Legally Speaking with Michael Mulligan

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...

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 stud...

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...

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 sim...

This week on Legally Speaking with Michael Mulligan: When are the police permitted to arrest or detain someone? In the context of discussions concerning unbiased policing and identification checks, various common circumstances that do permit a police officer to arrest or detain someone are discussed: 1)    If they have reasonable grounds to believe they have committed a criminal offence. 2)    If...

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 an...

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...

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...

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 t...

In 2015 a BC conservation officer was dismissed from his position for refusing to kill two bear cubs.  Initially, the conservation officer didn’t 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 a...

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 ran...

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 wi...

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...