Discover the far-reaching consequences of proposed changes to the Land Act in BC. With 94% of BC's land owned by the Crown, changes that would afford First Nations groups veto power over land use decisions could have a profound impact on how the province is governed.
The provincial government's attempt to make the changes without a transparent consultation process, as well as the broader implications for democracy in the province, are discussed.
Also, on the show, the doctrine of frustration of contract is discussed in the context of a case involving a claim for severance pay by an employee from a duty-free shop that was forced to close due to COVID-19.
Finally, a Court of Appeal decision involving the censure of an elected councillor who disclosed confidential information to a lawyer in order to obtain legal advice is discussed.
Follow this link for a transcript of the show and links to the cases discussed.
Discover the far-reaching consequences of proposed changes to the Land Act in BC. With 94% of BC's land owned by the Crown, changes that would afford First Nations groups veto power over land use decisions could have a profound impact on how the province is governed.
The provincial government's attempt to make the changes without a transparent consultation process, as well as the broader implications for democracy in the province, are discussed.
Also, on the show, the doctrine of frustration of contract is discussed in the context of a case involving a claim for severance pay by an employee from a duty-free shop that was forced to close due to COVID-19.
Finally, a Court of Appeal decision involving the censure of an elected councillor who disclosed confidential information to a lawyer in order to obtain legal advice is discussed.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment with Berenster and Solicitor with Mulligan Defense Lawyers. It's Michael Mulligan with Legally Speaking Morning Michael, how are we doing?
Michael Mulligan:Hey, good morning. I'm doing great. It's always good to be here.
Adam Stirling:Some really interesting stories on the agenda for this week. I had a lot of texts earlier in the week saying Adam, you need to take a look at what's happening with the land act here in the province of British Columbia. I know you and I have discussed legislative change in the past, so I was wondering what are your thoughts on this?
Michael Mulligan:Well, here's some background in terms of what's going on and why there's been some concern raised about an act that I'm sure most listeners have never heard of before.
Adam Stirling:Yeah.
Michael Mulligan:It's an act you probably should have heard of because in fact, in British Columbia, 94% of the land in British Columbia is crown land not owned by any individual or company or anything else 94%. So just think about that as you're struggling to find a townhouse to buy or a condo or something, bear in mind that 94% of the land isn't owned by anyone other than the province. Now the land act authorizes a provincial minister in this case it's Nathan Cullen minister of water lands and what's? Water, land and land resource stewardship is what they've currently called it, although that bounces around from government to government, but they might call the thing. It allows the minister, who's given the authority under this land act, to authorize the use of this 94% of the province in various ways, for various purposes, and the overarching idea would be the minister can make decisions which are in the public interest. Right, that be sort of the threshold.
Michael Mulligan:You might differ in terms of what that amounts to in any particular case, but that's the sort of the north star there. And the land act would allow things like land to be leased to somebody for some purpose used for, maybe, hydro development, leased for logging, used for mining or even small things that might affect people. Like. You want to build a dock on your property? Well, that's underwater. You cover by water. That's crown land. You need to get permission. There's the land act right Interesting. So that's the land act. It governs 94% of the province's land.
Adam Stirling:So all the lake bottoms too.
Michael Mulligan:I hadn't thought of that, but yeah, correct, all the lake bottoms, all the rivers. It has really big impacts for everything. I mean just imagine any time any you know large project to be developed you want to put up I don't know hydro lines, or somebody wants to build a dam, or somebody wants to have a mine or open a business, or indeed the province could sell land right. So, anyways, it's really important. So that's that act, and what happened most recently has caused some real concern and credit to its large law firm in Vancouver called McMillan. A number of senior lawyers there noticed a posting on a they described as little known government website Indeed, I'd never heard of it wwwengagegovdcca. And on that little known website was that picture of some you know land, and a topic was land act amendments and it gave people a short time to look at a PowerPoint presentation that's posted there and that allowed people to make written submissions about those things on a really short timeline until the end of March. And then legislation was proposed to amend that land act. I must say I smiled as I read the things you cannot do in the written submissions. They include a expressly telling you that you cannot include obscenely, legal or moral or sexual explicit material. Thank you, take the time to note that it, profanity or other unacceptable language by substituting asterisks or other symbols or words is not acceptable if the word remains recognizable. So don't think about using unacceptable language with asterisks. They have prohibited that. You also can't meet unproven or unsupported accusations.
Michael Mulligan:So the government has put up this proposal to amend the land act without giving any like. There was no press release, there was no suggestion they were doing this. They didn't say anything about it. It was sort of in that category of. It appeared to be slip one in. Basically he wasn't going to notice this thing. Anyways, the law firm in Vancouver noticed it. They wrote a critique of that in terms of what impact that could have, and that produced a credit to him. Von Palmer wrote a couple of pieces on it and now people are looking at what exactly are you doing over there? What is this thing you're trying to sneak in without telling anyone, and what the government has proposed?
Michael Mulligan:When you look at the PowerPoint thing, they are proposing changes to the land act and they say they're doing it to implement the UN declaration on the rights of indigenous people which in BC was included in a piece of legislation this government introduced back in 2019, which attaches to it the entire UN declaration on the rights of indigenous people. That's where that comes from. This is UN document and that document or that declaration. There are a number of things about it that are mothers and apple pie, things like indigenous people have all the rights set out in the UN charter, and so on. Much of it is like yes, of course, right, what other conclusion would you come to? But there's some elements of it in terms of things like the right to self-determination, rights to things like funding for autonomous government functions, which might cause everyone to say, well, hold on a minute, what exactly does that mean?
Michael Mulligan:And so that brings us to what this is and the government's the PowerPoint that has put out about proposed changes to the land act impacting on 94% of the province.
Michael Mulligan:And what the government says is that they are going to, or plan to, amend the land act to make it consistent with this declaration on the rights of indigenous people, in particular section six and seven, because you'd go to look at what are those that's in the look, and what's contemplated here is that the changes would allow the government to enter into agreements without any further legislation or debate that would give indigenous groups the right to veto land use changes. And so the idea is that currently, under the charter, there's a their special protections for indigenous rights, so they include a right to consultation right. So there's going to be land use that there's some first nations claim to and remember it's like what is it like? 120% of the province is being claimed, so that's everywhere right, there's a, there's a duty to consult and there's a duty to try to accommodate. But the courts have been very clear that does not mean a veto right right.
Michael Mulligan:Sort of. But this, what is proposed would turn the consultation into a right of sort of co decision making, which would mean that no longer would the minister whatever they might be called in any particular time be making a decision in the public interest, taking everyone's interest into account, including the constitutional requirement for consultation. Instead, it would turn it into, without further legislation, a circumstance where there could be a first nations just veto. No, we don't want that power line. No, we don't want that line for natural gas. No, we don't want that dam being built. No, we don't want whatever. And that would be it. And so that is a very large change. That is not a kind of change that should be sort of slipped through with no press release by putting a consultation notice on a website that nobody's ever heard of before. Frankly, when I saw that, one of the things that caused me to smile was of course, there is that constitutional right to consultation which we currently have with First Nations, right that exists, everyone agrees, that's there.
Michael Mulligan:If that was the form of consultation the government tried on with First Nations. We just picked up a thing on a website. You didn't notice that. I guess you didn't have any problem with that. Start clear, cutting right. You could imagine that would go absolutely nowhere. Nor should it right. And so this is a big change. This is not a small change. This is not something which you might want to make. If you find the website, some written submission, and the plan would be to implement this and the legislation. They plan to implement or pass legislation in the session between April and May this year introducing the bill. So would it be cabinet?
Adam Stirling:So I'm just trying to understand where the actual decision would be made? Do they give the ability to veto in advance or is it a veto that the Premier's office or the cabinet can allow? But if the cabinet disagrees, or that, can it veto the veto?
Michael Mulligan:I don't know about the vetoing, the veto, and we don't have the actual legislation. What we have is a PowerPoint that they put up saying this is what they're planning to do Make a submission. Don't put any asterisks in your sexually explicit submission to them. So I don't know the wording, just the proposal. But what it would allow the government to do, be it cabinet or the minister that part hasn't been specified would be to turn over veto rights to a First Nation without passing legislation. They can just do it, and that's a very big change in terms of how the province would be operated and, I think, one that should be debated and thought about and, you know, people should have a chance to have real input into it. Is that a good idea?
Michael Mulligan:Some people might say yes, some people might say no. Some people might look at the sections of the UN Declaration on the Rights of Indigenous People and say, oh, yes, I agree with all of that. Other people might say, well, hold on a minute. Maybe this part isn't exactly in accordance with values, but it shouldn't be slipped through. It's important and good on the law firm for noticing it and good on Paul Mercer for bringing it to people's attention, because otherwise no one would have been off at that government website realizing what was going on. The number of people that engagegovvcca, I'm sure, is nothing, and so people should know about it. Maybe you want to make a submission or do something about it, because otherwise it's a big change in terms of virtually the whole province.
Adam Stirling:Does it say whether or not the right to veto could be taken away by government once given?
Michael Mulligan:That's really interesting because there would be constitutional issues about that. If there was some agreement made with the First Nation saying we're going to do this and it became a treaty, right, there would be constitutional issues about whether a future government could take that away Exactly. So just think about that. You could enter into some agreement which could turn over veto control for virtually the entire province with no further legislation, in a way that couldn't be modified later. Just think about that. That's a pretty big change, probably something deserving a little more debate and consideration of public input. Maybe this will be an issue in the upcoming election, whether this is something people support in this way or something else. But whatever is going on, it shouldn't be slipped through in an attempt to make it unnoticed, and the fact that the government clearly tried to do that is also troubling. That's really not on. So that's the land act and that's what's going on.
Adam Stirling:All right, We'll take our first break. Michael Mulligan with Mulligan Defense Lawyers, legally speaking, back after this. All right, Legally speaking continues here on CFAX 1070. Michael Mulligan from Mulligan Defense Lawyers, Michael up next, another COVID-19 story. What's the agenda?
Michael Mulligan:It just will never end. What will it? So it is a COVID-19 story, a case that has its origin in that, and the parties involved are both sort of sympathetic sounding parties. One is a small family owned duty free shop in Aldergrove and the other party was a 78 year old clerk who worked there for a number of years, also did janitorial work, and the what happened, of course, is the border got shut down in March of 2020. Nobody could cross.
Michael Mulligan:Not good news If you have a small family owned duty free shop at the border no uh, who virtually 99% of their business, the finding was, were holiday and vacation travelers, of which there were none Uh, and so, because there was no one crossing, the family do own duty free shop uh closed. Basically, it was closing for a couple of years, um, maybe not quite that long, but long time. It closed and so it laid off the all the employees, including the 78 year old sales clerk, uh, and the reason for that was for the corn to the owner quote, there was essentially no work for employees to do. Well, by operation uh of the employment standards act. Uh, after that layoff ran to a certain period of time, it was deemed to be a dismissal, and so the 78 year old sued for wrongful dismissal. Uh, and the uh defense raised by the family duty free shop was that the contract was frustrated by the border being closed. And so that's the, the, that legal issue, that concept of frustration of a contract, is what wound up uh now in the court of appeal, and I think that's interesting for people to know about.
Michael Mulligan:Uh, we've all done a lot of frustration, I'm sure, in our lives at one point or other. But what is legal frustration? Well, it's been expressed in a variety of different ways by different courts using different language. Uh, talking about things like a situation which has creeds or something radically different from what the parties undertook. Um, you know, in that case you might relieve a party from their obligations to fulfill that contract. But some of that language in the court gave various examples of how different courts have tried to uh interpret what it means for a contract to be frustrated. Uh, and one of the things they found as a sort of a consistent theme is that the kind of uh impact, uh, that are the kind of thing contemplated by that sort of common law principle of a frustrated contract, um, is that there must be, it must, that event must impact the very nature of the contractual obligation themselves between the parties. And the court said look, is not enough that a party claiming frustration, uh, some change, would result in hardship or an onerous circumstance, or inconvenience or a material loss. Uh, and so the court then tried to try to or it did, articulate certain Okay, well, what exactly does this mean when somebody's claiming a contract was frustrated? And this is the final way they articulated it First of all, there has to be a qualifying superseding event.
Michael Mulligan:That was not contemplated by the parties when they entered into the contract. So when the small duty free shop hired the woman to be a clerk there, nobody contemplated. Covid-19 and the board are getting shot down, right, fair enough. Tick B the superseding event was not the fault of either party. That's important, right? You can't create the problem and then say I'm out of the contract, yeah, good point. Neither of neither of them did that. And then, finally this was important one the superseding event rendered performance of the contract something radically different from that which was undertaken.
Michael Mulligan:Now here's how that fits into this fact pattern. He might still be scratching your head saying, well, that'll apply or not, yeah, uh, and indeed this went to the court of appeal. So here would be a. Here would be an example of how something might be and might not be.
Michael Mulligan:Let's say you and I had a contract. You agree to buy my car, uh and uh, you are on your way to the bank to get the money and, uh, before you get back with the money, a tree falls in my car, crushing it into a pancake. And you show back up and I say and you say well, I'm not buying that, it's a pancake. Now, that's not what we agreed to. And I saw it was a perfectly good car. That would be something radically different. Like, the car is now crushed by a tree, right, probably that would frustrate the contract. But let's see, on the other hand, we entered into the agreement, we shake hands, you're on your way, uh, back from the bank and you get a phone call saying you've just been transferred to Calgary for your job and you say, oh, I don't want that car anymore. Uh, my circumstances have changed that. Well, a big deal for you and would be a reasonable basis for somebody to say, gee, I don't want this car anymore, I need a truck or something. Right, yeah, that would not amount to frustration of the contract because it doesn't interfere with the contract. Car sale agreement right, I can still give you what we bargained for. There's a car we agreed on the price. You've got to finish that right. And so.
Michael Mulligan:On that analysis, the court of appeal found that this contract, the contract to employ the clerk, was not frustrated by the fact that the border was closed. It sure would cause hardship, right, for the small company to have to keep paying somebody when there's no work to do. No doubt about that right. Just like if you agreed to buy my car and then got word that you'd got a job somewhere else where you know there was five feet of snow and the car wouldn't work or something.
Michael Mulligan:Right, boy? That's unfortunate for you, but it doesn't really prevent me selling my car to you. The car is the same, the money is the same. Yeah, I get it. It's kind of a hardship you don't get a car you don't want, but that doesn't get you out of a contract. And so that was the outcome here. The court of appeal found that, yeah, there was a lot less business and, yes, that definitely creates a financial hardship for the company, and in fact, you might even have a circumstance where the company just goes bankrupt and can't pay right, that's possible, but it doesn't get you out of the obligation to hire the person, because you're still able to have the person stand there at the cash register and clean the store even though there's only 1% of the people coming through the store.
Michael Mulligan:You know essential truck drivers or something getting liquor. Although maybe that's not a great thing, you know, it doesn't prevent that contract from continuing, even though this was uncontampleted and even though neither person caused it. That change the border closing wasn't the sort of event that interfered radically with the contract. It interfered with the desirability of the contract very substantially from one of the parties. But that doesn't amount to frustration, and so that's really the point the court of appeal has made and that's why the case is important.
Adam Stirling:Interesting. We've got one more. Talk of censuring Politicians comes up from time to time and I'm noticing a regional district board member is mentioned in this next one.
Michael Mulligan:Indeed, we've had lots of talk of censuring, haven't we? We have Well, so this is the case with involving the Strathcona regional district, and the fact pattern was one of the elected board members of that district had some property on which there was a small cabin that the board members father lived in. The cabin very sadly burned down, and some friends of the people involved set up a GoFundMe page to try to raise money to rebuild the modest cabin. The GoFundMe raised $3,700 to try to rebuild this cabin, and then what happened is that there was a complaint made by some of the constituents complaining that, hey, this elected person is getting some $3,700 benefit as a result of being a board member. Well, that then resulted in a closed session of the which also seems like a common theme around here sort of an in-camera session of this regional district discussing that issue about whether there's some benefit and whether there should be a censure or whether she was in fact disqualified from continuing to be a board member based on the Legislated Local Government Act.
Michael Mulligan:Now, the board member the woman whose father has her cabin burned, his cabin burned down was concerned about all of this and went and consulted a lawyer to get some legal advice of where she stood and what should happen. And the lawyer wrote a letter to the board about that, making a submission on her behalf about whether she should be censured and so on. So fair enough. The board then disciplined her on the basis that she told the lawyer about what happened in the closed meeting. So the interesting issue is the issue was for the Court of Appeal is telling a lawyer that you've hired a breach of confidentiality in one of these secret local government meetings? Because of the basis of that, they disciplined her.
Michael Mulligan:And then the other issue was was she subject? Should she get compensation for the cost of hiring a lawyer to defend the unsuccessful effort to have her disqualified on the basis of the money raised for her father's cabin? Ultimately, the conclusion on that was no, she didn't get some personal benefit. This is a modest amount she hadn't organized for her father and it wasn't a result of her position. Right, she didn't get some benefit because of her position.
Michael Mulligan:The Court of Appeal well, first of all, on the trial decision, the judge found that the censured decision and the decision not to indemnify her for illegal expenses were reasonable and didn't overturn them. But that didn't survive scrutiny in the Court of Appeal. And the Court of Appeal found that, of course, it's a pretty fundamental principle that somebody be able to get legal advice in terms of you know what they should, they be doing and what are their obligations and so on. And the court of appeal found that, given the importance of that um and the, of course, listener client privilege that would attach to all of that and the duties of confidentiality that lawyers have to their uh clients, that it was not uh, according to the court of appeal, a uh breach uh of the uh requirement to maintain confidentiality, uh for one of these closed in camera hearings, to go and get legal advice about it and, by necessity, tell the lawyer.
Michael Mulligan:Here's what's going on in this meeting they want to censure me and have me kicked out. Can they do that? What should I do? And so the court of appeal found that, uh, that was not a breach, uh, that it was unreasonable, as a result, to censure her for doing that and overturn that. And, furthermore, uh found that it was unreasonable to uh fall, unreasonable to refuse to um pay for her legal expenses generated by this unsuccessful application to have her uh disqualified. Uh, and so, uh, a complete victory at the end of the day for the uh elected counselor and the stress code of regional district. Uh, the uh uh censure was overturned and uh, there will be a requirement that her legal expenses be paid. And so you're not reaching your confidentiality agreement, uh, when you uh I get uh legal advice.
Adam Stirling:Very well, michael Morgan, with Morgan defense lawyers, legally speaking, during the second half of our second hour every Thursday. Pleasure is always Thank you so much. Have a great day, all right, bye now.