Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
An Order to Remove a Seawall and a Refugee Charged $1.32 Million Property Speculation Tax
Starting in 2012, the Gabriola Island Local Trust started a legal effort to have an elderly couple remove a seawall that protects their waterfront property because it was less than 30 meters from the ocean.
At a trial of the matter, the Gabriola Island Local Trust lost the case because the judge concluded there was a common-law right to protect property from erosion.
The Island Trust didn't like that outcome and so appealed to the BC Court of Appel, which eventually overturned the first judge's order concluding that the Province of BC had authority, that it delegated to the Island Trust, to prohibit the seawall regardless of the impact on erosion.
Following two additional years of litigation, the seawall was still in place and the Island Trust asked the BC Court of Appeal to start imposing fines for civil contempt of the order.
During the intervening time, the wife who co-owned the property with her husband was diagnosed with dementia and passed away. Her 87 year old husband has numerous physical ailments and the couple's adult daughter had moved back to BC from Ontario in an attempt to help with the seawall issue.
The daughter obtained an environmental and geotechnical assessment report which indicated that removing the seawall could cause environmental harm to the shoreline and would require the removal of several mature trees which had roots that had grown into the seawall.
Unfortunately, the BC Court of Appeal judge dealing with the case concluded that the court no longer had any authority to change the order that required the seawall to be removed.
The daughter then approached 10 different contractors to have the seawall removed. All but one denied to do the work and the one that did attend concluded his equipment wasn't adequate for the job.
The daughter then tried to remove the seawall herself using a sledge hammer and jackhammer but was unsuccessful. She concluded the concrete structure was "about as strong as the Great Pyramid of Giza."
As a result of all of this, the BC Court of Appeal judge imposed a smaller fine than was requested for contempt: $2,500. He also suggested that if the seawall wasn't removed by the end of October there could be another $7,500 fine imposed.
How the case of the immovable seawall plays out may depend on the continued health of the remaining 87 years old owner. The order for removal was made against only his late wife and him.
Also, on the show, an ongoing case of an Iranian Refugee who escaped that country and came to BC in 1995 is discussed.
The man was successful and, in 2019 was able to purchase a home in West Vancouver for $6.6 million.
The man had applied to become a Permanent Resident of Canada on three occasions, with the last application being filed in January of 2017.
Because it took the government until February of 2022 to grant him Permanent Resident Status he was changed $1.32 million pursuant to the BC property speculation tax that is intended to discourage people from other countries speculating in BC real estate.
The legislation that imposes the tax requires it to be applied to anyone who isn't a Canadian citizen or Prominent Resident.
While the man involved is making a challenging constitutional argument against the tax, the real issue is that it cannot have been intended to apply to refugees who have lived in BC for 24 years.
The case demonstrated the need to amend the legislation.
Follow this link for a transcript of the show and links to the cases discussed.
signed for, legally speaking, a regular segment with Barrister and Solicitor with Mulligan Defense Lawyers Michael Mulligan. Morning, michael. How are we doing? Good morning, I'm doing great. Always good to be here. Some interesting stories on the agenda for this week. I'm just reading here the Gabriola Island Local Trust pursues a fine for failing to remove a seawall. What's happening here?
Michael Mulligan:Yes, indeed, what's happening here is a legal odyssey. So this case began back in 2012 and indeed it involves the Gabriola Island Local Trust and a house, in fact, on Mudge Island and for those listeners that are wondering, Mudge Island is wedged sort of between Vancouver Island and Gabriola Island. Perhaps for administrative reasons, they made it subject to the zoning laws from this Gabriola Island Trust, and so the local government that island's trust passed some laws back in 2008, including one that required that no structures be built within 30 meters from the natural barrier of the sea. So that's how things started, and in 2012, they determined that a family there had a seawall, which was something protecting their waterfront property from erosion, and that the seawall was closer to the sea than 30 meters, and so they told them to remove it. That eventually wound up in court, and the couple that owned the home argued that there was a common law right to protect your property against erosion. It was a riparian right, they argued, and the judge at the original trial agreed with them and found that the island trust did not have authority to prevent them from putting up this or keeping this seawall to prevent their property from being eroded. Well, the litigious Gabriola Island Local Trust Committee didn't much like that outcome, and so they appealed it to the BC Court of Appeal, where they won. The Court of Appeal found that, well, there may be that common law right it is something which might be relevant as a dispute between private individuals but that the provincial government has led to slave authority to override that and found that they had done so. And so then, in 2021, again, the couple now ordered by the Court of Appeal removed the seawall. Well, they didn't, and the case continued, and eventually the case wound up back in front of a judge in chambers in the Court of Appeal with a decision that just came out just yesterday dealing with whether there should be a contempt finding for not removing the seawall and, if so, what the penalty for that contempt should be. Now, a number of things had made that more challenging, and I should say that the island's trust was asking for a fairly substantial fine. They wanted a fine of $7,500 and they wanted an increased fine if the seawall wasn't removed by a future date. But a number of things made that more challenging, and it gives some insight into the issues that can arise when there is an order to do something that might be very hard to do Because in this case several intervening factors happened.
Michael Mulligan:First of all, sadly, one of the two property owners, who was elderly, was diagnosed with dementia and passed away. The other remaining property owner was in his late 80s and had all manner of medical conditions that were affecting him. When the couple's daughter realized what was going on, she moved out from Toronto to try to help with the seawall and made various attempts to hire somebody to remove it. She contacted 10 different contractors, 9 of whom said they're not interested, they're not doing it. A tenth showed up but their equipment was incapable of removing the seawall.
Michael Mulligan:The daughter that got an assessment done that showed that there would be great risk of environmental harm to the foreshore and mature trees would have to be pulled out because they had grown into this very old structure, and tried to persuade the Court of Appeal that they should reconsider their decision. Now, first of all, on that front, there's a concept people should know about, which is a concept of a court being functious or done. That means, once they've made a final order, the court can't just go back and say well, I'm going to change that, even if new information comes to light. And so the Court of Appeal found. Look, despite that report, we have no authority to do anything about this. We've made a final order which would leave only. I suppose the Supreme Court of Canada was unlikely to intervene in the case of a seawall.
Michael Mulligan:The daughter, for her part, then tried with a jackhammer and sledgehammer to remove the seawall herself. Unfortunately that failed, Although it was clear she tried very hard and there are apparently pictures from a bylaw officer, and she described the seawall as being two feet high and 37 feet long and she described it as being quote about as strong as the great pyramid of Giza, and so just could not get this thing out. And so, back they come to court and there are multiple adjournments, sort of all these efforts to try to hire contractors. The daughter try to get it out, and so they're back to. Well, what should we do about this? And eventually, what the court did is they did impose a fine, but a much smaller one than what the Islands Trust was asking for. They imposed a fine of $2,500 on the elderly, a remaining owner of the now widower of the owner of this property, and have said that well, if he doesn't get the thing removed by October, the end of October there may be an additional fine of $7,500.
Michael Mulligan:And so it's a really interesting case because it raises these issues of contempt and practical impossibility right. And the daughter is saying, look, I don't know what else I can do to get the seawall removed. And the court, from its perspective, is saying, look, we need to maintain the authority of the court. There's been an order that this would be removed. We can't revisit the order, no matter what new evidence there might be, because we're a funk. This were finished.
Michael Mulligan:And so the court has said you know well, presumably there's got to be some method of removing this with some degree of heavy equipment, even if it might be a great expense. And so that's where the matter currently sits. You've got the daughter with the sledgehammer. The elderly and firmed Whittower, who is the remaining owner of the property and contractor, is not willing to do the work, I think out of concern. Either it's impossible, their equipment doesn't meet the requirements, or it's going to be hazardous or cause all kinds of other damage. And so that's where the case currently remains, and so we'll need to wait and see what comes of that on Mudge Island. One sad possibility, of course, is that the the remaining owner of this property it sounds like his health is in pretty serious shape. If he passes away, then I suppose it will be back to the Gabriola Islands Local Trust Committee to decide whether they wish to start this all over again with whoever becomes the owner of the property with the very, very strong seawall somewhere on Mudge Island.
Michael Mulligan:But it does raise a host of interesting legal issues about contempt. How should that be used? What penalty should be imposed when somebody doesn't comply with a very difficult to comply with order? And what do we do moving forward, Because there are a number of sort of legal hard places that aren't moving right. The court can't change its order. The order is final, and you've got a circumstance where it may or may not be physically possible to get somebody to come and do this work, and so I imagine that the case is probably not over. There's no date set for the removal of it. Nobody's been found who can remove the seawall, so we'll wait and see whether the daughter continues to chip away at it or whether they find a contractor or whether the elderly father is back in court come October facing an additional fine if he doesn't manage to get the extremely well-entrenched seawall off the property. So that's the case from Mudge Island and claim for civil contempt.
Adam Stirling:All right, we're going to take a quick break We'll continue with legally speaking with Michael Mulligan from Mulligan Defense Lawyers. Right after this, back on the air here at CFAC's 1070 with Michael Mulligan, barrister and Solicitor with Mulligan Defense Lawyers. Up next on the agenda, michael, the property transfer tax being imposed on a refugee who's lived in BC since 1995. Set this one up for us.
Michael Mulligan:Yeah. So this, I think, could be an example of a seriously unintended consequence, where a person's trying to seek some remedy in court. That really requires a political response. And the background of this is that we had, a few years ago now, this foreign buyer's tax imposed in British Columbia and it applies to properties purchased in now the Greater Victoria Capital Regional District, greater Vancouver, the Okanagan, the NIMO, various places in the province, and it was intended to deter sort of foreign speculation in property, right so the people buying property as an investment and not living here, that kind of thing. But the way this tax is drafted is that it imposes a 20% tax under the Property Transfer Tax Act to anyone who purchases a property in those locations or who is not either a Canadian citizen or a permanent resident. That's just how it's currently drafted and it had what can only be, to my mind, an unintended consequence in terms of how it impacts on somebody who's a refugee.
Michael Mulligan:And this case, which is in the form of an application by the province to strike out a constitutional claim, was. The claim was brought by a man who was a refugee from Iran and he moved to Canada in 1995 and sought political asylum, which he was granted, he's lived in British Columbia since 1995. So this is not somebody who's some opportunistic real estate speculator. He's done very well living in British Columbia. He's obviously worked hard and he was purchasing a home in West Vancouver. The home was expensive I guess every home in West Vancouver is expensive, but this one was $6.6 million and he was purchasing it in 2019.
Michael Mulligan:Now, I should say that the man did apply to become a permanent resident.
Michael Mulligan:According to the facts in the case, he applied on more than one occasion, and on the last occasion he applied was in 2017.
Michael Mulligan:But anyone who, uh, I guess his uh had experience trying to get their passport renewed and realize how quickly the federal government operates on these sort of matters, uh and so, even though he applied uh to become a permanent resident yet again in 2017, that process didn't get completed until 2022. Uh, it's hard to believe, but that's how long it took. Uh and so what it meant is that the man received a tax bill of $1.32 million, wow, uh, on the theory that he was somehow a property speculator. Uh, on the basis that he was a foreign buyer, right, despite the fact that he's lived here since 1995. Yeah, uh and so the man brought uh this uh application trying to make constitutional claims on the basis that either he was um discriminated against on a analogous ground to some grounds that are uh discrimination is prohibited against in section 15 of the charter and also a section seven uh argument under the charter, trying to find some basis to avoid having to pay $1.32 million.
Adam Stirling:Yeah.
Michael Mulligan:Uh, and the claim the province or the lawyers for the province were almost successfully getting this all just struck out as being a hopeless effort. Uh, the court did say, well, there's some sort of glimmer of hope if there's an amendment on one of the arguments, and so gave the man some additional time to amend the claim to continue with the constitutional argument. But the case is also an example of how, you know, the court is not there to determine whether policy is good or not. Right, judges aren't there to decide. Do I like this law, or is this sensible, or should it be this?
Michael Mulligan:Uh, there are, of course, some constraints constitutional constraints, uh, but the policy decision is a political one, right, and really, what this case calls out for and hopefully somebody's listening, um, is that when, if we, if we conclude that the foreign buyer stacks is a good idea, uh, politically, and the idea there being to discourage uh sort of speculative investments in real estate, it cannot be that that policy was intended to impose a 20% tax on uh long term refugees who are trying to buy a home. Yeah, that just cannot be what this was intended to do.
Adam Stirling:Yeah.
Michael Mulligan:And so hopefully somebody is not somebody at the political level is thinking about this right, because when the case sort of marches along in court, the entire analysis by everyone involved the judge, the lawyers on both sides is a legal analysis. Right Is sort of is this constitutionally permissible? What are the limits of section seven, the section, you know, 15 of the charter? Uh, is this kind of a tax prohibited on constitutional grounds, which is all fine and it's good we have that system in place, but none of that is answering that just big fairness question. Is this right? Is this really what was intended by this piece of legislation? Uh, and so it wouldn't take much, it seems to me, to make a change to this piece of legislation in a way that would completely maintain its purpose.
Michael Mulligan:Right, to avoid people who are using, you know, real estate as some sort of a speculative investment opportunity well, not unintentionally taxing long-term refugees, and so you can easily imagine how that could be fixed. You know, add to the description of who's exempt to it refugees, or even refugees who have resided in British Columbia for pick some period of time. How many years would you like the person living here before? It's absolutely apparent that the person who fled death in Iran is not here to speculate in a house they're trying to buy, and so hopefully somebody's listening or somebody reviews this and makes a change to the legislation to fix the problem, and hopefully they do it retroactively, because we're not trying to impose a 20% tax on refugees trying to buy a home, and that really needs to be fixed and it seems unlikely that's going to get fixed in a legal argument. That's a political argument and so hopefully somebody's listening and does something about it.
Adam Stirling:Yeah, it's sort of a bizarre situation that I would have never thought of, but obviously there's going to be some sort of a means test involved with the refugee application process, because the person having no means or similar to no means, I would suspect, is one of the criteria for coming here in the first place. So why do it twice?
Michael Mulligan:Yeah, I mean this man. The background here is that he was a political, a sort of political asylum, and he described himself and this was part of the argument as stateless, effectively, because his evidence was if he went back to Iran he'd be killed, and he had applied on more than one occasion, to having been here as a refugee for many years, to become a permanent resident the third time in 2017. And just, it took years for that to get processed. Now, aptly, as of last year, it's processed. He's a permanent resident in Canada and hopefully he'll become a citizen in Canada, right, obviously a hardworking and successful person we're lucky to have here, but we need to get this legislation fixed so we're not unintentionally punishing people like this man. That just cannot be what was intended by that tax.
Adam Stirling:Absolutely Next story a new trial ordered following a conviction for criminal contempt to deal with the issue of a quote officially induced error. Lots of stuff there.
Michael Mulligan:There's a whole bunch packed into that. Yes, so this particular case was a Indigenous man who was convicted of criminal contempt for allegedly violating an injunction not to block the construction of the Trans Mountain Pipeline, and that goes for back in 2019. Now the issue what the issue there is that criminal contempt includes an element of men's rage, like the person must be intentionally doing something wrong. That's kind of what the criminal law, in virtually every respect, is concerned with, right, that's, you know, we're concerned with people doing things intentionally wrong, not tripping and falling into others or, you know, doing something by mistake, right? That's sort of what we're concerned with before we start punishing people and putting them in prison. Yeah, and so this man. His evidence at his trial was that he was a serving as a elder, he was a watchman. That he was. He was 70 years old, by the way, and he says he was attending where this protest was going on, to engage in a pipe ceremony to keep the peace. And, significantly, he says that he spoke to the police to ask them about that and his evidence was that, based on previous conversations with the police, he understood that he had permission to conduct this type of ceremony and because of those conversations. As far as he knew on that day, he wasn't violating anything. That was his evidence. Now he was nonetheless convicted, which is what resulted in this appeal to the court of appeal.
Michael Mulligan:And the legal issue on the appeal was what you identified, which is that concept of officially induced error. So what is that? Well, the concept of an officially induced error it has six elements, so there's a lot here to unpack. But it has to be an error of law or mixed fact. In law. It must be that the accused considered the legal consequences of their action and then got advice from an appropriate official, right? You couldn't get advice from the postman that you're okay to show up at the blockade or something, right, that's probably not going to work. But the advice was reasonable, right? So if you had some obviously wacko advice, that's not going to apply. That the advice was erroneous and that the person relied upon the erroneous advice and the concept there, right?
Michael Mulligan:The court analogized to that concept that we've talked about before of entrapment, where a person does the physical elements of something but because they were entrapped into doing it, it would be unfair or unjust to convict them of it. And so here the man's evidence amounted to look, I spoke to the police about whether I was allowed to conduct this ceremony, and so, with that, would the police be an appropriate official? Probably right. Was that advice reasonable? Probably right. There's nothing obviously bizarre about that advice. Was it wrong? Possibly right.
Michael Mulligan:And did the person rely on it? Well, that was his evidence that he relied on it, and, interestingly, there was video evidence of what the man had done at the ceremony, and his evidence about what he was doing corresponded with what was on video and showed that the man initially was not with the group of protestors that he was doing this ceremony. He moved after a period of time to where these protesters were conducted the ceremony locked hands in a circle and then was leaving, and so there was scope for what he was arguing to be consistent with the evidence there. Right, and so the court of appeal has ordered a new trial on the basis that a judge should consider his evidence in terms of whether it met that test for being officially induced error and whether he should properly have been convicted. So that's what officially induced error is, and we will await the new trial to see what happens with the 70 year old indigenous man who conducted this ceremony at the protest.
Adam Stirling:All right, legally speaking with Michael Mulligan from Mulligan Defense Lawyers. A pleasure, Michael. Learn something new every week Until next week. Thanks so much. Have a great day, All right, you too.