Preserving the Independence of the Legal Profession in British Columbia

Discover the fate of legal independence in British Columbia as Michael Mulligan from Mulligan Defence Lawyers lends his expertise to the latest legal system 'modernization' attempts. This week's episode pulls back the curtain on the government's controversial plans to revamp the Law Society of British Columbia, including a reduction in elected lawyer positions, which may lead to increased government sway over legal affairs.

The BCNDP seems intent on ignoring a warning from the Supreme Court of Canada on the essential nature of an autonomous legal profession, particularly when the rights of individuals stand against government interests, and is proposing that it be given greater control over the regulation of lawyers. The government proposal is troubling for anyone who may have a legal conflict with the government.

Also on the show, we lay bare the troubling conduct of the Insurance Corporation of British Columbia (ICBC) in defying a court order to pay a retired teacher her rightful compensation following a road mishap. Hear Michael's insightful breakdown of how ICBC's refusal to release $407,000, designated for the victim's future care, raises alarm bells about the insurer's integrity and the challenges faced in the pursuit of justice. With BC embracing a no-fault insurance scheme, our conversation underscores the imperative need for an unbridled judiciary to balance the scales against formidable entities like ICBC. This episode is an urgent call to stay vigilant about the mechanisms that safeguard our individual rights and the importance of a legal profession that can operate without undue influence.

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

Transcript

Adam Stirling: 0:00

time for a regular segment with Barrister and Slyster with Mulligan defense lawyers. It's Michael Mulligan with Legally Speaking on CFAQ 1070. Morning Michael, how we doing.

Michael Mulligan: 0:09

Hey, good morning. I'm doing great. Always good to be here.

Adam Stirling: 0:12

Right off the top. I see the provincial government is making an attempt to modernize something, and it's the Law Society of British Columbia. I have to ask how is that going?

Michael Mulligan: 0:22

Not well. So I guess it's one of those things when you hear government talk like modernization modernization of something you should carefully scrutinize what's going on and what they've just released they describe as sort of an update to their plans, to quote, modernize this issue, that is to say the regulation of legal procession, and the proposals, unfortunately, are seriously problematic and hopefully there is a complete rethink about whether this should proceed. The starting point for all of this, which is an important one, which is to say the legal profession is a self-governing profession. It's not controlled by the government, and a little bit of reflection should be clear why that is so important, and indeed the Supreme Court of Canada has recognized that, saying essentially that language is so far as human ingenuity can be, so designed. The legal profession needs to be free from state interference, particularly in fields like criminal law or public law, things like that, where the government is on the other side of it. You do not want to have a state of affairs when you go to a lawyer to hire them to defend you in a criminal case. Help you if the government is trying to take your children, trying to advance your land claim, trying to sue the government for something, or even, indeed, when you're dealing with government-owned entities like ICBC, for example. You do not want a state of affairs where the person you're trying to hire is looking over their shoulder about whether they might be in breach of some desire of the government entity that you're trying to defend yourself against or sue or try to get some constitutional remedy from. So it should be apparent, and the proposal at its heart would go a long distance to undermining that.

Michael Mulligan: 2:26

The proposal, while couched in the language of modernization, really amounts to an effort by the government to exercise additional control over the legal profession. For example, the Law Society Now, which is independent of government, has 25 elected members who are lawyers. They are volunteers and they're on the board of directors of the Law Society. The government appoints six members of the public to be on the board as well. This proposal would reduce the number of elected lawyers, or total number of people on that board, to 17, and only nine of them a bare majority, would be elected lawyers.

Michael Mulligan: 3:13

The idea is the government wants to exercise additional control. They have a variety of objectives that are apparent from their proposal. One of the justifications is DRIP-A, that writes of indigenous people. Yeah, like that. Another thing which they make reference to is a desire to, and part of the way the government speak here. In addition to this quote, modernization they use this language of single regulator.

Michael Mulligan: 3:43

What's going on? There is really two things. First of all, we have in British Columbia lawyers. We also have notaries, which perform some functions like drafting wills and things of that sort, notarizing documents. The history of that is having people in smaller communities so that those legal services are more readily available. One of the other things that's been an ongoing source of tension is the issue of whether and what role paralegal should have been providing legal services. We have paralegals in British Columbia, but they operate currently under the supervision of a lawyer. If you go and hire a lawyer, they might have a paralegal that would assist with doing some work on the file. With the idea that it would reduce cost, the government has in mind having paralegals operating in an unsupervised way, as an alternative to properly funding legal aid.

Michael Mulligan: 4:37

The idea would be that, for poor people, the government could have a paralegal providing them assistance rather than providing legal aid funding. That's one of the other motivations that's been a source of tension over the years, because the law society's principal obligation is to ensure the public interest, production of the public. That's why we regularly wear this at all Right, just like other functions. You don't want somebody who's not trained as an electrician showing up to prevent a wire of your house, or somebody who just fancies themselves a doctor performing surgery on you. That's why we have a law society to regulate and ensure that people providing legal services are properly qualified, follow ethical obligations, and if they don't, they can be disciplined. That's why we have, and so there's been a tension there about you know, what role should paralegals have? Should they be supervised? Should they be working on their own? What form of training should they have? And the government wants to have that advanced to save money and providing legal services to the poor. So that's one of the points of friction. So the proposal is very problematic and you can tell that from the law society's response to it, which is essentially clear. This is not a good idea. The other thing which is interesting in this proposal is something that I've had some experience with over the years, and it's a proposal to prevent members of the law society from passing resolutions to direct what the law society should do. That's one of the elements that exists as part of the self-deferring profession and it's something that I've had some involvement with over the years, and the government wants to stop that, and a couple of examples of that that I've had some involvement with a number of years ago now, probably 20 plus years, has to do with math One of the resolutions of the members brought was to censure the then attorney general over funding cuts to legal aid, and so that kind of effort would be prevented. The government doesn't want that sort of thing happening, right? All these uppity lawyers telling them that what they're doing is inappropriate. Another example of that that I had some involvement with was a proposal to approve a new law school.

Michael Mulligan: 7:00

Law Law schools require accreditation by the law society if they want to have their degree recognized for the purpose of becoming a lawyer in British Columbia. You can't just start. You know Mulligan's law hot, that's what they're issuing law degrees. Well, you can, but they're not going to be good for anything, right, and so the law society has to credit the institution. And there was an institution that was a religiously based one, that had policies that would punish or expel people who were engaged in same sex relationships, which, to my mind at the time, was a outrageous policy and in conflict with the law society's fundamental objectives to uphold and protect the legal rights of all people in British Columbia. Right, how can you credit an institution which is clearly engaged in that behavior? That's an example of where the law society ventures approved the institution, and only by the effort of a resolution of the members lawyers thousands of them showed up and voted. They were told no, you can't approve it, and so that approval was revoked Ultimately.

Michael Mulligan: 8:16

And those are examples of how involvement from the membership and directing what their profession should be doing the government wants to stop, and so, if the government has its way here, it would both involve a increase of government control over the regulation of lawyers for their own purposes, uh, including, as I said, uh, that issue of who is qualified to do what and whether that's a good idea. It's clear why the government wants that, but in addition, you would have a circumstance where the members of the losses of lawyers would not be able to engage in the sort of uh activity that I've just referred to, which you can understand. If you are the government, uh, you may not like the idea of there being an independent group of people who may push back Uh on things that you wish to do. Yeah, that's sort of understandable. People want to have all the power and control for themselves and anyone else is Mucking with them or telling them that they don't have confidence in them or their policies might be Objectionable. Uh, you can understand why.

Michael Mulligan: 9:24

Naturally, nobody wants that right. It's sort of like, hey, you know, like some group of people who might Oversee you or sue you or oppose what you're doing, or whatever it might be. Clearly that's uncomfortable, uh, and so this appears to be an effort by the government to control Uh that kind of pushback, and it's very unfortunate Uh and I should say this the fact that there is an independent Um borough there that you can go and hire a lawyer who is not looking over their shoulder, but what the government thinks uh in terms of what they're doing or how they're opposing it, and they can vigorously Sue the government to do whatever is uh lawfully required to help you. Uh is very, very important and you know I appreciate it may not be something people think about every day I get that right but you should think about it because the existence of an independent legal profession is part of what Uh keeps you as an individual free of oppression by the government. Without that, you're pretty powerless. Right when the government comes and says I'm taking your land or I'm putting you in jail, or I'm taking your children, or I'm not going for us this or that, right If there's no one you can go to to get help, or the people you can go to are beholden to the government. Just think about the position you're left in, uh, and we.

Michael Mulligan: 10:49

We have an unfortunate history of some of that in british clumbia that should be remembered. We had for many years, for example, and in canada, uh, indigenous people were prohibited from hiring lawyers. Hmm, think about that, right, uh. And so if you are a first nation in british clumbia and you see this coming, you should look very long and hard at what's going on here.

Michael Mulligan: 11:12

And while I appreciate there is lip service to things like grippa in this proposal, um, you need to remember that at the end of the day, your interests are often in conflict with what the government wants, and you might like the current government, but you might not like the next one, uh, and so you should be very, very slow and careful, uh, before you think that it would be a great idea to allow government control or increased government control over the people. That are, the people whose task it is to defend you if you wind up in a legal dispute, and so this is a terrible proposal. People should read completely through the government speak explanation for it, and it is an attempt to creep further down the direction of government control over people and to prevent the sort of pushback which the government gets from lawyers, and you can understand why they may feel uncomfortable and not like that, but this is not an appropriate response to that. So hopefully there's a careful rethink about the wisdom of this proposal.

Adam Stirling: 12:25

Michael Mulligan, with Mulligan Defense Lawyers, legally Speaking, will have more right after this. Back on the air here with CFAQ 1070, michael Mulligan with Mulligan Defense Lawyers, legally Speaking up. Next, a judge concludes. Icbc, engaged in conduct, says here described as egregious, refusing to pay compensation order. I didn't know, you could just refuse an order Michael.

Michael Mulligan: 12:46

Yeah, indeed, and I must say that heading maybe is not news to many people in terms of how ICBC behaves, but here's how they could refuse to do something. This is a case. It's a Victoria case. It involves a woman who's now 65, she had a few years ago, back in 2017, was walking along Oak Bay Avenue and she eventually got backed over by a van a terrible accident. She wound up breaking her pelvis and a whole bunch of other injuries, seriously hurt, and it's obviously still impacting her life now.

Michael Mulligan: 13:21

It's also a good example of no fault. That's the difference there and what we had at the time. So this fortunately for her predated no fault insurance in 2021. But even prior to 2021, when we moved to a strictly no fault system in BC, under ICBC, there was still a no component of no fault. In this way, prior to 2021, if you got injured in a car accident, you could sue the other person who drives over you with their van, right. What you can't do after 2021 is you can't sue the van driver. You're left only with what ICBC might choose to give you.

Michael Mulligan: 14:00

But even prior to that change, there was a part of ICBC insurance it was called Part Seven Benefits which would provide things like rehabilitative care, crutches, wheelchairs, things like that, regardless of whether you were responsible for the car accident or not. So even if you were the careless person who rear end somebody, you would still get those basic healthcare requirements covered for you under those Part Seven Benefits, and they had a limit of $150,000 at the time. And so when you hear the government talk about how the change to no fault is in quote, enhanced care, close quote what they've done is increase the potential amount of those no fault benefits and completely eliminate the ability to sue. Right, so that's what's enhanced. The thing that's gone is the bigger thing, but that's the background. And so at the time, one of the things you don't want is you don't want somebody recovering twice, right. And so when you sue somebody, a large part of what you might recover would be the cost of your future care, like, do you require nursing care or do you require physiotherapy or whatever it might be? And so in this case, the judge awarded a total of. He went to court. Icbc refused to pay, so went to court. The judge awarded this retired teacher a total of $407,000, of which $272,000 were for future care, nursing care, rehabilitation, that kind of thing. There's a section of the ICBC, by the way, appealed that to the court of appeal and lost. But then what they did is that there's a section of the insurance motor vehicle act section of the money that allows ICBC to deduct payments that would be those old no fault payments from the amount somebody was awarded, so they don't get paid twice for the same thing, right? That sort of makes sense, right, like if the judge said I'm giving you money for physiotherapy, you don't get the money for physiotherapy twice, you only get it once. Fair enough.

Michael Mulligan: 16:08

But what happened here is ICBC was refusing to pay the woman any of her physiotherapy costs. She would put in claims and they wouldn't pay them. Months would go by, more than a year in one case. But then they said well, now we're not paying you the money. The judge ordered you at least a large portion of it, because we say that that could be covered in the future under those Part 7 benefits. We're not paying you but it could happen and so we're just going to deduct that and sort of on a literal reading of the section that might be a possible interpretation. But you can appreciate how seriously unfair that is when you are saying we're not paying it, but we might pay it in the future, so we're just deducting that. Too bad for you.

Michael Mulligan: 16:57

And so this woman had to hire a lawyer again, go to court, and the judge, who originally ordered her to be compensated by the getting run over by the van, was extremely critical of how ICBC was conducting itself here. She concluded that the judge concluded that she was unable to presume that ICBC would conduct itself honorably. Moving forward, she reviewed just the terrible unfairness of how they were approaching and using that section, so that section was not intended for that purpose. And so, to prevent ICBC from continuing to use that section, they were not paying you what was ordered by the judge and upheld by the court of appeal. The woman waived any future entitlement to those possible no fault benefits. I said, okay, I just waived all of them. Pay me. And that's what the judge ordered, because what good is a possible payment that you will not make? And so that is how ICBC, despite being ordered by a judge, upheld by the court of appeal and promising because they promised to treat this woman properly and pay her what she was due, they refused to until the matter wound up back in court, and that's how the judge addressed it and so very upsetting in terms of how a public entity would conduct itself.

Michael Mulligan: 18:22

And there's yet another example this isn't criminals not taking your children, and it's not a land claim. This is just a dispute with a government owned insurance company. And another example of how it's so important that there be this opportunity to go to court and have a judge to order them to do what they have to do. By the way, that's over, uh, and so we now have no fault. So you now live in a world, uh, where if ICBC is treating you as clearly the treat people this is yet another example of it uh your remedies are going to be seriously limited. You're going to be left with going to an ombuds person that works at ICBC or trying to complain to a thing called the civil resolution tribunal, where the people working in it are on short term renewable government contracts.

Adam Stirling: 19:08

Yeah.

Michael Mulligan: 19:09

Good luck trying to get somebody on a short term renewable government contract uh to speak about, uh, how the government owned entity uh is engaged in the greigious conduct and treating you in a completely unacceptable way. Guess what happens next time their contract comes up? Uh and so this is another example of why it is so important that there be an independent bar and you can go to somebody who is not concerned about going and taking it to the government and eventually this woman should now, after many years, get what she deserves. I see BC has been refusing to do it and dragging their feet in every way possible. Um and uh. So hopefully the uh retired injured school teacher uh can get the money she needs for her physiotherapy because she couldn't pay for it. Um, she was retired on a limited income and I see BC just wouldn't pay her. Uh and so, uh, hopefully now she'll get what she deserves. And yet another example of why it's so important that she has that safety belt.

Adam Stirling: 20:08

Yeah, I hope so too. We have two minutes left and one story about a judge warning about identity fraud with respect to indigenous status. What's going on?

Michael Mulligan: 20:18

So what's going on here is, for many years in Canada we've had vastly too many, um, people who are indigenous in prison. They're just, they're completely overrepresented and it gets worse every year. Uh, and various things have been tried over the years to help with that. This Marine Corps to Canada and the case called glad do spoke about that and spoke about the terrible history of indigenous people and how that ought to be a consideration on sentencing. Uh, it still hasn't had that effect, but they're, we're trying. One of the things which has developed, though this judge spoke about it. As they said, the judge described it this way a tsunami is coming, driven by a desire of non-indigenous people to get what they perceive to be a benefit of identifying as indigenous. And so the issue here was okay, the Supreme Court of Canada said we, you know we have this terrible problem is getting worse. Uh, we should be taking somebody's background into account when sentencing them. Right, if they'll say they were a survivor of residential school, that should be a consideration when determining whether they should go to jail for their you know, the salt case or whatever it might be. Yeah, now the judge here said look, this person is identified as matey, but there's nothing else to really support that we operate on the basis of self identification, um, and so the judge just said look, they just doesn't accept that.

Michael Mulligan: 21:34

Interestingly, the judge has sort of opined that the person didn't do a DNA test to try to connect up their uh background, which is an interesting thing as well. And so there's some just really big questions there we need to be asking about. What do we do about this problem? Is the approach we're taking an appropriate one? Is self identification the right method, or is it appropriate for people to be doing DNA tests to determine that?

Michael Mulligan: 22:00

And then I guess the other bigger question is should sentencing be a function of your DNA analysis rather than an assessment of what impacts did something have on your life, not what was does your DNA say? Right, that's been an approach the US Supreme court has taken in terms of college admissions recently, saying your background can't be a factor, but personal things that affected you can be a factor, and so maybe that's what we need to move to in Canada, rather than DNA testing, which seems a little uh Orwellian in terms of sentencing. So that's the case about the tsunami of uh false identifications this judge is worried is warning about Indeed Michael Mulligan with Mulligan defense lawyers, legally speaking during the second half of our second hour every Thursday on C facts.

Adam Stirling: 22:43

A pleasure as always, michael, thanks for the time. Thanks so much. Always great to be here.

Michael Mulligan: 22:45

All right, all right, bye now.