Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
A Noisy Union, Court Costs Award Against a Strata, and the Mental Health Act
An application to find a union in civil contempt for breaching an injunction against making noise while picketing at three Vancouver Airport Hotels failed because of the wording of the injunction, which only prohibited noise above 75bBA if made by various specified devices.
The evidence demonstrated that the noise was above the prohibited threshold but not if it was produced by specifically prohibited items: drums, microphones, speakers or megaphones.
Also on the show, costs were awarded against a strata corporation that embarked on ill-conceived litigation without a 3/4 majority vote to replace a building roof.
The case confirms that even though one of the owners who were taken to court had a lawyer assist them pro bono, and others were self-represented, this is not a reason to deny costs being awarded.
The reason for this is that costs are not only intended to help pay the legal expenses of a successful party, but they also serve other purposes: deterring frivolous actions or defences, encouraging conduct that saves time, encouraging settlement and the careful assessment of the strengths or weakness of cases.
The judge dealing with the costs award further concluded that the strata corporation's lack of budget to pay costs also had no relevance. If a court order is made to pay costs, and they are not paid, an order could be obtained to remove the funds from the strata corporation's bank account regardless of any budgetary considerations.
Finally, the judge concluded that the owners who were awarded costs would not be required to contribute to the expense incurred by the strata corporation.
Finally, on the show, the BC Court of Appeal has determined that the definition of a "person with a mental disorder" in the Mental Health Act includes someone who isn't displaying symptoms of the mental disorder when their involuntary detention is being reviewed.
The Mental Health Act permits the involuntary treatment of people who have a mental disorder and who are a threat to themselves or others.
The case involved a man with an extended history of paranoid psychosis and self-harming behaviours for which he had been repeatedly hospitalized and certified for involuntary treatment. The behaviours would include cutting and burning himself.
The police had repeatedly taken the man to the hospital for treatment. He would receive antipsychotic medication that successfully prevented self-harm, but once released, the man would stop taking the medication and harm himself again.
The Court of Appeal concluded that the definition of a "person with a mental disorder" should be interpreted in accordance with the purpose of the act and the fact that the symptoms of a mental disorder were being controlled by medication at the time of a review didn't mean that the person no longer met the definition.
Follow this link for a transcript of the cases and links to the cases discussed.
This is time for our regular topic Legally Speaking. Joined by Michael Mulligan, barrister and solicitor, with Mulligan Defense Lawyers. Morning Michael, how we doing. Hey, good morning I'm doing great.
Michael Mulligan:It's always good to be here.
Adam Stirling:I'm reading this line. It says a strike, a noisy union, an injunction and an unsuccessful application for a finding of civil contempt. It's a mouthful what's happening here.
Michael Mulligan:Indeed, it is a mouthful and a noisy one. So what's going on is that there is a strike going on at three hotels over near the Vancouver Airport the Sheraton, the Marriott and the Hilton all of the Vancouver Airport variety and the other side of the dispute is Unite here, local 40, that's the name of the union, and the strike's been going on since June and the hotels have had a concern about the noise caused by the jubilant strikers who are dutifully picketing the hotels, and as a result of that, they brought an application in court back on July the 7th to get an injunction to reduce the noise. And they got one on August the 2nd, and it was by consent. Now the wording of it is very interesting and informs what we're going to talk about. The injunction prohibits the use of various specific things at or near the hotel, like sirens, air horns, blow horns or whistles. In addition, and separately, the injunction prohibits using drums, microphones, speakers or megaphones to amplify your play recorded sound over 75 decibels at at least 6.1 meters from the source of the sound.
Michael Mulligan:Hard to know why they picked 6.1 meters, but there it is.
Michael Mulligan:So things continued to be noisy and the hotel and their agents did various things recorded the sounds, took videos and were concerned about, no doubt, the noise not a popular thing if you're staying at an airport hotel over in Vancouver and so the hotels brought an application in court, claiming that the union had breached the injunction and asking the court to find them in civil contempt, asking that there be a police enforcement clause added and an order that they cease breaching the injunction.
Michael Mulligan:So that's what this hearing was about. Now the trouble arose for the hotels because of just exactly how that order was worded, and what appears to have happened is that, after the order was made, the union some of the union leaders went and told the members to stop using some of the specified things like whistles or blow horns, and instead there was much noise apparently being made by a combination of things such as hand clappers or drums and hand clappers or various other things in combination. And so when the hotel showed up in court and said, look, we've got these sound meter readings showing it was over 75 decibels at a distance of more than 6.1 meters.
Adam Stirling:It's 20 feet. By the way, it's a metric conversion for 20 feet. Yep, there it is.
Michael Mulligan:Okay, Sorry, so we get to 6.1. Yeah, that's a good distance. So they had videos of it and videos of the sound meter. The trouble was that it's unclear what devices were making the sounds, and so you could clearly see that at at least 6.1 meters, 20 feet, there was sound in excess of 75 decibels. But you can see on there there are various things going on. There's hand clappers that's not on the list and other boisterous noises, people talking and marching and doing various things that's not prohibited. And then the next problem that arose is even when you could see, for example, in the video that some of these specified devices were being used to produce a sound over 75 decibels at that distance.
Michael Mulligan:There was ambiguity in terms of well, what exactly did this order mean? And the hotel took the position that any sound over 75 decibels at 6.1 meters where any of those listed things contributed to the noise, that is say, drums, microphones, speakers or megaphones, that should be a breach of the injunction. The union took the position that it must be a single one of those items, a single drum, microphone, speaker or megaphones that must go over 70 decibels in Collectively. That's not enough, and so the trouble was that this order, which was apparently plucked from some earlier court case, you know, complete with the metric conversion, was just ambiguous. And so, at the end of the day, the judge concluded look, there's clear evidence here that there's sound over 75 decibels, but it's entirely unclear what is generating it, and the wording of the order is entirely ambiguous in terms of whether it has to be one device, a contributory factor. Can it be somebody who's screaming at 74 decibels and somebody lightly tapping on a drum? That puts it over the edge? Is that enough? Anyways, the judge was not persuaded that this was not the judge.
Michael Mulligan:Also, there's also an interesting argument made by the hotels in terms of what is meant by the word drum, and so they were arguing for an expansive definition of the word drum to capture things like these hand clappers, I assume, from those things. Those are those kind of things they hand out at the hockey games, where you shake them back and forth and little plastic hands clap together automatically, making a loud sound. And so the next argument the hotel tried on is well, that's a drum. But the judge reached for a copy of Webster's Dictionary and the Cambridge English Dictionary for what the definition was of a drum, and that didn't make it, and so the net result is that the hotels were denied their application for finding a civil contempt, denied the application for a police enforcement condition or anything else, and so this decision was just released.
Michael Mulligan:So presumably you'd want to make some inquiries as to what's going on at the various hotels around the airport before you make that booking for your early morning flight, lest you be experiencing a sound of more than 75 decibels caused by some concoffiny of hand clappers and boisterous people marching around on strike. So I guess the takeaway there is carefully draft your injunction if you're hoping to get some remedy for it, and if you don't, the other side is likely to get the benefit of the doubt, and that's what happened here.
Adam Stirling:All right, legally speaking on CFAQs 1070, we'll take our first break. We'll be back in just a moment. Legally speaking on CFAQs 1070 with Michael Mulligan from Mulligan Defense Lawyers. Next on the dock at Michael, a strata ordered to pay costs to owners over losing a case over a replacement roof.
Michael Mulligan:Indeed, what a nightmare. So the background of this is that a strata corporation for a building decided it would be a good idea to replace the roof. That necessitated getting a owners to vote three quarters in favor to fund, I guess, a special assessment to pay for the roof. It didn't make the grade, they didn't get the three quarter vote, and so, rather than trying to answer the concerns of the owners who didn't want to put the new roof on, instead the strata brought what the court concluded was ill-conceived litigation, rather than trying to address the legitimate concerns of owners. And then, furthermore, the court in the substantive case found that the strata had acted in bad faith, not been forthright with the owners, withheld information and did things, including sending intimidating communications to the owners, trying to get them to agree to put the new roof on. So the strata corporation in court lost in their ill-conceived litigation trying to get an order that people paid to have the roof replaced. Now, that's that. But the next step would be what about costs? And we've talked about that before. And the idea in Supreme Court is, if you sue somebody and you sue them successfully, you will presumptively get an order for costs to pay some of your expenses right and, conversely, if you sue somebody and lose, you're going to get ordered to pay some of their costs. No, in this particular case, what was going on is that some of the owners I think it was four of them that were in court opposing this thing some of three of them didn't have lawyers at all who were sort of representing each other, and one had a lawyer who was acting pro bono, for free, to help this person out. And so, after the Stratocorporation lost in the substantive case, they then resisted paying costs and they made various arguments about that, but then had to also go and be litigated, and the arguments that they made included an argument that, hey, this person had a lawyer acting pro bono, they shouldn't get costs. Or these people didn't have a lawyer at all, they shouldn't get costs. That was summarily dismissed.
Michael Mulligan:There's a it's well established in BC that not having counsel does not disentitle you to getting costs, and the reason for that is that costs are intended to do more than just help pay for a lawyer. They have various other functions like they are intended to deter frivolous actions like don't sue people without a good reason right, and to do things like encourage conduct that would shorten litigation, reduce the, how long things are going to take, you know, make reasonable admissions, focus things right and to do things like encourage settlement and all of those sort of other things that are more than just to indemnify the person is to like encourage the you know nonsense. To go away and people to think carefully about what they're doing and make a hard headed decision before you go and waste a bunch of time and money in court. That's they have broader purposes, so that did not work. The next argument that the stratum made was we have no money to pay these costs. Our, our member, our owners have refused a budget to pay for legal expenses. I guess after the you know terrible loss they took with their ill-conceived piece of litigation, that also got no, nowhere.
Michael Mulligan:Ability to pay costs is not a determination about whether you should get cost order to gain stoop and, frankly, whether they have a budget for it or not. If you get a court order, as was obtained here, you're going to be able to go and just get a order to clear that money out of the Stratocorporations bank account. It doesn't matter how they budgeted for it or whether they like it or not. So the I don't have a budget for it. It also went absolutely nowhere.
Michael Mulligan:So the court ordered that the there be costs awarded in the amount of a total of $16,261, and it included things like the cost of hiring an expert, who cost $1,500, about the roof and various other things.
Michael Mulligan:And the way costs are figured out. They calculate these number of units that are based on sort of the time and work involved, like how many days did a person spend in court and how many other steps and things did they have to do, and they use that to figure out how much cost should be, which is part of the incentive to, like you know, hurry things along and don't waste time and if something's you know not really in dispute, just agree to it. Don't spend, you know, a day arguing about it, because you may pay the bill for that right If you're wasting everyone's time on something. And so the judge made the order for the costs. But then the next interesting issue arose, which was the issue of because, of course, the people who opposed the roof and had this litigation Also were owners should they have to pay a portion of their own costs? This is a really interesting issue right.
Michael Mulligan:Because if the Stratocorporation has to pay this person you know one of these individuals $16,000, does that individual have to pitch in to come up with a $16,000 to pay it to himself. And that took a little bit of head scratching, and there are some specific statutory provisions that deal with that, which the person didn't point to, I think, probably because he didn't have counsel, or whatever the reason might be. But there's also a previous case that talks about sort of general common law principles of fairness, and the judge concluded that indeed, not only was the successful party who was improperly sued by the Stratocorporation trying to get this roof put on without a vote, not only was he entitled to the $16,000 in costs, but he does not need to contribute to paying his own costs, which sort of makes sense, right? Otherwise, you'd feel a bit of a hollow victory if I say look, I've calculated the cost due to you down to the penny, as they have, and then, by the way, you're going to have to kick in 10% of them or whatever. It might be, based on how many Stratocorporation units there were. I think for him the bill would have been a couple of thousand dollars.
Michael Mulligan:The other thing, the other takeaway from all of this is that one of the arguments made by the Stratocorporation hey, this is all very unfair to all these poor owners who are going to have to pay this bill. And that didn't get too far either. That got about as far as the we haven't budgeted for this. And the judge pointed out the look, all the owners have personal agency If they chose not to exercise their vote or keep an eye on what the litigation committee or the Stratocorporation Council was doing and let them just run off unchecked with this ill-conceived litigation. The judge said look, they've only got themselves to blame for that Because, of course, the Stratocorporation is sort of is elected by the members, right, you can get their procedures to remove people and vote in new people and so forth.
Michael Mulligan:And so the argument that, hey, this is all very unfair to people who were paying no attention while the Stratocorporation embarked on this legal odyssey, that went nowhere either.
Michael Mulligan:And so I guess the takeaway there is that, if you do own a Stratocorporation, keep an eye on what's going on with your Stratocorporation, read the minutes, be somewhat involved with it, lest some members of it decide to go off in some totally ill-conceived direction, because you may wind up with the bill for it, and various arguments about I didn't budget forward or we don't have enough money, or I wasn't paying attention, or this is unfair to Mrs Smith, who didn't know any of this was going on, isn't going to get far. Neither is the claim that the person didn't have a lawyer or the lawyer did it for free, because the idea behind the cost is more than just help pay for the lawyer. It's to encourage sensible behavior and not to waste everyone's time and money, and so I suppose that's a lesson that the Stratocorporation has learned, and while they may not have a roof, they're going to have a bill to pay for all these people they dragged through court unnecessarily.
Adam Stirling:Our next story is a really interesting one because you and I in the past have discussed at length the difference between incarceration and a person who is confined in a mental health facility because they are ill, not because they have done anything criminal or anything wrong. In the different apparatus, we have to either set a person free or confine a person, I'm reading, being detained by the Mental Health Review Board an involuntary patient here. How does it all work?
Michael Mulligan:Sure.
Michael Mulligan:So we have in British Columbia legislation that deals with involuntary committal of people who are suffering from and it's a defined term a person with a mental disorder. And then the fundamental requirement, in addition to having a mental disorder, right, is you have to have one which is going to cause you to be a danger to yourself or others? Right? If somebody has a mental disorder that isn't a danger to anyone, you're free to get treatment or not get treated, but that's up to you, right? But you know, as they say, you know your freedom to spin your arm around ends with somebody else's nose. Right Now, the interesting argument in this case and it went to the Court of Appeal was an argument about whether somebody who's going before a review board to determine whether they should be kept in involuntary treatment needs to have the sort of manifestations or symptoms of the mental disorder at the time the review is occurring. And here's how that works in a practical way, right? So we have this definition in the act of a person with a mental disorder, and that definition reads this way it says a person with a mental disorder means a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability A to react appropriately to the person's environment or B to associate with others.
Michael Mulligan:So it's all in the present tense, and the fact pattern here is that there is a man who is 35 years of age now and he had a seven-year history of paranoid psychosis and he engaged in various behaviors when in the community including self-harm, cutting his forearms, burning his thighs and various others suffered from various other delusions. He believed he was under surveillance, being experimented on, there was a bounty on his head and he thought his neighbors were trying to kill him, and he was often extremely agitated and abusive. Now, what had happened over this series of years is that he would be you know, the police would inevitably wind up getting called when this fellow was being, you know, acting out right or harming himself. The police would bring him to the hospital. The doctors would treat him, they would put him on antipsychotic medication that would stop him from behaving in that way. He'd be released back into the community, he would stop taking the medication and the cycle would begin again, and on and on it went.
Michael Mulligan:But the thing is that when he's on the medication he's not behaving in that way. He's not, but he's angry to himself, for other people, and so his argument was well, look, okay, now he's before the board. The board is charged with determining, first of all, are you a person with a mental disorder? Right, and that read, as you just indicated right. A person with a mental disorder means a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability to react appropriately to the person's environment or associate with others, and at the time, the man's going to appear in front of the board. That's not so.
Adam Stirling:He's on the medication.
Michael Mulligan:He's fine, right, he's not reacting inappropriately with his environment or with others and he's not in danger to himself or others. And so the argument was well, he's just not that right, let him go. You know, we'd harken back to the case we just talked about with the drum. He was just saying well, hold on, that's not a drum, that's two drums. Shouldn't you read this in a really narrow way, right, we don't want to interfere with people's liberties. You know you're holding people in custody, all of this sort of thing. And so that's the interesting legal argument that wound up in the court of appeal. No, the Court of Appeal applied this principle of how you're supposed to how a judge is supposed to approach the reading of statutes, and it comes from a Supreme Court of Canada case, and the general principle is that the or to be statutes, acts, or to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the act, the object of the act and the intentions of Parliament. That's what a judge is trying to figure out, right, it's not to be read in sort of a parsed out way, because if you just read this, that definition I've read to you now, right, yeah, you might say well, is this a person with a mental disorder? Well, no, apparently not. He seems to be reacting to his environment, just fine. He seems to be associating with everyone, just fine. That doesn't meet the definition, right? That's not a drum, it's a hand clapper, right. But that's not the approach when you're interpreting a statute like that You're supposed to read. A judge is supposed to read a definition with the in the ordinary sense, harmoniously with the scheme of the act, the objects of the act and the intention, like what's intended by this whole scheme, not to sort of pick out a particular word or sentence that might lead to a narrow or sort of unexpected interpretation.
Michael Mulligan:And so the court of appeal spent some time looking at exactly that why do we have this legislation and what's the purpose of it and what's the context of it and what are we trying to accomplish here? What was meant, what was intended by the provincial legislature when this legislation was put in place? And it's in that way that the court of appeals concluded that no, the intention of this was not to create, as had been going on for years, a cycle of a person going into treatment Thank you, getting treatment, going out, going off the medication, harming themselves again, coming back and repeating endlessly. That's not what's meant by it, and so the court of appeal is now clarified that no, it's not an analysis of what's going on at this moment. It's a broader analysis, right and sort of?
Michael Mulligan:You know, is it necessary to keep this person in custody, essentially involuntarily, for treatment? And I should say this man wasn't in kept in a hospital, he was permitted to go into the community, but only as long as he kept taking his anti psychotic medication. And the way that would work is, if he stopped taking it, they could bring it back into the hospital and get him back on the medication. So it wasn't as if they weren't keeping this particular person in the hospital. They were allowing him to be in the community, but only as long as he kept taking the medication, so that he wouldn't start harming himself again.
Michael Mulligan:And so that's what we got from the court of appeal and that's the direction going forward in terms of how the review board is to interpret the act. It's a little bit broader and that may have some future implications in terms of thinking about things. Like you know, how does somebody who's addicted to fentanyl and keeps going in and out of custody or and having overdoses. How should that person be thought about? Is it enough that you're not on drugs right now? So that's the director of the court of appeal.
Adam Stirling:All right, this whole time for today. Fascinating is always, legally speaking. Michael, thank you so much. Thanks so much. Have a great day, you.