Have you ever grappled with the intricate workings of the legal system or wondered how an ordinary person can fare against its complexities? Michael Mulligan from Mulligan Defense Lawyers joins us to unpack a gripping small claims court drama where a patient fearlessly faces a dentist over accusations of negligence. Walk through the courtroom doors in Abbotsford and witness the struggle of gathering admissible evidence, the nuances of consent in medical treatments, and the precarious balance between self-representation and the need for legal expertise. This episode peels back the layers of professional negligence, highlighting the importance of expert testimony and the adjudication of consent and battery in medical settings.
The legal labyrinth doesn't stop there; join us as we navigate the murky waters of extradition laws, where missed deadlines and constitutional challenges spark a heated discourse on international justice. Then, we shift gears to a contentious condo ownership dispute that reveals the decisive role of equity when legal titles clash with lived realities. Michael Mulligan helps us dissect how Canadian courts handle the delicate issues of resulting trusts and equitable interests, offering a glimpse into the soul of justice and fairness as it intersects with the surge in property market values. Through these stories, we confront the compelling question: how does the law reconcile with the twists and turns of human relationships and the inevitable missteps of bureaucracy?
Follow this link for a transcript of the show and links to the cases discussed.
Have you ever grappled with the intricate workings of the legal system or wondered how an ordinary person can fare against its complexities? Michael Mulligan from Mulligan Defense Lawyers joins us to unpack a gripping small claims court drama where a patient fearlessly faces a dentist over accusations of negligence. Walk through the courtroom doors in Abbotsford and witness the struggle of gathering admissible evidence, the nuances of consent in medical treatments, and the precarious balance between self-representation and the need for legal expertise. This episode peels back the layers of professional negligence, highlighting the importance of expert testimony and the adjudication of consent and battery in medical settings.
The legal labyrinth doesn't stop there; join us as we navigate the murky waters of extradition laws, where missed deadlines and constitutional challenges spark a heated discourse on international justice. Then, we shift gears to a contentious condo ownership dispute that reveals the decisive role of equity when legal titles clash with lived realities. Michael Mulligan helps us dissect how Canadian courts handle the delicate issues of resulting trusts and equitable interests, offering a glimpse into the soul of justice and fairness as it intersects with the surge in property market values. Through these stories, we confront the compelling question: how does the law reconcile with the twists and turns of human relationships and the inevitable missteps of bureaucracy?
Follow this link for a transcript of the show and links to the cases discussed.
This is time for our regular segment with Barrister and Solicitor with Mulligan Defense Lawyers. It's Legally Speaking with Michael Mulligan. Morning Michael, how we doing. Hey, I'm doing great. Always good to be here. Always look forward to a Thursday where we learn new things about the functionings of our justice system. What's on the agenda for today?
Michael Mulligan:The first case on the agenda is a small claims case out of Abbotsford and first of all I should pause to say what it means to be in small claims court. What you could sue there for the way it works now in BC is for very tiny claims like up to $5,000. They can be done with a thing called the Civil Resolution Tribunal. It's kind of like a PayPal dispute mechanism online with like telephone and video hearings and then for claims up to between $5,000 and $35,000, those are done in provincial small claims court with a judge and beyond that you'd be in Supreme Court if you're suing for more money than that. And this particular case is a case with a former patient suing a dentist from Abbotsford with a very unfortunate last name for a dentist it looks like Nal Rot, which is a very unfortunate name and she made this claim against the dentist for allegedly performing unnecessary and excessive treatment and negligence and battery and just all sorts of things which caused her it's clear from the judgment serious trauma. She was traumatized to the extent she wouldn't leave her house other than to go to work because of how her teeth looked like at the end of the day and had all kinds of problems as a result of this treatment and indeed the dentist involved. There was also a complaint made to the BC College of World Health Professionals, to which the dentist made a bunch of admissions, including admissions that things like he provided treatment that fell below the college's expectation standard by providing excessive and comprehensive restorative treatments in a single session rather than over multiple sessions. One of them was that he agreed that he build for treatment when the need for treatment was not supported by records and went on. He made six admissions there of misconduct and that was the background.
Michael Mulligan:And the very unfortunate thing is that the former patient here sued in small claims court on her own without a lawyer helping, and I should say small claims court is designed for that sort of right. The idea is kind of a simplified process. You can get the forms online. It's meant to be kind of accessible, right, but proof is still required of things right, and somebody without legal training may not know what might be admissible and what might not be admissible.
Michael Mulligan:And here this poor woman who had this terrible experience was not represented at trial and the judge described that as she struggled to advance her case, found testifying difficult, was often overcome by emotion about the harm she had suffered.
Michael Mulligan:She was not a legal expert, she didn't know about the rules of evidence, and so, for example, she showed up and she had a letter from her new doctor providing, I suppose, information about what had to be done to try to fix some of these problems and perhaps commentary about whether what was done by that the doctor in Abbotsford was appropriate or not, or fell below the required standard of care. That's not admissible right. You can't just show up in court with a letter from somebody who isn't there saying, well, this person says this and that, right, there's a process, you've got to call an expert and the judge would need that right, because when you're suing for alleged negligence in providing professional services like this, the judge needs to have some evidence about what is the standard of care right, what would be expected from a dentist acting reasonably, and did this fall below that standard of care? Did it amount to negligence right?
Adam Stirling:Yes.
Michael Mulligan:And here the dentist didn't even testify at the trials. He couldn't be asked any questions about that right, and so you had these admissions that he had made to the oral health professions college and you had the woman testifying about the terrible result of all this, but without some evidence about what would be expected and did falling below expectations cause the problem. The judge was left not being able to be satisfied of many of the things that would be necessary for the claim to succeed on all of the possible grounds. I must say, reading it is even questionable, but whether the thing should have been in small claims court to begin with, given the seriousness of what went on here and, for example, the admissions that the judge found he could rely upon, some of them were ambiguous. For example, one of them, the doctor, admitted that he this is a language build for treatment when the need for treatment was not supported by records, and so part of the problem was well, did you do treatment that was unnecessary to bill more, or was your record keeping poor?
Adam Stirling:Good point.
Michael Mulligan:It's kind of hard to tell right, Maybe you did necessary treatment but didn't document it properly, and so the judge was left with. Well, how am I supposed to determine this? There is no admissible evidence. The judge did find that the dentist had engaged in assault or battery, and that's essentially like doing something to a person without their consent. Right, and that's an important element. You know your doctor, dentist doesn't get to just pin you down and do whatever they want.
Adam Stirling:No, they have to get your agreement to do it.
Michael Mulligan:And so, for example, the judge found that they accepted the plaintiff's evidence regarding her lack of consent to 19 of her teeth being treated by Dr Nar Rott on March 18th, and found her evidence to be reliable, incredible. And so the judge, without the benefit of some of the evidence that you would hope would be there about the issue of negligence, was able to find that there was also the person made a. The patient made a claim that she was head lingering in substantial fear that her bodily integrity was violated while she was sedated for many hours. The judge was unable to found that that was sedated, for she was sedated for many hours. But, and the judge said, the evidence of the plaintiff about being left alone in the care of the doctor is compelling and highly concerning, but is not sufficient to support a legal finding that the doctor caused harm while she was under sedation. And so, once again, it's sort of an example of where it would have been much more desirable had there been some help for her in advancing her claims. With all that being said, the judge concluded that they were satisfied that the plaintiff had established a conventional degree of emotional suffering and damages result to the misconduct which had been proven, the judge had ultimately concluded that the judge was not finding the process of sedation was negligent, but rather the plaintiff would not have been sedated for so long but for the unauthorized and negligent dental work, and concluded that the plaintiff's fear and fear and feelings of violation were manifest at trial and through her evidence. And so the result of all this the judge concluded that, despite the lack of evidence that would have been desirable, concluded that the doctor had acted in a high-handed and reprehensible manner towards the patient, who was vulnerable due to sedation and relying entirely on his experience and integrity. The result of all that given, which sounds like a very traumatic experience.
Michael Mulligan:The other problem was she didn't present in a clear way evidence of all possible financial loss. That's another thing which would be necessary, sort of like let's get pay stubs and time missed and so on and presented in a way that would be helpful to the judge. The result of all of this is that the award ultimately was only for $15,551, which included some lost income and general damages, in a circumstance where the amount that could have been awarded was, in that court, up to $35,000. And so it's an example of while the small claims process is simplified and judges do try to assist people and make sure that they do what's required. They're not a substitute for having a lawyer help you.
Michael Mulligan:And I must say, as I read the case, the overarching impression left is just what a shame that there wasn't some additional legal help for the plaintiff to ensure that there was evidence that would allow the judge to assess things like the negligence claim in a more full-sum way.
Michael Mulligan:And all of that is, of course, in the context where the dentist in question has made admissions of misconduct to the oral health profession. It just turned out to be the case with respect to many of them. There was ambiguity about what exactly the admissions amounted to, and so that wasn't enough for the judge to be able to be satisfied at least in part of the claim made here. So there's the outcome and I guess the takeaway there would be. You may want to make some inquiries with respect to the College of Oral Health Professionals to see the background of a dentist that you're dealing with. At least that part of it in this case has been admitted, so hopefully the College will do its job and the public will be protected in the future. So that's the case of the dentist and the small claims action.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally speaking, will continue right after this. Back on the air with Michael Mulligan from Mulligan Defense Lawyers, as legally speaking, continues Up next on the docket for today it says deadline for extradition paperwork missed and provision to allow for more time unconstitutionally vague, with no standard to apply. Sounds complicated. Let's dive in.
Michael Mulligan:Indeed. So this is a BC case. The background of it is that it was an application by the United States government to seek the extradition of a man from British Columbia, seeking that he be sent to stand trial in the United States in Georgia, it would appear and the essential allegation was that some drugs were allegedly shipped from the US government believes by the accused to a person described as a sailor living in the great state of Georgia. Two US sailors residing in Georgia, and the sailors died of a drug overdose shortly after they received packages in the mail. That's the basic of the case, which brings us to how does extradition work? Well, the way it works is that a country we have an extradition treaty with can make a request to the Canadian authorities, canadian government to arrest and send the person somewhere else to stand trial, which is, of course, a pretty dramatic thing being arrested in one country and shipped to another country for a trial and the way that there's a time, some time requirements in the legislation, and one of the requirements is that when after somebody is arrested on a provisional basis based on a request from another state and here the US made this request and so there was a warrant and the suspect in British Columbia was arrested. There's a requirement that the country seeking to have the person extradited must provide supporting documentation no more than 60 days after the quote provisional arrest, close quote, right. And so the man was arrested. Clock starts ticking, and then what happened is the Canadian Department of Justice erroneously calculated the time requirements and told the United States Department of Justice that the documents were due by July 25th 2022. That was wrong. They were due by July 23rd 2022. Okay, so they were two days late. And so then what happened is that the Canadian Department of Justice made an application to a judge under section 14, two of the act deals with extradition, and that's the section which was in question here.
Michael Mulligan:That section says, on application of the attorney general, a judge may extend a period, referred to in subsection one. So a judge may extend the time period. The legal argument was well, hold on a minute. It doesn't say how that decision is supposed to be made. In what circumstances should a judge extend the time period? When might you not extend the time period? What should be taken into account, right? Is it kind of the length of the judge's foot? Well, that's a legal requirement. It's a principle in Canada. It's a charter principle that it's contrary to section seven of the charter.
Michael Mulligan:If a legal provision is unconstitutionally vague and the way courts have interpreted that is sort of a test about. Is there a sufficient direction in the legislation that would permit some kind of a legal debate or notice to somebody about what might or might not happen? Right, we don't want to live in a topsy-turvy world where kind of what happens kind of depends on whatever a judge might feel like. That's not helpful, right. And so the problem with this section is it doesn't say, it just says a judge may give more time, but it doesn't say when or what circumstances. Like it could say, well, if the other side's tried its best or, you know, if the you know, bearing in mind the efforts made or reasons for being late or how important the case might be, something that somebody could sort of get a grip on is okay, well, how long can you keep me in jail without providing any paperwork? You know the legislation says 60 days. When can you get more? Right, it does have to be. The case is really complicated. If it got lost in the mail, what?
Michael Mulligan:And so the judge hearing this case included that that was in fact unconstitutionally vague because there's no indication of sort of when a judge may or may not, or when they should or shouldn't give more time than what is required. Right, it says 60 days, and if you don't do it in 60 days, the legislation provides that the person's to be discharged like let them out. Right, some other country has said arrest this person. They've done so in Canada and no paperwork has showed up in two months. The person's in prison. The presumption of that section. Well, that's it, then you can go. And so that's what happened here.
Michael Mulligan:The conclusion was that that section, with no other guidance, was inconsistent with section seven of the Canadian Charter, and there was then debate about you know well, should that have effect right away? Should the government have more time to do something about this? And ultimately the judge said no, you know, the section as it stands, without that unconstitutionally vague judge, may extend that time period provision. That doesn't stop it from working. It just means you better get to calculate your time correctly. You better have your paperwork ready in two months If you're holding somebody in prison seeking to have them extradited somewhere else.
Michael Mulligan:And so the net result of this is unconstitutionally vague section. It can't be a time period extension. You missed it by two days because you got the date wrong and that'll be the end of this extradition and plus to see whether anything else comes of it. But I guess the outcome or the takeaway is read this action carefully, make sure you calculate your time period and if you're going to grant, have a legal provision, you've got to make sure that it's clear so there can be a legal decision made, not just saying may do something with no idea when you might or might not choose to do that. So that's the latest on extradition from British Columbia.
Adam Stirling:Our next story is an interesting one, and it's a couple of intersecting issues that we've discussed in the past, including an economic story that we've covered to no end, and that is the explosion in values in the property market means that a Titanic sum of wealth has essentially been created fairly recently here in British Columbia, and it has been accumulated by those who hold title to equity in residential properties. This next case touches on how that's dealt with.
Michael Mulligan:You're exactly right. And so this case, like many cases these days, involves, say, where there's a new relationship and adult children and sort of well, what's to happen with assets? Right? Yes, that's complicated, and the background here is that this couple, who had been together for 18 years, was a second relationship for each of them they had. They met at a grocery store at Edmonton back in 2003 and began dating and eventually, sadly, the woman here passed away at age 76. And she was survived by her partner of 18 years.
Michael Mulligan:Things got complicated because, with respect to the ownership of the condominium they were living in, and the background of that was that sometime, a short time after they met, the couple decided to purchase a property in Kelowna and they originally decided to purchase a mobile home to live in. And in order to fund that, the fellow who was the plaintiff in this case withdrew almost all of his RRSP savings, producing $100,000, to contribute to the purchase of this home. The couple were moving into the home and this becomes more complicated. The partner who passed away she was the recipient of spousal support from her previous relationship and the spousal support provisions that she had agreed to provided that the amount of support she was getting could be uh revisited um if she cohabited with another person uh, and she didn't want her Felsal support to stop and so she turned, told her current partner well, I want to have the uh mobile home put in my name alone because I don't want my ex-husband to find out that I'm cohabiting with somebody. Hmm, uh, and the evidence was she was, quote, somewhat strong willed, close quote, and he agreed Uh. Things went along for a while. They decided to sell that property eventually and purchase a? Uh condominium condominium went up in value Uh, they decided to sell that uh, and then they eventually bought a one bedroom condominium together Uh, but with all of those homes, and for the same reason uh, the uh female spouse put um all of them in her name alone.
Michael Mulligan:Uh, unfortunately, uh, she also had some other challenges, including, it would appear, an unfortunate gambling habit uh, where she would go to the casino and lose substantial amounts of money uh, which were being funded by her partner who was uh still working until a? Uh relatively late uh in the game uh to keep funding her gambling habit Hmm. Now here's what happens Um, she had some health problems. She was a smoker. I guess she realized she had some health challenges Uh, and before she passed away, and without telling uh, her partner, uh, she both created a will leaving all of her asset, leaving her assets to her adult children, and went and transferred the condominium into joint tenancy, uh, with her and her adult, um, because her daughter children, um, and then what happened is she passed away, and when you have an asset in, uh, as joint tenants, uh, then what happens is that the uh, the property automatically transfers the other person you're a joint tenant with, leaving the partner with nothing, and very quickly, uh, the adult children of the woman who passed away promptly told him to vacate the premises and get out, and so he had to leave his condominium. And that was the basis of the lawsuit, now the thing. And so, on one hand, you, if you look at sort of the legal arrangement there, you see, okay, well, it's a joint tenancy, she was the sole owner, she passed away Her adult children. Get it too bad for him, right, that would be the sort of the legal consequence of that.
Michael Mulligan:But, as I said, it was equity to the rescue and this idea that we've touched on before, which is the idea of a trust and a resulting pr and a presumptive trust, and the way that works is that when you give somebody, uh money, it's presumed that you're not giving them the money as a gift unless there's evidence to show that this was a gift, like a letter saying you know this is a gift, yeah, for example, yeah, but there's a presumption, uh, that you're giving the person the money in trust they're holding it for you, not that you intended to gift it to them, right, like, if you show up at the valet and hand the valet your keys, the presumption is not you gifted your car to the valet. The presumption would be you know the valet is holding your car for you while you have dinner, right? So, um, that's how the law works. And here, uh, the judge said and this is a good, uh, clear uh conclusion, I completely agree with the plaintiff's submissions in that regard Uh, and it was clear that he provided this uh money to purchase the first home, which got sold, to then purchase the second home, and so on and so forth, to the third condominium, right, yes?
Michael Mulligan:And the judge concluded that, indeed, uh, the law uh, with respect to a gratuitous transfer property, presumes there to be a resulting trust, and a trust is sort of an equitable concept, um, and as a result, the judge concluded that, indeed, uh, the person that the spouse who passed away was not the benefit beneficiary of a hundred thousand dollar gift 17 years earlier, she was effectively holding these three properties, uh in trust, half of it belonging to the uh male spouse, right, hmm, um, and the result of that is that, even though they had gone through these various properties, with one being sold and purchasing the next one, and so on, and even though they were all registered in her name alone, uh, the result was that, uh, there was a resulting trust for half of the value of the condominium.
Michael Mulligan:One of the interesting arguments made by the daughters trying to keep the whole thing um, was arguing that he shouldn't be able to make this claim because, uh, he was complicit in her defrauding their father right, by deliberately hiding the fact that they were cohabitating. Hmm, uh, for example, saying that he was single on a tax return. The judge had no time for that and said, no, he wasn't trying to hide it at all, uh, and that's not a basis to deny this. So the result is, at the end of the day, um, the daughters have to either purchase his half interest or the property goes up for sale, uh, and he'll get half the proceeds. So equity to the rescue.
Adam Stirling:Michael Morgan with Morgan defense lawyers, legally speaking during the second half of our second hour every Thursday. Thank you as always. Thanks so much. Have a great day, all right. Quick break News is next.