Protesters, Pigs, Trusts and Soccer Tackle Liability

This episode brings to the forefront the delicate balance between activism and legality, alongside the intricate nature of estate planning. The discussions offer invaluable insights for anyone interested in how the legal system addresses these often contentious issues.

We are also introduced to animal rights protesters who took drastic measures to expose what they believed were injustices within a pig farm. Barrister and Solicitor Michael Mulligan dissects the legal reasoning behind the protesters' defence, which drew parallels to a seemingly unrelated case in Ontario involving zoning laws and noise complaints. Mulligan brings to light the Court of Appeal's decision, which focused on the immediate legalities of the protesters' actions rather than the broader ethical questions raised by their cause. This segment highlights the complexities that arise when the fervour of activism meets the strictures of the legal system.

The episode also delves into the often-overlooked nuances of estate planning, illustrating how easily intentions can become muddied without explicit legal documentation. The story of a family torn apart by a contentious asset transfer serves as a cautionary tale, emphasizing the importance of clear directives in estate planning. Mulligan elucidates the concept of a resulting trust presumption and the admissibility of hearsay evidence in court, showing how these legal mechanisms can shape the outcome of inheritance disputes.

Furthermore, the episode explores the critical role of explicit legal planning in safeguarding one's final wishes. It highlights the importance of leaving behind a clear and legally sound plan to avoid leaving loved ones embroiled in litigation.

Finally, the episode deals with a successful claim for negligence arising from a serious injury caused by a side tackle in a recreational soccer game.

Using a hockey analogy to explain the situation to a broad Canadian audience, the Court of Appeal explains that legal liability can flow from activity permitted in a game that is carried out in a reckless manner.

Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

Adam Stirling: 0:00

It's time for our regular segment with Barrister and Solicitor, with Mulligan Defense Lawyers. Good morning, michael Mulligan. How you doing it's Legally Speaking, hey good morning.

Michael Mulligan: 0:08

I'm doing great. Nice and warm and always good to be here?

Adam Stirling: 0:11

Absolutely, and again we had that really helpfully timed snowfall warning issue just before 10 am, about half an hour ago. Another 10 centimeters on the way, so everybody should get comfortable. Today's going to get interesting. What do we have on the agenda?

Michael Mulligan: 0:25

The first case on the agenda, I think, is a fascinating one. It's from the Court of Appeal and it was an appeal by two animal rights protesters who were convicted of breaking and entering and committing mischief and mischief in relation to a pig farm over in Abbotsford. And the background is that these protesters first of all the farmers, or one of the farmers at this farm, which kept between 13,000 and 15,000 hogs, so no small farm. They first of all, in March of 2019, they found four cameras hidden in the barn. They called the police, the police came and seized the cameras and then, in April, a bus load of protesters showed up wearing matching coveralls and t-shirts and broke into the barn and refused to leave for several hours until the media was allowed to show up and walk around and look at the barn. Well, the media was called, they looked around the barn and then the protesters left. But as they left, several of them were arrested and charged with various things. They were charged first of all with planting the camera back in March. On those charges, the jury acquitted. Well, actually, the jury didn't have to acquit them. The judge found there was just no evidence that these were the particular people who planted the camera, so they were in the clear on that, or camera, so they were in the clear on that front. But the jury who heard the case convicted them of breaking and entering and committing mischief and indeed committing mischief.

Michael Mulligan: 2:01

Now that brings us to what is mischief and what was this appeal all about? Well, mischief can involve interfering with the lawful use or enjoyment of property, and there are two interesting issues on the appeal. The first issue on the appeal was that the protesters argued that because they, in their view, the pigs weren't being treated well, the activity at the farm wasn't lawful activity. Therefore they couldn't interfere with the lawful use and enjoyment of the property because it wasn't lawful. That was the argument. Was that just fascinating? And indeed there is some authority for that general proposition. And one of the cases that the protesters argued on the appeal was a case out of Ontario, and the fact pattern there was that there was a parent the accused was playing loud music at three in the morning and a neighbor complained about being unable to sleep. Hey, you're interfering with my lawful use and enjoyment of my property. I can't sleep. But the neighbor who couldn't sleep was living in a studio which was not zoned for residential use. And so the judge said well, look, you don't have any lawful rate to be living there. It's a commercial only property. Therefore, no lawful use was interfered with. It was just your unlawful use of the place. And so there's an acquittal.

Michael Mulligan: 3:23

And so the protesters argued well, we argue that the pigs weren't being taken care of well, therefore this wasn't a lawful use and enjoyment of the property, which is in fact the interesting argument. And in that regard, at the trial, the judge had found that that just wasn't relevant. And interestingly and this is another little hiccup the police somehow lost the SD cards from the cameras they see, oh no, so they didn't have evidence of what was on them, they just got lost. And the judge found well, yeah, they shouldn't have lost, but that was a serious problem, but there's no evidence that these people planted them anyways. And then the judge's view at the trial well, how the pigs were treated just had nothing to do with anything, and so no remedy for that. And then, interestingly, at the trial there was some evidence from a vet who had showed up and looked at the circumstance when the protesters were there, and the vet expressed some alarm that all these protesters could infect the pigs with something, maybe COVID or something else and so there was some discussion about whether the pigs were endangered by these protesters and ultimately there was some expert evidence the crown led about from a person about the danger the pigs could have been put in by the protesters showing up in their barn, maybe coughing on them, and so that was sort of floating out there, so going that out on the multiples of two or three not to answer the question.

Michael Mulligan: 4:46

But Unfortunately for the protesters, the judges of the Court of Appeal. They consider that argument about the unlawfully sleeping in the loft and you can't interfere with somebody doing something unlawful. But the judge found there was no evidence that there was anything unlawful going on when the protesters were there and when the media toured the farm was just a bunch of pigs, nothing, there's no problem, other than perhaps the protesters could have got them sick. And so the judge found the particular charge was interfering with the lawful use and enjoyment of the property. On the day the busload of protesters showed up and occupied part of the barn, and so on that basis the judge found that it was irrelevant whether something might have gone on that could have been captured on the SD cards and the cameras that the police lost because that just wasn't part of what was charged here, and so on that basis, the judge judges from the Court of Appeal said look, there's no problem and there was no sort of no harm, no foul on losing the SD cards, because what might or might not have been captured on the hidden cameras really didn't impact on the mischief charge at all.

Michael Mulligan: 5:52

Now, the other interesting element was that the on the appeal, the protesters argued that the crown shouldn't have been able to lead this expert evidence about the possibility of the pigs getting sick from the protesters, which was interesting. Now, on that front, the Court of Appeal found that in fact that evidence was not relevant because the charge wasn't getting the pigs sick. Possibly the charge was interfering with the lawful use and enjoyment of the barn by this protest showing up in the barn, and so that the Court of Appeal found the judge should either not have allowed that evidence or should have instructed the jury to ignore it or use caution about it because it had nothing to do with anything. But there's a section of the criminal code for appeals at 686, one which is sometimes called a curative proviso, and that says that if there's no substantial wrong or miscarriage of justice, even if the judge makes some minor mistake, that it doesn't mean there has to be a new trial.

Michael Mulligan: 6:55

And so here the Court of Appeal said well, well, we shouldn't have really had this evidence from the doctor about the possibility of the pigs getting sick, because that had just nothing to do with anything. What was being alleged here was you interfered with the farmers ability to farm in the barn for six hours while you waited for the media to show up to tour the barn. Nothing came of that and there was no evidence that there's anything unlawful going on on that day. And so the conviction for breaking and entering and committing mischief and mischief were upheld, although interesting arguments, I thought, and some creative legal thought. I tried to make an analogy to that sleeping person in the commercially zoned loft. So that's the case of mischief from the barn, and that's the outcome.

Adam Stirling: 7:43

All right, let's take our first break here at CFAQ 1070. Legally speaking, with Michael Mulligan from Mulligan Defense Lawyers. We'll continue after this Back on the air here at CFAQ 1070,. It's legally speaking, with Michael Mulligan, barrister and Solicitor with Mulligan Defense Lawyers. Michael, you've told us many times how complicated family law matters can be due to the emotionally charged nature of the relationships that are at stake. This can be made even more complicated when it comes to estate matters and inheritances, and it is against that backdrop that we see our next story come into view.

Michael Mulligan: 8:16

That is absolutely the case, and this is a local case from Victoria here, which is an example of perhaps a surefire way to ensure that there will be litigation over your estate. And the background is that a father who owned a home who had three children a few months before he passed away I think he was ill listed the home for sale. To make things more complicated, one of the children the son had lived in the home for many years, but the father sold the home and then put all of the money from the home sale into a joint account with his daughter, and then he passed away. His will provided that his estate was to be divided equally amongst his children. However, all of his assets was really the home, and when you put money into a joint account, if you pass away, the other person who's the joint account holder just automatically gets all the money and it doesn't go through the estate. And so that's what happened here the daughter wound up with all of the money from the home and nothing for the other two kids.

Michael Mulligan: 9:24

Uh, that, of course, is going to produce some consternation and unhappiness and and many cases, as in this case, litigation and, uh, unlike in a case where there's a will that does something like that.

Michael Mulligan: 9:35

If you have a will that says all my money to one child, for example, if you don't make adequate provisions of the language for the support of other people, including children or spouse, there can be an application to vary the will. That doesn't happen if the money is transferred outside the will, like I put it into a joint account, for example. Uh, and so the argument here was an argument that we've touched on before, this concept called a resulting trust and the presumption of a resulting trust. When you give somebody money or other valuables with nothing in consideration, right, if I just come up to you and hand you a briefcase with a bunch of cash, uh, in it, for nothing, there is a called a rebutt, there's a rebuttable presumption that I'm not just giving the briefcase of cash to you as a present but in fact you're holding it for me, right? So that's the assumption of the law, makes reasonable and if that's sorry, it's reasonable yeah.

Michael Mulligan: 10:34

Yeah, if I just come with a new explanation. I just say hold this right If I hand you a briefcase it must be a present.

Adam Stirling: 10:40

Yeah, no, I won't give it back. He gave it to me, it's all mine.

Michael Mulligan: 10:43

Mulligan gave it to me. He's very generous. Proof he didn't, yeah, yeah, proof it. So when you're the person, like in that case, holding the briefcase, you have the burden of proving to a judge on a standard of probably, that I meant to give you the briefcase of the gift. So you know, that's that's the law. That's kind of consistent with human expectations, which is great. That's one of the elements of the law that I really enjoy, right, usually, you know Kevin's going to be sort of in accordance with what a reasonable person would think. Well, how should this be handled, right? Should we assume that if I had you something, it's yours? No, no, we don't assume that. Uh, and so that's the fact pattern. Now, the daughter who had the money in the account is okay. Well, I think I can prove that this was a gift. But I created an interesting issue and it's an interesting sort of legal issue people should be aware of.

Michael Mulligan: 11:32

Most people have heard of the concept of hearsay evidence, right. The idea there is that generally a witness can testify about things they saw or did not, what other people told them happened right, and so like if there's a bank robbery and the teller sees the bank robber and tells a police officer, you have a bank robber with six foot two with blonde hair. If you want evidence of what the bank robber looks like, you can't call the police officer that talked to the teller, or the teller's best neighbor or somebody who the teller described what happened to you. Call the teller, right, but the best person person actually saw it, not somebody who talked to that person. Now there's a thing to think about this. You're trying to see how the daughter is trying to establish that the father intended this money to be a gift for her and he's passed away, uh, and so necessarily, virtually, um, she's going to try to rely upon. Well, what did the, what did the father say about that? Right, unless it's written down, this is a gift for you and no one else.

Michael Mulligan: 12:32

It raises that issue. And so the judge had to deal with the issue of our statements allegedly made by the father to the daughter, admissible uh, to prove that this was a gift. And, on the face of it, those would be hearsay, because the father's not around, it's just somebody saying somebody else said this to me. Now, there are some in the law and we had for many years sort of various sort of uh, exemptions, exceptions to the hearsay rule, like, for example, there's one that still exists called the dying declaration. Exception to the hearsay rule? That would be, let's say, I'm shot and I know I'm going to die, and as I'm laying there on the uh you know sidewalk, I say to the police either the police or shows up right, you know, sterling shot me and then I pass away. That would be a jerk thing to do yeah.

Michael Mulligan: 13:22

I'm jerking to do, if not true, terrible, but yeah, the uh the idea there would be. People are unlikely to exclaim something that's false as they know they're about to pass away, and so the law carved out an exception for that. But in addition to that and various other sort of uh, specific exceptions, the Supreme Court of Canada a number of years ago created what's called a principal exception to the hearsay rule and what it requires a judge to do and adhere to. The statements like the, the daughter said well, the father at one point said to her I want you to have the money from the house sale. And then another occasion she says the father said to her uh, he's been living referring to the brother rent free all these years. This money is yours, right, those are pretty important. It's true and admissible.

Adam Stirling: 14:08

Yeah.

Michael Mulligan: 14:09

Um. And so the principal exception requires a judge to first of all say is it necessary to accept hearsay evidence? Right, so that necessity would be. Let's say, in the example of the bank robbery and the teller, if the teller is still alive and kicking, we'll just call the teller to describe what the bank robber looked like, not somebody the teller talked to, right? Why do we want to create a game of telephone if we can call the actual witness Right Now? Here? The father passed away.

Michael Mulligan: 14:37

So the judge said well, it means that part of the test is necessary, in the sense that there's no other way to get this evidence about what the father's intention was. He's gone. And then, if it's necessary, the judge has to analyze whether there is sort of circumstances that would establish, admit, reliability, at least to the threshold of the evidence being admissible. And that doesn't mean that the judge or jury has to believe the evidence. But are there some circumstances here which would cause the judge to conclude yes, it's both necessary, we can't get the evidence any other way. And is there some circumstances of reliability that would make the statements admissible? And that's really the principle exception. And here the judge found that the daughter was a apparently credible witness and gave the evidence, said in a straightforward fashion, and found that it did meet that test.

Michael Mulligan: 15:31

And so the judge found those statements to be admissible and on the basis of those statements largely because those are pretty compelling if they're accepted- right the judge found that that did rebut that presumption that the money was put in as a trust, holding it for others or to be given back to the person, and found that no, they're what the daughter had. Succeeded here in establishing that there is evidence on a balance of probabilities that the father intended the money from the house sale to be a gift just to her, and so the net outcome of this is the daughter gets to keep all of the money and nothing to the brother, and so that's the outcome. All those things people should be aware of. But I suppose one of the bigger takeaways there a couple would be first of all, carefully consider if you want to do this, because you're almost certain to produce litigation. Second of all, if you are doing it and you conclude there's some good reason to do it, like the father, obviously on the daughter's evidence concluded that well, the brother had got to live for many years rent free in the house, so thought it was fair to give all the money to her.

Michael Mulligan: 16:38

Oh fine, that's his intention. It would be a wise idea to write that down. Make clear what you're doing. I'm giving this to you as a gift and I'm doing it because your brother lived there rent free for 10 years, and so I've concluded this is a fair distribution. Thank you very much. Right, you would probably see all of this litigation, but if you don't do that, you'll produce this, and so now the daughter will get all the money, minus whatever it's cost, here to litigate the issue about whether that should have been given to her. So that's the case. The gift of the house.

Adam Stirling: 17:07

Up next a recreational soccer game, a slide tackle and a substantial cash award.

Michael Mulligan: 17:14

Yeah, this is interesting. This was a this is another court of appeal decision and it was a case involving a recreational soccer game where there was a slide tackle and the slide tackle. Unfortunately, and for those that don't know what a slide tackle is, it would be a defensive move by a soccer player trying to get the ball away from somebody who's got it by sliding into them, often with like one leg outstretched trying to kick the ball away, and interestingly, that is a permitted maneuver under FIFA rules. This game is being played under FIFA rules Now. The rules, however, provide that that kind of a side tackle is not permitted if it is, in the user's various language, careless, reckless or using excessive force. So there's a judgment call there about how that could be performed, and in this case there was this slide tackle which was from kind of behind into the left of a person and it wound up impacting, I think, rather than hitting just the ball with the foot of the tackler, although the use of the term tackle is sort of interesting. That would sort of imply some physical contact with the person, but the concept would be you're trying to hit the ball, not the person. Here. A person got hit, person goes, goes down and seriously injures their shoulder, the referee at the time gave the tackler a yellow card. For soccer fans that is distinct, of course. That's like a warning, distinct from a red card, which would be you're out of the game, right, and so that's the fact pattern.

Michael Mulligan: 18:54

Now there are a couple of things to be said about that. First of all, on the appeal here the argument was in part hey, this was sort of a agreed to part of the game. You've kind of consented to this risk with this kind of a tackle, because, look, after all, side tackles are lawful within the rules of the game. And moreover, one of the arguments made both at trial and on the appeal was hey, this was a very experienced referee. He apparently had 70, he was 71 years of age, with a wealth of experience, was very close to the play, but didn't give a person a red card in the yellow card. And so the part of the argument was well, look, surely that is some pretty compelling indication that this wasn't so far out of the rules and so reckless that it would attract civil liability. Now, the court of appeal. This is a good line. So, look, the referee may be in charge of the game, but the judge is in charge of the lawsuit, and so, even though that was the conclusion of the referee at the time, which was described by the court of appeal as perhaps being very generous on part of the charitable, on the part of the ref, it was the judge who was in charge of the litigation and not the ref, and the referee did describe the tackle as being very reckless At least that was a description at trial.

Michael Mulligan: 20:24

Now, the other thing you made me smile reading this case, given that we're in Canada, is that the court of appeal found it necessary to draw a hockey analogy so that those of us in Canada could understand what are the reasons going on here, perhaps given the popularity of hockey. And so the court of appeal says, by analogy, open ice body checking is permitted. In hockey, however, liability and negligence may flow if a body check is executed in a manner that exposes an opponent to an unreasonable risk of harm. And so I'm sure that many of the readers, listeners, are like oh, I see, okay, it's like a body check. And so the court of or the court of appeal, concluded that, look, even though this may be a permitted maneuver, and even though the ref in this case was very charitable and didn't give the player a red card for what they observed from only 10 or 12 yards away. Ultimately, this was the sort of conduct which, even according to the FIFA rules, should have probably resulted in a red card, which is appropriate.

Michael Mulligan: 21:29

Where a tackle or charge is undertaken in the languages with excessive force or in danger to safety of an opponent and is described as a serious foul play and so much like. In hockey you can have. Body checking may be lawful, but if you do it in a completely reckless way, such that it's you endanger somebody, you can be civilly liable. And so the court of appeal here on the appeal upheld the award, and it was something in excess of $100,000 for the injury suffered by the player who got hit. And so I guess the takeaway is, when you're playing any kind of a recreational game hockey, soccer or otherwise be careful. You're not in a negligence free zone, even though by playing those things you clearly consented to some risk of something happening. But if you go too far and you engage in reckless and excessive behavior, even though some form of it might be contemplated by the rules, you can wind up on the hook if you cause a serious injury to somebody else, and that's the outcome here.

Adam Stirling: 22:38

Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday on CFAQ 1070. Michael, thank you. Pleasure as always. Thank you so much. Have a great day, you too. Bye now.