Ever wondered about the potential pitfalls of inadequate paperwork and the enforceability of oral agreements? Well, buckle up! We've got Michael Mulligan, a seasoned Barrister and Solicitor, guiding us through some intriguing legal scenarios that just might make you rethink your decisions. We unpack a fiery dispute between two brothers over their mother's estate, a testament to the importance of arranging your affairs properly. The concept of consideration, joint tenancy and how your decisions could impact your family after you're gone are just a few things we'll be dissecting.
But that's not all. We're also diving into the complex world of conservation law, examining a case where UBC's housing development plans hit a snag due to an unanticipated obstacle - an eagle's nest! As we delve into the case, we highlight the intricacies of conservation efforts. Also on the menu is a discussion on the power and responsibility of the provincial legislature in maintaining smooth local governance. We're putting the spotlight on a recent case in Alberta, where a dysfunctional city council had to be ousted by the provincial government. So, join us as we navigate these riveting legal landscapes with our expert guide, Michael Mulligan.
Follow this link for a full summary of the episode, a transcript and links to the cases discussed.
Ever wondered about the potential pitfalls of inadequate paperwork and the enforceability of oral agreements? Well, buckle up! We've got Michael Mulligan, a seasoned Barrister and Solicitor, guiding us through some intriguing legal scenarios that just might make you rethink your decisions. We unpack a fiery dispute between two brothers over their mother's estate, a testament to the importance of arranging your affairs properly. The concept of consideration, joint tenancy and how your decisions could impact your family after you're gone are just a few things we'll be dissecting.
But that's not all. We're also diving into the complex world of conservation law, examining a case where UBC's housing development plans hit a snag due to an unanticipated obstacle - an eagle's nest! As we delve into the case, we highlight the intricacies of conservation efforts. Also on the menu is a discussion on the power and responsibility of the provincial legislature in maintaining smooth local governance. We're putting the spotlight on a recent case in Alberta, where a dysfunctional city council had to be ousted by the provincial government. So, join us as we navigate these riveting legal landscapes with our expert guide, Michael Mulligan.
Follow this link for a full summary of the episode, a transcript and links to the cases discussed.
This is time for our regular segment with Barrister and Solicitor, with Mulligan Defense Lawyers, legally speaking, with Michael Mulligan on CFAQ 1070. Morning, michael, how are we doing? Hey, good morning, I'm doing great. Always good to be here. Some interesting stories on the agenda this week. I'm reading it's in a state dispute in the enforceability of an agreement between brothers, but it's an oral agreement. How does that work?
Michael Mulligan:Yeah, there are several things wrapped up in this case that I think are interesting concepts for people to know about, because it could readily affect how you're arranging your affairs right, and in some respects, this case is also an example of perhaps how not to arrange one's affairs. And the background of it was mother of six children adult children who separated. She owned a home or principal asset worth something just south of a million dollars, and she obviously had some favorites as between the children, and she decided that she wished to transfer her home into joint tenancy with two of the children. And I should just pause there to comment about what joint tenancy is and what it means. If somebody does that, that's pretty important. There are different ways. Multiple people can own the same property right. It's simple if you just own a property yourself, right. But if you are sharing it, it could be shared in a few different ways. One concept is a concept called tenancy in common, and the way that works is you could have, let's say, two friends decide to pool their resources and buy a two bedroom condominium and share it right. That would probably be done as tenants in common, where each of them would own 50% of the jointly owned condominium right. If one of the friends passed away, their half interest in the condominium would be divided up in accordance with their will. Right To say any other assets that they might have.
Michael Mulligan:There's another concept called joint tenancy, which can be used for multiple people share the same property. The difference with joint tenancy let's say, if you and your friend purchased the condominium and you were both on title as joint tenants, if one of the two friends passed away, the other person just automatically owns all of it. It doesn't pass through their will, which is a very interesting state of affairs. Some people may use that as an estate planning technique and it has a number of impacts. One of them is it might avoid some probate fees. We have right, because the property wouldn't go through somebody's estate, it would just go to the other person. And that may be exactly what's intended, for example, with a couple right. If you and your spouse purchase a home, that may be precisely what you intend, right. Look, if one of us passes away, obviously the other person gets the home it carries on, all's good. But then the other effect it can have is and we've talked about this act before there's an act called the will's variation act, where if somebody's spouse or children, it can apply to very a person's will if they can establish that they weren't adequately provided for. Now, if property is transferred by way of putting a property in joint tenancy, that doesn't apply because it's not going through the will or the estate. It just automatically goes to the other person. So that's the background.
Michael Mulligan:So the mother of six announced that she wanted to put two of her adult sons on title as joint tenants, which would mean that if she passed away they would each get half of it. But for reasons I explained, the paperwork didn't get done to reflect that and what happened is both adult sons were put on as joint tenants for half of the property. Okay, so that's the state of affairs and then, sadly, the mother passes away. Naturally, what this is going to produce, right, if you have six children and you've disinherited four of them and you've set up this wonky structure and I should say one of the children, one of the two that she liked was the sole beneficiary of her will even more provocative. So, naturally, litigation ensued, yes, and you wound up with the other siblings suing under the will variation act, saying, hey, this should be, we haven't been provided for. Mom gave everything to George.
Michael Mulligan:That was one of the people involved, and so the litigation started and the two brothers right who were put on his joint tenants, in the course of discussing what do we do with all this litigation, came to a verbal agreement whereby they would agree to share the property and provide the substantial portion of the value of the home to all of the other siblings. They kind of worked it out as the way to describe it, and that was the oral agreement. Okay, then what happened is the brother who was the one who was the sole beneficiary of the will changed his mind and took the position that no, I don't want to do that and I want 75% of the house because I get 25% as being one of the joint tenants right, automatically. And then the other 50% was moms, which goes into the will, and I'm the sole beneficiary of it. I want all that too bad.
Michael Mulligan:And so there was a court case then about whether this oral agreement to share the proceeds of the house was enforceable. And that brings us to that concept of the oral agreement and another important principle people should know about, which is the concept of what's called consideration, and the importance of consideration is that the law doesn't enforce their promises to do things oral or in writing, like if I come up to you and say you know, hey, adam the great guy, I'm going to give you a new car for Christmas, right? You say wonderful, and then I don't.
Adam Stirling:You can't go to court, where's?
Michael Mulligan:my car? Where's my car Right? Okay, what's missing from that is I've just made a gratuitous promise to you which I may or may not follow up on, but the law isn't going to enforce it, whether I write it down and say I'm going to give you a car for Christmas, or I tell you that well, you hope I follow through, but that's not a contract. I see a contract requires a concept of consideration and exchange right.
Michael Mulligan:Okay. So, on the other hand, if I come to you and say, hey, do you like my car? You see, I love my car, I love that car, and I say, well, you're a great guy, I'll sell it to you for $100. Okay, you got a deal, now that's enforceable because, well, I've promised to give you the car and you've promised to give me $100. Okay, now we have a contract.
Michael Mulligan:So here the brother that didn't want to share said, well, yeah, well, there's some disputable what was said, but he said, well, that's not enforceable. Anyways, that was just like a gratuitous promise of a gift to my other siblings. You can't make me do that Because there wasn't some payment of money. It's all like the other siblings Okay, here's my $100 or my $1 or something else. It could be anything, something of value, right?
Michael Mulligan:And so that was the argument at trial and then, on appeal, this went to the court of appeal and the trial judge, and now the court of appeals included. There was consideration, and the consideration came in the form of the brother, the one to one to keep everything ultimately taking a position on that wills, variation, application. All these siblings were like, hey, this isn't fair. Mom gave everything to you. George Right, yeah. And George said, okay, I'll agree to this, sharing the money from the house, we don't need the wills variation application that there was consideration in the form of his agreement to how he dealt with the Will's variation application. So consideration doesn't always have to be money, it can be something like that Interesting.
Michael Mulligan:And so, because of the court of appeal and the trial judge found it indeed, george did have consideration for what he had agreed to do, the agreement was enforceable, and so the net result of all this is a result which could have been achieved probably a decade ago if mom hadn't come up with the idea that she was going to disinherit five of her children and try to put the house in joint tenancy.
Michael Mulligan:If she hadn't done that, all of this litigation could have been avoided.
Michael Mulligan:But I should say this had mom succeeded in properly putting the house into joint tenancy, like had that been done as she had said she wanted to, then the result would have been the Will's variation application could have done nothing, because the value of the home, which was a main asset, wouldn't have gone through the will, and the result of that is the two brothers would have wound up with half each and nothing that their siblings could have done about it, and so you can see how those concepts could be important ones when somebody is planning their estate, particularly if you've gone some complex fact pattern like this one, or somebody has some idea about wanting to unequally disinherit some children and give everything to one person.
Michael Mulligan:They like that kind of thing. You can see how people might use those legal processes and techniques to achieve that goal or to try to immunize something from being reviewed under the Will's variation act. But here, through that complex series of things, including that oral agreement which ultimately was enforceable, the net result is going to be, after many years of litigation and wasted money, what remains is going to get shared amongst the kids, which probably should have been the starting point to begin with. So there's that concept of joint tenancy and consideration why they're so important.
Adam Stirling:All right, michael Mulligan from Mulligan Defense Lawyers, legally speaking, we'll take our first break on CFAQs 1070. We'll be back with more right after this, legally speaking on CFAQs 1070 with Michael Mulligan from Mulligan Defense Lawyers. Michael, the next story am I reading this correctly? It says standing to litigate the installation of a temporary cone on an eagle's nest, you wouldn't believe it, but it's true.
Michael Mulligan:Okay, so this is one of the many reasons why we can't build nice things, at least very quickly. And so this case is from UBC right, and the UBC has some property around it, as you think called the UBC Properties Trust, I guess can lease the land or build housing or things of that sort on it, and the UBC wanted to build a housing development on their property, but they determined that there was an eagle's nest not too far away from where they wanted to build it. It was a nice looking nest from the description, 120 centimeters deep, 50 or 50 centimeters deep, 120 centimeters in diameter, and it was only eight meters from the top of a tree so nice looking nest. The nest had been there for a number of years and it had been vacant for a few years. Apparently, the eagles aren't subject to the speculation of vacancy tax, so the nest had stood vacant for a while, but then, in 2017, some eagles started using the nest and as the development was proceeding, it was going to get too close to the recommended noise buffer zone around an eagle's nest. And I should mention this if you don't know it, in order to order your affairs correctly and stay out of legal trouble. Section 34 of the Wildlife Act specifically makes it an offense to interfere with the nest of eagles. So don't bother the eagles' nest. They've got to stay back.
Michael Mulligan:And so the UBC applied for a permit to allow them to put a cone on the nest temporarily to deter the eagles from nesting it, and indeed they then built an alternative eagle's nest for the eagles. So they constructed other housing for the eagles nearby, outside of the zone. So they didn't bother them and they got their permit and they put up their cone. But and I should say, the nest they built was apparently a nice nest. The eagles used it in 2020 and, having not succeeded in having chicks for a few years in the old nest, it worked out. They were successful, so good for the eagles, so the developer must have built them a nice nest.
Michael Mulligan:But all of this resulted in a person who lived nearby starting a campaign to not allow the cone on the original eagle's nest and there was a public and there were stories in the paper and the media reports about it and all of this. And then, ultimately, the person at the time, who was the neighbor Ryan I take it he is male, ryan he applied for funding through West Coast Environmental Law and got funding. So now there's a legal help funded to oppose the cone, and so an application was brought in court arguing that the cone permit shouldn't have been issued. By this point. The eagles that, happily, they apparently have another nest. They moved down to Pacific Spirit Park in 2022. So after succeeding in the constructed nest they were they were, in fact, in the park and the cone went up, but on went the litigation.
Michael Mulligan:Now, when somebody wants to litigate things not everyone is permitted to show up in court and complain about anything they don't like there's a concept that you have to have standing in order to challenge something. Right. You can't just randomly sue anyone for any purpose, for matters that don't concern you. Oh, I see. And so the courts have developed this concept of sort of when somebody should get standing, and one of the purposes of that is to screen out what they describe as busy body litigants. So you want people that have an interest in something, not just anyone who likes to make waves going to court, and so that's the form in which this thing showed up for the hearing and the first part, sorry.
Michael Mulligan:The other thing which happened at the intervening period of time is the person who started all of this opposition to the cone moved away oh and it would appear that they're interested in the cone, diminished, having moved away from the development and the cone, and so the court then had to apply the test, for when you grant public interest standing and should this person the previous neighbor who opposed the cone should they be able to carry on with the help of the funding from this environmental legal organization? And so the first issue that a judge has to think about is whether there's a serious uh issue to be decided right About. Whether in this case, the permit was properly issued and the judge found the other. There was a meaningful legal issue there to be decided, and the issue was essentially whether the um Lieutenant Governor and counsel could properly delegate authority to a wildlife uh expert to make the decision about the cone right. That's, that's what that about to do. So, yeah, there was a legal issue.
Michael Mulligan:The challenge here, the second part of the test, is does the person have a genuine interest in what's going on here? Cause the other problem is you don't want somebody starting some litigation on the important topic and then, having just lost interest in, doing a poor job of it. Nor do we want people that are just kind of busy bodies, and on that front it was a bit of a struggle because the person like presumably after they moved away from the development, seemed to lose a lot of interest in us and weren't signing letters or doing anything else, and the judge described it as person had minimal continuing genuine interest in the nest or the permit after they moved away. I found that there's little evidence of the petitioner. Petitioner had any continuing interest or engagement with the nest, uh, and provided no evidence of any steps I guess it's she had taken with respect to the nest other than this litigation right, so that one was scraping the bottom of the barrel. But the final part of the test that they all have to be thought about together is is there any other reasonable and effective method that the legal issue, if it's an important one, uh, can be decided right? And the judge found on that ground there really wasn't. Nobody else was lining up to advocate for the removing of the cone, uh, and so on. That test for standing, even though the person was just barely above water on the having any continued interest in the cone, and fair enough he could.
Michael Mulligan:Perhaps there were other motivations involved there, with somebody who's living next to the cone, um, uh and uh, you know, maybe other intervening factors, like the Eagles, apparently have at least a couple of other nest options and seem to be doing fine.
Michael Mulligan:Maybe that played a role in it, but the judge found that it is discretionary and even though that second factor, the genuine interest, was really weak, the other two uh mitigated, in favor uh of allowing this litigation to continue.
Michael Mulligan:And so then, on the judgment, to analyze the substantive issue about uh whether uh there was some improper uh delegation uh of the power to issue the permit to put the cone up Uh, and on that uh basis, the on the merits of it uh, the judge concluded that the cabinet had properly provided guidance to the regional manager in terms of how to exercise the cone discretion and so that the delegation was not an improper sub delegation of authority to grant the permit to put up the cone.
Michael Mulligan:And so the outcome of all of that is that the cone can stay, the Eagles can enjoy it for the moment they're temporary and apparently a successful nest or the other one in the park, and then, once this housing development gets finished, they'll be able to take the cone off and, if they so desire, go back to this nest or either of the other two that are available. But through all of that. I must say we talked about sort of an emergency and not enough housing, and you can easily imagine how this sort of thing might slow that down. And so there it is we have a decision. The cone was lawful and sounds like the Eagles are doing well. They just have to watch out for the vacancy tax on the other two nests that were left behind.
Adam Stirling:Oh yeah, we have four minutes left. And the province of Alberta it says here fires dysfunctional city councillors. Help us understand this.
Michael Mulligan:Yeah, we mentioned this sort of in passing a show or two ago about through who ultimately bears responsibility and by what mechanism could a city councillor or councillors be removed. Right, that was a live issue in terms of Victoria City, councilor Kim, and there's also, of course, you know, much talk about other dysfunction and other municipalities, and I mentioned that the legislature provincial legislature would have authority to remove any of those people at any time, and this is an example of that kind of power being exercised just last week in Alberta. And so this was a case where there was a city council I think it was near Calgary and there was a dysfunction and rank or and so on going on, and there the legislation which they have in place already in Alberta allowed the minister in charge provincially to just dismiss all those people, and so they did that, and so they're no longer. The mayor and the city councillors are just gone. And it's important to remember that all of the authority that city councillors or mayors, local governments have, all of it is entirely delegated by the province. Right, we have a local government act and there's a special act with respect to Vancouver, and what's going on with all of these local governments is all of the powers they're exercising are entirely provided to them by the provincial government. That's where they derive all of their authority, and one of the crawleries of that is that the existence of any of these municipalities and the continued service of any of these councillors or mayors or anyone else, is entirely a function of the benevolence of the provincial legislature.
Michael Mulligan:Right and so if there is dysfunction or inappropriate behavior or incompetence or any of that going on, there should be no lack of clarity in terms of how that and who is permitting that to continue. It is the provincial government, the province, yes, the let the anyone could introduce a piece of legislation. It could be the you know, john Doe Councillor Removal Act, and if that passes in the legislature, john Doe no longer a councillor. And if you wish to, if the legislature wishes to pass legislation amalgamating things, removing municipalities, reorganizing them, firing the mayor, firing the councillor, reversing any bylaw, anything essentially they want to do, they are entirely free to do that. There is no independent authority that any of those councillors or mayors or anyone else has, and so people should know that where there is dysfunction and any of that, is not where there is dysfunction and issue.
Michael Mulligan:But well, who bears responsibility for this. What can we do? Can we do nothing? Right, some people either wringing their hands. What do you do if municipality is just completely dysfunctional or can't operate, or people that engage, or councillors or mayors or others engage in outrageous and offensive conduct?
Michael Mulligan:There's a clear line of authority, and when it's not exercised, it's tested approval for what's going on. And if there's a view that what's going on is not appropriate, or they're dysfunctional or ineffective or just engaged in inappropriate behavior, there is a clear legal mechanism whereby any or all of them could be removed or replaced at any time. And so that's where the line of authority, that's where the buck stops. Right, it stops at the provincial legislature. That's where it stops, and so when you have somebody who's engaged in, as a councillor, outrageous or inappropriate or inappropriate behavior, or an entirely dysfunctional council, the majority of the provincial legislature can't avoid responsibility by looking the other way and whistling. It's up to them. They're the ones who have delegated the authority to these people to carry on, and so people should know that, and who ultimately bears supervisory responsibility? It's the provincial legislature.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Pleasure as always, until next week. Thank you so much. Have a great day.