. This makes the interpretation of statistics concerning the ethnicity of people asked for ID by the police difficult to interpret.

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

This week on Legally Speaking with Michael Mulligan:

The British Columbia Court of Appeal finds that the Director of Child, Family and Community Services acted unreasonably, and without authority, in telling a single father that children under 10 years of age could not ride the public bus without supervision.

The children that were riding the public bus together, to get to school, were 10, 9, 8 and 7 years old. 

The father had spent two years teaching his children how to use the public bus and provided them with a cell phone, with a tracking feature so that he could monitor their location.

The father was required to sign an agreement not to permit any child under the age of 10 to be unsupervised at any time, including on the bus, and implied that the children could be apprehended if he did not comply.

The father was able to raise money with a go fund me page to help pay for the court challenge that eventually reached the Court of Appeal.

The Director of Child, Family, and Community Services argued in court that the agreement the father was required to sign was just a suggestion. The Court of Appeal judges disagreed and pointed out that while lawyers were making this argument in court, social workers employed by the Director continued to treat the agreement as an order.

Also discussed is another British Columbia Court of Appeal decision dismissing a sentence appeal by an aboriginal man who was sentenced to 12 months in jail for growing marijuana and possessing marijuana for the purpose of trafficking.

This sentence was upheld despite the fact that marijuana is now being sold in government-run stores that have been deemed an essential service in the context of the COVID-19 pandemic. 

In 1999 the Supreme Court of Canada’s decision in R. v. Gladue dealt with the massive overrepresentation of aboriginal people in Canadian jails.

Since 1999, however, the percentage of aboriginal people in jail has increased significantly. 

Aboriginal people make up approximately 5% of the Canadian population but now account for more than 30% of the federal prison population. This is an increase of 5% from four years ago.

The disproportionate percentage of aboriginal people in jail is even starker for women: 42% of women in federal prisons are aboriginal. 

Finally, the BC Attorney General is running into opposition from the Trial Lawyers Association over suggestions including the suspension of civil jury trials, or binding arbitration, to clear a backlog of ICBC cases caused by COVID-19 disruptions to courts.

The Trial Lawyers Association has asked the Attorney General to abandon his unpopular plan for mandatory ICBC no-fault insurance if he wishes assistance with the backlog.

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