Created with Sketch.
Legally Speaking with Michael Mulligan
21 minutes | 14 days ago
Confusing COVID-19 orders cause family law issues, and a murder conviction vs private Law Society documents
This week on Legally Speaking with Michael Mulligan:A BC Supreme Court Judge describes the BC COVID-19 public health orders as “fraught with inconsistency and ambiguity” and that it’s “not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance.”This case is one of many that have arisen where separated parents disagree about the interpretation of the orders and how they should be applied in the context of children spending time at both parents’ homes. The particular case was made more complicated because the orders seem to assume traditional family structures. In the case discussed the separated father, who had care of the two young children in question half the time, had become an adherent of polyamory. He described this as “a belief that all genders are equal and that loving, negotiated, individualized, consensual, and egalitarian relationships can include more than the Judeo-Christian ‘normality’ of a monogamous heterosexual couple.”In accordance with this, the father’s new partner has a husband with whom she spends slightly more than half of her time. All three parties to this relationship were supportive of the arrangement. Because of how the COVID-19 orders are drafted, the result of this scenario is that the husband’s apartment became a “vacation accommodation” for his new partner despite this being completely at odds with the ordinary meaning of this term. Having worked through various ambiguous and difficult to interpret provisions of the orders, the judge concluded that the father’s relationship was not in breach of them, and that the mother should stop withholding access to the children. It would seem that the government is aware that the orders in question are ambiguous as they have posted a notice on the government web site that says, “Do not look for loopholes or excuses to gather.”The judge in the case also pointed out that the premier of BC, relying on advice from his Minister of Heath, was obliged to change his plans for Christmas Day at home with his wife, son and her daughter-in-law when it was pointed out to him that such a gathering would be in breach of the orders. Also discussed in the episode is the case of a man who was convicted of murder in the year 2000. He has maintains his innocence and is still in jail. He blames his conviction on the ineffective assistance of two lawyers: one at his trial and the other on his appeal. The Court of Appeal clearly had a concern with how the man’s second lawyer conducted himself as it asked the Law Society to investigate the lawyer, who was eventually required to stop practicing. The man who was convicted was applying for permission to use records the Law Society collected in the course of investigating the lawyers in question. This application was, however, denied by a judge who needed to weigh the importance of the documents against claims of privilege by the Law Society. The records collected by the Law Society, when investigating the lawyers, would include privileged information concerning other clients of the lawyers in question. The man will need to advance his renewed application for leave to appeal to the Supreme Court of Canada, or to the Minister of Justice, without the benefit of the Law Society records. Follow this link for a transcript of the episode and links to the cases discussed.
23 minutes | 22 days ago
Notice of records in sexual assault cases unconstitutional, forfeiture of money for bail breaches, and radar speed evidence
This week on Legally Speaking with Michael Mulligan:The Supreme Court of Canada has granted the Crown leave to appeal a BC Supreme Court decision that found a new law that required people accused of various sexual offences to provide advance notice of records they wish to rely on to the complaint and Crown to be unconstitutional. The law in question was passed following the Jian Ghomeshi case where the complainant’s credibility was undermined by email messages, they had sent that contradicted their evidence at trial. The BC Supreme Court judge that found the advance notice law to be unconstitutional said the following: “The danger that the complainant’s evidence may be tailored, consciously or unconsciously, is not illusory. This is why witnesses are almost invariably excluded from the courtroom until they have given their evidence.”Also discussed is a BC Provincial Court decision that deals with the process and test to be applied when an accused person provides a cash deposit to be released on bail and then breaches their conditions of release. When this occurs, the Crown can make an application for forfeiture of the money and the accused person would be given an opportunity to show cause why this should not occur. There is a presumption that when bail conditions are breached, cash bail will be forfeited upon application by the Crown. Finally, a BC Supreme Court decision is discussed which was concerned with the requirements for radar readings to be accepted on a prosecution for speeding. Evidence of the following is required: 1. That the particular equipment used was properly operated by a qualified person;2. That the equipment function and accuracy were tested with whatever tests were required or suggested for it;3. That the tests or procedures indicated the equipment was operating properly; and4. That those tests indicated that the equipment was capable of accurately registering the speed of an alleged offending vehicle.In the particular case being considered the evidence on these points was very brief and general, however, it was not challenged at trial in any way and, as a result, was found to be sufficient to permit consideration of the radar speeding reading. Follow this link for a transcript of the episode and links to the cases discussed.
23 minutes | a month ago
Public Health Act enforcement, duty of honest performance, and a solitary confinement class action
This week on Legally Speaking with Michael Mulligan: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.
22 minutes | a month ago
Collecting COVID fines while mailing out cheques, recounts in BC vs USA, pronouns in court and for judges
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 would 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.
23 minutes | a month ago
Joe Arvay - Remembering his contributions from Little Sisters to Hells Angels
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 that might be used, in the future, for criminal activity. R. v. Henry was a case involving a man wrongfully convicted of 10 sexual offences for which he was designated a dangerous offender and kept in jail for almost 27 years. His wrongful conviction was caused by the Crown not disclosing 30 witness statements that would have undermined already problematic identification evidence, as well as key forensic evidence. The Crown also concealed evidence of another suspect who had been arrested twice in the vicinity of the attacks. Mr. Arvay was successful in obtaining compensation for Mr. Henry as a constructional remedy, without having to prove that the prosecutor who withheld the evidence acted with malice. Prior to this case, no compensation would have been available unless the wrongfully convicted person was able to provide the Crown was motivated by an improper purpose. The high threshold was intended to protect prosecutorial discretion over matters such as the decision to prosecute someone or not. The Supreme Court of Canada accepted Mr. Arvay’s argument that there is no discretion concerning the obligation to provide disclosure of evidence once a prosecution is undertaken. Another notable case discussed on the show is Canada (Attorney General) v. Bedford. In this case, the Supreme Court of Canada struck down several of the prostitution laws that existed at the time. The court accepted that the legal prohibitions made life more dangerous for sex workers by preventing them from taking steps to ensure their safety. This was found to contravene section 7 of the Charter that protects the security of the person. Carter v. Canada (Attorney General) is also discussed on the show. In this case, the Supreme Court of Canada concluded that the assisted suicide prohibitions were unconstitutional to the extent that they prohibited physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.This case reversed an earlier Supreme Court of Canada decision and is an example of Mr. Arvay not accepting an older decision as being immutable. The Supreme Court of Canada agreed that earlier decisions could be revised in two circumstances: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.The final case discussed was ongoing at the time of Mr. Arvay’s death. It involved the British Columbia civil forfeiture legislation which permitted property to be taken by the government on the basis that it is likely to be used, in the future, for criminal activity.Mr. Arvay was successful at trial in having these provisions struck down as being unconstitutional. The trial judge used an example of a person being convicted of dangerous driving, serving their sentence, purchasing a new car, and having the government take the new car on the basis that it was likely they would drive dangerously again in the future. Follow this link for a transcript of the episode and links to the cases discussed.
22 minutes | 2 months ago
Mr. Big confessions, a gesturing juror appeal, and slow notice of COVID-19 at the Surrey courthouse
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 suspect that they need to tell them about the real crime that is actually being investigated so that loose ends can be tied up or so that Mr. Big can protect the suspect. Variations of this technique have been used hundreds of times in Canada. Unfortunately, it can be so corrosive that multiple innocent people have confessed to committing crimes out of either fear of the fictitious criminal organization, a desire to join it and continue making money or in order to get continued attention. As a result, the Supreme Court of Canada has made Mr. Big confessions presumptively inadmissible. To be used the Crown now needs to establish that the probative value of the confessions exceeds its prejudicial effect, and the operation didn’t constitute an abuse of process.In the case discussed on the show, the fact that the RCMP facilitated the suspect breaching court orders he was subject to, without judicial authorization, was not found to be an abuse of process. Also discussed is an appeal from a conviction for first-degree murder. The appeal is based on gestures alleged to have been made by one of the jurors to the family of the deceased child during the course of the trial. A rarely used provision of the Criminal Code that permits live evidence to be heard on an appeal is being utilized so as to permit the cross-examination of various people who observed the gestures. The section only permits witnesses who would have been compellable at the trial to testify at the appeal. Therefore, relying on a decision in a case from 1995 where a juror had an affair with a suspect in a murder trial, while the case was going on, the juror who made the gestures cannot be called as a witness. Finally, at the Surrey courthouse, a number of sheriffs who were responsible for transporting prisoners tested positive for COVID-19. Court staff, including Crown Counsel, were notified and advised to self-isolate and get testing. No notice was, however, provided to other lawyers who had been at the courthouse at the same time out of a desire to provide privacy for the sheriffs.This has caused a great deal of concern as the people who were not notified weren’t able to take timely steps to ensure their safety and the safety of their families. Courthouses could adopt practices similar to restaurants and keep a record of people who attend each day, along with phone numbers or email addresses so as to facilitate rapid notifications if there is potential exposure. Follow this link for a transcript of the episode and links to the cases discussed.
22 minutes | 2 months ago
U.S. billionaire appeals fishing access to his giant B.C. ranch, no access to reproductive material after death, and a sexual assault appeal
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 successful 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.
23 minutes | 2 months ago
Wrongful conviction for double murder overturned, new family court rules, and Delta Hospice Society medical assistance in dying
This week on Legally Speaking with Michael Mulligan:In 1983 Tomas Yebes was convicted by a Vancouver jury of murdering his two adopted sons, ages 6 and 7. The conviction was upheld by the BC Court of Appeal and the Supreme Court of Canada.Now, at the age of 77, after having spent a decade in jail, and 26 years on parole, thanks to work by the UBC Innocence Project, he has been acquitted. The two boys died as a result of a fire in their bedroom. The original conviction was based on an incorrect expert opinion that the boys had died of an unknown cause before the fire started. When he was sentenced, in 1983, Mr. Yebes turned to the prosecutor and said “I also realize you are doing your job, and although I know you have made a mistake, I hold no animosity. To my friends, they believe me. I beg them not to lose their faith because the truth will come out. I am innocent.” Section 696.1 of the Criminal Code permits the Minister of Justice to order a new trial for someone who has exhausted their appeals where they are “satisfied there is a reasonable basis to conclude a miscarriage of justice likely occurred.” Based on the evidence and submission of the UBC Innocence Project the Minister of Justice agreed that this test had been met and ordered a new trial. The Provincial Crown then agreed that Mr. Yebes should be found not guilty and called no evidence at his new trial.Also discussed on the show are changes to the Provincial Court Family Rules in Victoria and Surrey, which will require parenting education, mediation, and a meeting with a family justice counsellor before many family law cases go to court. The hope is that more disputes can be resolved on a consensual basis, with the assistance of mediation and other services, rather than needing to proceed to court. Finally, a Court of Appeal case involving the Delta Hospice Society is discussed.The board of directors of the Delta Hospice Society is opposed to medical assistance in dying and was attempting to amend the constitution of the society to turn it into a “Christian community that furthers biblical principles,” including the sanctity of life. To accomplish this, the board of directors was denying memberships in the society to people that didn’t agree with their proposal in order to prevent them from voting. The Court of Appeal upheld a decision by a Chambers Judge that the board of directors didn’t have the authority to deny memberships in the society for this reason.Because virtually all of the funding for the Delta Hospice Society is provided by the province of British Columbia, and because medically assisted dying was legalized in 2016, it could lose its funding unless these services are made available on-site. Follow this link for a transcript of the episode and links to the cases discussed.
23 minutes | 2 months ago
Unreasonable refusal of racetrack expansion, join submissions for sentencing and criminal charges started by a vexatious litigant
This week on Legally Speaking with Michael Mulligan: The Municipality of North Cowichan’s decision to refuse approval for the expansion of the Vancouver Island Motorsport Circuit is found to be unreasonable following a judicial review. At issue was whether a racetrack is a permitted use pursuant to the zoning that is in place. The proposed expansion of the facility was to be on land zoned in the same way as the land used for the initial track. The municipality approved the first track but then refused permission for the expansion with no meaningful explanation for the inconsistent decision. The judge found the inconsistent decision, without explanation, to be unreasonable. It’s important that there be predictability in administrative decisions so that people can plan their affairs. The next case discussed involved sentencing following a guilty plea to impaired and dangerous driving causing bodily harm. The man who pleads guilty was sentenced to two and a half years in jail, pursuant to a joint submission. A joint submission is a sentencing submission agreed to by both the Crown and Defence lawyers. It would take into account factors, including the strength of the Crown’s case and the circumstances of the accused person. The Supreme Court of Canada has directed that trial judges are required to impose the sentence agreed to by Crown and Defence unless doing so would bring the administration of justice into disrepute. This high threshold is important because if judges were routinely deviating from the terms of joint submissions, many fewer cases would resolve by way of people pleading guilty. Finally, the Court of Appeal concludes that the designation of someone as a vexatious litigant does not apply to the commencement of criminal charges. Someone can be designated as a vexatious litigant if they have a history of starting civil claims without merit. Such a designation requires the person to obtain prior permission from a judge before suing someone. A designation as a vexatious litigant does not, however, stop the person from swearing private information charging someone with a criminal offence. This is because the criminal procedure that allows for this is a matter of federal jurisdiction. Provincial laws respecting the designation of someone as vexatious litigants don’t have any application. In British Columbia, however, when someone swears a private information, Crown Counsel is required to either take over the prosecution or direct a stay of proceedings to stop the case. The charge approval standard applied by Crown Counsel in British Columbia has two parts: 1) Is there a substantial likelihood of conviction? and2) Is the prosecution in the public interest?Follow this link for a transcript of the episode and links to the cases discussed.
23 minutes | 3 months ago
Protection against cruel punishment not for corporations, no annulment after wedding day separation and ICBC stores 518 acid damages cars
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. Some constitutional protections also apply to corporations: the right to be free from “unreasonable search and seizure” and the right to a trial within a reasonable period of time for example. Other constitutional protections don’t apply to corporations including the right to “life, liberty and security of the person” or the right not to be forced to testify that is protected by section 11 (c) of the Charter.In a recent case from Quebec, where a small corporation was subjected to a fine of more than $30,000 for performing construction work without a licence, the Supreme Court of Canada has now decided that corporations can’t benefit from the constitutional protection against “any cruel and unusual treatment or punishment.”You can’t be cruel to a corporation. The next case discussed involved an application for an annulment of a marriage. Following the marriage ceremony, the bride and groom attended a park, along with family members, for the purpose of photographs. A huge argument ensued, and the bride decided she didn’t want to be married.Both parties applied for the annulment and pointed out that the marriage hadn’t been consummated following the marriage ceremony. In refusing the application, the judge pointed out that not consummating a marriage is an insufficient basis for an annulment. There needs to be evidence that the parties were incapable of consummating the marriage, not simply that they had not done so. Also discussed is an ongoing case that represents the largest loss that ICBC has ever suffered when hundreds of cars were damaged by acid that leaked onto a highway near Trail BC.ICBC is suing everyone possible in an effort to recover the money they paid out for the damaged vehicles including the company that made the acid, the company that transported it, and the company that purchased it. Notably, ICBC is even suing the Province of British Columbia alleging the Ministry of Transportation or the Ministry of the Environment was partially to blame. The issue that was just decided by a judge involved the ongoing storage of the vehicles involved. ICBC has already incurred $1.6 million in storage costs keeping the vehicles at a private storage facility. As they are paying $54,734 per month to continue storing the vehicles there, ICBC wanted permission to dispose of the vehicles prior to the trial. The judge refused ICBC’s application and ordered the vehicles to be kept until March 31, 2021, so as to permit time for the defendants to inspect the vehicles. According to the judge, ICBC decided to “write off” any vehicle found to have “any visible signs of exposure” to sulfuric acid. The defendants are taking issue with whether all of the vehicles should have been written off on this basis. If, as has been proposed, a no-fault car insurance system is adopted in British Columbia, ICBC would not be able to sue anyone to recover money from anyone in a case like this, even if it could show that they were careless. Follow this link for a transcript of the show and links to the cases discussed.
22 minutes | 3 months ago
Dangerous Driving Causing Bodily Harm sentencing, a separation agreement with life insurance and Aeroplan points, and a COVID-19 limitation period case
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 must 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.
21 minutes | 3 months ago
Vote counting controversy resolved in court, an acquittal on an attempted murder charge, and alleging perjury results in special costs
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. Various other ballots had been marked in unusual ways, including a mixture of tick marks, crosses, and in one case the number 11. Following a break for dinner, it was determined that the ballot box containing the disputed ballots had been unsealed by someone unknown, preventing a reliable recount. After two years of not having a board of directors, the matter was finally resolved by the BC Supreme Court. The series of unfortunate events that propelled the vote count into court should be a cautionary take for the counting of ballots in general elections. Also discussed was a case involving a man who shot a police officer in the hand and arm before running away in a Skytrain station. The man was charged with various firearms offences, which were not contested. A charge of attempted murder was, however, an issue. The essence of any charge of attempting to commit a crime is that the accused must have the intention to commit that very crime. A person may be convicted of murder who either intends to kill another person or who in the words of section 232(a)(ii) of the Criminal Code, “means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”. But, an accused may only be convicted of attempted murder if it is proven that he intended to cause the death of the other person. If someone points a handgun at a vital part of another person’s body and shoots the person, it may be reasonable to presume that they intended the probable consequences of their actions. This does not, however, mean that in every circumstance where one person shoots another with a firearm, the shooter is guilty of attempted murder.On the facts of the case discussed, the judge had a doubt about whether the accused actually intended to kill the police officer. The judge took into account several pieces of evidence, including the testimony of the accused. Other factors included where the police officer was shot, and that the accused did not shoot the officer again after when running past him despite having had the opportunity to do so. Finally, a Court of Appeal decision concerning an estate dispute is discussed. The appellant alleged the other party committed perjury but did not have evidence to support this claim. Making such a serious allegation, repeatedly, without evidence, was determined to be reprehensible conduct and the court awarded increased, or special, costs against the unsuccessful appellant. Follow this link for a transcript of the episode and links to the cases discussed.
23 minutes | 3 months ago
Fathers unsuccessful in obtaining an injunction for increased COVID-19 school safety and a distracted driving conviction for wearing earbuds plugged into a dead iPhone
This week on Legally Speaking with Michael Mulligan:Two fathers with children and family members that have pre-existing medical conditions were unsuccessful in an application for an interim injunction to require British Columbia schools to implement additional COVID-19 protections such as social distancing, and mandatory mask-wearing in classrooms.The judge on the application was not prepared to rely on media reports concerning the number of exposures in schools. In addition, the judge concluded that the fathers had failed to clearly identify the specific government decision they were seeking to have judicially reviewed.Because the fathers both believed they were acting in the public interest by bringing the application, no cost award was made against them. Also discussed is a British Columbia Supreme Court decision upholding a conviction for using an electronic device while driving. The electronic device in question was an iPhone with a dead battery. The “use” was the “holding” of the device by wearing earbuds that were plugged into the dead iPhone. The judge concluded that the “holding” could include holding the earbuds in the driver’s ears. The driver left the earbuds in his ears to drown out some of the highway noise. He was not touching the iPhone at all. The underlying issue is that the provisions of the Motor Vehicle Act dealing with distracted driving by the use of electronic devices are so broadly drafted that they capture activity that wouldn’t actually be distracting. How judges are to interpret provisions like this is discussed. Ultimately, it’s a legislative responsibility to ensure that legislation isn’t overly broad. Finally, a Court of Appeal case involving the withdrawal of a guilty plea is discussed. The unfortunate fact pattern in the case involved a senior criminal lawyer who gave bad advice to his client concerning the guilty plea, after filing to reading a relevant decision that would have impacted the case, and then sending a junior associate to deal with the matter.
22 minutes | 3 months ago
ICBC no fault insurance and the Civil Resolution Tribunal
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 some was injured, or how much compensation they should be provided. It just wouldn’t matter if the person caused the accident or not. Currently, if someone has a dispute with ICBC, they would be entitled to go to court to have a judge decide what they are entitled to. The no-fault scheme would also prevent people from going to court in most circumstances, and disputes would be resolved by an entity called the Civil Resolution Tribunal. The Civil Resolution Tribunal was established to deal with minor strata disputes and very small civil claims of less than $5,000. It operates online in a fashion similar to a PayPal or eBay dispute resolution system. For very minor disputes, like those for which the Civil Resolution Tribunal was intended, this makes sense because deputes can be resolved quickly and inexpensively. Not every strata dispute over a BBQ on a patio needs to go to court. The Civil Resolution Tribunal is not, however, an appropriate mechanism to resolve more serious disputes that involve the provincial government, or ICBC, which is entirely owned by the provincial government. Unlike judges, who are appointed for life, and are independent of government, the adjudicators who work for the Civil Resolution tribunal are appointed by the government on renewable, short term, contracts of between 2 and 4 years. Someone who is dependent on the government for continued employment should not be deciding disputes that involve the government.If you had a dispute with your neighbour, you would not want someone employed by your neighbour to decide the issue. As of April 1, 2019, the provincial government gave the Civil Resolution Tribunal authority to decide disputes with ICBC involving up to $50,000. A review of Civil Resolution Tribunal decisions from July 1, 2020, until October 7, 2020, shows that of 30 disputes involving ICBC, 27 were decided in favour of ICBC, and 3 were decided against ICBC.Whether or not ICBC no-fault insurance is a good idea, disputes with a government-owned insurance company should not be decided by people who depend on the government for continued employment.Also discussed on the show is a decision of the British Columbia Court of Appeal overturning a first-degree murder conviction. The conviction was based on entirely circumstantial evidence after the accused’s wife drowned in a lake.The central issue on the appeal was the use a jury could make of statements the accused provided to the police concerning how his wife drowned. Ordinarily, if a statement by an accused person is disbelieved, it’s no evidence of any kind. Only in limited circumstances can a disbelieved statement be treated as evidence of guilt. Follow this link for a transcript of the show and links to the cases discussed.
23 minutes | 4 months ago
Election Act voting requirements for mail in ballots, and third party advertising rules
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 write 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*cker 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.Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
22 minutes | 4 months ago
The Lascelles Principles - when a Premier or PM can't demand an election, an annulment for impotence and a false claim to inherit a house
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 were described by Sir Alan Frederick Lascelles, a private secretary to King George VI. They are referred to as the Lascelles Principles: 1) The existing Parliament was still vital, viable, and capable of doing its job;2) A General Election would be detrimental to the national economy;3) He could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons. These principles were articulated in relation to the British Parliament but would be applicable to Canadian legislatures. The second principle has been restated as detrimental to the public interest, rather than just economic interest. There are two historic examples of a request for an election being refused by a Governor-General.In 1926, Canadian Prime Minister King asked then Governor-General Byng to dissolve parliament and call an election. The Governor-General refused and, instead, permitted the leader of the Conservative Party to form a government. In 1939, the Prime Minister of South Africa lost a vote to keep South Africa neutral in World War II. He asked the South African Governor-General to call an election. The Governor-General refused, the Prime Minister resigned, and the former minister of justice formed a government. South Africa joined the war against Germany. Currently, in British Columbia, the BC NDP and BC Liberal Party each have 41 seats. The Green Party has 2, there are 2 independents, and one former BC Liberal seat is now vacant.Because an election in the middle of the COVID-19 pandemic might be viewed as being contrary to the public interest, if there was an alternative coalition presented to the Lieutenant Governor, she would need to choose between this, and calling an election, should there be a request for an election by the current premier. Also discussed on the show is a case of a marriage annulment being granted on the basis that the husband was impotent and unable to consummate the marriage, despite numerous attempts. The husband unsuccessfully opposed the annulment and was also required to pay his former wife costs for the court case. Finally, on the show, the case of a woman who falsely claimed to have been residing with a man for more than two years in order to qualify as his common-law spouse for the purpose of inheriting his home is discussed. The deceased man’s only son, who was abandoned as a child, successfully demonstrated that the woman hadn’t been residing with his estranged father for two years and, in so doing, inherited the house. Follow this link for a transcript of the show and links to the cases discussed.
22 minutes | 4 months ago
COVID-19 school disputes, parenting coordinators, reports from trial judges for appeals, management fees and interest
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.
22 minutes | 5 months ago
An illegal Airbnb contract not enforceable in court, a class action for a data breach, and the BC legislature irrationally changes the pay of judges
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.
23 minutes | 5 months ago
A court application to stop unsafe school reopening, legislation prohibiting claims for COVID-19, and firing justified for not wearing safety equipmenet
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.
23 minutes | 5 months ago
Bitcoin litigation, police authority to stop vehicles has limits, and jurisdiction over a family law case for an international sailing couple
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.
Terms of Service
Do Not Sell My Personal Information
© Stitcher 2020