Unravel the complexities of Canadian law with barrister and solicitor Michael Mulligan, as he clarifies a major court decision on the government's use of the Emergencies Act during the 2022 trucker protest. Grasp the intricacies of why the court found this move both unreasonable and unconstitutional, and how it could signify a turning point for civil liberties in Canada. We're breaking down the Charter of Rights and Freedoms, potential overreach of government power, and the implications of free expression, all through the expert lens of our esteemed guest.
Transitioning to the tangible world of construction and liability, the episode shifts gears to dissect the Ridgeview Place legal saga. Michael Mulligan aids us in navigating the treacherous waters of who's to blame when construction goes awry, especially after companies dissolve and municipalities are left holding the bag. This segment promises to shed light on how a recent appeal court decision might reshape the landscape of liability in construction, affecting everything from individual property rights to the responsibilities of engineering firms and the role of municipalities in safeguarding their communities. Join us as we investigate these legal battles and their far-reaching consequences on the industry.
Follow this link for a transcript of the show and links to the cases discussed.
Unravel the complexities of Canadian law with barrister and solicitor Michael Mulligan, as he clarifies a major court decision on the government's use of the Emergencies Act during the 2022 trucker protest. Grasp the intricacies of why the court found this move both unreasonable and unconstitutional, and how it could signify a turning point for civil liberties in Canada. We're breaking down the Charter of Rights and Freedoms, potential overreach of government power, and the implications of free expression, all through the expert lens of our esteemed guest.
Transitioning to the tangible world of construction and liability, the episode shifts gears to dissect the Ridgeview Place legal saga. Michael Mulligan aids us in navigating the treacherous waters of who's to blame when construction goes awry, especially after companies dissolve and municipalities are left holding the bag. This segment promises to shed light on how a recent appeal court decision might reshape the landscape of liability in construction, affecting everything from individual property rights to the responsibilities of engineering firms and the role of municipalities in safeguarding their communities. Join us as we investigate these legal battles and their far-reaching consequences on the industry.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for Legally Speaking, joined as always by Michael Mulligan, barrister and Solicitor, with Mulligan Defense Lawyers. Morning, michael. How are we doing? Hey, good morning, I'm doing great. Always good to be here. A couple of very interesting stories on the agenda for this week, of course, the one everybody is talking about with a federal court decision. Shall we start with the Emergencies Act.
Michael Mulligan:Sure, it's a very interesting decision, which I'm not sure the government read before it started responding to us and saying it was wanting to appeal, but it's a very interesting 190-page read, at least for me.
Michael Mulligan:The challenge was, of course, a challenge to the declaration of a public order emergency in February of 2022, as a result of the trucker protest around the Parliament buildings and elsewhere. The judge concluded that that use of the Emergencies Act was both unreasonable and unconstitutional. The analysis was an interesting one. First of all, it's important to know that the Act doesn't just allow anyone at any point to come out and yell I declare an emergency, as you would hope. It defines what is meant by, for the purpose of this Act, a public order emergency. The essence of it is it has to be a national emergency, it's got to be urgent, a critical situation that's temporary. It has to seriously endanger life, health, safety of Canadians. It has to exceed the capacity or authority of provinces to deal with and this is important and that it cannot be effectively dealt with under any other law of Canada. And so, the important thing and the judge finds this halfway through the decision he says look, the Emergencies Act is a tool of last resort. The government can't invoke the Emergencies Act because it's convenient, it might work better than other tools at its disposal or disposal of the provinces. It doesn't mean that every other thing that you could possibly do has to have been tried right, the judge says that, but he said in this instance the evidence is clear.
Michael Mulligan:The majority of the provinces were able to deal with the situation using other federal laws, such as the criminal code and their own legislation, and so that's really what's at the heart of the finding that the decision to use the Emergencies Act was unreasonable right, because, remember, we have really broad authority to do all kinds of things without having to declare an emergency right. The criminal code can be enforced. It's unlawful to, for example, block people from going down the road, as we've talked about. You can get an injunction in court in order people to be removed. You can enforce injunctions. You can arrest people. There are all these. There's really quite broad authority that we have, without resorting to this act, that allows for the control of all sorts of situations, including things like you're blocking a road or you're blocking a bridge. We don't have to resort to the Emergency Act to do that, and so the judge found that in virtually all the provinces, that was dealt with under those laws. And even in the circumstance, like in Ottawa, where there's horn honking and people all around the Parliament buildings and blocking the road and so on, that it just wasn't on the evidence such that those things could not have been dealt with by operation of the laws that currently exist, and so there wasn't an evidentiary basis to declare this emergency and the extraordinary powers that it provides.
Michael Mulligan:And then the judge moved on to a constitutional analysis and found that, on that basis as well, the regulations that were brought into place pursuant to this Emergency Act, which allow for really broad and draconian things, what was brought in and it's important to remember what was being challenged was not the act itself, like it wasn't a constitutional challenge saying, well, you can't have an emergencies act or in no circumstance could you have an emergency.
Michael Mulligan:What was being challenged was the use of it in this case, and in that regard the judge found that the regulations the government did impose, which were quite sweeping right.
Michael Mulligan:They were doing things like requiring financial institutions to freeze bank accounts and credit cards of people they thought were associated, banning people from coming to the Parliament buildings, and so on. He found that those were overbroad and were in breach of sections including 2B, the freedom of expression and opinion, and so on under the Charter freedom from search and seizure, section 8. What they were doing involved things like freezing the bank accounts and credit cards of things like family members and joint account holders the people that were protesting such that they couldn't pay bills. The judges found that was just way too broad and didn't meet the sort of minimal impairment that's required when you are going to be breaching somebody's constitutional rights, and so the judge found, on both those grounds, it was unreasonable and unconstitutional. One of the interesting things that was argued that the judge found that he did not need to consider I think is worth noting is one of the other things that the litigants claimed was that the judge should be applying the Canadian Bill of Rights, which is a different thing from the Charter.
Adam Stirling:The.
Michael Mulligan:Bill of Rights is a piece of legislation that came in in 1960. And it was sort of a predecessor to the Charter. But it's still in force and the way the Bill of Rights works is it's just an ordinary piece of federal legislation. But what it says is that unless another piece of, of course, you can't bind future parliaments right. Is it just a piece of legislation?
Michael Mulligan:the government could in theory, the Parliament could repeal it right. But it says that unless the parliament, unless other legislation expressly says that it's operating not withstanding the Bill of Rights, any other legislation should be interpreted in a way that doesn't abridge, abrogate or infringe the various things, the rights that are set out in the Bill of Rights. That's how it's designed to operate, and one of the things the Bill of Rights has, which the Charter does not have, is a protection for property rights. One of the protections of the Bill of Rights is, it says, the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law. And so one of the I thought really creative arguments was hey look, this may not be. You've frozen people's bank accounts without any process or allowing them to make any submissions. You're freezing bank accounts of family members. All of this without any process at all. Those people didn't get to say anything about it. There wasn't any hearing. That they argued was in violation of the Canadian Bill of Rights.
Michael Mulligan:That's him, I think, a really good argument by the judge found. He didn't even need to get to that, he didn't even need to interpret it because of his principal findings that what the government did was both unreasonable and unconstitutional. He didn't even need to use the interpretive powers or the Canadian bill of rights to find that what went on there may have also interfered with the enjoyment of property. But that's an interesting thing people should know about. That's the difference between Canada and the US.
Michael Mulligan:Property rights are protected in their constitution. They are not in Canada. Now we still do have the Bill of Rights, but the Bill of Rights of course, or of course. But the Bill of Rights applies only to federal legislation. So you could not rely on the Bill of Rights to argue about, for example, what the government might be doing to landlords or condo owners or various people in BC, because those aren't federal laws, they're provincial. And so that's the Bill of Rights. That's how it was argued and that was the outcome of that I thought quite remarkable decision that the government announced it was going to appeal faster than anyone could possibly have read the thing. But I guess we'll see what comes of it if you are interested in, say, an interesting 190-page careful analysis of what went on. And boy are we fortunate to live in a country where we have an independent judiciary to review things like this and tell us whether what went on was lawful or not? The answer here was no.
Adam Stirling:Did the court make a finding as to whether the protest was legal?
Michael Mulligan:Well, that's interesting. The court was not declaring the protest to be legal and, in fact, what the court was saying is there may be things that were going on. Of course, protesting is legal.
Michael Mulligan:Yes, but this one but the point the court's making is there are things going on that clearly would be, at least in my view, not legal. Like you can't legally block the bridge running to the United States to get your point across, any more than you can crazy glue yourself to the road on Blanchard or something to try to make your point that you don't like trees getting cut down, neither are legal right. The point is that you don't need to invoke the Emergencies Act to unlaw the person from the road.
Michael Mulligan:You can go there and enforce the criminal law. You can get an injunction, you can do all sorts of things. We don't need to go to the Emergencies Act. It's just hey, you can't crazy, glue yourself to the road and you can't block a bridge in order to make your political point. The point is that we have authority to deal with that. You don't need to go here.
Adam Stirling:Yeah, so in other words, we could have seen an outcome where they sent in the police horses and shot a bunch of people. That would be legal, but freezing bank accounts was illegal. Well, I don't know about the shooting people. Well, if they fought back, if they had weapons, look if it came to that.
Michael Mulligan:Fair enough. But I mean, I'm saying, for example, if you've got trucks blocking a bridge, there's no question the police could show up and tow the trucks away, right, or arrest the people for doing it. Hey, you're committing a crime, you're under arrest, you don't need to get special emergency powers to do that. It's already illegal. And whether the police force is doing what you think they should be doing, that's kind of a separate matter from do you have laws that allow them to do things? Well, yes, of course we do. We don't wait around until somebody decides to block the bridge or glue themselves to the road and then say, oh, my goodness, we have to set our hair on fire and declare an emergency. We've kind of thought of that in advance, and then so, unless you can show that, there isn't a way that it can be dealt with under the laws that exist you can't use this to sort of short circuit it.
Adam Stirling:Interesting I'm just sort of thinking through this because it was the bank account freezing was the power that didn't exist anywhere else and they did apply that. So, absent the Emergencies Act, they would have had to disband the protests using other means.
Michael Mulligan:But even that, for example, right. I mean we have laws on the books already dealing with things like proceeds of crime. We've got laws on the books dealing with all kinds of sweeping things right. And so the point is you can't go here because you think it might be easier or faster, or you know more efficient or whatever, or you don't like how the police are dealing with it.
Michael Mulligan:That may have been part of what went on, if you recall the dynamic at the time. You had this protest on the Parliament buildings and trucks blocking things and horns honking and the police didn't seem to be too engaged in moving some of that stuff along. And so there is no doubt political pressure to do something. And the judge, I must say, is pretty restrained. He's even sort of acknowledged the look. Yeah, he might have made the same wrong decision himself if he was called to at the time. But with the basis, with the benefit of hindsight and knowing what in fact was going on and looking carefully at the evidence, it just didn't meet the meet the requirements. So it was unlawful, all right.
Adam Stirling:Let's take our first break Legally speaking with Michael Mulligan from Mulligan Defense Lawyers. Right after this, back to legally speaking here on CFAQ 1070 with Michael Mulligan, barrister, and Slycer with Mulligan Defense Lawyers. Up next the latest on the Ridgeview Place saga, michael. But first I got a text and I just wanted to ask you how long might the appeal process take in the issue at the Emergencies Act before we have a final court ruling? That cannot be challenged.
Michael Mulligan:Perhaps years, because of course there could be an appeal from the federal court trial division to the federal court of appeal and then you could have, of course, one of the other parties seek leave to appeal to the Supreme Court of Canada.
Adam Stirling:Okay. So, we'll watch that with great interest. What's next? This is a complicated case.
Michael Mulligan:There's absolutely no doubt about that. So this is a court of appeal decision dealing with the litigation that's arisen out of the Ridgeview Place debacle, and it is extremely complicated for a variety of reasons, but one of the central. The background is this you had an original builder developer who wanted to construct that building, the. The builder who wanted to build it hired a company to do that. That company then hired some engineers to do the engineering of the building. It's now clear that the engineers had no experience doing that and were not competent to do the engineering on an 11 story building. They nonetheless did so, knowing that they didn't know how to do that. That's the origin of the problem. Now, the further complicating factors in the litigation included the fact that the original builders who built the thing sold the building, and they sold the building before that, before anyone was aware of that problem with the engineering, other than perhaps the engineers, of course, who knew they were incompetent to do it. And so the company that owns the building now, or they group of people that's a limited partnership that owns the building is suing all in sundry trying to recover for the fact that they've got this building that's now completely defective right. And things are made more complicated because the original builder developer has gone bankrupt, and so now you've got the entity that owns the building. Now who are they going to sue, and on what basis? They can't really sue the well. They can't sue the people, the company they purchased it from, they're bankrupt, and the bankruptcy act provides that claims are stayed when you go into bankruptcy. That's sort of the nature of the somebody going bankrupt. And so the owners of the building are trying to sue people, including the municipality Langford. They're also trying to sue the engineers saying, hey, you incompetent engineers, this is your fault, right, and it may be their fault, but the legal issues are these when you're suing somebody civilly, you need to have a basis to do that, and so one of the ways you could sue somebody would be for a breach of a contract, right? So you say, hey, we had an agreement to do this, you didn't hold up your end of it. I'm suing you for compensation. That's pretty obvious, right? The problem is the current owners of the building have no contract with the engineers. The entity that had a contract with them was the original builder developer, and they're bankrupt. Okay, so there's no contract with the engineers, and so the alternative approach is to sue them for what's referred to civilly as a tort, alleging that, hey, you were negligent in what you did, right, you were careless, you caused harm.
Michael Mulligan:Now, the wrinkle here is that you, there has to be that concept of suing somebody for negligence or carelessness. The law surrounding that requires there to be a sufficient proximity between the parties for there to be a duty of care. It's a bit of a mouthful, but the idea is that, let's say, you know, you see me flip and fall and get hurt on somebody else's yard. You can't. Well, that's not the best example. The point is there has to be a connection between the person you're alleging was careless and the person who's suing, trying to get compensated for it. Right, that's the basis of that.
Michael Mulligan:And at the trial stage, the owners of the company tried suing the engineers, amongst various other people, right, like the bankrupt company and the municipality, and so on. Yes, and the judge found that there wasn't a sufficiently close proximate relationship between the engineers who worked for the original owner developer, right, and the new owners just say, well, hey, these people aren't closely connected enough, you can't sue them in negligence because they didn't know you a duty of care and, moreover, you have no contract with them. They had a contract with the original builder developer. So who are you to sue them? You're out of luck. And so the judge at the trial stage found that the current owners were basically out of luck because you bought it from somebody who's bankrupt, and it was the bankrupt entity that had the agreement with these engineers that weren't competent to do the work, and so you don't have a claim.
Michael Mulligan:And so that's the meat of what got appealed to the court of appeal, and the court of appeal decision that just came out yesterday concluded that the judge who heard that was mistaken.
Michael Mulligan:And they did a careful analysis of the nature of the relationship between the engineering company and the company that went bankrupt and the new purchasers and how the sale transaction worked, and they relied upon a Supreme Court of Canada decision that dealt with condominium owners suing for defects in their condos and ultimately came to the opposite decision of the judge who originally heard the case and found that there was, at least on the face of it, enough proximity between the engineers, who didn't have the necessary authority and necessary skills to engineer this thing properly, and the company that purchased it and so found that the claim can go ahead.
Michael Mulligan:It shouldn't have been stopped against the engineers. But there are other interesting things that to come out of the decision, including pointing out that the engineering company which took on this task, despite having no employees or members with the necessary experience to do it, they found that one of the issues there is that the contract between that engineering company and the original builder developer had a provision that said their liability, the engineer's liability, was capped at the amount of fees they charged.
Adam Stirling:So a refund, a refund.
Michael Mulligan:Sorry, we blew it, we didn't know what we were doing, so you can get your money back. You paid us. That's an interesting clause. If you've ever had a house inspection, you'll find that if you carefully review the contract from the house inspector, one of the common clauses is exactly that. It says that if I'm negligent, my liability is limited to the $500 you paid to have the house inspector.
Michael Mulligan:And so the court of appeal found that that's going to be an issue and that, unlike what the original judge thought should happen, which was to try to deal with the matter by way of what's called a summary trial, sort of an abbreviated trial process, the court of appeal said no, there's going to have to be a full trial to deal with issues, including that issue, which would be like is there I think it was some $80,000 or something Is that the full limit of the liability for the engineers who did this work?
Michael Mulligan:And so this will mean that the thing can go back and that there be a trial. I must say, reading the court of appeal decision as well, it is quite concerning in terms of the risk that people were living in that building, one of the things which was concluded by the engineers and geoscientists of British Columbia, like the regulatory body that regulates the people was that the investigation into it, their investigation into it, concluded that quote elements of the gravity system design which could fail suddenly and with little warning, and so the conclusion was, at least from that entity, that the building was subject to.
Michael Mulligan:it Sounds like the little warning falling down is what I take from that language. It's also notable the court of appeal noted that one of the engineers who worked on the thing had been cited by that regulatory body for what the body concluded was unprofessional conduct and incompetence, and so all of this is clearly a giant legal mess. But it is now of course. Of course, but it is clear reading is where the fault lies. It's really at the matter. At the end of the day, the issue is going to be who's going to pay, if anyone? Or are the current owners who bought the thing just left holding the bag? Because the people they bought it from are bankrupt and the engineer or engineering company has this clause limiting their liability, and so at the end of the day, it will be a matter of are they left holding the bag, and or is there some liability for the municipality? Because of course, with these things not of course, but I think with construction litigation.
Michael Mulligan:when you have things like companies going bankrupt, or companies that are created for the purpose of one project and they're then gone, the only entity at the end of the day that still exists may be things like the municipality right Going anywhere, and so if you're the last man standing, you can wind up with holding the bag for a whole lot of things, even if your liability for it was only a small portion of what went on, and even where it's clear, at least on the court of appeals decision, that the fundamental problem was the issue of the engineering company taking on a project that they knew full well they didn't have the experience to do and providing a design that, according to the engineers and geoscientists in British Columbia, could have led to a sudden failure with little warning. Obviously a completely unsatisfactory circumstance. But there'll now be a trial and there could be a determination made about whether the engineers are liable to the new entity and, if so, is that new owners and if so, is that liability limited to the fees that they received?
Adam Stirling:There's some interesting information here. I might have actually solved the mystery as to why the second evacuation happened, but that'll be coming up, michael. Thank you, as always, appreciate the thoughts. Thank you so much. Have a great day. All right, we'll be speaking during the second half of our second hour every Thursday on CFAGS.