Mulligan Defence Lawyers

This week on Legally Speaking with Michael Mulligan: The USA and Canada have a treaty that provides for mutual legal assistance in the investigation of criminal matters. Pursuant to this treaty, the Minister of Justice of Canada, at the request of the USA, applied for and obtained a search warrant for two Vancouver companies being investigated for sending fraudulent mass-mailed solicitations that were believed to be financially exploiting vulnerable people. ...Continue reading

This week on Legally Speaking with Michael Mulligan: In August of 2015, Mr. Upton was attempting to straighten a bent metal plate from the steering mechanism of his 1955 Chevrolet Bel Air. He had removed it from the vehicle, placed it on a concrete step in his backyard, and was hitting it with a sledgehammer. Mr. Sexsmith was visiting Mr. Upton and watching his car repair efforts....Continue reading

This week on Legally Speaking with Michael Mulligan: Land title fraud can result in the loss of your home. Efforts to fraudulently impersonate property owners have increased along with the use of remote transactions. With property, other than real estate, if someone steals something and then sells it to an innocent third party, the original owner of the property stills owns it. The legal concept is the namo dat rule. The thief doesn’t own the stolen item and so can’t sell w...Continue reading

This week on Legally Speaking with Michael Mulligan: In 2003 there was a coastal forestry worker strike in BC. It involved thousands of employees and multiple unions. After three weeks the strike was eventually ended by back-to-work legislation. One of the impacted union locals, led by Sonny Ghag, was not happy about this. Mr. Singh organized the storming of a sawmill owned by Mainland Sawmills Ltd. during which employees were assaulted, people were threatened, and the mill ...Continue reading

This week on Legally Speaking with Michael Mulligan: Mr. Eisler was born in 1932. He left school at age 14 and started work as a farmer and shepherd. By age 18 he was working in the Alberta oil fields. By 22 he was a field supervisor and by age 31 he had started his first company. At age 79 Mr. Eisler was fired by the board of directors of a mining company he started and had worked at for twenty-four years. ...Continue reading

Provisions of the British Columbia Public Health Act allow for the enforcement of public health orders by means other than the imposition of fines. If someone is refusing to comply with an order to remain in quarantine or isolation, a judge can issue a warrant for their arrest and to require that they remain detained in a location and on conditions determined by the judge. When someone is arrested pursuant to such an order there is provision for the detention to be reviewed ...by a judge as soon as reasonably possible, but no later than 7 days from the start of the detention. Section 114 of the Public Health Act also allows for the provincial government to make regulations that would require people to participate in preventive measures, such as receiving a vaccine or to prohibit people who have not taken a preventive measure from entering a place, working with a class of people, or in a class of occupations. While the provincial government has indicated that it does not plan to require vaccinations, it would not be surprising if people who chose not to be vaccinated would not be permitted to work at or attend, places where people at high risk from COVID-19 are such as hospitals or long-term care homes. Also on the show: a recent case from the Supreme Court of Canada has expanded the concept of the duty of honest performance with respect to contracts. The case involved a small property maintenance company in Ontario that had a contract to perform winter maintenance for a condominium complex. The contract said that it could be cancelled with 10-days of notice. Despite this, members of the condominium complex knowing mislead the owner of the maintenance company suggesting that the contract would be continued. The Supreme Court of Canada concluded that, while there was no obligation to give more than 10-days of notice, intentionally misleading a party to the contract was not permitted by the duty of honest performance. In reaching this conclusion the majority of the Supreme Court of Canada considered the civil law abuse of rights framework and used this to inform their analysis of the common law duty of honest performance. Finally, on the show, a class action was certified against the Province of British Columbia for harm caused by keeping inmates in solitary confinement. Two groups of imamates were included: those who were kept in solitary confinement for at least fifteen consecutive days, and those who suffered from mental illness and were placed in solitary confinement. An argument by the Province of British Columbia that provincial jails don’t have solitary confinement, but rather separate confinement or segregation was not accepted by the court. Follow this link for a transcript of the show and links to the cases discussed: https://mtplaw.com//public-health-act-enforcement-duty-of/

Rather than using collection agencies to collect COVID-19 related fines, the province of BC shouldn’t be sending $1,000 COVID-19 benefits to people who have outstanding fines for breaching orders of the Provincial Health Officer. As the payment are gratuitous, they could simply be withheld to pay outstanding fines for breaching orders made pursuant to the Public Health Act. The idea that someone who has received a fine for having a house party during the COVID-19 pandemic w...ould receive a $1,000 payment from the government which would then need to be recovered by a collection agency, doesn’t make a lot of sense. Also discussed on the show is a judicial recount from the West Vancouver-Sea to Sky Electoral District. The initial count resulted in a 41-vote difference between the Liberal, and the Green Party candidate. Ambiguous ballots included someone who only wrote: Donald Trump next to a candidate’s name and someone else who drew a swastika next to a candidate’s name. The Donald Trump didn’t count, but the swastika did. The swastika was close to the line according to the judge but he concluded it conformed in shape with a cross and indicated an intention. Ultimately, the recount didn’t change the outcome with the Liberal candidate ending up with a 60-vote lead. The judge contrasted how carefully the recount was conducted, with all involved being gracious including the unsuccessful candidate, with Donald Trump’s all-capitals tweets rather than evidence. Another case, from the Court of Appeal, dealing with the payment of real estate commissions, where a home sale doesn’t complete is discussed. The standard form listing agreement used by real estate agents makes commissions payable upon a sale contract being entered into, even if the sale doesn’t complete. Prospective sellers, and purchasers, should be aware of this. A seller may be required to pay two commissions to sell a property if the first sale doesn’t complete. A buyer, who doesn’t complete, could end up being ordered to pay for the extra commission. Sellers may wish to modify the standard form agreement to avoid this so as to make a commission payable only upon completion of a sale. Finally, the BC Provincial Court, and the BC Supreme Court, have issued practice directions requiring parties to indicate what pronoun they prefer: eg. Mr. / Ms. / Mx. or Counsel. Despite this, and unlike the BC Provincial Court, where judges are addressed as Your Honour, in the BC Supreme Court, and in the BC Court of Appeal, My Lady and My Lord is still used. Judges in the BC Supreme Court, and the BC Court of Appeal, should either adopt a practice of advising whether they prefer My Lady or My Lord or, in the alternative, Your Honour should be adopted in all of these courts, for all judges. Follow this link for a transcript of the episode and links to the cases discussed: https://mtplaw.com//collecting-covid-fines-recounts-in-bc/

Renowned constitutional lawyer Joe Arvay passed away unexpectedly at the age of 71. Over the course of a remarkable career focused on public interest constitutional litigation he had a profound impact on the lives of many people. A few of the many cases he was involved with are discussed on the show, ranging from the Little Sisters bookstore case, that dealt with freedom of expression and equality rights to one of his most recent cases involving civil forfeiture of property ...Continue reading

Mr. Big investigations involve tricking a suspect into believing they are being recruited into a fictitious criminal organization. Often a large number of undercover RCMP officers are involved. Typically, the undercover police officers will spend months having the suspect perform tasks for the fictitious criminal organization, paying them to do so. Eventually, the suspect will be introduced to the fictitious boss of the fictitious criminal organization who will tell the suspe...Continue reading

The Douglas Lake Ranch is the largest private landholding in British Columbia. It’s owned by Stan Kroenke, a US billionaire who also owns the NHL’s Colorado Avalanche and the NFL’s L.A. Rams. The ranch has been involved in a legal dispute for years attempting to stop people from using a road the runs through the ranch, and two lakes that are surrounded by ranch property but owned by the Province of British Columbia. In 2018 the Nicola Valley Fish and Game Club was successfu...l in BC Supreme Court. The judge who heard the case examined historical documents, photographs, and survey and determined that the road in question was a public road and that the public was permitted to use it to access the lakes in question. This decision and an appeal by the ranch to the BC Court of Appeal are discussed on the show. Also discussed are two other decision by the BC Court of Appeal: The court dismissed an appeal from a woman who was seeking permission to use reproductive material from her late husband who died suddenly. The reproductive material was preserved as a result of an urgent, after hours, court application. In Canada, the Assisted Human Reproduction Act, from 2004, prohibits the use of such material, absent written permission from the doner. Because the husband died suddenly, there was no written permission and, as a result, the Court of Appeal concluded that the reproductive material could not be used. Finally, the Court of Appeal allowed an appeal from a conviction for sexual assault. The appellant was a 29-year-old woman who was convicted of sexually assaulting a 13-year-old boy. Because of the age of the boy, he would have been unable to consent to the activity as a matter of law. The woman testified at trial that the boy had sexually assaulted her and that she felt paralyzed at the time and was unable to say no or cry out for help. The appeal was allowed on the basis that the trial judge had not properly instructed the jury on the impermissibility of applying myths or stereotypes concerning how a victim of a sexual assault would have behaved. Follow this link for a transcript of the episode and links to the cases discussed: https://mtplaw.com//ranch-access-and-human-reproductive-m/

This week on Legally Speaking with Michael Mulligan: Sentencing considerations for dangerous driving causing bodily harm: why do we sentence someone who drives dangerously and has an accident that causes serious bodily harm differently from someone who drives in the same way but is lucky and does not cause an accident? The Criminal Code sets out various factors, and principles, that a judge is required to consider including denunciation, deterrence, and rehabilitation that mu...st be balanced. One sentencing option, called a conditional sentence, which often amounts to house arrest, would not appear to be an available sentencing option as a result of an amendment to the Criminal Code that prohibits such sentences where the theoretical maximum penalty would be 14 years, or more, in jail. Recently, however, the Ontario Court of Appeal found this restriction to be unconstitutional because it was overbroad and made it more difficult to reduce the number of aboriginal people sentenced to jail. In Canada, aboriginal people are significantly overrepresented in jail and the Criminal Code directs judges to consider all reasonable alternatives to jail when sentencing offenders. Also discussed is an estate litigation case which involved a separation agreement that required the deceased to maintain life insurance payable to an ex-wife until child and support payments ended. The deceased ex-husband changed the name of the beneficiary from his ex-wife, to that of his adult children from a former relationship. The separation agreement also required the ex-husband to make Aeroplan points available to his ex-wife for several years. Ultimately, even though the life insurance proceeds would have exceeded the amount of spousal and child support still owing, the judge concluded that the ex-wife should have received the money because of how the separation agreement was drafted. The ex-wife was not, however, entitled to compensation for the Aeroplan points, because there was no evidence, she asked to use them, and no evidence was presented with respect to their value. The case may stand for the proposition that, without evidence, Aeroplan points are presumptively worthless. Finally, a Builders Lien Act case is discussed in the context of COVID-19 related Ministerial Orders that stopped the running of limitation periods. The master that decided the case concluded that, even though a second ministerial order which replaced an earlier one, excluded the Builders Lien Act from the suspension of limitation periods, the suspension that was in place pursuant to the earlier Ministerial Order was still effective to provide additional time. Follow this link for a transcript of the episode and links to the cases discussed: https://mtplaw.com//dangerous-driving-causing-bodily-harm/

Listen to the full episode here: https://www.buzzsprout.com/591898/6254149 This week on Legally Speaking with Michael Mulligan: For some legal purposes, corporations are treated like people: they can enter into contracts, own property, engage in litigation, and be charged with committing offences. ...Continue reading

This week on legally speaking with Michael Mulligan: While attempting to count ballots cast for the election of a board of directors for the Shon Yee Benevolent Association things went sideways when water spilled on a table during the vote count. Once this was cleaned up it was unclear whether a disputed ballot had been included in a count on a whiteboard, or where the ballot had been put. ...Continue reading

The mandatory ICBC no-fault insurance system that has been proposed for British Columbia is intended to save money by no longer spending time determining who was at fault in an accident. Someone who caused an accident would receive the same benefits as the person they crashed into. Disputes would, however, still arise with respect to how seriously someone was injured, or how much compensation they should be provided. It just wouldn’t matter if the person caused the accident ...Continue reading

Because the British Columbia provincial election was called suddenly none of the political parties have candidates nominated in all ridings. As a result of COVID-19, many people have also requested mail-in ballots. Without candidates having been determined yet, the mail-in ballots being distributed simply have a blank space to write in the name of the candidate you wish to vote for. When asked about the voting procedure, the premier incorrectly suggested that people could wr...ite in various things, including the name the party leader they wished to vote for. Unfortunately, unless the party leader happens to be a candidate in your riding, writing in the name of the party leader will result in a spoiled ballot. Section 123 of the Election Act does permit, on a write-in ballot, someone to indicate either the name of the candidate or the political party, they wish to vote for. The name of the party leader is not, however, a permitted alternative. The Election Act does expressly provides for write-in ballots to be counted even where the name of a candidate or political party is misspelled or abbreviated, as long as the intention of the voter is clear. On regular ballots, which include the names of the candidates, a selection should be made using a cross or tick mark opposite the name of the candidate you wish to vote for. Other marks should not be made on a ballot because, if they could reasonably be used to identify a voter, the ballot would be rejected. Also discussed on the show are provisions of the Elections Act that regulate third-party advertising. Limits on how much a candidate can spend would not be meaningful if other people could spend money on an election without limit. Unfortunately, the rules respecting third-party advertising are so restrictive as to have forced a pub owner from Kelowna to register so as to avoid fines for having a message printed at the bottom of receipts. The message reads Oct. 24 vote that f***** out! While the message wouldn’t cost the pub owner anything to print, the Election Act would require a fair market value to be assigned and would then result in a fine of twice this amount should the pub owner not register and comply with a host of regulator requirements. For a transcript of the show, and links to the legislation discussed, follow this link: https://mtplaw.com//election-act-voting-requirements-for-/ Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

The premier of a province doesn’t actually have the authority to call an election. Authority to dissolve the legislature and call an election resides with the Lieutenant Governor. Ordinarily, the Lieutenant Governor would call an election at the request of the premier. In unusual circumstances, such as those that currently exist in British Columbia, she will have a choice to make. The circumstances where a request for an election could be refused by the Lieutenant Governor we...Continue reading

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: https://mtplaw.com//covid-19-school-disputes-parenting-co/ 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. ...Continue reading

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 whats 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: https://mtplaw.com//a-court-application-to-stop-unsafe-sc/

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 didnt complete the purchase of the bitcoin, so the prospective seller sued. The person who was sued claimed that he didnt 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. ...Continue reading

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 doesnt 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 lawyers 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: https://mtplaw.com//a-neighbour-dispute-leads-to-a-jackha/ Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

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 fal...Continue reading

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 ...Continue reading

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. ...Continue reading

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:...Continue reading

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 Canadas 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: https://mtplaw.com//children-allowed-to-ride-the-bus-alon/

This week on Legally Speaking with Michael Mulligan: The Supreme Court of Canada has declared an arbitration clause, used by Uber, to be unconscionable, and therefore invalid. The clause, included in a 14-page agreement that prospective Uber drivers were required to click I accept on, twice, purported to require any disputes with Uber to be dealt with by arbitration, in the Netherlands, rather than going to court. ... While not specified in the 14-page agreement, it turned out that in order to start the arbitration process, there was a $14,500 USD fee. A driver making a claim would also need to travel to the Netherlands. If it had been found to be enforceable, the other effect of the arbitration clause would have been to prevent the case from being certified as a class action. Every claim would have to proceed separately and would be subject to the $14,500 fee. As a result of the Supreme Court of Canada decision, the case, which involves a dispute as to whether Uber drivers are employees or independent contractors, can proceed. Also discussed is a class action case from British Columbia involving a claim that a group of companies that transport vehicles on ships conspired to fix higher prices for this service. The alleged impact was to raise the price of cars sold in British Columbia. The British Columbia Court of Appeal held that two of the companies involved could still be sued, even though they didnt deliver cars to British Columbia. The companies didnt deny that they were involved in a price-fixing conspiracy. The British Columbia Court of Appeal held that the two companies could still be liable on the basis that their participation in the price-fixing conspiracy artificially raised the price charged by other companies that did deliver cars to British Columbia. Finally, a case involving a principal, and several companies associated with Bear Mountain development is discussed. The case involved the taxation of a law firms account. A taxation, in this context, is supposed to be an expeditious way to determine if a lawyers bill is correct and reasonable. Unfortunately, the former clients made no effort to narrow the focus of the review and demanded a full refund of all fees paid for a complex case that went on for an extended period of time. This resulted in a protracted, 11-day hearing and, ultimately, an award of costs against the client in the amount of $36,465. Costs, in the civil litigation context, are intended to encourage parties to make reasonable concessions, narrow issues, and resolve disputes. Unfortunately, they dont always have the desired effect. Follow this link for a transcript of the show and links to the cases discussed: https://mtplaw.com//uber-arbitration-clause-unconscionabl/

This week on Legally Speaking with Michael Mulligan: From March to May 2020, the number of people who have died as a result of drug overdoses in British Columbia has been more than double the number of people who have died from COVID-19: 401 vs 164. January COVID-19 deaths: 0 Overdose deaths: 77... February COVID-19 deaths: 0 Overdose deaths: 76 March COVID-19 deaths: 24 Overdose deaths: 113 April COVID-19 deaths: 87 Overdose deaths: 118 May COVID-19 deaths: 53 Overdose deaths: 170 Some of the efforts to assist with COVID-19, such as providing $2,000 / month payments to people who are out of work may have increased the number of drug overdose deaths. As of May 2020, the number of overdose deaths has more than doubled from the number seen in January or February, before the Canadian Emergency Response Benefit became available. Provincial Health Officer Dr. Bonnie Henry has released a report entitled Stopping The Harm Decriminalization of people who use drugs in BC. The report proposes that drug addiction be dealt with a medical, rather than criminal law issue. Also discussed on the show are three pieces of provincial legislation that were recently introduced. Bill 22 would permit people under the age of 19, who are determined to have engaged in severe problematic substance use to be involuntarily detained by chemical, electronic, mechanical, or other means for the purpose of stabilization. For this to be effective, in any long-term way, its necessary to have immediately available drug treatment space available. This requires more than legislation: it requires funding. Bill 21 would permit electronic wills, that can be witnessed remotely. This will be a longer-term solution than Ministerial Order M161, which has temporarily permitted wills to be witnessed remotely, in the context of COVID-19. Without measures like these, people in long term care homes, and others who are in isolation, would be unable to create a will. Bill 11 is much more problematic. This is the legislation that would implement mandatory no-fault ICBC car insurance. The premise of the legislation is a prohibition on being able to sue someone who injures you in a car accident. Instead, you would be required to accept compensation from ICBC, which is referred to as the corporation in the legislation. The compensation from ICBC will the same regardless of who caused the accident. Follow this link for a transcript of the show and links to the material discussed: https://mtplaw.com//bc-overdose-deaths-more-than-double-c/

This week on Legally Speaking with Michael Mulligan: In a recent decision the Supreme Court of Canada has affirmed that when someone is arrested and charged with an offence, the presumption is that they should be released without the imposition of any conditions. Any conditions of release that are imposed must be clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accuseds risks regarding the s...tatutory grounds for detention. In British Columbia, courts have been using a 24-page pick list of bail conditions, and accused people were routinely being released with numerous conditions selected from it. As a result, a large number of people end up being charged with breaching bail conditions. The Supreme Court of Canada made clear that the setting of bail is to be an individualized process and there is no place for standard, routine, or boilerplate conditions. The Supreme Court of Canada further concluded that for someone to be convicted of breaching a condition of release, the Crown is required to prove that the person intended to breach their bail conditions or were reckless about it. This is a change from how British Columbia courts had been dealing with breach of bail charges. The case the Supreme Court of Canada was dealing with involved a man from Courtenay who was convicted for failing to come to the door when the police rang his doorbell to confirm his compliance with a curfew condition. The man was home but did not hear the doorbell in his bedroom. Also discussed on the show is a case involving social host liability arising from a tragic car accident on Salt Spring Island following a teenage house party. While people hosting private parties for adults are not, generally, responsible for car accidents their guests have, there can be a liability for commercial establishments serving liquor, or where there is a duty of care arising from a failure to adequately supervise children. The case involved parents who permitted a house party that involved teenagers drinking alcohol and smoking marijuana. The parents concluded that because this activity would go on regardless, it would be better to permit and supervise it. The parents took steps including collecting car keys from people who drove to the party and driving several teenagers home at the end of the night. Unfortunately, two teenagers who attended the party walked away and took a car parked at a neighbours house that had keys left in it. There was a car accident and the driver died. The 17-year-old passenger, who suffered life-altering injuries, sued the parents. The judge in the case concluded that the parents were not responsible for the accident on the basis that they had taken reasonable steps in the circumstances, including the age of the children. Follow this link for a transcript of the show and links to the cases discussed: https://mtplaw.com//scc-on-breaches-of-bail-and-social-ho/

Discussing ways murder can be first vs second degree.

In a story by Rebecca Lawrence on CHEK news Michael Mulligan discussing why the careful management of inmates near the end of their sentence makes the community safer. Waiting until the last day of a long jail sentence and then releasing someone with no conditions or supervision is not likely to be successful.

In 2015 a BC conservation officer was dismissed from his position for refusing to kill two bear cubs. Initially, the conservation officer didnt have the assistance of a lawyer and the issue of his dismissal was dealt with by a union representative and the Labour Relations Board. Eventually, the conservation officer retained a lawyer who identified that conservation officers are peace officers and issues relating to their discipline or dismissal need to be dealt with pursua...Continue reading

Can you be entrapped by phone? The Supreme Court of Canada has confirmed that you can. One of the ways that entrapment can occur is if the police engage in random virtue testing: presenting an opportunity to commit a crime without a reasonable suspicion that the person being tested is already committing the crime, or that the crime is already occurring in the place where the police are testing random people. An example of a place where police have a reasonable suspicion that ...Continue reading

In Canada, the decision about whether or not to extradite someone to another country to face criminal charges has both a legal and political aspect. The courts decide if the legal requirements for extradition have been met. If they have, it is then up to the Minister of Justice to determine if the person should actually be extradited. The recent decision concerning Wanzhou Meng of Huawei dealt with one of the legal requirements: the offence the person is charged with, in the...Continue reading

COVID-19 is a consideration when deciding if someone should remain in jail while waiting for their trial. In one federal penitentiary, located in Mission BC, 133 inmates and staff contracted the coronavirus. As a judge recently pointed out, however, the risk of COVID-19 is not a get out of jail free card.... The overriding considerations when determining if someone should be kept in jail include whether they will attend court when required and if their detention is necessary for the protection and safety of the community. In the case discussed, the accused person had a very long criminal record, including 14 convictions for property offences, 22 convictions for fraud, personation, and similar offences, and 13 convictions for breaching court orders. Given this, despite the risk of COVID-19, the judge concluded that it was necessary to detain the accused man, prior to his trial, in order to protect the safety of the community. Also discussed is a letter from the Criminal Defence Advocacy Society, calling for a limited reopening of the Provincial Court for in-person appearances. The Provincial Court deals with the large majority of criminal cases and, as the letter from the CDAS points out, many of the people accused of crimes suffer from addiction issues, mental health challenges, homelessness, and have no access to technology. As a result, solutions like Zoom hearings, which are working in the Court of Appeal, dont work for many accused people in Provincial Court. With the majority of criminal cases in Provincial Court having been adjourned since March, many people are being left subjected to bail conditions, with no meaningful way to access the justice system. In other legal news, Texas is the first jurisdiction to attempt a jury trial using Zoom. The experiment ran into some challenges as a result of things including a juror who walked away from their computer to answer a phone call. The judge was unable to call the juror back because they were not wearing the headset connected to their computer. Follow this link for a transcript of the show and links to the cases discussed: https://mtplaw.com//covid-10-and-bail-the-criminal-defenc/

Does failing to use a condom result in a lack of consent, or constitute fraud? In a recent decision, the Court of Appeal split three ways on how failing to use a condom should be analyzed. The case they were dealing with involved two people who had only met in person on one occasion before they decided to spend the night together. The complaint performed fellatio, without asking the accused to wear a condom, but then asked him to put one on before engaging in intercourse. La...ter in the night, the couple had intercourse again. The complaint didnt realize that the accused hadnt used a condom. On the second occasion, when no condom was used, the accused was behind the complaint, and he asked her if it felt better. She said yes but thought the accused was talking about the position they were in. At trial, the judge acquitted the accused, finding that there was no evidence that the complainant did not consent to the activity. The Crown appealed the acquittal, and, in the Court of Appeal, all three judges ordered a new trial, but for different reasons. One judge concluded that the complaint hadnt consented to intercourse without a condom. A second judge concluded that the complaint did consent, but that the consent was vitiated by fraud. The third judge concluded that there was both no consent and, if she was wrong in that conclusion, then there was also fraud. All three Court of Appeal judges struggled to interpret and apply a previous Supreme Court of Canada case where an accused used a condom that he had previously poked holes in. In that case, the complaint became pregnant. The Supreme Court of Canada concluded that, while the complainant had consented to the sexual activity, secretly poking holes in the condom constituted fraud and, as a result, there wasnt consent as a matter of law. Also discussed is a new practice directive form the BC Supreme Court that will permit accredited media to listen to telephone or video-based court appearances by phone so that COVID-19 doesnt undermine the principle of an open court process. Finally, a court decision terminating a spousal support order is discussed. The ex-husband, who is a doctor, had paid $700,000 in spousal support over the past 26 years. He is 70 years old, and about to retire. The recipient ex-wife is also 70 years old but, despite having a university degree, and real-estate licence, amongst various other qualification, never held a job for more than a year, and never become economically self-sufficient. The judge that terminated the support order pointed out that an indefinite support order doesnt mean that it is permanent. It simply refers to an order for support without a time limit at the time it is made. Follow this link for a transcript fo the show, and links to the cases discussed: https://mtplaw.com//lack-of-consent-or-possibly-fraud-for/

Vancouver Island, population 870,000, only has 2 people in hospital with COVID-19, as of May 7, and a total of 18 people who have been identified with the virus, who have not recovered, according to the BC Centre for Disease Control. In this context, the Public Health Act and the Emergency Program Act are discussed on the show. Both acts expressly contemplate different orders being made for different areas of the province. If the number of people with COVID-19 reaches zero o...n Vancouver Island, consideration would also need to be given as to how such a state of affairs could be maintained. The number of infections in other areas of BC is greater than those on Vancouver Island. Section 15 of the Public Health Act has a general provision that applies at all times: A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard. Also discussed is the BC Provincial Court etiquette guide for people appearing by video link for hearings in court. Tips include not eating or drinking anything but water, not needing to stand up or bow for video appearances, and to dress appropriately. The Provincial Court dress guidelines include not wearing hats, short shorts or muscle shirts and wearing shoes. Essentially, people should dress like they were planning to attend a job interview and not the beach. In other legal news, the Court of Appeal upholds a jury verdict that found the City of Burnaby to be 29% responsible for the burns suffered by a woman when a tenant of the house owned by the city threw a bucket of used motor oil on a fire, causing an explosion. The fire department had previously been called to the house for an out of control fire, with flames 20 feet high, and nothing had been done to remove the unlawfully installed fire pit. The fire pit was described by the Court of Appeal as a tire rim affixed to the ground by gravity. For links to the cases and legislation discussed, and a transcript of the show, follow this link: https://mtplaw.com//public-health-legislation-with-only-2/

In 2011 two men in Quebec wagered $517,000 on a best-of-three rock, paper, scissors game. The man the lost took out a mortgage on his home to pay the debt but was successful in having the gambling contract, and mortgage set aside. In Quebec, private contractual disputes are deal with pursuant to the Civil Code of Quebec, rather than common law principles of contract, that apply in other Canadian provinces. ... The Civil Code of Quebec specifies that gambling contracts are only valid if they relate to activities requiring only skill or bodily exertion on the part of the parties rather than to chance. In addition, the amount of the wager must not be excessive. The trial judge who originally decided the case found that rock, paper, scissors was not simply a game of luck because it called upon the skill of the parties in terms of the speed of execution, sense of observation, and in selecting strategic sequences. The Quebec Court of Appeal disagreed with the trial judge and concluded that rock, paper, scissors was a game involving a large part of chance, and not only the skill or bodily exertion of the parties. Both the trial judge, and the Court of Appeal, agreed however that the amount wagered was excessive and so the gambling contract, and resulting mortgage, was set aside. Also discussed are continued efforts, by British Columbia courts, to manage the dislocation caused by COVID-19. While the Court of Appeal will be back to full operation using Zoom for hearings, the trial courts are still trying to find ways to manage witnesses, juries, and other practical issues, safely. The Provincial Court has now adjourned cases that were set until July 3rd. In an effort to mitigate what will otherwise be a potentially unmanageable backlog, the court will begin dealing with an increased number of less urgent matters by telephone, including criminal sentencing cases where a jail sentence is not being requested. Judges will also engage in pre-trial telephone hearings in an effort to encourage the resolution of outstanding criminal and family law cases. Finally, a recently released family law decision from the BC Supreme Court involved the assignment of a replacement judge to decide a case, after the original trial judge became incapable of continuing after hearing a seven-day trial. The replacement judge was able to listen to audio recordings of the trial, review the transcripts and exhibits, and hear submissions from the lawyers involved. The replacement judge pointed out that while they were not able to observe the demeanour of witnesses in order to assess creditability, that this is only a small part of making this assessment, and that based on the material and audio recordings they were able to accomplish what was required without needing to start the trial over. Follow this link for a transcript fo the show and links to the cases discussed: https://mtplaw.com//500000-bet-on-rock-paper-scissors-rul/

The BC Court of Appeal will be back operating at full capacity thanks to Zoom. After several weeks of dealing only with urgent matters, the BC Court of Appeal has announced that all oral hearings will proceed using Zoom. All material will be filed electronically. A desire to have an oral argument in person, rather than by Zoom, will not be a reason for an adjournment. The Court of Appeal is able to make this change more easily than trial courts can because it does not hear f...rom live witnesses and does not need to manage things like juries. The Supreme Court of Canada has, for many years, both permitted lawyers to appear by video connection, and has video-recorded its hearing. Video recordings of hearing are posted on the courts web site. While the constitutional requirement for public trials in criminal cases doesnt apply to appeals, it would make sense to utilize the recording function in Zoom, and for the Court of Appeal to post the recordings of oral arguments in the same way that the Supreme Court of Canada does. Also discussed on the show is a bail review decision, which resulted in a man who had been held in jail to await a series of fisheries offences being released. The man was charged with various Fisheries Act offences including unlawfully possessing crabs, fishing without authorization, and being on board a fishing vessel when he was not allowed to be. He was originally detained, at the beginning of March, because he had been convicted of similar offences on 11 previous occasions. Since the original order for detention, COVID-19 has made it completely uncertain how long it will take for the case to get to trial. As a result, the man could end up spending more time in jail waiting for his trial, than the sentence he would receive if he ever is convicted. Accordingly, the judge ordered that the man be released, on house arrest conditions, until his trial. He will be required to reside with his mother, who will be acting as a surety. Finally, a Family Law Act decision makes clear that a generalized concern about COVID-19 is not a reason to withhold a child from exercising access to a child pursuant to a court order. The fact pattern of the case included a mother that did not want to return a child to a father because the fathers mother performs elder case in a care home, and lives with the father. The court also made clear that parents who attempt to create fear in the mind of a child by suggesting the child is at risk by being in the care of the other parent, without any objective justification for doing so are not acting in the childs best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy. Follow this link for a transcript fo the show and links to the cases discussed: https://mtplaw.com/court-of-appeal-is-now-back-thanks-to-z/

Should custody arrangements be modified where one parent is a nurse working with patients who may be infected with COVID-19? In child custody cases, the core principle is always whats in the best interest of the child. A recent BC court decision set out factors to be considered when assessing a childs best interest in a situation where a parent is working in an environment of known risk. These include whether the child has medical conditions placing them at higher risk if t...Continue reading

The Rent Distress Act governs the seizure of property by commercial landlords for the non-payment of rent. Its provisions are utilized in cases, including a recent court decision concerning the seizure and sale of a pizza oven, by a landlord in Tofino. Unfortunately, in the context of the COVID-19 pandemic, the act is hopelessly out of date. It only permits a tenant to keep $200 worth of property relating to their trade and sets out an archaic list of other property that a te...nant is allowed to keep. The list includes one cooking stove with pipe, one lamp, one washboard, two pails, one table, one clock, one broom, one shovel, three smoothing irons, and one chair, knife, spoon, fork and plate for each member of the debtors family. A smoothing iron is a predecessor to the modern iron that you would heat up on your stove, to press your ordinary wearing apparel which a landlord would also be required to leave a tenant with. Why a tenant would be allowed three smoothing irons, but only one spoon, is a distinction lost in time. Section 15 of the Rent Distress Act actually authorizes landlords to break open a house to seize property clandestinely conveyed or carried away by a tenant or lessee. In the context of small businesses being forced to close due to COVID-19, the Rent Distress Act need to be updated promptly to prevent commercial landlords from seizing and selling equipment that restaurants, and other businesses, will need when they are permitted to reopen. Also discussed is a recent message from the BC Supreme Court explaining why it is currently only able to hear urgent cases. The message points out that it would be unsafe to require people to serve on juries with 11 other individuals, or to be compelled to attend in person as a witness. The other important point made by the court is that the justice system needs to be open and transparent: it must be accessible to the public. As discussed during the show, one solution to this might be to permit public access to the digital audio recordings that are made of all court proceedings in BC. That would facilitate hearings being conducted using Zoom, Skype, or other technology. Finally, the different mechanisms, and considerations, for releasing people from jail to avoid infection are discussed. BC has already stopped 95 people from having to serve weekend jail sentences as these individuals would be low risk and having them come and go from jails each weekend would place them, and others, at risk. Follow this link for a transcript fo the show and links to the cases and legislation discussed: https://mtplaw.com/rent-distress-act-needs-a-covid-19-upda/

A single mother, who lives in a rural area 20 minutes from the nearest grocery store and pharmacy, was prohibited from driving by the BC Superintendent of Motor Vehicles as a result of two distracted driving tickets she received last year. On an appeal to the BC Supreme Court, a judge agreed with the Superintendent of Motor Vehicles that they were not required to consider either the circumstances of the tickets or the hardship that a four-month driving prohibition would caus...e. Section 93 of the Motor Vehicle Act allows the Superintendent of Motor Vehicles to prohibit anyone from driving if they conclude that their driving record is unsatisfactory. A judge is only permitted to overrule a decision of the Superintendent if they conclude that the decision demonstrated palpable and overriding error, absent a legal error in terms of how the decision was arrived at. While the judge concluded that the decision to prohibit the single mother from driving was not the result of a palpable and overriding error, she urged the Superintendent to consider delaying the start of the driving prohibition because of the COVID-19 public health emergency. The judge found that, because of the need to maintain physical distancing, the driving prohibition could remove the single mothers ability to get groceries for herself and her children, and could potentially put her, her family, and others in the community at risk. While there may be no legal obligation to consider serious hardship, or medical risk, that could result from driving prohibitions, it would certainly be desirable for the government to take these things into account in light of the current circumstances. Also discussed is a decision by the government of Quebec to have police stop drivers entering the province from Ontario. Police checkpoints have been set up on the Quebec side of bridges from Ottawa to Gatineau and in other locations. Drivers who are not coming for an essential purpose are being denied entry into Quebec. This sort of provincial checkpoint may be unconstitutional. Section 6 of the Charter permits every citizen of Canada, and every person who is a permanent resident of Canada, to move and take up residence in any province and to pursue the gaining of a livelihood in any province. While Charter rights in Canada are subject to reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society, that exception is not likely to authorize the kind of checkpoints that Quebec has established. Limits must be fair, not arbitrary, carefully designed, and rationally connected to achieve an objective, proportionate, and must impair a Charter right as little as possible. Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. Follow this link for a transcript of the show and links to the cases and legislation discussed: https://mtplaw.com/judge-urges-delay-in-driving-prohibitio/

Bill C-13: a federal act respecting certain measures in response to COVID-19, has now received royal assent. Several elements of this legislation are discussed on the show. Bill C-13 created the Emergency Response Benefits Act. This act will provide a monthly payment of $2,000 to people out of work. One important element of the act is that the monthly benefits will not be available to any worker who quit their employment voluntarily. So: dont quit your job if you wish to r...emain eligible for financial assistance. Another provision of Bill C-13, that has not received much public attention, are amendments to the Patent Act that permit the Minister of Health to authorize anyone to make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency described in the application. This would permit companies to manufacture things like ventilators, or drugs, that could otherwise be protected by a patent. There is provision for the payment of compensation to the owner of the patent. Also discussed, in the context of the provincial Public Health Act orders, are the large number of homeless people who are camping, congregating, and lining up together, outside of the Our Place Society facility in the 900-block of Pandora in Victoria. While Our Place has stopped providing some services, it is still providing three meals a day, washroom, and other services, from its single location. While all with the best of intentions, this has encouraged the unsafe gathering of large numbers of people in close proximity. Meals, and other services, need to be provided in a distributed fashion, so as to remove the incentive for the large group of homeless people to continue congregating in one place. Follow this link for a transcript of the show and links to the legislation discussed: https://mtplaw.com/bill-c-13-the-federal-covid-19-legislat/

Both the BC Provincial Court, and BC Supreme Court have adjourned all, but the most urgent cases, scheduled from now until early May. Urgent cases, that will proceed, include in-custody bail hearing, in custody criminal trial, and urgent cases including child protection, house evictions, refusal of treatment and end of life matters, orders under the Quarantine Act or the Public Health Act, or a variety of other urgent cases, as determined by a judge on a written application.... Witnesses, jurors, and others with cases scheduled prior to the beginning of May have been directed not to attend court unless they are specifically directed otherwise. Both the BC Provincial Court and BC Supreme Court are providing frequently updated directions with respect to how cases, urgent or otherwise, are to be handled on their web sites. In other legal news, both the province of BC, and the federal government, have legislation to address public health emergencies. Federally there is the Emergencies Act, and provincially there is the Emergency Program Act. So far, the province is utilizing the legislation, but the federal government is not. Both pieces of legislation permit temporary emergency government actions without the need for legislation to be passed in the ordinary way. One of the interesting provisions of the provincial legislation is the power to authorize or require any person to render assistance of a type that the person is qualified to provide or that otherwise is or may be required to prevent, respond to or alleviate the effects of an emergency or disaster. This authority would seem broad enough to allow qualified people to be authorized to provide assistance with things they might not ordinarily be permitted to do. This might include authorization for people with lapsed credentials, or training from other jurisdictions, to assist with medical care in an emergency. As discussed last week, BC is the only jurisdiction in Canada without any Employment Standards Act requirement that employers provide any sick leave for employees. On that front, the premier has suggested this will be remedied in an emergency sitting of the legislature next week. Follow this link for a transcript of the show and links to the legislation discussed: https://mtplaw.com/bc-courts-respond-to-covid-19-and-emerg/

BC is the only province in Canada where employers are not required to provide any sick leave. While various other forms of leave are required by the Employment Standards Act, including unpaid leave to care for seriously ill or injured family members, sick leave is not required. Various other recent amendments to the Employment Standards Act are discussed along with a report assessing the desirability of requiring sick leave, either paid or unpaid. Those opposed to mandatory ...sick leave point to Statistics Canada data that show the federal government employees, who are entitled to paid sick leave, take 13.5 sick days a year, compared to 8.4 days for private-sector employees. A culture of taking a sick day can undermine productivity, while the alternative of having sick employees attend work, to avoid losing pay, can also be very undesirable. In the context of the current concerns over COVID-19, it would make sense for the government to, at least temporarily, amend the Employment Standards Act to require sick leave, and time off for employees who are quarantined. Such an amendment would facilitate the federal governments decision to permit UI payments, in such circumstances, with no waiting period. Also discussed is a case involving a home inspection of a house in Parksville. The purchasers of the home hired a home inspector who delivered a positive report. A few months after completing the home purchase, water was discovered to be running into the house from a sundeck. The cost of repairs was in excess of $350,000. The inspection contract had a clause that limited liability to the cost of doing the inspection: $551.25. The trial judge, and Court of Appeal, upheld the limit on liability finding that there had been no gross negligence, and the contract wasnt unconscionable. The takeaway advise is that home inspection contracts, with limits on liability, dont afford insurance for problems not noticed by the inspector. Finally, a case involving a woman who slipped on a patch of back ice in a parking lot operated by the Town of Sidney is discussed. The claim was dismissed because municipalities are not liable for policy decisions not to clear snow and ice. Governments are only responsible if they make a policy decision to do something, and the policy is implemented in a negligent way. Here the decision to make the clearing of ice in the parking lot a low priority was found to be a legitimate policy decision. Follow this link for a transcript fo the show and links to the cases and legislation discussed: https://mtplaw.com/no-sick-leave-required-by-bc-legislatio/

The Supreme Court of Canada has permitted a claim by workers at a mine in Eritrea to proceed, after concluding that Canada has adopted customary international law into the Canadian legal system. The Eritrean miners brought the proposed class claim action against a British Columbia based mining company, which is a part-owner of the Eritrean mine where they work. The miners are seeking damages for breaches of customary international law prohibitions against forced labour, sla...Continue reading

Victoria Lawyer Michael Mulligan commenting on the offence of mischief in the Criminal Code.

If BC moves to an ICBC monopoly no-fault auto insurance system, as has been proposed, the suggested avenues for a review of ICBC decisions would not be adequate, or fair. Apart from an ombudsperson, and fairness offer, who would have no actual authority to correct unfair decisions by ICBC, what has been suggested is to use the Civil Resolution Tribunal. The Civil Resolution Tribunal was designed to deal with very small civil and strata property disputes. It is not an approp...riate mechanism for resolving disputes where one of the parties is a government-owned insurance company. This is because members of the Civil Resolution Tribunal are hired on short term contracts by the government of between 2 and 4 years, with the possibility of renewal. Disputes should not be resolved by someone employed by the government that also owns the insurance company. Unlike with an independent judge, a member of the Civil Resolution Tribunal may be legitimately concerned about keeping their job if they make decisions unfavourable to the government. Also discussed on the show are the Criminal Code provisions that make it an offence to counsel someone to commit a criminal office. This is relevant in the context of people urging others to block highways or other infrastructure. The act of encouraging others to engage in this activity is, itself, a crime even if the suggested activity doesnt occur. Finally, a recent Supreme Court of Canada decision concerning s. 35 aboriginal rights in the context of a mining development that straddles Quebec and Newfoundland and Labrador is discussed. The Supreme Court of Canada spends some time reviewing the nature of aboriginal title and confirming that it is not a right to sovereign control over territory. As is the case with other forms of title to property, such as fee simple title to a home, Canadian, and provincial, laws still apply and, where there is a compelling public need to use the property the government is able to do so. In the case of property held in a regular fee simple fashion, the provincial and federal governments can not only enforce laws on the property but can expropriate it for public purposes. That is how its possible to build highways, sewer systems, and other infrastructure even if a property owner doesnt consent to this. Suggestions that aboriginal groups retain sovereign control over land, or that aboriginal title affords a veto over the use of land, are inconsistent with Canadian law. Follow this link for a transcript of the show, and links to the cases discussed: https://mtplaw.com/icbc-decisions-should-be-subject-to-ind/

Who decides if, how, and when, protesters who are blocking rail lines, ferries, driveways, or bridges are to be removed? Both protesters, and politicians, have suggested that either the Premier of BC, or the Prime Minister of Canada should, or should not, remove protesters who are obstructing transportation infrastructure or natural gas pipeline construction. In many cases, these suggestions demonstrate a fundamental misunderstanding of how such decisions are made. Neither t...Continue reading

This week on Legally Speaking with Michael Mulligan: The ICBC no-fault system proposed by the NDP would save money by not providing compensation for the loss of future earning capacity. Currently, with our fault-based system, if someone is seriously injured by a careless driver, they would be entitled to be put back into the position they would have been in had they not been injured. This could include a lump sum payment based on the current value of their lost future earning... capacity. The question for a judge is how much more would they have earned; had they not been injured. Under the proposed ICBC no-fault system, whether someone is responsible for an accident or not, they would only be entitled to monthly payments based on their income at the time of the accident. This could be particularly unfair to young people who have just started working. A young person, with their first job following graduation, if permanently disabled, would only ever receive monthly payments based on how much they were making when they were disabled. By moving to monthly payments for disabled people, rather than paying a lump sum, ICBC will be able to spread out their obligations for many years. This helps explain how the government is planning to justify pre-election rebate cheques from an insurance company described as a financial dumpster fire. By creating long term, underfunded, liabilities to make monthly payments, ICBC management would also help entrench a monopoly no-fault system because privatization would require these liabilities to be dealt with. Also discussed on the show is the quia timet injunction obtained by Uber to stop the City of Surrey from issuing tickets to Uber driver for not having Surrey business licences, which Surrey would not issue. A quia timet injunction is a special kind of injunction that prohibits future, rather than current, conduct. This kind of injunction may of some use to prohibit the pre-planned obstruction of buildings, roads, ferries, and other infrastructure by natural gas pipeline protestors. Finally, a new trial is ordered in a case where a judge found that a Saanich police officer assaulted a man he pulled over. The trial judge found that the police officer seriously injured the man, however, the municipality of Saanich didnt have to pay because they hadnt been provided written notice within 2 months of the incident. The police officer also avoided having to pay for the mans injuries because the Police Act exempts officers form personal liability unless they engage in dishonesty, gross negligence or malicious or wilful misconduct. The Court of Appeal ordered a new trial because the trial judge had not considered whether the officer who assaulted the man had engaged in malicious or wilful misconduct which is different from gross negligence. Follow this link for a transcript of the show and links to the cases discussed: https://mtplaw.com/icbc-no-fault-pre-election-refunds-fund/

Victoria lawyer Michael Mulligan on CHEK News with April Lawrence discussing the latest NDP proposal for ICBC no-fault insurance.

On the show this week: The Canadian Quarantine Act, and BC Public Health Act powers to quarantine people or order treatment in response to the Wuhan Coronavirus, as well as an analysis of the NDP governments latest proposal for no-fault car insurance. The Canadian Quarantine Act and BC Public Health Act provide broad powers to control communicable diseases such as the Wuhan Coronavirus. These include the authority to prohibit entry into Canada by people who have been to a fo...reign country, or part of a foreign country, in circumstances where there is no reasonable alternative to prevent the introduction or spread of a disease that would pose an imminent and severe risk to public health. The Quarantine Act imposes an obligation on people to disclose if they might have a communicable disease and the BC Public Health Act obliges people not to willingly cause a health hazard, or act in a manner that a person knows, or ought to know, will cause a health hazard. If required, any private place may be designated as a quarantine facility for the purpose of isolating or detaining infected people for the purpose of protecting public health. The latest proposal by the provincial NDP government to introduce a no-fault car insurance system is also discussed. This is the second time an NDP government has attempted to introduce a no-fault system. On the last occasion, back in 1997, this was so unpopular the idea was abandoned. A no-fault system is designed to save money by not spending any money determining who was responsible for an accident. A careless diver, who causes a car accident, would be treated the same way as an innocent person they injure. It is for this reason that no-fault system insurance systems are inconsistent with the idea that people should be responsible for the harm they cause. While generally good news for careless drivers, who may save money on their car insurance, no-fault regimes can both remove incentives for people to drive safely, and inadequately compensate innocent people who are seriously injured. Should this proposal for a no-fault system become law in British Columbia, people injured in car accidents could expect similar treatment to that provided by WorkSafeBC (WCB) and would have no meaningful ability to challenge decisions made by ICBC in court. Follow this link for a transcript of the show and links to the legislation discussed: https://mtplaw.com/quarantine-legislation-in-canada-and-th/ Legally Speaking with Michael Mulligan is live on CFAX 1070 at 10:30 am every Thursday.

Discussing some of the challenges when sentencing someone for an offence such as dangerous driving causing bodily harm.

On the show this week: ICBC. The government-owned insurance company has run into financial difficulty as a result of both how the company has been operated, and political decisions to take money that it had been saved for the purpose of paying claims out of the company in order to balance the provincial budget. Currently, drivers who are at fault for an accident are responsible for it. In some circumstances, such as where a driver is convicted of impaired driving, dangerous ...driving, or failing to remain at the scene of an accident, they would be in breach of their insurance coverage and they would be personally responsible for repaying ICBC for any loss. There has been some suggestion that BC should move to a no-fault system, in which it would not matter who caused an accident. This would save money by avoiding litigation concerning who was responsible for an accident but might be inconsistent with community values that people who cause accidents should be responsible for them. Recently announced changes would create an in-house ombudsperson, to review complaints. This is a ponderous idea as BC already has an ombudsperson and an auditor general. Duplicating these functions inside ICBC doesnt seem likely to be beneficial. Another initiative involves having ICBC offer some money to people who suffered a loss, without removing their ability to sue later. This proposal needs to be considered in the context of ICBCs frequent attempts to settle claims for less than would be awarded if the cases were decided by a judge. If people who are injured are offered, and accept, less than their claim is worth, either because they are desperate, or dont have proper legal advice, this may make it uneconomic to sue ICBC later for the difference between this amount, and what they should have been paid. Fundamentally, ICBC needs to be directed to change its approach to claims. If a claim is legitimate, ICBC should be promptly offering people what would be expected if they went to court. This would be both consistent with the duty of a publicly owned insurance company to treat people fairly and would save significant resources that are currently spent litigating claims. Despite ICBC claims to the contrary, a review of cases that do proceed to trial demonstrates that ICBC is continuing to offer people less than the amounts be awarded in court. Finally, the role of ICBC in administering things like drivers licences and paying for police traffic enforcement should be reconsidered. These are ordinarily government functions, that would not be paid for by private insurance companies. Having ICBC pay for these things is no different than taking money out of ICBC to pay for government programs. Follow this link for a transcript of the show and links to the cases discussed: https://mtplaw.com/extinguishing-the-icbc-dumpster-fire-fa/

Topics discussed on the show this week include the Supreme Court of Canada refusing an application by the City of Victoria for leave to appeal a decision by the BC Court of Appeal that the city lacked jurisdiction to ban plastic bags. In addition, various politicians have mischaracterized the nature of an interim injunction prohibiting blockades, and other self-help remedies, by individuals opposed to the construction of a natural gas pipeline. A federal Green Party member of... parliament suggested that the premier of BC, or the Prime Minister of Canada, should call off the RCMP from enforcing the injunction. Neither the premier nor the prime minister, have the authority to call off the RCMP. Because protesters had not voluntarily complied with a previous injunction, imposed a year ago, the BC Supreme Court judge hearing the case ordered the RCMP to enforce the injunction against physically blocking construction. The obligation of the RCMP to prevent protesters from blocking the construction of the pipeline is a result of the court order and not a political decision. A number of young people, who apparently misunderstood who had the authority to decide how the matter was going to proceed, occupied the Ministry of Energy, Mines & Petroleum Resources building in Victoria. After fifteen hours, the police carried the protesters out of the building and released them without charges. In this context, a City of Victoria Councillor unfairly alleged that there is always a high risk that police will use violence when dealing with protesters. What appears to be either uninformed or politically motivated, mischaracterizations of the court-ordered injunction are most unfortunate. It would be wise for anyone who is inclined to wade into the pipeline issue, the role of the elected first nations representatives, Wetsuweten hereditary chiefs, the RCMP, or the government, to actually read the judges reasons for judgment. The background, context and reasons really do matter. Finally, a tribute to Ted Hughes, the former judge, and lawyer, who passed away on January 17, at age 92, after making a numerous contribution to the Canadian legal system. Follow this link for a transcript of the show and links to the cases discussed, including the judges reasons for issuing the injunction: https://mtplaw.com/no-appeal-to-the-scc-over-plastic-bags-/ Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.