The BC Constitution Act and the removal of MLAs or City Councillors

In our recent podcast episode, we delved deep into the complexities of the British Columbia (BC) Constitution Act, focusing on the potential reasons a member of the legislative assembly (MLA) could forfeit their seat. These reasons can range from absenteeism and allegiance to foreign powers to dual citizenship and serious criminal convictions.

The subject has become a hot topic following recent upheaval over a Victoria city councillor's controversial letter. However, the BC Constitution Act goes beyond merely providing a framework for government operation; it also lays the groundwork for political accountability. Understanding the Act's intricacies allows us to better comprehend the checks and balances in place to ensure public officeholders adhere to expected conduct.

We also explored two notable legal cases that have recently made the news. The first case involved an injury-at-work incident that resulted in a $10,000 award under the human rights code. Despite the employer's best efforts to appeal, the decision was upheld, shedding light on the complexities of the human rights code in workplace situations.

The second case revolved around a property tax predicament. A couple faced a heavy 20% tax on their house purchase because one of them was not a permanent resident or citizen. This case highlighted the government's role in court cases and the importance of judicial independence.

Overall, these discussions underscore the government's significant role in court cases and the judicial system's critical independence. As citizens, it's essential to understand how these legal mechanisms work, not only to protect our rights but also to ensure we remain informed and active participants in our democracy.

The BC Constitution Act and the various legal cases we discussed underscore the vital interplay between politics and law. Whether it's the forfeiture of a political seat or the interpretation of human rights in a workplace injury case, these legal provisions and judgments shape our society's functioning. As such, understanding them is not just a matter of academic interest but of practical significance to every citizen.

Ultimately, this episode left us pondering the government's role in court cases and the critical significance of judicial independence. By dissecting these legal intricacies, we hope to provide our listeners with a deeper understanding of the BC Constitution Act and its impacts on both political careers and broader societal issues.

Follow this link for links to the cases discussed. 

Transcript

Adam Stirling: 0:00

time for a regular segment, legally speaking, with michael mulligan, barrister insolicitor. With malcolm defense lawyers. Morning, michael. How we do it, they're doing great was good to be here got some interesting things on the agenda today, including, but not limited to, the constitution act of bc. And is that safe? Forfeit their seat. What's happening here?

Michael Mulligan: 0:20

indeed, and I thought this was something worth uh talking about in the context of the controversy over the victoria counselor, whether she should uh be resigning or be removed for signing that uh controversial letter. Uh, and I think some people express the view that, look, there's nothing that can be done, that people are kind of I can conduct themselves in any way they want and can't be removed uh, and that's not in fact the case uh, and so I I thought a place to start might be uh review of the circumstances in which uh and m la uh can forfeit uh their seat in the legislature, and this comes from the constitution act, not of canada, but of british columbia provinces of constitutions too, uh, and in british columbia, the british columbia constitution act, in section thirty four uh, which is entitled forfeiture of a member seat, set out the circumstances in which a member of the legislative assembly uh is deemed to no longer be that and their seat becomes vacant if any of the following circumstances apply. Uh, the first of those maybe not surprisingly is that, without permission of the legislative assembly, a member fails to attend the legislative assembly during a whole session. So if you don't show up at all, uh, you're out. Uh be uh, this one people may not be aware of be is this uh, the member takes an oath or makes a declaration or acknowledgement of allegiance, obedience or adherence to a foreign state or power. If you do that, you're also out as an m l a, your seats vacant.

Michael Mulligan: 2:02

Next, and this one I think it may be quite surprising to people, because in canada you are permitted to have, but sometimes referred to as dual citizenship, somebody who would be a citizen of another country and a citizen of canada. But that's a problem if you're in m l a. So see is the member does or concurred in, or adopt and act by which the member may become the subject or citizen of any foreign state or power. If you do that, you cease to be a member of the legislative assembly. That one I don't know that. Everyone may be aware of it, and I don't know whether there are any members that are dual citizens. And there have to be some consideration as to whether, if somebody maintained, or whatever it might be, a dual citizenship status, whether they are lawfully entitled to remain as a MLA. And then, finally, d, the member is convicted of an indictable offense that may only be prosecuted by way of indictment. So that would be a serious criminal offense. If you're convicted of something like murder, you can't remain as an MLA, and so those are the criteria under the BC Constitution Act that an MLA seat becomes vacant, they are removed.

Michael Mulligan: 3:26

And then the other thing to remember about all of this is that, of course, not of course, but municipalities in Canada are all they are, are delegated. They have some delegated authority from the province and they don't have some independent constitutional status, and what that means is that those entities, the municipalities and indeed the people who are city counselors or mayors, are really there at the pleasure of the province. And so if the legislative assembly in British Columbia decided to pass the removal of Counselor X Act, they could just pluck them out and they would no longer be a counselor. In fact, the province could pass legislation doing away with a municipality altogether, or merging all of the various municipalities together, or deciding they're going to just exercise the powers they had previously delegated to a municipality directly themselves. And so it's not as if there is no remedy.

Michael Mulligan: 4:32

The remedy for misconduct and perhaps the things set out of the BC Constitution Act that would cause somebody to become ineligible to continue as an MLA might be some guide to whether it would be appropriate to pass an act removing a particular counselor or not. That might be some guide, but ultimately it is a political decision. It is not a circumstance without a remedy. It is not a circumstance where, if somebody is a city counselor and they engage in grossly inappropriate conduct, that they can simply write it out until the next election. It's ultimately not up to them, it's up to the provincial legislature, and so you know, when you've got a majority government, it's up to them, and so that's where ultimately responsibility lies and that's why there is clearly a legal process to remove somebody who engages in inappropriate conduct.

Michael Mulligan: 5:31

The other thing which is interesting I think, just to reflect upon has been discussion today about the apology from the city counselor in Victoria. Yes, and the letter that was written, the original letter that was written, and, of course and I think rightly it's been criticized roundly for its comments calling into question sexual violence committed by members of Hamas when they attacked Israel. Because, well, I must say, I'm a professional skeptic in my day to day appointment. The evidence of that in this case appears to be simply overwhelming. Yes, right, you've got video recordings of women with their bottomed clothing off, bleeding into their pants. Well you know, having their hands cable tied with Hamas terrorists yelling Allah Akbar and loading the person in, moving the person around. The evidence of sexual violence by members of Hamas appears to be simply overwhelming.

Adam Stirling: 6:31

Yes.

Michael Mulligan: 6:32

And so, while you know, everyone needs to keep an open mind about things and we all need to bear in mind the fog of war and all of those things, on that point there does appear to be overwhelming evidence of that conduct. And the other thing, the things that are other of interest in that letter that the city councilor assigned includes, for how it begins. And the letter actually begins by calling into question the existence of Canada. Yes, and it begins by saying we, the underside residents of so called Canada, and then go on to criticize what the letter claims to be a massacre in genocide in Gaza. And then, at the near the conclusion of the letter, there's some scientists who say, well, what's what an earth could be going on that would cause somebody to write this letter? What sort of, you know, philosophical lens would cause somebody to write such a thing? And the letter carries on to talk about how, in the view of the people who signed it, it says we employ you to stand in genuine, in all bold solidarity with the indigenous communities of Turtle Island and Palestine who continue to resist against settler colonial genocide. And so the authors of the signatories of the letter appear to be sort of connecting up so called Canada, with concepts claiming that there is a colonial genocide occurring with respect to. They tie together indigenous communities of Turtle Island, sort of a label, I think, turtle Island being a term, I think, used by some indigenous communities referring to North America, on a belief that the world was held up on the back of a turtle. I think that's the origin of that, tying that to Palestine and the.

Michael Mulligan: 8:20

The letter seems to the broad philosophy of it is something I think you see from time to time, which is, I think, essentially lumping together people either as victims of things or, in the alternative, you must be somehow an oppressor, and the idea that it would be impossible for somebody who is the victim of something to engage in horrific conduct. That seems to be the origin of it. You know, there is a lot of that. There is some of that culture these days of people labeling themselves or groups as victims of things and then the idea being that somebody who's in that camp could do no wrong. So anyways, that's the.

Michael Mulligan: 9:01

That's the flavor of the letter. There's various elements to it that are perplexing, in addition to the denial or calling the sexual violence committed by it, says Palestinians saying that that is describing it as unverified, while the same, in the same paragraph, accepting as true, for example, claims of the number of people killed alleged by Hamas. So it's a really interesting letter. There's a lot going on in there and people should know that it is not something which is without remedy. There is a remedy, there is a legal remedy for it. If the legislature saw fit, they could simply remove the counselor, and so her continued service in that role is really a political decision being made at the provincial level.

Adam Stirling: 9:52

Let's take our quick break here. Michael Mulligan with Mulligan Defense Lawyers. Very interesting comments, especially with what's in the news right now. Legally speaking continues right after this. All right back on the air here at C-Fax 1070. Michael Mulligan from Mulligan Defense Lawyers as we continue our conversation. Up next a couch and injured back and injuries to dignity, feelings and self-respect. How do courts deal with stuff like that?

Michael Mulligan: 10:17

In a very complicated way. So this was a it's a local case. It originated at Dodds Furniture, well-known local furniture store, and the issue started with the person who had worked there for about three years in a position that he described as a assistant manager position, who I think it's not controversial injured his back lifting a couch, and so you might wonder, how does that translate into dignity, feelings and self-respect? Well, what happened is, after the fellow injured his back, he took some time off apparently five or six weeks from the job at the furniture store and then, after some recuperation, indicated he wished to come back, and when he came back, he apparently was given a slightly different position working there. He described it as an assembly position, but there that was to some extent controversial. In any case, he was being paid the same amount and at the same hours, right, but there was a difference in what the work might entail, and so he decided to refuse the position that he was offered when he came back and instead made a claim under the human rights legislation in British Columbia and in British Columbia we've got a human rights code which prohibits discrimination on various grounds, one of them being physical disability, and so his claim was that he was refused his previous position because of his disability, that he suffered, having hurt his back lifting the couch, and he succeeded, and he wound up with a $10,000 award from the British Columbia Human Rights Tribunal, which is the entity that decides complaints made under the human rights code. And the way that plays out is that they because it wasn't necessarily a loss of money he was offered the same hours and same pay, but the Human Rights Tribunal awarded the man $10,000 for what it described as injuries to his dignity, feelings and self-respect based on, presumably, the different job duties that he was offered when he came back after the couch injury.

Michael Mulligan: 12:47

And then that all led to Dodds conducting a judicial review of the decision made by the Human Rights Tribunal, and one of the arguments they made was an interesting one. It has a Latin name that sometimes is X-terpi causa, and what that Latin term talks about is the idea that if you make a claim which sort of is hesitant to origin like improper conduct or unlawful conduct, that sort of concept that you can't succeed in making a claim for it. And the argument the furniture store made on the judicial review is, they said look, the man claimed that he was unable to work and not working and collected WCB payments after the couch incident. But it came out that in fact he was working as a taxi driver and getting paid to do so, and so their argument was well hold on. This entire claim is premised on this sort of false premise that he was unable to work when in fact the evidence came out that he was working and that he was required to pay back the money he got from WCB because he in fact was working another job during a period of time. He claimed to have been injured and off work, and so that was the basis that the case most recently wound up in Supreme Court.

Michael Mulligan: 14:11

Unfortunately for this furniture store, that argument didn't succeed on the judicial review, and the reason it didn't succeed on the judicial review in part was that the judge found that the furniture store had not made that argument or even a similar argument back at the time the case was being considered by the human rights tribunal, and the court pointed out correctly that in British Columbia there's been a decision made to assign responsibility for deciding human rights complaints to this human rights tribunal rather than the court, and so when the courts reviewing it a decision like that, they're doing it with a lot of what's referred to as sort of deference to the original decision maker.

Michael Mulligan: 14:57

The tribunal and the judge found it wasn't appropriate for the court to try to assess that argument essentially for the first time the argument about whether the whole thing was premised on this false claim about not being able to work because he had been working as a taxi driver while receiving WCD payments, and so on that basis, the court said well, whether that's true or not, you didn't make that argument back at the stage of the human rights tribunal. That's where those things have to be made. Don't make them for the first time in court on a judicial review. And so that's what that concept means and that's why, in this case, that principle wasn't assessed, because the argument wasn't made at the first stage. And ultimately that's how you can wind up with a financial award for damage to your dignity and feelings as a result of hurting your back, moving a couch.

Adam Stirling: 15:53

Our next story is interesting because you and I often touch upon the importance of judicial independence, because it is often the government itself that finds itself a party in either litigation or similar proceedings. That must be decided by a judge and obviously, if the judge is employed by the government can be hired and fired by the government, that judge is going to feel a significant amount of pressure. So we have this independence. I see another story involving the government in court, though, on our docket today.

Michael Mulligan: 16:18

Exactly right, and you're exactly correct in terms of why we're so lucky to live in a place where that is so right, where you can go to have an independent judge decide something and not be simply at the whim of whatever the government or its employees might think should happen. And this is a case also out of Victoria, and it's a case involving the purchase of a home in Victoria by somebody, by a couple right one of whom was not, at the time, a permanent resident or a citizen. And the significance of that is that in British Columbia, they've decided to add this what they refer to as a ATT, a government talk, which would be an additional transfer tax, and so the way that works is that if somebody purchasing a property is not a Canadian permanent resident or citizen, they can fall into this category of a quote foreign entity, and if a foreign entity purchases property, they can be subject to an additional 20% tax on the value of the property. That can be a lot of money, and in this case, given the price of homes in Victoria, the amount at issue was $331,980. It was a purchase of a home in 2019.

Michael Mulligan: 17:40

And the factual background is that this couple, one of whom was not a Canadian permanent resident or citizen at the time, one of whom was no-transcript to purchase the home, probably being aware of this potential large tax bill. What they did is they used a company to purchase the home and before purchasing the home having the company purchase the home they made a declaration that the company was purchasing the home as the agent or trustee for the spouse, who was a permanent resident of Canada. The other person became one later, but wasn't at the time. The government's position was too bad. That doesn't count, because the spouse who created that company several years earlier was the one who had not yet become a permanent resident, and so the government took the position that they owe this $331,000. The couple appealed that, and the deputy minister of, who had the authority to review it, upheld the large tax bill, and that's what led to the company owned by this couple going to court to challenge it. And so that's where the independent judge comes in, and so the judge, hearing this appeal from whether the company owed all of this money for the tax, applied a principle that deals with how taxes are to be assessed when you have a company that is doing something as either an agent for somebody or where this concept of a bear trust.

Michael Mulligan: 19:31

That takes just a moment to explain, and the concept there is that if you have a company like this who's doing something for you, like buying a home or a piece of property, but you also control the company, you can control what is doing From a tax perspective. It should be analyzed from the perspective that the company doesn't exist at all. Right, because if you're the beneficial owner, the spouse who is a Canadian permanent resident, and that person has control over it by being able to tell the company what to do sell the property or transfer it or do whatever they want with it, the way it's supposed to be analyzed in British Columbia is that if that company or trustee doesn't exist, because you really just have direct control over it yourself. And so the reason that mattered here is the spouse who had control over the property really was the spouse who was a permanent resident. And so, even though the company itself would have been subject to the tax because it would have met the definition of being a quote foreign entity, right, because it was set up by the person who originally was not a permanent resident because of that arrangement and the documents that they had prepared prior to buying the home.

Michael Mulligan: 20:55

The way the court found it should be analyzed is that it says if this entity didn't exist because the company only owned the thing either as an agent for the spouse who was a Canadian permanent resident, or they were doing it only possessing it as a trustee, in a way that the person could simply control it themselves, it should be analyzed as if that entity didn't exist. So I appreciate that's a big multiple, but the end result is that the judge found that the government was not entitled to this additional transfer tax because the spouse who actually owned the property, actually had control over it, was somebody who was a permanent resident and so no doubt not the position that the government would have wanted and one that they refused to acknowledge through the appeal process. But that's the ultimate result and the couple won't have to pay the extra $331,000 to the government, thanks to the independent assessment by the judge.

Adam Stirling: 22:01

Michael Mulligan from Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Thanks for the time, as always. Thanks so much. Have a great day. All right, take care.