Legally Speaking Dec 17, 2020
Adam Stirling [00:00:00] Legally Speaking, coming up in just a moment with Michael Mulligan standing by first, here's Premier John Horgan earlier this week.
Previous Recording Premier John Horgan [00:00:06] That means holding rule-breakers accountable. That means ensuring that the fines that we levy are collected. Certainly, everyone has a right to appeal. Everyone has a right to due process. But once that due process has been finalized, if you do not pay the fines, we will send collections after you. This is serious. This is not a lark. This is not something we do lightly.
Adam Stirling [00:00:29] Premier John Horgan, Michael Mulligan making those remarks earlier this week. Good morning. How are you?
Michael T. Mulligan [00:00:33] I'm doing great. Thanks so much for having me.
Adam Stirling [00:00:35] Sending collections after me. That sounds quite ominous is the sort of thing I might call a lawyer over. What is the story on the legalities of all that?
Michael T. Mulligan [00:00:42] Sure. Well, it certainly is a tough-sounding speech, so maybe it will encourage people to put that mask on when they should. But the reality of sending something off to collections is maybe not quite as ominous as the speech would have suggested. That process of trying to collect money from people, with a collection agency, that essentially involves a collection agency repeatedly phoning somebody and trying to harass them into paying a debt. One thing people should be aware of, the general consumer advice that would apply to this, too. There's actually a provision in the British Columbia Business Practices and Consumer Protection Act, Section 116, (4), as it happens, whereby if you're getting harassing phone calls from a collection agency, you can fill out a form, send it to the collection agency, and that prohibits the collection agency from continuing to phone you. They are then only permitted to send you letters. And it's, of course, a little harder to harass somebody by letter than it might be phoning them repeatedly. So, well, I hope that encourages compliance. It seems to me that's a pretty weak sauce in terms of trying to collect debts from people for fines. I'd be very interested to hear what percentage they actually succeed in collecting by that effort. Now, with that being said, it seems to me there'd be a much more effective way to ensure compliance.
Adam Stirling [00:02:10] Hmm
Michael T. Mulligan [00:02:11] And that is because starting tomorrow, there is a process in place to allow people to apply for payments that are supposed to be COVID-19 relief payments from the provincial government with the idea of sending people out $1000 payments.
Adam Stirling [00:02:27] Yes.
Michael T. Mulligan [00:02:28] You, of course, have no right to receive a thousand dollars from the government. The legislature is currently sitting. It seems to me if anyone's listening and thinking this through, perhaps one of the criteria you would want to add to the application process to get your thousand dollars from the provincial government would be that you're not alleged to have breached covid-19 safety measures under the, the health legislation. Why in the world are we sending a thousand-dollar check to somebody who's believed to have endangered other people for the slavery pandemic that we'd be sending a thousand dollars to, for heaven's sakes, amend the legislation and don't send the thousand dollars over to somebody in that position and then try to have a debt collection agency, chase them around to get some portion of it back. And if you wish to have a as there should be some due process protection. If the person wishes to receive their gratuitous payment of a thousand dollars, give them some opportunity to establish that they were in compliance with the health orders. And if so, that's fine. We'll send you that cheque. The other otherwise had no particular right to. But sending people who are anti maskers and holding dangerous gathering's cheques and then trying to have a collection agency phone them to get some portion of that back seems to me like a terrible mistake. And we have an opportunity to avoid doing that. The legislature is currently sitting and the applications for checks are scheduled to go out tomorrow.
Adam Stirling [00:04:10] Hmm.
Michael T. Mulligan [00:04:10] So hope somebody listening and doesn't we don't carry on with what's currently planned.
Adam Stirling [00:04:16] I must say, I like your argument, the gratuitous nature of the payments, as well as there being no rational attachment to 2020 pandemic income. Instead, relying on 2019 tax filings, I think cements the, the understanding that these payments really are just gratuitous for no reason rationally connected to the present pandemic. So, yeah, why not hold them back? I like that idea, Michael.
Michael T. Mulligan [00:04:40] Sure. I mean, it seems to me the justification for this is to provide some relief to people who are in a difficult time as a result of the covid-19 and sending that money out to people that are hosting large house parties, are engaged in gatherings that endanger everyone or refusing to wear a mask in public. It seems to me like unnecessary outrage. There's time to stop that, and you would think that would be an incentive for people to, if they want that kind of government help stop engaging in behaviour that's putting everyone else at risk.
Adam Stirling [00:05:12] Eminently reasonable is always. What else is on the docket today?
Michael T. Mulligan [00:05:17] Well, I thought there was, what I took to be a heartwarming story, about how we generally operate in British Columbia. And that came in the form, and I should say, you know, this is a good time for heartwarming stories that we're in 2020 and right before Christmas.
Adam Stirling [00:05:32] Yes.
Michael T. Mulligan [00:05:33] But this particular one came in the form of the judicial recount and the reasons for judgement in that out of the West Vancouver Sea to Sky Electoral District. That was a place where there was a very tight result in the last provincial election, following the initial count, the Liberal candidate there was ahead by 41 votes in front of the Green candidate, 9216 to 9175 votes. So very tight. And so that precipitated a judicial recount of those votes. And there was a slight change after that. I must say, I enjoyed reading the description of the various things people had done to ballots that created some controversy. You recall previously we discussed some of the rules include things like, you can't put marks on ballots or identify yourself.
Adam Stirling [00:06:29] Yes.
Michael T. Mulligan [00:06:29] You have to clearly identify the person you're voting for. One person wrote Donald Trump next to a candidate's name, that is all they put on the ballot the candidate, Donald Trump, written next to the name, urged that ballot be accepted as a vote for them. The judge didn't buy that.
Adam Stirling [00:06:44] No.
Michael T. Mulligan [00:06:45] Or some other person drew what appeared to be a swastika.
Adam Stirling [00:06:50] oohhh.
Michael T. Mulligan [00:06:50] Next to a certain candidate. And so, of course, there was some argument about, well, does that mean they like that candidate.
Adam Stirling [00:06:58] Or are they negatively branding that candidate?
Michael T. Mulligan [00:07:00] Is that a repudiation of the candidate? Hard to know. The judge did accept that one, found that it was it could be argued that there was some form of a cross. There were other various things people did. Some people try ranking people with numbers that, that didn't work out. There was some someone else, I think was more than one where a person had written in and one of those write in ballots.
Adam Stirling [00:07:23] Yes.
Michael T. Mulligan [00:07:24] They'd written in a candidate who wasn't a candidate in the reading writing and then crossed it out and initialed it. Kind of like they were initiating a change of cheque. Not a crazy thing, but you've now kind of initialed your ballot. (muffled)
Adam Stirling [00:07:38] Yeah.
Michael T. Mulligan [00:07:38] And they were a few of those that wasn't that wasn't a unique idea. And there was some assessment made of those in terms of whether that was an identifying mark or whether it was just a little, a messages, a little unidentifiable squiggle. The net result was a minor change in the vote count. By the end of the judicial recount, the lead of the Liberal candidate there had increased from 41 votes to 60 votes, which is great. It didn't change the outcome. Small change. But this gets me to the heart-warming part. And the heart-warming part comes in, I think the conclusion that the judge set out in the reasons, he said "as this report and reasons are written and as the recount was conducted, the outgoing president of the United States, brandishing all caps, tweets, rather than evidence, falsely claimed that his electoral loss was due to unsubstantiated fraud. He was ignorant or perhaps more likely fully conscious of the corrosion his allegations in a marked departure from presidential norms would inflict on the constitutional underpinnings of that beacon of democracy. It was a privilege to preside over the recount and witness the process under which every last ballot was meticulously and carefully recounted by Elections B.C. and scrutineers from both parties. To this judicial witness the process confirmed the integrity and strength of a democratic process. It appears that the other participants in and witnesses to the judicial recount shared this view. Soon after the recount results, one of the candidates publicly congratulated the other by a media release and sweet gesture, not only gracious, but fortifying for a democratic norms. When the court read out the results, the entire room, Green Party and Liberal Party volunteers alike, some of whom had hand counting ballots over two days, spontaneously erupted into applause." So, I thought that was just a heartwarming contrast of how we are conducting things in British Columbia as opposed to what you're probably seeing the display in the nightly news play out in the United States.
Adam Stirling [00:09:42] Indeed. In fact, I think it's ever been more clear that the functioning of democracy itself relies on the ability of participants to, when necessary, be good losers and gracious losers, because there always does have to be at least one loser in any electoral process.
Michael T. Mulligan [00:09:58] That's true. Happily, of course, the winner here didn't win as a result of having Donald Trump written next to their name or being the recipient of the swastika. I'm not sure that would have been worth it.
Adam Stirling [00:10:10] I will not comment. Let's say you're a CFAX 1070. I always love these stories. And I know Michael has told us in the past how he's taken part in one of these recount type procedures where a judge as well as lawyers will carefully review any ballots that are called into question. And I am so thankful that we have established processes like that here in British Columbia, here in Canada, upon which all sides, can rely and with confidence say, yes, there is a clear winner. This is the will of the people. This is what we are doing. That's a precious thing. We need to make sure we don't risk losing that here as well. Quick break. We're back in a moment.
[00:10:49] COMMERCIAL.
Adam Stirling [00:10:49] Legally Speaking continues on CFAX 1070, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. What's next on the agenda, Michael?
Michael T. Mulligan [00:10:56] Well, I think the next one is a cautionary tale out of the Court of Appeal that involves a real estate transaction gone wrong. And I think there's a couple of good things people should be aware of here if they're buying or selling a home.
Adam Stirling [00:11:12] Yes.
Michael T. Mulligan [00:11:12] A lot of people doing that in the current environment. So, the particular case involved family who listed a home for sale and the person agreed to purchase it and they provided a deposit of $50,000. For financial reasons, the person had agreed to purchase it, wasn't able to complete the transaction, and so they breached the agreement. The home sellers then relisted the home for sale promptly and were able to sell it, but for less money than the original purchaser had agreed to pay. And so that resulted in the seller, the home seller suing the person who had originally agreed to purchase it for the difference between what they had agreed to buy the home for and what they wound up selling it for was $100,000 less. And all of that is fair enough. That's kind of how it works. If you enter into an agreement like that to purchase something and you don't follow through and the person winds up losing money, you could be on the hook for the difference.
Adam Stirling [00:12:15] Yes.
Michael T. Mulligan [00:12:15] So it's important to know don't go and agree to buy something if you're not confident, you're going to be able to complete the deal. But this is the wrinkle, and I think this is something people should be aware of. This case involved, he was described as the standard form listing agreement, the kind of thing that would be brought up by a real estate agent, and you'd be asked to sign if you were selling your home. And the standard form listing agreement, one of the things that would deal with, one of its primary topics, is the payment of commission to the real estate agent who's selling your home. And that commission is usually shared between the two agents, the one who's selling it, and Bruce acting for the purchaser. But here's the thing. The way that standard form agreement is drawn up is that that real estate commission becomes payable upon the real estate agent having somebody enter into a binding contract to purchase the home, not actually completing and purchasing the home. What that means is that in a scenario like this, where the person agrees to buy the home, provides the deposit, in this case the 50000 dollars, and then the person doesn't follow through and complete it, you're still on the hook to pay the real estate agent their commission. And in this case, I think it was slightly more than what the deposit was. So, well, as a seller of your home, you might think, great, that's all persons paid a deposit, I guess I'll have some protection if the person doesn't follow through, you may find it, in fact, you have none because all of that money and more may be due to your real estate agent, even though the contract didn't complete. And so, the piece of consumer advice is that if you're selling your home, you might want to consider not signing the, "standard form listing agreement" that a real estate agent would ask you to sign. You might want to have that changed so that the commission is only payable if the person actually follows through and buys your house.
Adam Stirling [00:14:07] Yes.
Michael T. Mulligan [00:14:08] Not just agreed to buy your house and then doesn't. Now here, because this thing will end up in litigation after the house sold for less, the people who sold it were suing and asking for, amongst other things, the real estate commission. Saying, hey, we have to pay it twice, we had to pay it again when we sold the house a second time because the real estate agents do a commission on that occasion.
Adam Stirling [00:14:30] Yes.
Michael T. Mulligan [00:14:31] They're saying, hey, we should get both commissions. And indeed, the court said generally that is true. Right. The idea where there's a breach of a contract like that is you should order an amount of money paid to put the person back in the position they would have been in for the contract being breached. So fair enough. You get both commissions from the person who breached the contract. But here it turned out there was actually no evidence that they had paid the first commission. And that could be either because they didn't pay the first commission, or it could be because the real estate agent said, well, look, you know, I won't insist upon that, but, you know, otherwise you're out another $50,000 in commission for selling this house twice. That's unclear. But so, in this case, the person who breached the contract wasn't on the hook for both commissions because there just wasn't evidence that despite what the contract said, the sellers actually paid it on the first occasion. But if you want to protect yourself selling your home, you might think twice about whether you want to sign the standard form agreement, which would make you responsible for paying that commission even when the house doesn't actually get sold. There was just an agreement to buy the house which falls through. So, think about that if you're planning to sell your house in the current hot market.
Adam Stirling [00:15:48] Absolutely. New court direction I'm reading here to provide preferred pronouns in the course of introductions. And this, of course, makes me remember previous conversations we have had. Most of us see court for the first time in Canada through American television networks, where it's customary to refer to the presiding judge as your honour. I've been told by litigators here in Canada that my lord or my lady is used much more commonly, at least in some courts. Remind us of how all that works.
Michael T. Mulligan [00:16:14] Yeah, we're kind of all over the map on that front and some of those disparities and what we're doing, I think how we're doing it should be perhaps reconsidered in light of the practice directive that came out the other day. So, the district of the came out and there were two of them. It was they were the same essentially. One was from the British Columbia Provincial Court and the other was from the British Columbia Supreme Court. And the practice directives both indicate that now at the beginning of any proceeding, when people are being introduced, the lawyer doing the introducing is required to advise what the person's preferred pronoun would be:, Mr., Miss, Mix, Counsel Jones, whatever it might be, and so that the court and others would be able to use whatever the person prefers. And so, I think that's a good idea. It's also, of course, sort of sensitive to people's desire to use their preferred pronoun. It also has some good practical benefits as we're doing many more virtual proceedings where it could be completely unknown who the judge is speaking to and wanting to make sure that they address the person as they prefer to be addressed. But it caused me to reflect upon the issue of how we address judges, and how judges are addressed depends on the level of court. And in British Columbia, in provincial courts, sort of the lower-level court in British Columbia, the judges are all referred to as your honour. Right, which is, of course, gender neutral.
Adam Stirling [00:17:50] Yes.
Michael T. Mulligan [00:17:51] In Supreme in the British Columbia Supreme Court and in the British Columbia Court of Appeal, however, we continue to use My Lord and My Lady, and that, of course, is gender specific.
Adam Stirling [00:18:04] Yes.
Michael T. Mulligan [00:18:05] And the Supreme Court of Canada, by the way, has now gone to directing people to use Justice rather than My Lord and My Lady. Now, that's actually interesting because it's been in the British Columbia Supreme Court, there was some controversy about that. It was about 15 years or so ago and I recall I was in the middle of a trial that was going on for several weeks with now retired Justice Dorgan from British from Victoria. And there was at the time we started out with y Lady, and then there was a move afoot to move to your honour or some of the judges in the Supreme Court thought that would be better to have a gender-neutral term, maybe a little less archaic than the My Lord and My Lady. And so, she decided, OK, I'm going to please use your honour. So, we spent a week of your honour in Supreme Court and then a practice directive came out from on high, telling the judges of the B.C. Supreme Court, if it would have been from the chief justice, no back to My Lord and My Lady. So, she came in a week three, OK, I see I am back to My Lady. And so that's what we've been doing since then.
Adam Stirling [00:19:13] Hmm.
Michael T. Mulligan [00:19:13] And I should say in the same for the same reason why this practice directive that came out yesterday, I think was a good idea, so that people be able to have their preferred pronoun. It seems to me either, we should have the same pronouncement by the judge in terms of what they would prefer, if we're going to continue to use My Lord and My Lady, it seems to me they should advise which of those they would prefer to use or the alternative to that would be to adopt something neutral, Your Honour, right?
Adam Stirling [00:19:45] Yes.
Michael T. Mulligan [00:19:46] In the Supreme Court as well. I can say there's other only half-jokingly. It can become more complicated in the British Columbia Court of Appeal, where you have multiple judges.
Adam Stirling [00:19:58] Oh, yes, you address them all at once, right,.
Michael T. Mulligan [00:20:00] You would have three or five, they also sit in order of seniority with the senior person in the middle and the proper order of address would be to address them in order of seniority. And so, if, of course, if all the judges were female and could just be My Lady's this or that or My Lord’s such and such. Right. But if you had a senior female judge and then a male judge and then a female judge in order of seniority would be My Lady, My Lord, My Lady. Right. Or in the most ridiculous, if you had five and it was alternating back and forth, you could have My Lord, My Lady, My Lord, My Lady, My Lord.
Adam Stirling [00:20:36] What happens if you get it wrong?
Michael T. Mulligan [00:20:37] Now, that's certainly a frown. Somebody's going to realize I'm out in the pecking order. I must say some of those things also, it would cause me to sort of reflect upon, no matter what station somebody winds up at in life, right, you you've, you know, you've had a good career. You've been eventually appointed to the Court of Appeal. There you are after many years, senior person. Then you realize, oh, I'm the junior winger.
Adam Stirling [00:21:05] There's always a bigger fish.
Michael T. Mulligan [00:21:06] There's always a bigger fish. I guess that's the message there. But I think I would suggest I mean; one alternative would be to expand this practice directive to ensure that the judges in Supreme Court and in the Court of Appeal, at the beginning of each proceeding, announce themselves and advise which a mode of address they would prefer. That seems like it would be an appropriate thing to do in light of these directives that came out yesterday, or I think even better, why don't we just go with Your Honour everywhere. Right? Surely that's a sufficient, sufficient mode of address and that avoids the need to have somebody identify which of those modes they would like the judge.
Adam Stirling [00:21:55] Interesting, as always, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, legally speaking, here on CFAX 1070. Michael, thank you so much. Until next week.
Michael T. Mulligan [00:22:03] Thank you very much. Stay safe. Have a great week.
Adam Stirling [00:22:05] You too. Bye now.
Automatically Transcribed on December 18, 2020 – MULLIGAN DEFENCE LAWYERS