Legally Speaking with Michael Mulligan

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...

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 we...

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 diffe...

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...

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...

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 what’s in the best interest of the child. A recent BC court decision set out factors to be considered when assessing a child’s best interest in a situation where a parent is working in an environment of known risk. These i...

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...

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...

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 w...

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 v...

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 desirabil...

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...

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...

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 demon...

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 in...

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 government’s 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 inc...

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 cir...

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 oppose...

Two new British Columbia Court of Appeal decisions are discussed on the show this week.  When can you sue a municipality for an injury caused by poorly cleared snow?  The Court of Appeal provided some clarity in a recent case against the City of Nelson. The plaintiff suffered a serious leg injury after stepping into a snowbank trying to get from an angled parking spot to the sidewalk. While a muni...

The Motor Vehicle Act distracted driving provisions are in need of an update in order to both provide clarity, and to address technological changes that have taken place over the past ten years. As a result of the outdated, and confusing, legislative scheme even police officers who are charged with enforcing the scheme are having difficulty interpreting the provisions.  Recent advice, offered by a...

Three Chinese scientists were sentenced to jail for editing the genes of three fetuses in an attempt to provide immunity from HIV. The scientist used CRISPR in an attempt to disable the gene that allows the HIV virus to enter a cell.  The fathers of the children, who appear to be healthy, had HIV. Their mothers did not.  The three scientists announced what they had done at a 2018 conference in Hon...

The Supreme Court of Canada has ruled that a man, born in Canada, to parents who were undercover Russian spies, is a Canadian citizen. This decision, and two others, including a finding that the CRTC does not have the power to require US Super Bowl ads to be shown in Canada, formed the basis of an effort to clarify how courts should deal with the review of administrative decisions. There are two s...

The first topic on the show: Sperm, recovered from a man shortly after his death, pursuant to an interim court order, will not be provided to the man’s wife because the man had not provided his written consent before he died.  The Assisted Human Reproduction Act requires written consent for the “removal of human reproductive material” from a donor’s body, after death, for the purpose of creating a...

Police officers in Montreal believed that a warning picture on an escalator, suggesting that people hold the handrail, made this a legal requirement. The police officers ordered a woman to hold onto the handrail and, when she refused, they arrested her, placed her in handcuffs, searched her purse, and issued her a ticket for not holding onto the handrail. After being acquitted of the non-existent...

What’s required for three people to be listed as parents on birth certificates, for children of a same-sex couple, who were conceived with sperm from a friend, who also wished to participate in raising the children? The British Columbia Family Law Act attempts to contemplate a wide range of modern scenarios, involving surrogates and other assisted reproduction. Unfortunately, not every eventuality...