Mulligan Defence Lawyers

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/

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