COVID-19 Related Measures Act vs Human Rights Code and a local government prohibition on building anything unreasonable

This week on Legally Speaking with Michael Mulligan:

Some people opposed to the requirement to be vaccinated for COVID-19 to attend non-essential businesses such as restaurants and bars have suggested that they have a right to do these things because of the BC Human Rights Code. 

While the BC Human Rights Code does have a provision that precludes discrimination in the provision of service based on various factors including physical or mental disability, this is subject to “bona fide and reasonable justification” for denying service. 

It is also uncertain if a refusal to get vacated would constitute a physical or mental disability. 

More significantly, it’s important to remember that the Human Rights Code is only a piece of provincial legislation. 

In British Columbia, there COVID-19 Related Measures Act became law on July 8, 2020. This act continues ministerial orders that were originally made pursuant to the Emergency Program Act. It also allows for new ministerial orders to be added to address COVID-19.

Section 2 of the COVID-19 Related Measures Act specifies that in the event of a conflict with any other act of regulation, the COVID-19 Related Measures Act, and regulations under the act prevail.

Therefore, if a ministerial order preventing unvaccinated people from attending non-essential businesses was found to conflict with some provision of the Human Rights Code, the ministerial order would prevail. 

It is therefore exceedingly unlikely there will be a successful Human Rights Code claim to permit unvaccinated people into non-essential businesses. 

Also on the show, a judicial review has found a decision of the Cowichan Valley Regional District to refuse permission to build a home to be unreasonable. 

The Cowichan Valley Regional District relied upon the Local Government Act and the Riparian Areas Protect Act to deny approval for a home to be built on Cowichan Lake.  

The judge on the judicial review concluded that while the Riparian Areas Protect Act permitted development within 30 meters of the lake to be restricted if it would cause “harmful alteration, disruption of natural features, functions and conditions that support fish like processes in the riparian assessment area”, that it was unreasonable to use this justification to prohibit any development in that area. 

As a result, the couple wishing to build a new home will be allowed to do so. 

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

Transcript

Legally Speaking Sep 9 2021

Adam Stirling [00:00:00] Legally Speaking, on CFAX 1070, joining us is always Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, how are you? 

Michael T. Mulligan [00:00:08] I'm doing great. Always good to be here. 

Adam Stirling [00:00:09] You know, Michael, I have seen so many folks lately and I hope I never fall into this category. And if I do, I feel bad about it. Who have their law degree from Twitter, it seems? And they are very confident in their understanding of the Charter of Rights and Freedoms of Canada's constitution and what it does and does not allow with respect to vaccination mandates. Now, you have helpfully educated us as to what the law actually says on this matter. We talked about the charter last week. What about the B.C. Human Rights Code? I've seen that mentioned as well. 

Michael T. Mulligan [00:00:39] Yeah, that's a good question. That seems to have been getting some traction on the lunatic fringe element, arguing for not getting vaccinated. And there has been suggestions that somehow the human rights code is going to provide some legal cover for showing up in bars and restaurants and so on unvaccinated. And there are several reasons why that is very unlikely to get any legal traction. First of all, the human rights code itself, like if you look at the legislation, speaks about a person being denied entry to a facility, but it provides an exception to that, saying that it could only be in violation of the human rights code if the denial is without bonafied and reasonable justification. 

Adam Stirling [00:01:33] hmm. 

Michael T. Mulligan [00:01:33] And then furthermore, you would have to establish that the refusal to allow somebody into your bar or restaurant was as a result of one of the prohibited reasons why you shouldn't discriminate against people. And choosing not to be vaccinated doesn't seem to fit with any of them. 

Adam Stirling [00:01:52] Yes. 

Michael T. Mulligan [00:01:53] But there's a more fundamental issue here, which is that leaving aside how somebody might interpret the particular provisions of the human rights code in British Columbia, it's important to remember that unlike the charter, which also seems to have been becoming quite popular with the Q Annon set. We were at the Saanich Fair in the weekend and there was an unmasked, anti vax or who was carrying around a laminated copy like a shield. I think the entire copy of the charter going up to people trying to persuade them of her position, at least it was outside, I guess, at something. 

Adam Stirling [00:02:34] Well, yeah. Yeah. 

Michael T. Mulligan [00:02:37] So not in a bar or restaurant, but the charter, of course, is constitutional and laws need to conform with it. 

Adam Stirling [00:02:47] Yeah. 

Michael T. Mulligan [00:02:48] However, it's important to bear in mind that the human rights code in British Columbia is simply a piece of provincial legislation. 

Adam Stirling [00:02:56] mhnn. 

Michael T. Mulligan [00:02:56] It's not constitutional. And in British Columbia, there was an act passed. It actually came into effect July 8th, 2020. It's called the covid-19 Related Measures Act. And that act does a number of things. First of all, it was intended to continue the various ministerial orders that were originally made under the Emergency Program Act. Right. There were all sorts of orders that have been made in order to try to ameliorate the risk of covid. 

Adam Stirling [00:03:30] Yes. 

Michael T. Mulligan [00:03:31] That were originally made under that Emergency Program Act, which were continued under the Covid-19 Related Measures Act, which was the law of British Columbia. And the Section two of the Covid-19 Related Measures Act provides that if there is any conflict between this act, that is to say, the Covid-19 Related Measures Act or any regulations made under it and any other act or regulation in the province, the Covid-19 related measures act trumps. So then you have to look at the way that would play out is that if you have a ministerial order which can now be made under this act, that is to say the Covid-19 Related Measures Act, which would prohibit, for example, people going into bars without providing proof that they are vaccinated, the that requirement, which would take the form of a ministerial order under the Covid-19 Related Measures Act, trumps the human rights code. And so that results shouldn't be a surprising one. Right. One of the sort of core functions of government would be to sort of take steps to ensure health and safety of people. 

Adam Stirling [00:04:52] Yes. 

Michael T. Mulligan [00:04:52] Right. And the balancing of how that is to occur and what measures would be appropriate or. Not decisions that are going to be left to the human rights tribunal. 

Adam Stirling [00:05:05] I see. 

Michael T. Mulligan [00:05:05] They are decisions which are going to be made by the provincial government. And so, where there is an order made requiring proof of vaccination to go to the bar, you are not going to be able to successfully refer it to the human rights code and say, oh, yes, somehow I've got some human rights, human right to go to the bar unvaccinated and breathe on people. That argument is not getting far because of that provision that I've just referred to. 

Adam Stirling [00:05:37] mhmm. 

Michael T. Mulligan [00:05:38] Furthermore, the Covid-19 Related Measures Act also has the authority to prohibit claims, legal claims for damages related to the covid-19 pandemic. 

Adam Stirling [00:05:54] mhmm. 

Michael T. Mulligan [00:05:54] And so if there became a problem of sort of clogging up the system with, you know, complaints that didn't have any merit, for example, because the Covid- 19 Related Measures Act trumps the human rights code, there's also provision in the Covid-19 Related Measures Act to simply prescribe the classes of people who are then not subject to legal proceedings claiming damages related to the covid-19 pandemic. And so, the short of it all is that not only is it incredibly unlikely that there is going to be some constitutionally protected right to go into crowded places and put other people at risk, it is even more unlikely that somebody is going to succeed with a human rights code complaint, that they have the right to go in an unvaccinated state into discretionary places and put other people in jeopardy. That is going to run headlong into the Covid-19 Related Measures Act and is exceedingly unlikely to get traction. 

Adam Stirling [00:07:07] yes. 

Michael T. Mulligan [00:07:07] And so people would be well advised not to be relying on the Twitter or Facebook advice about what somebody might or might not be permitted to do. That just is most unlikely to get any real legal traction. And so don't get your legal advice from Q Annon Shaman or some person on Twitter. 

Adam Stirling [00:07:31] You know, I can't help but wonder what it must be like to have the knowledge of yourself. A member of the bar, a member of legal profession, or even a member of the judiciary, because obviously everybody goes on social media. I would assume much of it is reviewed even if posting is not done. But I can just imagine how ridiculous it must be to like see some of these interpretations that are sort of taken as fact. And of course, it's completely bizarre and wrong, but no one really seems to do anything about it because it's not actually before a court. I wonder what that's like. 

Michael T. Mulligan [00:08:00] Well, you know, I think it's sort of what I see going on with, you know, the woman carrying around the laminated copy of the charter or people posting things about how the human rights code is going to get them into the bar next weekend or whatever it may be. It's sort of like the conspiracy, other conspiracy theories where there's some grain of something. You can find some word or language out of context and then say, hey, look right here. Look, look, it's in the human rights code. And if you don't read the whole thing and the preamble to it and you're unfamiliar with all the other legislation or the cases that interpret it. 

Adam Stirling [00:08:39] Yeah. 

Michael T. Mulligan [00:08:39] You might be able to make some argument about something or other. And so then off it goes on Twitter or Facebook. And then that gets pointed to is why you've got the right somehow not to wear a mask inside or why you don't need to get vaccinated. And it produces people wandering around with laminated copies of the charter. And so, it's just you need to have a bigger picture is not enough to sort of find some wording somewhere that seems to conform with whatever theory you've you're espousing. And some might argue that that's going to be the legal result. You need to look at other legislation. You need to look at how courts have interpreted things in the past. It's not a completely fresh exercise. You don't get to just find some isolated piece of legislation with some language you like and argue that that is going to support your support, your position. 

Adam Stirling [00:09:36] All right. Let's take our break, Legally Speaking, on CFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers continues right after this. 

[00:09:45] COMMERCIAL. 

Adam Stirling [00:09:45] And it's Michael Mulligan with Legally Speaking, on CFAX 1070. Michael, do we have anything else to add to the covid issue before we move on to the Cowichan Valley Regional District matter? 

Michael T. Mulligan [00:09:55] No, I think that's about it. Just, you know, maybe focus your research on CanLII rather than Twitter, if you're trying to figure out what may or may not be legally permitted, 

Adam Stirling [00:10:07] absolutely good advice. So, what's exactly happening up in the Cowichan Valley Regional District I'm reading here, it's an attempt to entirely prohibit development in an area on the shoreline of Lake Cowichan and whether or not it's reasonable. 

Michael T. Mulligan [00:10:19] Indeed. And I must say this case that just came out focuses on that issue. But there's a broader issue at play here, which we've seen debated in the context of the current federal election, where the parties are at all, I think all of them, are talking about shortage of housing. 

Adam Stirling [00:10:40] Yes. 

Michael T. Mulligan [00:10:40] And how that could be a problem. And housing is becoming very expensive, and we need to build more houses for people. I think that's common in many parts of the country. And this case, I think, demonstrates why, even though there may be agreement at the national or provincial level that we need more houses built, one of the reasons why we don't see more houses built is that there's been a decision to delegate to local governments the authority to approve particular houses being built. 

Adam Stirling [00:11:12] Yes. 

Michael T. Mulligan [00:11:13] And while, most people or many people would agree, hey, we need more houses for people. If you ask the question, should that new house be built near your house? Often the response to that is, oh, no, anywhere else, really, except, of course, next to my house. And so, the bigger policy question I think that this case might demonstrate is whether we need to rethink, you know, how local those kind of decisions should be, because you can wind up with decisions like what we saw, what we see in the case I'm about to talk about. 

Adam Stirling [00:11:46] hmm. 

Michael T. Mulligan [00:11:47] and the particular case. It comes out of the Cowichan Valley Regional District, and it was a couple who purchased a half-acre property on Lake Cowichan that had an old cabin on it. And they wanted to build a new house on Lake Cowichan. And in order to do that, they needed to make an application to the Cowichan Valley Regional District for permission to build the new house. And they ran into trouble because essentially the bylaws of the Regional District provided that absolutely no new building may occur in the area that they wish to build their new home, and that as a result of that, the Cowichan Valley Regional District told them, no, you can't build your new home. And they relied upon provisions of the Local Government Act and another act called the Riparian Areas Protection Act. 

Adam Stirling [00:12:48] mhmm. 

Michael T. Mulligan [00:12:48] The latter is designed to protect lakes and streams and that kind of thing. And the language in that act provides that there can be prohibitions on development, which would be, "harmful alterations, disruption or destruction of natural features, conditions that support fish, the riparian assessment area". Right. So, there's legislation that does allow for there to be restrictions on things that might be harmful. But the way the regional district had applied that principle was to essentially say absolutely nothing can be built in that area. And so, the couple was told no. And they conducted a judicial review of that decision made by the board of the Cowichan Valley Regional District. And so, a judge had to determine whether the district’s decision to say no, premised on a bylaw that simply said absolutely not, was reasonable. And the judge concluded that the decision was not reasonable. And the reason that the judge applied, he found it wasn't reasonable because the board has exercised its discretion to say no based on this bylaw that essentially said no ever. And the judge concluded that those provisions in the provincial legislation that allowed for there to be restrictions on development that would be essentially harmful or disruptive to fish life and so on, does not mean that you can simply pass a bylaw that says, you know, banana, don't build anything, anywhere near anything. 

Adam Stirling [00:14:30] Yes. 

Michael T. Mulligan [00:14:31] And so the result of this is that the couple will be allowed to build their home. There weren’t any environmental assessments. It was clear that they had met every sort of step you might take in order to ensure that the lake was kept safe and in fact, doing things that might improve matters like moving the old hundred-year-old rock septic field, which was right next to the lake, modernizing it and putting it in an appropriate place. And so, it was clear that there wasn't an actual risk to the environment or the lake or the fish or any of those things. And so, for that reason, the decision to simply give a blanket no was overturned. And indeed, the judge granted what's called an Order and Form of Mandamus, which was also an argument in that case. 

Adam Stirling [00:15:23] mhmm. 

Michael T. Mulligan [00:15:24] Often what happens when there's an administrative decision that a judge finds to be unreasonable. 

Adam Stirling [00:15:29] mhmm. 

Michael T. Mulligan [00:15:30] Oftentimes what happens is the judge would say this decision was unreasonable and here's why it was unreasonable. And then often the judge would send it back to the statutory decision maker, the board, and say, try again. I've told you why what you did here wasn't appropriate. Give it another go. But here the judge concluded that based on what could be restricted right, which were things that would, you know, be damaging to the environment, basically, or fish or the lake, that kind of thing. 

Adam Stirling [00:15:58] Yes. 

Michael T. Mulligan [00:15:59] There was no suggestion that what was being proposed here would have that effect. And so, for that reason, the judge concluded that the board would have no choice but to approve the application to allow the couple to build the new house. And so, the judge granted an Order in the form of Mandamus, which essentially said, you can go ahead. You don't need to go back and ask the board again to reconsider what they did. You can just get going and build your home. And so, there is some, I think, important takeaway for local governments in terms of how they approach these kinds of development decisions. They can't simply respond to the fact that they've got some legislative delegated legislative authority to prevent harm by simply saying nothing can be done here. And I do think it raises the question about whether we ought to have these kinds of decisions made, perhaps a little bit higher up by that I mean perhaps by a provincial or a wider regional level. 

Adam Stirling [00:17:08] Yes. 

Michael T. Mulligan [00:17:08] Because, you know, again, if you're somebody who is the elected official who's sort of elected by some small group of people like Victoria, what do we have, 13 municipalities here? 

Adam Stirling [00:17:18] Yes, we do.

Michael T. Mulligan [00:17:19] If you ask somebody in some particular municipality, hey, what do you think of the apartment building going in there? Right. There's to be a great hue and cry. Well, why don't you pick one of the other 12 to put it in, whereas if you were making a decision with a bit of a broader perspective, like, you know, do we need increased housing available in Greater Victoria, you may well come to a different decision than if you are the, you know, elected councilor elected by some, you know, 1/13th deciding whether that particular apartment building or house ought to go into your neighbourhood. And so, I do think this case may be a reason to reflect upon whether we perhaps have gone too far in delegating authority to restrict development to such a micro local level that we are perhaps missing the big picture, which is that we've got a lot of people that need to be able to afford a place to live. 

Adam Stirling [00:18:23] Yeah. 

Michael T. Mulligan [00:18:23] And if we go too far in, you know, following the wishes of the person who doesn't want anything built anywhere next to them, where is it going to be? Some of these things have to go somewhere. And the fact that this particular case dragged on for the looks like the original decision, telling them, no, you can't build anything was in 2019. 

Adam Stirling [00:18:46] Wow. 

Michael T. Mulligan [00:18:47] And so good for the couple. They eventually got their decision, you know, on the 2nd of this month. But, you know, a lot of people that would be completely unaffordable. You know, how many people can say, look, I'm going to spend that much time to eventually go to court to get an order so I can build my house. And so, all of this kind of thing just really does add to the cost of building affordable houses. 

Adam Stirling [00:19:11] We have two and a half minutes left and there's still one story yet to discuss. Do you think we can get through it? 

Michael T. Mulligan [00:19:16] I think so. All right. It's on the same theme I found. So, when I just talked about there was another decision which came out the day after the one I just talked about. And this as well was a judicial review in this case, a decision made by the Agricultural Land Commission. And it was a case of an elderly person who owned a large farm that wished to have the farm divided into two parts so that her two sons could continue farming the property, live there and carry-on farming. And her application was denied by the Agricultural Land Commissioner, telling her, no, you can't divide the farm into two. So, the two sons can keep farming it, but when they did so, they provided no real analysis of how they came to the conclusion that the farm had to remain at that larger size to further the desire to have the land continue to be used as farmland. And so that ultimately was overturned in court on the basis that the Agricultural Land Commission failed to provide reasons for how it came to the conclusion that dividing this farm into two parts so that the family could continue farming, it would interfere with the objective of encouraging farming activity. But it there is certainly some connection between this decision and the one I've just referred to. 

Adam Stirling [00:20:48] Yes. 

Michael T. Mulligan [00:20:48] In that it's another example of the administrative burdens people need to go through to, in this case, build a house for the other son so that they could keep farming the property. So, we need to keep our eye on the big picture, I think, to ensure that people are able to afford places to live. 

Adam Stirling [00:21:05] Legally Speaking. On CFAX 1070 during the second half of our second hour every Thursday, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers a pleasure as always, until next week. 

Michael T. Mulligan [00:21:15] Thank you so much. Always a pleasure. All right. 

Adam Stirling [00:21:17] Talk to you that by now. 

Automatically Transcribed on September 14, 2021 – MULLIGAN DEFENCE LAWYERS