Navigate the complexities of landlord-tenant relationships with the expertise of Barrister and Solicitor Michael Mulligan from Mulligan Defense Lawyers, who joins us to unravel a contentious case where legal procedures and personal rights collide. As we dissect the Duncan case, you'll gain an understanding of how a simple notice for personal occupancy can escalate into a substantial monetary judgment and why procedural fairness in the Residential Tenancy Act hearings is more crucial than ever. Discover the role modern technology plays in judicial fairness as telephone hearings present unique challenges, including the risk of one party being left in the dark due to unequal access to documents.
Transitioning to the workplace, we explore the razor-thin line between honesty and deceit through a narrative that serves as a cautionary tale for any professional. Michael Mulligan breaks down an intriguing wrongful dismissal lawsuit, where a manager's meal receipts resulted in cause for dismissal. But that's not all; we also examine the heart-wrenching story of a student's battle for rightful compensation following life-altering car accidents, contrasting this with the current landscape of no-fault insurance. Whether you're a landlord, tenant, employer, or employee, this episode provides not only the legal insights you need to navigate these waters but also the personal stories that remind us of the stakes at hand.
Follow this link for a transcript of the show and links to the cases discussed.
Navigate the complexities of landlord-tenant relationships with the expertise of Barrister and Solicitor Michael Mulligan from Mulligan Defense Lawyers, who joins us to unravel a contentious case where legal procedures and personal rights collide. As we dissect the Duncan case, you'll gain an understanding of how a simple notice for personal occupancy can escalate into a substantial monetary judgment and why procedural fairness in the Residential Tenancy Act hearings is more crucial than ever. Discover the role modern technology plays in judicial fairness as telephone hearings present unique challenges, including the risk of one party being left in the dark due to unequal access to documents.
Transitioning to the workplace, we explore the razor-thin line between honesty and deceit through a narrative that serves as a cautionary tale for any professional. Michael Mulligan breaks down an intriguing wrongful dismissal lawsuit, where a manager's meal receipts resulted in cause for dismissal. But that's not all; we also examine the heart-wrenching story of a student's battle for rightful compensation following life-altering car accidents, contrasting this with the current landscape of no-fault insurance. Whether you're a landlord, tenant, employer, or employee, this episode provides not only the legal insights you need to navigate these waters but also the personal stories that remind us of the stakes at hand.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for a regular segment with Barrister and Solicitor with Mulligan Defense Lawyers. It's Michael Mulligan and Legally Speaking on CFAQ. Morning, michael. How are we doing? Hey, good morning, I'm doing great. Always good to be here. Some interesting items on the agenda this week, including an interesting case, reasonably local, that has to do with landlords, tenants and procedural fairness.
Michael Mulligan:That's exactly right, and I should start by saying this right. The reason why only a vanishingly small percentage of contracts that people enter into ever wind up in court is that the basic nature of a contract is a free agreement between two people to do something they both want to do, right, hey, do you want to buy my bike? Yes, great, right, you're happy to get the bike, I'm happy to get your money. But we've moved provincially further and further away from that sort of free agreement between two people in the case of residential tenancy, and when you see the changes over the years and read these decisions that come out, it's become very apparent that for political reasons, the provincial government has modified sort of what people can agree to to the point where often these agreements are not free agreements between two people entered into where they both think there's some mutual benefit, but they're something else, right, designed to achieve a social aim. And then, as often the landlord tries to escape that reality, the provincial government comes along and plugs various things into the the dike of you know water coming out the other side. And so that's the broad background to this case that just came out that originated in Duncan, and the background of it is that landlord who owned a home in Duncan wanted to move into the home and so gave notice, as they are permitted to do under the Residential Tenancy Act, and the those provisions in terms of when somebody can make use themselves of a home that they own, that they previously been renting, require a number of things. They require there to be a longer notice period. They now require there to be one month's free rent given to the tenant, and then the part which is sort of the only way I could describe it would be sort of gamified. The situation is that if the landlord who gives notice doesn't move into the unit themselves within a reasonable period of time, the tenant former tenant can seek 12 months rent from the landlord, and so it's produced a circumstance where it reading these decisions. So, parent, you know, you've got former tenants trying to sneak by and knock on the door and see is the person there? How long do they take to move in? Because there's a potential big payday If the person didn't move.
Michael Mulligan:The landlord didn't get into the house at a reasonable period of time, and so this case, the landlord gave notice to the tenant, tenant moved out after a couple of months and then the landlord was doing some repair work on the house before moving into it. They took out the carpet and realized there had been water leaks in the house that required them to remove drywall, replace appliances, repair structural damage, plumbing and electrical work get permits to do these things, and so that delayed them moving into the house. Now it got a little fuzzy because the landlord, in addition to fixing the problems that became apparent when the carpet got removed, decided to do other things like replacing windows and ordering appliances and, I think, doing another upgrade or two to the property, and that delayed them moving into it. And so the former tenants brought an application to try to get 12 months rent, which produced a hearing under the Residential Tendency Act. And that's where things started to go a little haywire here and how it eventually wound up in court. And the challenges and this would be something that would have been entrenched over the period of COVID is that these hearings are now conducted by routinely and presumptively telephone. Now, that's okay, I guess, so far as it goes, it's a 20-minute hearing by telephone. But one of the requirements under the Residential Tendency Act and this would be a requirement of procedural fairness is that the parties need to if they're going to be relying on documents during the hearing, they need to give them to the other person, right? That sort of fairness kind of dictates that right. You don't say, just like in court, you can't sort of pass something secretly up to the judge without letting the other person see it. That's not right. No, so here there's a requirement to do that. The problem is that when the hearing is conducted by telephone it may not be apparent well what exactly is being referred to here.
Michael Mulligan:And after the decision was made. And the decision by the adjudicator was that the additional work that the landlord did, apart from replacing the drywall and the structural damage and the electrical work and so on from the water leaks, amounted to not just addressing a deficiency but doing an upgrade on the property. And so the language in the Residential Tendency Act, when somebody hasn't moved in in a reasonable period of time, is that there has to be an exigent circumstance which prevented them from moving in. And so, in any case, the adjudicator here said well, I don't think this was an exigent circumstance. I guess the adjudicator was interpreting it in a way to say you have to live through your renovations, you have to be in there yourself Tough enough Interesting In any case it became.
Michael Mulligan:After the decision where the adjudicator awarded the tenant $16,200, the 12 months rent, it became apparent that the former tenants had provided more material to the adjudicator that the adjudicator was looking at in making their decision. That was not provided to the former landlord and it wasn't the parent during the hearing, it was on the phone. So you've got the adjudicator looking at various things and making a decision about the repairs the tenants talking about. They were suggesting oh, we don't think that the mold damage was that bad and we didn't notice it in the kitchen, this kind of thing. And the adjudicator was going along looking at a bundle of documents that turned out only later. The landlord was never given, and so that's the fact pattern that wound up in court by way of a judicial review.
Michael Mulligan:And I should say this these cases are becoming now relatively common, whereas in the past it would be very rare for a residential tenancy decision to wind up in the Supreme Court for things like a judicial review, because it would be uneconomic. Right If people are fighting over a month's rent or what about this or that, it's not worth doing that. But when the Act is out and amended, trying to close off a way in which a tenancy could possibly be ended by a landlord by producing this sort of gamified, large possible award, the cases are winding up in Supreme Court. And so here the judge, who had to review all of this, concluded that, well, it's perfectly acceptable that residential tenancy decisions be made in a summary fashion. Right, we, we, you want to have process, the kind of accords with how much people are fighting over, right, and so doing them by telephone makes sense. Or, if you're fighting over a few hundred dollars, you probably shouldn't make everyone take the day off work and go to court and hire a lawyer. That's just not going to work. Right, that's fine, but there has to be a high degree of procedural fairness, and that's going to be even more carefully scrutinized when there's a large amount of money involved, which is part of what's happening here.
Michael Mulligan:You've got the government creating what amounts to sort of penalty provisions payable to the tenant If a landlord tries to end a tenancy. Right? So, bear in mind, ordinarily, with a contract, people are would be able to write up a contract that would say hey, I'm going to rent my house to you for two years, is that okay? Yeah, you agree, I agree. Great, we agree, right, um, but those kinds of things are just not permitted any longer. Like, once somebody gets in as a tenant, they're in right, unless the landlord can somehow find some provision that would allow the thing to end. And then they also restrict, uh, of course, uh how much rent can be charged. And so you wind up with circumstances where, in many cases, there's no longer some meeting of the minds where the two people agree, for a mutual benefit, that they want to exchange something for money.
Michael Mulligan:Yeah, it's a circumstance where the government is sort of effectively tried to sort of expropriate part of the value of people's property to redistribute to a certain group of people, those being current tenants. Right, and I guess that's a philosophical thing. Generally, with the sort of rent control uh efforts, whether that's appropriate or not, I suppose I would say we'd be better off as a public policy if we want to subsidize rent for existing tenants, tax everyone uh and give them a subsidy, rather than trying to extract that value from people that happened to be existing landlords. Otherwise, of course, you're going to wind up with all kinds of arguments about, you know, whether the person can possibly get out of some unwilling uh uh agreement, which is what people have been forced into. And then you wind up with provisions like this trying to plug uh holes yeah, people are doing things improperly. And then even where nobody seems to like, in this case, have been doing anything untoward, you wind up with this kind of a decision and reviews and court cases and so on. And so it's just an example of that.
Michael Mulligan:Um, there'll be a new hearing in this case where the landlord will get all of the material and get to go back and have another telephone hearing uh, and we'll have to wait the outcome here, but I think it's worth people knowing about both in terms of that reality. Uh, and I'm no doubt this would fact this kind of a case and this kind of a circumstance is going to factor into people's decisions about do you ever want to be a landlord? Because you are now subject to potentially very large uh awards. Uh, you know, if it takes too long to uh fix up the rotten floorboards or whatever, get the appliances into the house, if, uh, if you ever want to move back into it, so that's the uh. That's the case of the Duncan, legally, speaking.
Adam Stirling:We'll continue in just a moment. Michael Mulligan, from Mulligan defense lawyers. After this, legally speaking on C facts 1070, michael Moulton, from Mulligan defense lawyers. As we continue our segment today, what's next on the agenda?
Michael Mulligan:Michael Uh next on the agenda is a case we spoke about uh back at the trial stage. There's now had an appeal uh, and it's got a local element to it as well. Uh, it's a case that involves a former manager of galaxy boaters, which is a chain of? Uh several used card dealerships Uh or lots on Baker Rylan Uh, and it was a wrongful dismissal claim brought by a former manager of Galaxy Motors. And the first thing that was notable about it I think both the trial decision and the court of appeal decision is that's a pretty good line of work to be in, it would seem, as the fellow's income in the year that he was terminated was between $750,000 and $1 million. So don't feel bad if you're leaning into the used car dealership for a bit of a discount on the truck you're buying. It would seem that they're doing pretty well Uh. So the background of it was that this fellow, the manager, well paid manager uh went on a business trip up to Parksville and brought his wife and, according to the judge, they found that uh, while staying in Parksville, uh the manager had dinner with his wife but wrote the name of two employees on the dinner receipt and the next morning had breakfast at the same restaurant and wrote another employee's name on the receipt and submitted them for reimbursement. Uh, that got spotted on an audit. He was confronted with it and denied doing it. Uh, and as a result of that he was fired.
Michael Mulligan:Uh, he sued for wrongful dismissal and that case went to trial, unsuccessfully, uh for the former manager, and so he appealed that uh, and one of the grounds of appeal was arguing that uh, the uh, what the judge found to be dishonesty surrounding the restaurant expenses should not have, standing alone, been sufficient to provide just cause for dismissal. Is the way it works is that if an employer has just cause to fire somebody, they can do exactly that. Right, yes, you're fired and they're not. You're not entitled to any compensation, but if you're fired without just cause, a person could be uh entitled to it would presently be entitled to either notice or pay in lieu of notice, depending on. You know how long did they work there for and how specialized was the job? Did the person find other employment? And so the central issue in wrongful dismissal cases, as can often be, was something just cause for firing. Uh, and the former manager argued that uh, the? Uh.
Michael Mulligan:The single instance of uh, the writing the employee's names on the receipt for the two meals with the wife um should not have amounted to just cause, because the car dealership uh had uh alleged other things as well, a broader pattern of misconduct, uh, and the court of appeal found that that was not uh a ground of appeal, found that the uh fact that the fellow had uh submitted the receipts improperly and then not acknowledged it when confronted with it, uh found that the act relied upon by the judge, those things, according to the court of appeal, went to the heart of the employer employee relationship and that it was sufficient uh cause for dismissal. Hmm, uh. And so that's one takeaway there, sort of how, uh, you know, dishonesty in that regard can be the end of employment without any compensation. Then the other thing which was, I think, worth noting the unsuccessful former manager submitted an affidavit on the appeal setting out that, hey, he had other expenses that he could have claimed that he didn't claim, arguing that, well, I haven't really profited from this because I had other legitimate expenses that I didn't claim for. So I was reimbursed for less than really what I was entitled to, even if those two meals shouldn't have been paid for by the car dealership.
Michael Mulligan:And that raised the first issue which people should know about, which is a test for fresh evidence on an appeal, and the idea there is that you can't just sort of argue your case at trial, not succeed, and then come along later and say, well, look at this evidence, it's all very compelling. And so there's a four-part test you need to satisfy If you want, on an appeal, the Court of Appeal to look at something new. And the first part of it is you have to show that, if that, you could not, if you were duly diligent have found whatever it is you're trying to rely upon at the time of your trial right. Next you have to show that it would be relevant. Next, you have to show that it's potentially credible or reasonably capable of belief, and then, finally, you have to show that it could have reasonably be expected to have affected the outcome of the trial. It's got to be important, not just some minor point. And so, looking at that, the Court of Appeal found it doesn't even get past the first test.
Michael Mulligan:If you had some receipts you didn't claim for, you could easily have found those at time of the trial. You didn't, and so this is not something fresh or new that you couldn't have found without, if you exercise due diligence. So it doesn't even get past the first hurdle. And then, moreover, the Court of Appeal found that the evidence, not only that, but it was not relevant and could not have affected the result. Right, because the basis for finding that there was just cause to fire the fellow was that this conduct and his response to it sort of undermined the trust relationship with the senior employee, and so the fact that he may not have claimed other things that he could have claimed, that just would not have affected the outcome of the case, and so that ground of appeal was dismissed as well, and so the outcome from the Court of Appeal is no compensation. The restaurant receipts with the employee's name and then the response to it, those things together amounted to just cause for the dismissal, and so that's the life lesson from Galaxy Motors.
Adam Stirling:All right, we have five and a half minutes left. I see a couple of stories on the agenda. Which would we prefer?
Michael Mulligan:Sure, well, why don't we talk about the Court of Appeal decision involving the person who wanted to be a doctor? Sure, interesting one, all right. And so the background of that? This is also a local case. It was a woman who was going to university of Victoria doing a bachelor's degree in science, and she was very unfortunate. That would appear from the decision. She wound up in a total of four car accidents between 2014 and 2020. Wow, and not all the details are set out here, but at least one of them wasn't her fault. She was a passenger in a car that got rear-ended, so, fair enough, she was very unfortunate in terms of car accidents.
Michael Mulligan:Now, this case predates no fault, which is important to know, and that's important to know because, prior to no fault, one of the things that could be considered in a case where somebody was injured and it affected their ability to work in the future is that a court could need to consider like well, what were your future prospects, how are things likely to work out for you, and how did the accident impact that Right? Did the accident make it less likely you would have pursued your career as a I don't know ballet dancer or, in this case, doctor? And the woman's argument was that she was wanting to go to medical school and the effect of these, all these car accidents which had did appear to have a significant effect on her physically and psychologically she had, I think, mild traumatic brain injury flowing from these things affected her ability to become a doctor, and so she wanted to think she was asking for, in terms of compensation, was the difference between how much she would make as a nurse, which is, she went through nursing school and how much she would have made if she'd become a doctor. And her argument was well, my ability to become a doctor was impaired by these car accidents. And so that's what the trial judge had to wrestle with and what, ultimately, the court of appeal had to sort out, and that's complicated. Even the court of appeal judges couldn't agree on the proper result here. It was a split decision, it was two to one court of appeal, and the background of it is the trial judge concluded, based on the evidence that she had, was that they? She concluded that there was a 75% chance that this woman would have gotten into medical school and then looked at how much money she would be making Working for the rest of her life as a registered nurse and how much money she would have made had she succeeded in getting into medical school and then awarded her the difference. Right, it's been some contingencies.
Michael Mulligan:The majority of the court of appeal interestingly didn't agree with the trial judge and part of the analysis was looking at what is her person's actual chances of getting into medical school. Yeah, yeah, saying I want to go to medical school doesn't mean you're going to medical school. And so they were right into the weeds looking at things like well, what were her transcripts like? What were her marks? How many people get into medical school? What's the acceptance rate? How many spots are there all across the country? Yeah, and one of the very interesting tidbits there and this maybe, is a comment on grade inflation. She, apparently the woman had not that great grades for the first few years of university but then really buckled down, was doing very well. Yes, and in fact in her nursing program which she had transferred over to, I think you, yeah, you BC, she was in the a to a plus range, although this was an odd point. The her transcripts indicated that was the average in her class. So I'm not sure what that looks like, but apparently the nursing program's got a pretty high, pretty high grading scheme.
Michael Mulligan:Now the other caught the other factor which was not in her favor. It's so found the majority of the court of appeal is that she had not written the MCAT. The MCAT is like the Please into whether you're gonna get into medical school. Yes, and so the majority of the court of appeal said look, I appreciate she's done very well in her last. You know her nursing program and she's keen and wants to go to medical school, but you haven't written the MCAT. The very few people get into medical school. The acceptance rate is really low.
Michael Mulligan:And so, effectively, what the majority did was to find that the accidents Diminished her chances of getting into medical school by 10% Not that she was a 75% probability of getting in and look what the income would have been and just subtract one from the other and Calculated in the amount, the majority found that no, they did have an effect. Right, you, your chances of getting in may have been better, but for these various car accidents. But concluded that rather than there being a 75% chance she would have gotten in, concluded there was only a 20% probability she actually would have been admitted. And then we found that the accidents reduced that and so the proper amount would be. You had a 20% chance. Your accidents reduced that and then this is the amount that you would get and the difference at the end of the day was $450,000, but it's a really interesting insight into how that works.
Michael Mulligan:Yeah, the other thing to note is that, under no fault, none of this occurs. What happens is you get a percentage of the income you're making at the time You're disabled in the accident and so if you're a medical student, say in your last year, of course part time, you work part time at the coffee shop. Yeah, you will resend your disabled completely. You cannot work for the rest of your life. You get a portion of what you make at the coffee shop and that's it.
Michael Mulligan:Consideration is given to what was almost certain to happen next year. As soon as you graduated, you're just considered part-time coffee shop employee for the rest of your life. That's awful and so really interesting case. But we know, wow, it's imagine that outcome now. So, yeah, that's a local case for the woman who wanted to be a doctor important example.
Adam Stirling:Michael Mulligan, appreciate your time as always, until next week. Thank you so much. Have a great day. That's a Michael Mulligan Mulligan defense lawyers, legally speaking during the second half of our second hour on the program every Thursday. News is next.