In British Columbia, the Crown Counsel Association negotiates wages, salary hours or work, and working conditions for Crown Counsel.
In 2018, the BC government decided to have Crown Counsel, rather than the police, conduct bail hearings at night and on weekends.
Rather than negotiating with the Crown Counsel Association, the BC government made a unilateral decision to have Crown Counsel work evenings and weekends, claiming that the Attorney General had the power to do this under the Attorney General Act that says the Attorney General can "preside over" the Ministry of the Attorney General.
The Crown Counsel Association grieved this decision, and an arbitrator concluded the government didn't have the authority to act unilaterally or attempt to negotiate with individual Crown Counsel: it had to negotiate the change with the hours Crown Counsel was required to work.
Rather than negotiating, the government appealed the Arbitrator's decision through a judicial review.
The judge on the judicial review found that the arbitrator's decision was transparent, intelligible, justified and reasonable and so upheld it and ordered the government to pay costs to the Crown Counsel Association.
In addition to attempting to bypass collective bargaining with Crown Counsel, the provincial government is also engaged in litigation with the provincial government lawyers who are not Crown Counsel. After these lawyers voted to join a union, the government passed legislation forcing them into a different union they did not want to belong to.
A neighbour dispute over a fence and access to repair it is also discussed on the show.
After several years of refusing to permit access to their property for the purpose of repairing a fence, the neighbour on whose property the fence was located obtained an order pursuant to section 34 of the Property Law Act to permit them to access the neighbour's property for the purpose of maintaining the fence.
This section of the Property Law Act permits a judge to order access to property for the purpose of repairing a building, structure or improvement on adjourning land when the consent of the owner of the adjoining land is refused or cannot reasonably be obtained.
The judge concluded that this section of the act, which was added in 2018, was applicable and that it also allowed the order to permit access on an ongoing basis without the need for repeated court applications.
Finally, on the show, the BC Court of Appeal upheld the eviction of a tenant as a result of them installing a dishwasher without permission and, more significantly, covering a smoke detector up with a cardboard box.
Section 47 of the Residential Tenancy Act permits a tenant to be evicted if the tenant has "seriously jeopardized the health or safety or lawful right of another occupant of the landlord and put the landlord's property at significant risk."
The Court of Appeal rejected the tenant's argument that they had a right to time to fix the problem.
Follow this link for links to the cases discussed.
In British Columbia, the Crown Counsel Association negotiates wages, salary hours or work, and working conditions for Crown Counsel.
In 2018, the BC government decided to have Crown Counsel, rather than the police, conduct bail hearings at night and on weekends.
Rather than negotiating with the Crown Counsel Association, the BC government made a unilateral decision to have Crown Counsel work evenings and weekends, claiming that the Attorney General had the power to do this under the Attorney General Act that says the Attorney General can "preside over" the Ministry of the Attorney General.
The Crown Counsel Association grieved this decision, and an arbitrator concluded the government didn't have the authority to act unilaterally or attempt to negotiate with individual Crown Counsel: it had to negotiate the change with the hours Crown Counsel was required to work.
Rather than negotiating, the government appealed the Arbitrator's decision through a judicial review.
The judge on the judicial review found that the arbitrator's decision was transparent, intelligible, justified and reasonable and so upheld it and ordered the government to pay costs to the Crown Counsel Association.
In addition to attempting to bypass collective bargaining with Crown Counsel, the provincial government is also engaged in litigation with the provincial government lawyers who are not Crown Counsel. After these lawyers voted to join a union, the government passed legislation forcing them into a different union they did not want to belong to.
A neighbour dispute over a fence and access to repair it is also discussed on the show.
After several years of refusing to permit access to their property for the purpose of repairing a fence, the neighbour on whose property the fence was located obtained an order pursuant to section 34 of the Property Law Act to permit them to access the neighbour's property for the purpose of maintaining the fence.
This section of the Property Law Act permits a judge to order access to property for the purpose of repairing a building, structure or improvement on adjourning land when the consent of the owner of the adjoining land is refused or cannot reasonably be obtained.
The judge concluded that this section of the act, which was added in 2018, was applicable and that it also allowed the order to permit access on an ongoing basis without the need for repeated court applications.
Finally, on the show, the BC Court of Appeal upheld the eviction of a tenant as a result of them installing a dishwasher without permission and, more significantly, covering a smoke detector up with a cardboard box.
Section 47 of the Residential Tenancy Act permits a tenant to be evicted if the tenant has "seriously jeopardized the health or safety or lawful right of another occupant of the landlord and put the landlord's property at significant risk."
The Court of Appeal rejected the tenant's argument that they had a right to time to fix the problem.
Follow this link for links to the cases discussed.
This time for a regular segment with Michael Mulligan, barrister and Solicitor, with Mulligan Defense Lawyers. It's, legally speaking, on CFAQ's 1070. Morning Michael, how you doing? Hey, good morning, I'm doing great. It's always good to be here. Some interesting topics on the agenda today. First one a unilateral order it says for Crown Council to conduct bail hearings after hours Complicated. Walk us through this.
Michael Mulligan:It is complicated and it's topical. Right, we've had recent discussions about whether bail has been a source of public disorder or not. But the background of how it's conducted has shifted over the years. Many years ago, going back maybe 20 years, when somebody was arrested after hours. It's not uncommon. There's lots of activity on Friday night through Sunday or Monday morning, of course, every weekend. But when somebody's arrested after hours, there is a legal requirement to deal with the issue of should they be released or not, right? The criminal code provides that if the police don't decide to release somebody, they need to be before a judge or justice within 24 hours or as soon as practicable, so that there can be a decision made about whether they stay in jail waiting for their trial eventually, or whether they are to be released on some form of bail or judicial interim release. And so they have to be dealt with promptly. Many years ago those were dealt with. I just to say, weekend arrests were dealt with in-person at the courthouse, like in Victoria here, and they were dealt with by, often registry justices of the peace, and so crown and defense would show up on the weekend in-person and there'd be a JP sitting there and they'd have a bail hearing to decide whether the person stays in or gets out. Those ended a number of years ago now when there was a decision that the registry JPs weren't sufficiently independent of government because they were sort of employees of the government and subject to being relocated or fired or various things if the government didn't like what they were doing, at least in theory. And so they moved to this model of judicial justices who have a sort of similar protection to judges they can't be fired if you don't like their decisions, or you can't reassign them to Poo's Koopy if you don't like what they're doing which I think was positive.
Michael Mulligan:But then it meant that those bail hearings were being conducted remotely, and for many years they were being conducted remotely on weekends and evenings when Crown Council were not working, by the police, and in my judgment at least, that really wasn't ideal because the police would have varying degrees of legal experience, of training right. Some senior members might even have a law degree right, but not everyone. And for many years when I dealt with those things I always found it a little discomforting sometimes when the quality of the submissions made on behalf of the Crown weren't perhaps up to what you would expect if there were a Crown Council lawyer doing it for the Crown right. So that wasn't great, to be perfectly blunt. Sometimes you would sit there as council and you'd have one of these bail hearings and it was some junior police officer trying to run it on the other side and you would think, boy, that could have been done a lot better. But such is life.
Michael Mulligan:And there was a movement then, or a change to have, and it was precipitated by an Alberta decision which wasn't actually binding on British Columbia. But back in 27, there was an Alberta decision that said police didn't have authority to conduct bail hearings in indigable matters for more serious category of offenses, and that's eventually what prompted British Columbia to have Crown Council conduct these bail hearings on weekends and after hours, which I don't know whether the Alberta decision is good in law or not, but I think that decision was a good one. The idea to have Crown Council were properly trained to do these things, conducting the bail hearings right, and for the same reason that we don't send Crown Council to the bank robbery trying to tackle the robber, we probably shouldn't have police trying to run bail hearings, which is not what their skill set is right. So that was a good thing. But it then created the issue of well, now what? Crown Council don't usually work at two in the morning on Sunday, no, now what? How is this going to occur? Yeah, and it was made complicated because the Crown Council there's a thing called the BC Crown Council Association, it's like the Union for Crown Council, and that organization, the Crown Council Association, has a collective agreement with the provincial government, like any union would have, right, and the collective agreement would set out salaries in terms of employment and so forth. That's sort of what a collective agreement does.
Michael Mulligan:And it's been a source of friction now for many years because the contract long expired and has sort of been continued.
Michael Mulligan:And the one of the primary sources of friction is that many years ago the Crown Council Association was able to get the salaries of crown linked to provincial court judges salaries as a percentage of them, and provincial court judges salaries, as we've talked about before, are supposed to be set independently, so the government isn't supposed to be able to just muck around with how much judges are paid, which wouldn't be a good idea, right, and the Crown managed to get their salaries connected to the judge's salaries. The provincial government has hated that right Because it means they can't control the salaries in the same way they made for other employees. And so every time that the independent organization set salaries for judges, the government has overridden it and produced endless embarrassing, frankly, litigation over that issue. And so there's friction between the provincial government and the Crown Council Association, and there has been for years. Right, you've probably heard here on CFAQs, right, the Crown Council Association running radio ads about that issue.
Michael Mulligan:Yeah, I do recall that, and there's been unhappiness between the Crown Council Association and the provincial government over their contract and salaries and working conditions and whether they're being you know, many of them work very hard, the amount of work they're being given, all sorts of issues, and so that's the background in which, in 2018, the Attorney General, then David E B, decided to unilaterally, without negotiating with the Crown Council Association, direct that Crown be working evenings and weekends to deal with these bail hearings. And so, rather than negotiating with the change to the effective agreement which would raise that fundamental issue of pay and the expired contracts, right, rather than that, he just tried to do it unilaterally and he relied upon the Attorney Generals Act, which has language in it about the Attorney General quote, presiding over close quote the Ministry of the Attorney General, and so argued that that general term about presiding over the Attorney Generals Ministry permitted a direction to just do this. And so, without negotiating with the Crown Council Association, the Attorney General's Ministry entered into agreements with an individual frown whereby they would work on evenings, Sundays through Tuesday, nights and holidays and all of this sort of thing, and so they just did it and it produced a complaint, not surprisingly, from the Crown Council Association right. If you have a sort of a union environment, the employee, the employer, can't just unilaterally order people to work at night or enter into side deals with some employees. That's just not how it is supposed to work, and the government lost on that. The arbitrator who decided it concluded that David E B had no authority to do what he had done. The sort of unilateral direction and the general language about presiding over the Ministry of the Attorney General. That didn't override how the negotiations were to work under the Crown Council Act, whereby the Crown Council Association is like the equivalent of the union for the Crown Council. And the government didn't like that. And so they did a judicial review, going to court to argue that the arbitrator was wrong and that the Attorney General did have authority to pursue it to this language about presiding over the Attorney General's Ministry to just do what he did unilaterally. And that decision just came down and the government's lost again. The judge reviewing it found the arbitrator's decision was clear and reasonable, transparent, intelligible, fully justified, and there was no basis to conclude that it was unreasonable. And so the government's judicial review has been dismissed, costs have been ordered against the government and so now the government is going to go and need to do what they should have done and negotiate with the Crown Council Association.
Michael Mulligan:This is very interesting. I'll see a couple of other respects. First of all, you're dealing with government the NDP, which was supposed to be sort of the party for unions and collective agreements and so on, right and unilaterally overruling those things or trying to bypass. It seems to be completely off brand for the NDP. And the other issue that's going on is all the other lawyers that work for the provincial government other than Crown Council also recently voted to join a union, and the government overruled that by legislation that forced them to join a union that none of them wanted to join, which is also completely off branded, off key for an NDP government. And so there's also litigation going on in the court now about whether the government was entitled to force all of the other lawyers to join a union that they didn't want to be part of and which didn't want them as members in an unwilling way, and so that's going on as well.
Michael Mulligan:And so you've got this just sort of spectacle of the NDP, reportedly sort of the government for unions and labor engaged in repeated litigation with employees over sort of actions which, at least from my perspective looking at them, are pretty hard to justify, right? You don't, in a unionized environment, just unilaterally bypass the union and try to come up with an agreement with individuals working there. That's not how it works and furthermore, it's a pretty fundamental concept that you know. Employees can vote to join whatever union they want or not. Decide to join a union, right, that's up to them and to overrule that is not surprising. They also produce in great consternation and litigation, and so we have a circumstance in British Columbia now where all of the lawyers working for the government, crown council and civil ones that do everything else are all engaged in litigation with the government over employment issues, trying to either unilaterally override agreements, not negotiate contracts, or force them into unions they don't want to belong to.
Michael Mulligan:And so it is really quite a spectacle to see that in the context of who the government is, and I'm hard pressed to understand why they would take that approach, but that's the approach they've taken, and so they've now run into a judicial roadblock telling them that their unilateral approach was not allowed, and so we'll have to. Now we can see what the government does. Of course, there's a new AG now, but they're going to have to get to the negotiating table with the crown council association and sort this out, or the reality is they're not going to be able to have crown conduct weekend and evening bail hearings and I guess we'll be back to the police, which would not be great, you know. I must say it's not in the really the police mandate to do these things. They're not really trained to do them and that wouldn't be a very good result.
Michael Mulligan:So I hope the government does what they should have done originally and sits down with the crown council association and comes to an agreement and maybe they can settle their general contractual dispute as well, because we're also in a context where the government's trying to hire more crown to come and work for them Right, and there's turnover and people are leaving and they're posting these things all over the place trying to hire people. And so you know, in a environment where you're trying to get employees, there's generally a shortage of people to do work. You know, taking a completely adversarial approach may not be the right one, and here it's not the legal one. So we'll wait and see what happens with bail hearings after hours and the crown council association and the rest of the government lawyers whether they can come to their senses and come to an agreement.
Adam Stirling:All right, we'll take our first break there legally speaking with Michael Mulligan from Mulligan defense lawyers. After this, thanks, back on the air here at C-Fanxton 70 as we continue legally speaking with Michael Mulligan from Mulligan defense lawyers. Michael, I'm looking at the next story on the list. Let me get this straight. There's an Esquimalt fence dispute. There's an ongoing order to permit access to maintain the fence. What's going on here?
Michael Mulligan:Well, bad neighbor relations, I guess, would be the starting point. So yeah, there are two neighbors in Esquimalt that have adjacent properties that don't get along. One of the neighbors, back in 1986, put up a wooden fence to separate the two properties. Perhaps as a result of the neighbors generally not getting along, that the fence was put up on one neighbor's side, basically right, and there was a survey done showing that it was. The fence was on the side of the property belonging to I'll refer to this the petitioners, the people who went to court in the case we're talking about, and the fence was entirely on their side of the property, except for 0.02 of an inch at the rear and 0.44 of an inch at the front, maybe the posts or something. It's precise.
Michael Mulligan:The land surveyors, yeah, they did precise. So it was a good carpenter in 1986. And so this fence went up and the neighbor who put the fence up had been trying for several years to get permission from the neighbor on the other side to be able to maintain the fence. I guess, go over there and fix it or paint it or stain it or whatever it did. But not surprisingly, I wouldn't.
Michael Mulligan:Fence dating from, you know, the 1980s would need a little bit of maintenance work and the neighbor on the other side would refuse that and it went on for eight years trying to get permission to come over and fix the fence and eventually the lawyer the owners who put up the fence hired a lawyer to try to get agreement to come over and fix it, and the lawyer sent letters but would get no response from the neighbors, couldn't get agreement, which brings us to this court case and, happily for the neighbors who won the fence, there was an amendment to an act called the Property Law Act and, in particular, section 34 of that act, and it was amended in 2018. And it's a section people should know about. In case you have a uncooperative neighbor and property that requires some entry onto the neighbor's property to do repair work, and it provides that an owner of property where they have a building structure improvement so that would include a fence or other things which is so close to the property line that it's not possible to do repair work without going on to the neighbor's property, and where the property owner on the other side of the property line either refuses permission or it's not reasonable to get permission from them, it allows you to go to court to get an order from a judge that you can enter the property without the permission of the owner for the purpose of maintaining or whatever it might be fence or shed or whatever it might be that could be close to the property line. And so that's how this case got to court and maybe as a testament to the neighbor uncooperative neighbor on the other side of the fence it got litigated. And the neighbor on the other side of the fence didn't want anyone coming over to fix the fence, opposed the order in court and they argued that you know, the requirements for this thing hadn't been met because they hadn't refused permission. That didn't get anywhere. The judge said look, everyone they tried. The lawyer wrote to them. They wouldn't respond.
Michael Mulligan:And then the other thing that the other point of dispute is, the uncooperative neighbor on the other side of the fence argued that well, if you want somebody to come over to fix the fence, they should have to come to court every single time. The fence needs to be fixed, not just one time, which produced another interesting issue about the wording of the section and whether it meant that you had to go to court every single time. Like you know, a board has fallen off the fence. Judge, can we come over and fix it? And on that point and I should say there was no cases on this, because I guess most people come to their senses and the legislation's reasonably new.
Michael Mulligan:The judge looked at the section in context of the interpretation act and found that no, indeed, this section should be interpreted in a way to allow an ongoing order, so people don't have to come back to court every time. Every year the fence needs to be stained or a board falls off or something. And so the judge granted the order for the fence owner and it permits them to once a year, after giving 48 hours notice, have somebody come over and do repair work and maintenance on the fence and enter into the neighbor's property for the purpose of doing that on an ongoing basis. So they don't have to come back to court every single time, which seems like a completely sensible decision. And then finally, for good measure and people should remember this when you're deciding whether to have to litigate whether the fence can be fixed the fence owner has also got an award of costs. So the intransigent neighbor who wouldn't permit entry to get the fit to repair the fence or maintain it is also ordered to pay costs for the court proceeding. So they'll wind up, I'm sure, with a bill of a few thousand dollars, and so that section 34 of the property law act.
Michael Mulligan:And so the message here would be be reasonable with your neighbor. If somebody needs to come over to paint the fence or fix the fence or something, say yes, because if you don't agree to it you're gonna wind up with a court order. They can come over to your property and do it anyways, along with a big bill. So act reasonably, maybe even paint your own side of the fence. That would seem even more reasonable. But, failing that, people should know there is this provision in the property law act now so you don't need to worry about your fence falling down and being in reach of some municipal bylaw In this climb. Well, there's actually a bylaw that requires you not to have an unsightly property, which includes things that are like property is un-maintained or rotten things or things with holes in them or cracking or crumbling. You're actually committing a bylaw infraction if you don't keep your fence up. And so act reasonably, maintain your fence, and if your neighbor needs to come over to do it, say yes, so you don't wind up by court and with a big bill.
Adam Stirling:I just find that funny, just that adage. There is no case law on this because ordinarily people will come to their senses. I suppose that's true for every precedent set.
Michael Mulligan:Although if everyone acted reasonably, I'd be short of work. So you know, that's the thing that makes sure every case Fair enough.
Adam Stirling:We have two and a half minutes remaining and one more story on the docket. Can we do it?
Michael Mulligan:We can do it All right. So the final case involves an eviction that wound up in the court of appeal, and I think we're seeing more litigation, of course because of the shortage of rental properties, and so people are desperate to try to not get evicted. And this particular case involved a notice for a one month end of a tenancy in whether that was permitted, and the background is that it was a large building that commercially runs, a building with 216 units and owned by a corporate entity, and they were doing apparently as sort of a routine inspection of units that were permitted to do periodically, and in one unit they noticed that somebody had both installed a dishwasher without permission but, more concerningly, had covered their smoke detector with a box. I guess they were smoking in their unit or whatever and so the property management company issued a notice saying you've got to fix these things and we're going to come by and make sure that you fix them. And so somebody showed up there to make shortly after to make sure that the box had been removed and so on, and the person refused entry and say you can't come in this frequently. And so then they were served with this notice to vacate in one month, ending the tenancy on the basis that they were endangering other tenants or the property, perhaps not unreasonably you can't have people covering up their smoke detectors, and so that got litigated and the court of appeal upheld the decision of both the original adjudicator and a judge a Supreme Court judge finding that, no, this was a proper eviction and pointing out, first of all, contrary to the argument made by the tenant, under the provision of the Residential Tenancy Act that permits for this sort of short you know, short notice end of a tenancy, where you do something that you're puts in danger other people or property, like covering up a smoke detector, there is no right to cure the breach. And so, you know, the action of the landlord here was precipitated by the tenant refusing to allow somebody in to make sure the smoke detector was uncovered. Right, that's what produced it.
Michael Mulligan:But the other point here is that there is no right to have time to fix a problem if you're doing something that endangers others. Right, if you are, you know, take your smoke, you'll cover your smoke detector up with a box. You could be. Your tenancy can be simply terminated on one month's notice. So I think it's sort of takeaway from this it doesn't require that you have time to fix the problem, and so that's an important point for people, and particularly, I think, in times when it can be hard to find alternative rental accommodation. If you are doing something that puts property and jeopardy or dangers the safety of other tenants, that can be simply the end of your tenancy and you don't have a legal right to have time to try to fix it. And if somebody does give you time to fix it, it will be probably unwise to say no, you can't come in to make sure that you've cured the dangerous change you've made, because there's no requirement that you be given time to fix it in the first place. So that's the final case.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Thank you, michael. Pleasure is always Thanks so much. Have a great day. All right, see you next week еще.