Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
When Guinea Fowl aren't Fowl and Negligence vs Eviction for Marijuana Sales on Reserve
Buckle up for a wild ride as we navigate the intricacies of some fascinating legal cases on Legally Speaking with Michael Mulligan. He's a barrister and solicitor at Mulligan Defence Lawyers.
First up, a woman, her guinea fowl, and a bylaw that isn’t as black and white as it seems. Discover how this fascinating case hinged on the interpretation of the bylaw and whether guinea fowls are considered poultry, fowl, or exotic birds. Spoiler alert: they're not what you think!
With no time to waste, we discuss two cases involving cannabis retailers on First Nations Reserves. Listen as Michael breaks down the lawsuit where retailers accuse the province of negligence and misrepresentation. Can the province be held responsible for the retailers' losses, or is the relationship too tenuous for a negligence claim to stick? Finally, we discuss an indigenous man who was evicted from his home on the Squamish Nation Reserve without compensation for establishing a marijuana dispensary and other violations of housing policy.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for a regular segment with Michael Mulligan, barrister and Solicitor. With Mulligan Defense Lawyers, legally speaking, on CFAQ's 1070. Morning Michael, how we doing. Hey, I'm doing great. Always good to be here. I'm reading this and I'm wondering if it's a typo, but the term prohibited bird seems to be in the title of one of our stories today. Is that correct?
Michael Mulligan:That is correct. And I must say it's one of those decisions and I read quite a few every week to try to come up with things that might be interesting and informative and it's a decision out of Vancouver and a decision by a judicial justice in the bylaw division of the provincial court. The justice's name is Markdom and I must say it's one of those decisions which at least caused me to sort of smile with pleasure in terms of the little bit of justice in this case and the just very sensitive way in which it was decided, which is why I thought people would be interested in it. And the case involves a woman living in Vancouver who was originally from Jamaica and she had. She was keeping two guinea fowl hands in her backyard and the place where they were kept was described in the decision as an exceptional sanctuary. The was described as an excellent coop clean, airy, bright, with fresh water and food probably the sort of thing which would rent out, given the shortage of housing these days. Somebody other than guinea fowl. But yes, anyway, it was a. It sounds like a very nice place. She was keeping them. Somebody complained about the guinea fowl, which prompted a bylaw person from the city of Vancouver to show up and eventually issue her order for the removal of the guinea fowl and a ticket, and the ticket was for harboring prohibited birds, and so that's the case that wound up in court. And the issue in court wasn't whether she was in fact keeping these birds in the fine coop in the backyard. She acknowledged that was so.
Michael Mulligan:The issue involved how is the bylaw to be interpreted? And the way it works with cities and municipalities is that there's power delegated by the province to them to pass laws in certain areas. Vancouver is sort of unique in the province in that we have a thing called the Vancouver Charter which is different from the basis. That authority is delegated to other municipalities. It's clear the city of Vancouver has authority to create bylaws quote respecting impoundment and keeping of animals and keeping of birds within the jurisdiction of the city. That part's fine, and indeed there is a bylaw that restricts a person from doing various things pursuant to that power, and the bylaw prohibits people from keeping it in any area temporarily or permanently. And then it lists a whole bunch of things horses, donkeys, cattle, swine, sheep, ducks, geese, turkeys, pheasants, quail or other poultry or fowl and then it provides some exceptions. For example, there's a specific regulation allowing you to keep hens, a certain number of them. Yeah, you can also have these things if you have a licensed pet shop or a slaughterhouse. It's the opposite of a pet shop, I guess, and so that's what the bylaw said, and so the city viewed it as well.
Michael Mulligan:This is all very straightforward. She's got these guinea fowl. We say these are fowl, poultry or fowl is right in the name. And so the justice had to determine whether this woman was violating that particular bylaw, which required an issue of statutory interpretation, because the woman who had these two guinea fowl, which the evidence was, she raised by hand to keep as companions, as pets, and in that, to that extent, she gave evidence about them. They're birds which are endemic to Africa. They have been domesticated for various purposes. They're apparently excellent for protecting crops. Some farmers use them because they love eating ticks and scare away foxes and snakes. They're also, on her evidence, not very good at laying eggs and their meat is gamey and tough, so they're not birds which people would keep to eat. And so her evidence amounted to these were my hand raised pets, not something for the purpose of laying eggs or for meat, but that still left the bylaw that says that fowl are one of the long list of things that are prohibited.
Michael Mulligan:The judicial justice, in trying to interpret what fowl meant, looked at other language in the same bylaw which, for example, places limits on the number of various other things, types of birds, you are allowed to keep in the city of Vancouver. It listed a number of things which you're allowed in the city of Vancouver to keep no more than 12 of them, but you can certainly keep some of them, including homing pigeons, canaries budgies, parrots, marikets and exotic birds of all species. And so the legal issue had to become well, what was meant by, as he described it, the city fathers, in terms of this particular bylaw? What was meant? Were these guinea fowl poultry or fowl, as the name might suggest, or were they something else? You can, with a prediction example, an exotic bird?
Michael Mulligan:And he gave praise for whoever drafted the bylaw, indicating that it was sort of subtle and clear and so forth.
Michael Mulligan:And he concluded that the term poultry or fowl has a meaning often used in the agro business world for things that are sort of kept for the purpose of meat or laying eggs.
Michael Mulligan:And so, even though the guinea fowl has in its name fowl, he found that because the city had, in this other language, separated out something that you were allowed to keep an exotic bird and because the evidence was that the guinea fowl was not native to British Columbia, he concluded that the proper interpretation of all of that was that the guinea fowl was not in fact fowl but rather an exotic bird, and for that reason, found that if the city had intended truly to prohibit somebody from keeping guinea fowl as pets, they would have listed it along with that list of other things, like you know, whatever horses and donkeys, and cattle, swine, and it hadn't.
Michael Mulligan:And so the net result is that the woman will be able to have back her two beloved guinea fowl as pets to keep their excellent enclosure, and I must say they read all of that. The decision itself was remarkable just in terms of its sort of sensitivity to all of the issues involved, and I thought it was just a little piece of justice in terms of the outcome for this woman who had raised these two guinea fowl by hand as her companions, in finding that, despite their name, they are not fowl, they are an exotic bird and she is permitted to keep them. And so, you know, as something that brought a little bit of a piece of justice smile to me. When I read it I thought it's something people should know about. So that's the decision about the keeping of guinea fowl in the city of Vancouver.
Adam Stirling:A finding of not guilty on a charge of harboring a prohibited bird Fascinating. Next up, I'm reading a group of licensed cannabis retailers attempt to sue the province for failing to adequately enforce licensing requirements on reserves. And that last term, I suspect, complicates matters significantly.
Michael Mulligan:Yes. So this was a claim brought by a whole collection of cannabis retailers who were licensed to sell cannabis in British Columbia, and the heart of their complaint was that they said, look, the province of British Columbia wasn't enforcing the restrictions on selling cannabis for people who were setting up cannabis retailers on reserves. And they pointed out that the this was going on and that the act had powers that allow things like provincial director can like enter and search premises for marijuana if they believe that the people are selling it there, for example, and the regulations are quite strictly enforced outside of reserves. And so they claimed that their the failure to do that on reserve was having a serious financial impact on them, and they claimed that they had collectively sustained damage on the to the tune of $40 million on the basis that people were purchasing marijuana from these retailers on reserve that weren't properly licensed and weren't subject to the same, you know, tax and enforcement and so on regulations that would apply to them. And they founded their claim on two grounds. They first of all claim that the province was negligent or that they had engaged in what's referred to as negligent misrepresentation to them when they signed up to get their licenses. They claimed that the province had ensured them that there would be a quote viable retail cannabis industry in BC and they were asserting that that wasn't the case, in part because of the failure to enforce the regulations on reserve. And all of that brought an application by the province to strike out this claim without even having a trial. And that the way that works is this If somebody sues you right or makes a claim like this, you can apply to have it struck out, if you can.
Michael Mulligan:A satisfied judge that it's plain and obvious that if you assume all of the facts being alleged to be true, there is no viable cause of action. And when you're suing somebody you have to set out in writing why are you suing them, why do you say I owe you money, right, yes, and that gets served on the person. Then that person would get it and be able to write down why they think they don't owe money or they owe less, whatever it might be. They would file that and give it to the other person and those documents sort of establish well, what is this claim about, right? So you sort of know what you're going to court for and it's not a magical mystery tour. And the way the application to strike out a pleading works is if you say, look, if you just assume everything you're claiming happened, right, there's no dispute about any of it. I agree with all of the things you're saying I did. If a judge can be persuaded that even if everything you claim happened and it did happen you couldn't win, then the claim can be struck out without having a trial. Because what's the point having a trial to prove various things which, even if you didn't prove them all, would not be a basis to sue someone.
Michael Mulligan:And here the issue turned on whether the province of British Columbia owed a duty of care to this bunch of cannabis retailers. Because when you're suing somebody claiming that you know they were negligent or careless and that caused you harm, one of the very first things that you need to prove is that the person you're suing owed you some duty to be careful. Right, you know, let's say, for example, in a car or a car accident. Well, it's pretty clear that when you're driving down the road, you've got a duty to be careful not to run into other people. You have a duty of care to the person in front of you not to crash into them from behind, or I guess at least you did before, no fault came into British Columbia. Now it's nobody's fault, but it can become a bit more challenging when it's well, what is the relationship between the province of British Columbia and do they have to be careful to these cannabis retailers?
Michael Mulligan:And the legal test there is there's got to be. Sometimes it's referred to as sort of a proximity analysis, like, is there a close and direct relationship between these people, right? Or is this just so remote that you don't really owe any duty of care to that other person that you're trying to sue? And the judge concluded and this isn't novel that you generally don't have that kind of province or government, doesn't generally have that duty of care to people in some private way for failing to do things. And they found, of course, that the power to investigate people and, you know, find them or seize their marijuana, things like that, were discretionary. The legislation doesn't say the provincial director must go into any place where they believe there's cannabis, it just says they may do that. And so because there was no legal obligation to do anything and because the relationship between not doing that on reserve was just too remote from, you know, the interests of the other people who had cannabis shops, the conclusion was that there just is no duty of care owed in that regard and so because there's no duty of care, the claim could not succeed.
Michael Mulligan:And I should say it's a different analysis if the government decides to do something and then does it badly, like, for example.
Michael Mulligan:This comes up in, like this you know, slippery road, or so if a municipality says we have decided to clear that road, right, we have a, or you know there's, that decision is made and then it's done poorly or inadequately, leaving icy patches, well, there could be a claim there if you slip and fall down on one.
Michael Mulligan:But if the government just says we're not cleaning the roads off this year, we're out of money, no road cleaning for anyone, then you don't have a claim on the basis that it would have really been helpful if you cleaned the road, they wouldn't have slipped.
Michael Mulligan:That's, that's how it's analyzed from the Respective of suing the government for, hey, you should have done something to help out. Here it's a different thing when they decide to help out and do so poorly or inadequately, but if they simply decide not to, you're generally going to have a claim to say, hey, you should have done this thing which would have been helpful to me, and so, in this case, the province was successful In getting this claim made by all of these retailers struck out on the basis that they just didn't owe them a Duty to do what they were asking for. It might have been helpful for them, might have been fair, right, if you think we're going to enforce this everywhere, but that doesn't create a basis to sue someone, and so the net result is that the old collection of BC cannabis retailers have the head there, claim struck out and cost-ordered against them, and so that's how it works in terms of duty of care and an application to get something struck out If it doesn't have any hope of succeeding.
Adam Stirling:Michael Mulligan with Mulligan defense lawyers. Legally speaking, I think this is a great time for our break. We'll be back right after this. Michael Mulligan with Mulligan defense lawyers, legally speaking. On C-facts, michael, our third story also has to do with indigenous rights issues. Deciding with I'm reading establishing a marijuana dispensary operating on a reserve.
Michael Mulligan:Yes, indeed, and I thought it tied in neatly with the last case discussed and it was a decision released the very same day as the decision we just talked about finding that the cannabis retailers could not sue the province of British Columbia For failing to enforce regulations on reserves. This case, which came out the very same day, involved a man who lived on the Squamish Nation and On reserve and the band there was applying to have him ejected, essentially for alleged violations of their housing policy, including number one being Allegedly establishing a marijuana dispensary operating on the reserve. Now the reserve had it, or the band had a number of other Complaints about the man's home and property, including allegedly constructing an outbuilding that came six feet off the property, collecting junk, partying, drug use, individual staying in the garage and trailer a whole list of things, but number one was allegedly operating as marijuana dispensary and One of the things which I think it's an application in court because the man didn't want to leave and wouldn't leave and so eventually the band was applying for a corridor that he get out. And the case raises, I think, some interesting issues that surrounding property ownership on reserves and who owns something, right, you know, and it's something which, off Reserve we all kind of take for granted somebody. You could buy your home or property and that's yours, right, as a number of rights associated with it.
Michael Mulligan:One of the things, the way the Indian Act Operates, however, is that individuals on a reserve don't actually own the land where their house sits. They can, under the act, there's a provision whereby land can be Sort of allocated to somebody by the band and then there has to be sort of approved of by the minister, but apparently that is not routinely used and instead Many bands just have a even more informal process where they give somebody permission to construct a home somewhere. Now, the origin of that, I think, was a now really outdated idea that somehow people are going to be swindled out of their property sort of an outrageous idea, particularly now. It's hard to believe. In fact, we have something called the Indian Act still in Canada, but as a result of this scheme or this system which is still in place, is that people who live on a reserve and have a home don't really own it, and that has a whole host of implications, regardless of whether it's a good idea or bad idea that somebody who's partying and running a marijuana dispensary should stop doing those things Right.
Michael Mulligan:I think most people say yes, you should definitely stop doing those things. Just like a municipality would enforce zoning and bylaws, if you set up a business in your home selling marijuana and you had garbage collecting in your yard, you're going to start getting tickets and orders and various things to stop doing that. But what wouldn't happen to you is you wouldn't lose your home Right, and that has all kinds of knock on implications. Right, because if people can't have some security and own their property, it means they can't do things like get a mortgage against the property. Right, if you wanted to build a new home on it. Right, or if somebody wanted to borrow money to start a business or do various other things. Right, because if you don't own it, you can't really get a much of a mortgage against it, because what is the bank going to take as security? Right, so it has all of these really, I think, long term negative implications for people when you don't own where you live, and you can't really own where you live if your home is on a reserve. And so I think we should give some serious thought to, first of all, should we continue to have an Indian Act? Is that really appropriate and to the extent there is some legislation like that, is it appropriate that people are going to be in a position where they don't own their property? And that was something from the really outdated expectations about what people might do with it if they own their property.
Michael Mulligan:And so here, given how that scheme works and still works, the analysis by the court was sort of well, okay, does the band and council have authority to evict this man? And then is he entitled to any compensation for the home that's on the property? And he was claiming well, hold on, if you're evicting me, which you shouldn't be able to do, he says I've stopped doing all the problematic things. Should I get some compensation for the house? And so there was differing evidence about how much the house cost to build, was built back in 2001. And the man's evidence and the band's evidence about what it cost to build and who paid how much, and so on, differed. Ultimately, the judge accepted the evidence of the band over the evidence of the man who built the house.
Michael Mulligan:But leaving aside the disagreement about how much the house cost and how much the man contributed to it and so forth, the fundamental problem was that, because this home was, he only had it there pursuant to this allocation by the band. It wasn't even registered in the way that you could under the Indian Act have the band assign it and then the minister approve it and then you get some sort of a some certificate that gives you some possessory rights to the property, because he was just had this sort of allocation by the band. It meant, regardless of how much you think the house is worth and whether you think he contributed 10,000 or 50,000 to this house, he wound up with nothing. And so the order you know it's not a surprising order when you sort of follow the legal principles there there's no apparent error in terms of what the judge did. He's applied the judge. I don't see or she is applying the principles set out in the Indian Act.
Michael Mulligan:I guess the question I would raise for people to think about is should we have that scheme?
Michael Mulligan:Should we have a scheme where there are a very large number of people who are living in homes which they may have paid for or built or at least attributed to those things that don't really own them?
Michael Mulligan:And just think about what that would mean to you if you're living off a reserve, if you didn't own the land in which your home was built and you couldn't own it, and think of all the limitations that would place on you and think about the other implications of that.
Michael Mulligan:You know in terms of you know concerns about things like care and maintenance for a home. There's evidence here about frequent deferred maintenance in homes on reserves. No doubt that's true, but you know what degree of motivation would somebody have to spend money maintaining property which is not theirs and can't be theirs? You know, I rather suspect it's sort of like the amount of care and maintenance you would do on a rental car, god, for a period of time which is probably not much. And so that's the outcome. It's the band responding to exactly the issue which was raised by the cannabis retailers, along with others, and that's the outcome the man is being ordered to vacate and he will receive no compensation for the value of the home that he's been required to leave behind. And that's the, that's the scheme we've got in Canada, and so I think we ought to give some political consideration to whether that should continue to be so or not in 2023.
Adam Stirling:Michael Mulligan, with Mulligan Events Lawyers, legally speaking, during the second half of our second hour every Thursday. Thank you, michael, pleasure as always. Thank you so much, great day.