Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Milk Surveillance, Roundup Cancer Claim and an English Test for a Teacher
In British Columbia, it's illegal to produce milk and sell it to anyone other than the Milk Marketing Board.
The Milk Marketing Board sets wholesale prices, intended to guarantee a profit for milk farmers, and sets quotas for how much milk a farmer can sell.
Farmers who produce more milk than their quota can be required to dump it down the drain.
As a result of this system, consumers in British Columbia pay 25 - 30 % more for milk than it costs in the United States.
Since 2022, milk prices have been increased three times and retail prices have risen by 15%.
To preserve this system the Milk Marketing Board conducts surveillance of farmers to ensure they don't try to sell any extra milk.
In the case discussed the Milk Marketing Board conducted 19 days of surveillance on a single farmer and determined that he had been selling extra milk to someone else.
The Milk Marketing Board imposed a $195,184 fine on the farmer and then tried to cancel his quota three days after he filed an appeal of the decision.
On appeal to the BC Farm and Industry Review Board, the fine was reduced to $3,000 and the application to cancel the farmer's milk quota was denied. The farmer was ordered to pay $33,000 to cover the cost of the investigation and surveillance.
Unhappy with this outcome, the Milk Marketing Board appealed again and was successful in having the case sent back to the Review Board to consider a higher fine.
Also on the show, a lawsuit alleging that Roundup caused a man's cancer is discussed.
The man's legal argument is a novel one: he has sued three retailers who sold him Roundup over a 30-year time period based on an alleged breach of the Sale of Goods Act.
The Sale of Goods Act requires goods to be fit for their intended purpose and the man is alleging that if the herbicide caused his cancer it didn't meet this requirement.
The man suing the retailers filed a request to have the case decided by a jury. This was opposed by the defendant retailers, who alleged that the case involved a complicated legal question and that the scientific and medical evidence would be too complicated for a jury. The judge hearing the case agreed with this argument so the issues will be decided by the judge alone, without a jury.
Finally, human rights case involving a teacher from Ontario who applied for a licence to work in BC is discussed.
Following the teacher's application, concerns arose with respect to his ability to communicate in English arose and he was asked to take an English exam. He refused to take the test, alleging that it amounted to discrimination based on his ethnic origin.
The human rights complaint and now two appeals have rejected the teacher's claims on the basis that there was no evidence the requirement to take the English exam was motivated by his ethnic origin rather than a concern about his language proficiency.
Follow this link for a transcript of the show and links to the cases discussed.
time for our regular segment with Barrister and Solister, with Mulligan defense lawyers. It's Legally Speaking with Michael Mulligan. Morning Michael, how are we doing?
Michael Mulligan:Hey, good morning. I'm doing great. How is it to be here?
Adam Stirling:Some really interesting topics on the docket for this week, including I'm looking here a quite substantial fine for illegal milk production.
Michael Mulligan:I bet you didn't even know there was such a thing as illegal milk production. So the background of this one arises out of how we regulate milk sales in British Columbia and, unlike most other agricultural products, somebody's growing carrots or potatoes or whatever else it might be, you're free to grow them and sell them as whatever price you can get for them. But not so with milk In BC and indeed all across Canada. Each province has a milk marketing board that ultimately reports into a federal agency that also deals with milk, and the milk marketing board sells and requires quotas for farmers if they wish to produce and sell milk. And indeed you're only allowed to sell milk to the marketing board if you dare sell milk either without enough quota or you try to sell milk directly to somebody. If you're a farmer, you may wind up in serious difficulty. And so this case involved a farmer from the lower mainland, and the milk marketing board decided to engage in an almost unbelievable 19 days of surveillance of the farm to see whether this farmer might be selling milk to anyone other than the milk marketing board. And I should pause to say, in the scope of things, as a criminal lawyer. It would take a pretty large and sophisticated drug operation before the police are spending 19 days surveilling anything. But that was indeed what the milk marketing board did. The milk marketing board detected that the farmer was indeed selling milk to an individual, not through the milk marketing board. They trailed the person and then they managed to get a search warrant ultimately, and they found milk jugs, and indeed, ultimately, the farmer admitted that he had, for seven years, been selling milk to this person. It sounds like they were taking it to a temple of some kind and drinking it, and it was also, to make matters worse, unpasteurized, which is actually legal as well. Oh good old Canada. Yep. So the off. This matter went to the milk marketing board, and the milk marketing board imposed a fine of $195,184. Wow, along with a $33,000 bill for their 19 days of surveillance and then put conditions on him being allowed to continue to sell milk. Not surprisingly, given how much that fine was, the farmer appealed, and indeed there is a whole appeal mechanism built in to this process in British Columbia, involving an appeal to an agency called the British Columbia Farm and Industry Review Board, and so off the farmer went there. Two days after the farmer appealed, the milk barton board, apparently out of spite, indicated they were applying to cancel all of his quota to put him over the milk business completely. Wow, so that was a background. So also went to the milk, to the appeal board and the appeal board.
Michael Mulligan:Interestingly, there are a couple of legally interesting things about that. First of all, the appeal mechanism to that board involves what's called a hearing de novo, which is like a do over. So it's different from like an appeal in a criminal case, where an appeal isn't an appeal saying hey, what do you think of this new judge? Right, what's happening generally in an appeal is a judge or panel of judges is looking at what happened at first trial to see whether there was a mistake. Right, it's a review for mistakes, not let's do it all over again. But that's not how it works in the world of milk.
Michael Mulligan:And so the BC Farm Industrial Review Board looked at all of this and they concluded that it was unreasonable to cancel this man's license completely, putting him out of the milk business. That was done on. The application was made on the theory that he was quote, ungovernable, uncoverable farmer. It was impossible for them to govern him, even though he had no history of problems before, admitted that he had sold the milk and promised never to do it again. So that got overturned. But the what really stuck in the craw of the milk marketing board is that they reduced the fine to $3,000 plus that $33,000 bill for the surveillance program, and so it's now being appealed again, and I went to the DC Supreme Court and the milk marketing board appealed that decision to reduce their fine down to the $3,000 amount. It was reduced to that amount on the theory that that's how much money the milk marketing board lost out on, so they would have gotten from the sale of the milk outside of their program, and so the judge found that's not how that should have been calculated, and so the judge has sent that issue back to the DC Farm Industrial Review Board to look at again how much the fine should be. So it's not over.
Michael Mulligan:But the background of all of this, the really big picture people should think about, is this is why milk is so expensive, not just the surveillance program but the fact that we have this quota system, and so people may have noticed the cost of milk has gone up over the past year and a half, along with a lot of other things, but milk more than many other things In DC, like. The retail price of milk since 2022 has gone up approximately 15%, and that's because of three price increases that the milk marketing board and its apparatus has awarded ultimately to farmers, and the price is set to ensure that even inefficient farmers can make a profit producing milk. It's a pretty good thing to have, and so what's happened is an entire market has grown up around the quota, the license and have a tell to make milk, and so the quota is worth vastly more than the cow and the equipment and all the other things. It's the license for the cow. That's really where it's at these days, and those are bought and sold, and there's a whole market and you can look it up and see the monthly trade and milk quota by province to see how much these things are being bought and sold for, and it's a multi-million dollar market each month.
Michael Mulligan:But for consumers, what's really going on here is that farmers are not allowed to produce more milk. The price is fixed. It's fixed at a level to ensure even inefficient farmers make a profit doing this, and so that's why in Canada as opposed to the US, for example we're paying and it varies. We look at the time period something in the neighborhood of 25 to 30% more than what you would pay for milk in the US. We have tariffs to stop illegal foreign milk from slipping in. We surveil farmers so they don't make any more. There could be no backdoor to milk, and then they set a price to make sure that everyone can make a profit, and so the real issue here is that for people that are buying milk, like people with kids, what we're really doing is taxing those people to subsidize milk farmers Absolutely, and if you put it to people that way, they say hey, here's what we're going to do?
Michael Mulligan:We're going to get rid of all this milk marketing board apparatus, right, all the surveillance people and the review boards and all that stuff. If you just said, look, what we're going to do here is we're going to impose a 30% tax on milk and give that to farmers, people would be outraged because that would be clear and transparent, like if you went up to the cash register with your junk of milk. If they said, oh yes, this is a special 30% milk tax you're going to pay, single mom, we're sending that to anyone who's producing milk, people would be outraged. It would likely last all of about 10 political minutes. But because this whole process is not transparent to anyone, right, who's not in that business, and because it is the only political issue that the milk farmers would care about, right, that's going to be the issue they would vote on, and only a minor concern to everyone else, who's just paying too much for milk and probably not realizing it. That's why this continues to exist.
Michael Mulligan:Right, it's a system that developed over the years and sort of a time of government intervention and all kinds of markets you don't worry about from the first world war, you know things like that, but it's just turned into this octopus of a system that is costing you more any time you're buying milk, cheese, pizza, yogurt, anything that a milk product goes into, and that's why you're paying more.
Michael Mulligan:It's not apparent to you, but that's what's going on.
Michael Mulligan:And to keep that cabal in place, you literally have this system of surveillance to make sure that farmers don't let anything get out the gate that isn't going through that system. And, by the way, when farmers produce too much like the cows have a really good day they get some really green grass. They make them dump the milk down the drain. They do. They destroy it, they're quoted. So literally they take a big hose and dump it down the drain.
Michael Mulligan:So this is, in the time of grocery prices going through the rooms, people getting rebates to buy food, we have a system in place that artificially increases the cost of milk, causes milk to go down the drain and causes there to be people that are spending days on end surveilling farmers so that, god forbid, they aren't selling milk to somebody that isn't going through the system. So that's what's going on and that's the least current state of affairs in terms of this particular farmer who's not done yet. Happily, he hasn't been banned from producing milk, but he's still got a long way to go legally and a big bill to pay.
Adam Stirling:Michael Walgen with Mulligan Defense Lawyers. Legally speaking on CFAC's 1070 will continue right after this break. Legally speaking continues on CFAQ's 1070 with Michael Mulligan from Mulligan Defense Lawyers. A fascinating story that we just had about Canada's quota system for milk and what can happen when any producer runs afoul of it, including finding themselves under extended periods of surveillance. That would seem out of place even among serious criminal matters. Potentially Up next, though, mike. I see Canadian Tire Home Hardware and another firm, and I see an alleged injury involving a pesticide. What's happening here?
Michael Mulligan:Yeah, this is an interesting case. So it's a man who's suing these retailers alleging that he and this part isn't alleged the man has non-cautchins lymphoma. He got cancer. So that part, I think, is clear. But his allegation is that that was caused by his use of a product called Roundup, like a herbicide right to kill weeds, and the man apparently had been using Roundup for some 30 years before being diagnosed with cancer. And the claim is an interesting one.
Michael Mulligan:Originally the claim was framed in negligence, like alleging that those companies and indeed Monsanto, I guess the manufacturer of it were negligent, like careless in what they were doing, that their carelessness caused him to contract cancer from Roundup. But that was changed some time ago and the creative legal argument that the man is making is under the Seal of Goods Act, and the Seal of Goods Act in British Columbia has a general provision that provides that goods, like new goods that you're purchasing, are fit for the purpose for which they are intended, right. So, for example, if you go in and buy a broom, you should be fit for the purpose of sweeping, right. And it's the first time you tried to sweep something that you know all the bristles fell out, or something you'd be able to go back into the store or ultimately go to court to get your money back. Right, that broom wasn't fit for the purpose of sweeping right. So the creative argument being made was hey, this stuff wasn't fit for its purpose. It gave me cancer. That's the argument right To see how that plays out. But the particular decision that caught my eye was a decision that just came out about this man's effort to get a jury trial. You know, perhaps that might be a fact pattern there could be. Ordinary people might be sympathetic to right. A man with cancer used this product right.
Michael Mulligan:As one might imagine, canadian Tire Home Hardware or Quad City building materials weren't keen on the idea of having a panel of ordinary people decide whether the roundup caused this man's cancer, and so they applied to a judge to what's called strike the jury notice, and the way that works is that one party or the other in a civil claim wants to have a jury. They can give notice to the other side and they've got to pay a fee as well to ask for a jury trial. Now I should pause here to say there are a few interesting categories of cases where you cannot have a jury trial. One of those is if you're suing the government. The government doesn't like that idea and so you can't have one, for example, if you're suing the federal or provincial government. They don't want regular people deciding whether they're liable for something. But the man did serve it on these companies.
Michael Mulligan:And so when the companies that don't want the jury trial made an application to strike that so that only the judge would decide whether the jury and one of the considerations there is whether the case deals with only an interpretation of a statutory provision right, like what is the law mean, I guess, with the idea that that's really a thing for a judge. Why are we having a jury decide what the law is? And so the judge was sympathetic to that right, saying well, this is sort of a novel argument about the sale of goods act and how that applies to selling pesticides to somebody who gets cancer. But the other argument that was made here that you often see in these cases where one party really doesn't want to have a jury trial, is an argument about just how complicated the case would be and how just regular people couldn't possibly manage all of this paperwork and scientific evidence. And so the man's lawyer was arguing no, no, this is quite straightforward, we can have this all done in six days, it's not that complicated, whereas the stores were all arguing of course, no, no, no. There'll be so much scientific evidence here, so much paperwork about 30 years of medical records and scientific evidence about the roundup no way that a jury could properly handle that. That's just too complicated, right? And boy oh boy, this isn't going to be six days, it's going to go up months, and so that's what the judge was wrestling with, and I must say I sort of smile as you read the self-serving estimations of how complicated this thing is going to be.
Michael Mulligan:It does sound like there's a fair bit of puffery there, and I must say I've got a pretty high expectations for what people are going to be able to sort out on their own, bearing in mind, of course, those of us in the legal profession and ultimately judges, have no particular scientific training that you would expect, as opposed to a random person that might show up to be a juror Right.
Michael Mulligan:Furthermore, if you get a pool of jurors, maybe someone in there's got some scientific background, but nonetheless, that's what the judge was wrestling with here, and ultimately the judge, on this application to get rid of the jury notice, came down on the side of the stores through a combination of well, there's just a big legal issues here.
Michael Mulligan:And then the judge accepted the arguments made by the three stores alleged to have sold.
Michael Mulligan:The jury round up to the man over a 30-year period of time about just how complicated it was and how hard it would be for a jury to have to look at 30 years of medical records and all these scientific records and opinions about whether a roundup causes cancer or not.
Michael Mulligan:So the outcome of this will be a trial by Judge Alon and we'll get a couple of interesting decisions with reasons of course, because that's what a judge has to provide, unlike a jury that just says thumbs up or thumbs down, really about, first of all, whether the man can establish that there was some, whether the product wasn't in compliance with the sale of goods there and that he says it caused him to get cancer. Right, that'd be like the broom who fell apart and took your toe off or something. And then we'll also get a decision about that medical issue, but whether this is something that indeed caused this man's cancer. So we'll need to look out for that. But it won't be a jury because it's apparently just too complicated for regular people to have to decide, and so I imagine that at least on that level, the retailer defendants are breathing a side release that they're not going to have a jury, of ordinary people deciding whether this man is needle, that's clean or not.
Adam Stirling:So if a Canadian jury did make a finding that a particular product did cause a man's cancer, I would suspect that the international manufacturers of that product would certainly have an interest in being involved in helping to shape that outcome, wouldn't they? Because wouldn't that bind to other actions? What is it? Res judicata?
Michael Mulligan:something along those lines, that's really interesting and an insightful question, particularly on the facts of this case. Because when they started the case, they were started with the theory of negligence, carelessness, say. You were all careless, and so it'll be something that caused you to get cancer, should have been more careful. And they named the manufacturer as well. I mean, they were careless in selling the stuff that he alleged caused cancer. But because they're focusing on the sale of goods, act right. So rather than having to prove hey, you were careless, you should have done more. You have some duty to determine whether this causes cancer. That would be an interesting legal argument, maybe a challenging one to get over, right? What duty does Canadian Tire have? To figure out whether some product is going to cause cancer?
Michael Mulligan:Right, you might have a judge say well, look, even if it did, how is the entire supposed to know that, even if we mount the term that it's cancer causing? And so by focusing on the sale of goods, they're going to try to avoid that Eagle challenge. But it also means they dropped the case against Monsanto because they're just going to focus on hey, did this cause it? Was that unfit for its intended purpose? And so Monsanto is no longer part of the litigation, it's just the stores, and so that's an interesting fact pattern as well. And so one thing might be a sort of a some precedent If you get that now, because there'll be a reason decision from the judge, so it will be an interesting one to watch. Going forward, it's proceeding, and so the not the legal argument also be one to watch. Right, that's a bit of legal creativity there that might avoid one of the speed bumps in trying to make out a claim like that.
Adam Stirling:We've got two minutes and 15 seconds left and one other matter on the agenda. Do you think we can do it?
Michael Mulligan:Sure. So the final case is a case involving a man who had been a teacher in Ontario who moved to British Columbia. The man applied to become a teacher here and things were proceeding along just fine until the BC regulator for teachers became concerned that he might not speak English fluently. This despite the fact that he got, a think, a couple of master's degree and a couple of other degrees. The man was originally from Bangladesh. He did the, immigrated to Canada, but he'd been in Canada and teaching back in Ontario for several years. So they said we want you to do an English test before we certify you to teach here. The man said I'm not doing that and that's discriminatory, so we refuse the test. So they refuse the license.
Michael Mulligan:The man appealed. That made a human rights tribunal complain, alleging that he was being discriminated against based on his racial origin. That failed. They concluded that there was just no evidence that that's why they were concerned about his ability to speak English. It was their communication with him that caused them to be concerned about his ability to communicate in English.
Michael Mulligan:The man didn't like that and so he appealed it by way of a judicial review, which also was unsuccessful. He didn't appeal that a second time claiming that the judge that rejected it must have been racially biased. That didn't apply either. That was the most recent decision from the court of appeal. But what I did notice reading the decision, at the end of the day the man was self-represented through this entire process, which one would imagine after years of litigation and literally days of hearings at each of these levels. Perhaps there's some evidence there about his capacity to communicate in English, because he seems to have been able to conduct a human rights hearing, a judicial review and an appeal to the court of appeal. So while he hasn't succeeded, perhaps that will be some evidence now about his capacity to communicate in English and he can try again with his application to be permitted to teach in BC, because of course we can use some teachers with master's degrees that are prepared to teach here. So that's the case of the language testing for the man moving from Ontario.
Adam Stirling:During the second hour of our second hour every Thursday here on CFAQ 1070, michael Mulligan with Legally Speaking. Always a pleasure, michael, until next week. Thanks so much. Have a great day. All right, you too, take care.