Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Loss of Support from a Child, Mineral Exploration vs DRIPA and the BC Legislature vs a Union
This week on Legally Speaking with Michael Mulligan:
Before the introduction of mandatory no-fault ICBC insurance in May of 2021, if someone was killed in a motor vehicle accident, the deceased's family could sue the person responsible for the accident to receive compensation for at least the financial loss of a loved one.
This typically occurred when the person killed had financially supported their children or partner.
In the first case discussed, the parents of a 17-year-old Korean boy who was killed in a car accident were awarded $327,000 based, in part, on expert evidence of the Korean tradition of hyodo duty.
This tradition, which is particularly applicable to the eldest son, was a legal obligation in Korea until the 1990s. It contemplates reciprocity and repayment to parents for the sacrifices they have made and meeting the expectations of parents’ wishes concerning care and old age.
The boy was killed three months before he graduated from high school. While going to school, he worked long hours in his parent's restaurant without a salary and broadly assisted his parents, who spoke limited English.
The judge who decided the case permitted hearsay evidence concerning the boy’s specific statements concerning his concern and care for his parents.
Because the boy’s parents weren’t financially dependent on their son at the time he was killed, the ICBC no-fault insurance system would only have paid for a funeral, grief counselling, and $16,256 in compensation.
One of the profoundly unfair parts of the ICBC no-fault system is that any compensation for lost earning capacity when someone is injured or killed is based on what the person earned at the time of the accident. If, for example, someone is a student when they are injured or killed, any compensation for their inability to work is based on how much they were earning as a student and not what they would have earned once they graduated and started working.
Also, on the show, a case involving First Nations challenging the mineral exploration legislation in BC is discussed.
The Mineral Tenure Act in BC permits people to file a mineral claim over unclaimed Crown land and search for minerals there.
If minerals are found before there could be any commercial mining occurs, further government approval is required.
The First Nations argued that they should be consulted before allowing people to search for minerals.
The First Nations argued that their constitutional rights were violated and that the BC Declaration on the Rights of Indigenous Peoples Act, which attaches a copy of the United Nations Declaration on the Rights of Indigenous People, required additional consultation.
The judge hearing the case concluded that the BC Declaration on the Rights of Indigenous Peoples Act did not create any new legal rights that could be enforced in court but instead set out a government commitment to reconciliation.
Despite this, the judge determined that while the Mineral Tenure Act was not unconstitutional, the government is required to set up a system to consult with First Nations before issuing a mineral claim. The judge allowed the provincial government 18 months to set up a system to facilitate this.
Finally, a case involving an unsuccessful attempt by the BC Legislative Assembly to prevent special constables at the legislature from forming a union based on a claim of parliamentary privilege is discussed.
Follow this link for a transcript of the show and links to the cases discussed.
time for a regular segment with the barrister in solicitor, with mulligan defense lawyers it's legally speaking with michael mulligan. Morning, michael, how we do it. They have been great. I was going to be here. Some interesting stories on the agenda today, including damages being awarded and cultural practices of an impacted party being relevant in the determination of the some that's exactly right, and this is a uh sad case.
Michael Mulligan:It's a case that involvesa uh young man who is uh only age seventeen who back in march of twenty nineteen, just three months shy of graduating from high school, uh was struck and killed by uh vehicle uh and uh the case uh involved uh the young man's parents uh suing the driver of the vehicle and toyota credit canada theater of the vehicle uh for compensation uh, and there are a couple of things to be aware of. First of all, this is a case which predates no fault uh insurance in british columbia. No fault came in in twenty twenty one, and I'll speak in a couple of minutes about how this same circumstance would be handled under no fault insurance now, prior to no fault. Well, one of the things to remember and this this is continued uh is that you don't get generally compensation for the grieving and lost you suffer uh, for example, in a loved one dies due to somebody else's negligence. What is available at that? And I should say the court's appointed out that there's just no way to do that right. There's no amount of money that can make up for the loss of a child uh, but what the uh what is available or was available to people prior to no fault and would be available now if there was negligence causing a death not related to a motor vehicle accident, would be financial compensation for the financial loss somebody might suffer uh, and so in some cases that's readily apparent. But let's say you had uh, you know, single parent uh of young children uh who was killed by somebody's uh uh negligence, driving at least prior to twenty twenty one. When fault mattered uh, the child could be awarded the loss of financial support they would have received from their parent right over their expected lifetime uh. Or if you had a uh spouse that was financially dependent on another uh spouse who was uh killed, uh, they could uh receive uh compensation for the lost income. That that, of course, is all we can do for people, right uh. Now the corollary of that uh is that when a child is killed, usually there's going to be no financial loss. The great emotional suffering in loss generally Children, you know, kids who haven't graduated from high school, aren't supporting the family and so ordinarily very little would be available.
Michael Mulligan:Now the interesting thing in this case was evidence was called from an expert. He was a professor of Asian studies. The young man who was killed was from Korea. His family moved here when he was 10. They settled in Nanaimo. They moved here, I think, to further their only child's education, thinking the system available here was better than the all-consuming, highly competitive model described in the judgment in Korea. And by all accounts, this young man was a very diligent young person. Not only was he doing well in school, he also did all kinds of things to help out the family, including working long hours in the family's restaurant without pay, translating things to English, doing all sorts of helpful things in the family.
Michael Mulligan:But the special evidence that was led was evidence of a Korean practice I hope I'm pronouncing it correctly HYODO, and it's described as a duty that traditionally weighs most heavily on the eldest son. This was an only child and in fact it was a legal requirement in Korea up until the 1990s, and it imposes an obligation on children to support their parents, including financially, and the theory of it would be reciprocity and repayment for sacrifices a parent made in raising a child, obligations that a child would have to their parent, sort of more or less, in fact, legal obligations in Korea, an appreciation for parental sacrifice as one of the principles and an expectation that parents' wishes around care in their old age would be respected and a child would help support their parents. Pretty good values. And so the evidence here was that this particular young man was very diligent and would likely have supported his parents as a result of that cultural obligation. And there were a few interesting elements to that. One was the judge admitted hearsay evidence with respect to things that the young man had said to others before he passed away, finding that the hearsay evidence about statements he made concerning his how seriously he took his obligations to care for his parents were admissible under a principle exception to the hearsay rule that they were necessary, he passed away, and likely to be reliable.
Michael Mulligan:And so then the judge engaged in an assessment of what was the financial loss that his parents suffered in the context of that special cultural obligation to support his parents financially. And so the judge listened to careful listened to evidence about, for example, the work the young man did in the family restaurant without pay, the expectation that he would carry on in the family business, what that would mean. Also, interestingly, the judge took into account things that would be like expenses that were foregone right, things like you know, the likely cost of, for example, contributing to a wedding, or cultural expectations that the family would provide financial support to help him purchase a home if he got married. And so the effort was to figure out what is the financial consequence of this young man's death, and the result of all that was a conclusion that the family the parents that survived should be awarded $327,000. And so it's a very interesting example of how those cultural differences played into it and, as well, sort of how the legal system and the common law would try to respond when there is that kind of a loss. And it's also very interesting to contrast that to what would happen now, after May of 2021, under the ICBC no fault. So under that system.
Michael Mulligan:Now the way it works is that if there is a parent who is, at the time of the accident, financially dependent on a child now that's very important because at the time of the accident, the parents weren't financially dependent on the young man. They were going to be, but they weren't then. But nonetheless, if somebody was, if a parent was financially dependent upon a child at the time of an accident, the ICBC no fault system would now provide between $37,670 and $65,381, a tiny fraction of the actual loss determined by the judge. In this case, the no fault system would also provide $9,949 for funeral expenses and $4,161. How does that get computed, I pressed to say, for grace counseling. That's it Now.
Michael Mulligan:If you have a circumstance, like in this case, like if this happened under no fault now, where the parents are not financially dependent at the time of the accident right, the young man was three months from graduating high school the parents would be entitled to a lump sum payment of $16,256. That is the precise amount that's been calculated under no fault that could be payable. When you have this sort of a circumstance where there's a death, where there's somebody who's not financially supporting the other at the time of the accident, and that, to my mind, is grossly unfair, right, it would, under that sort of a bureaucratic scheme that we now have, would pay complete disregard to the actual reality that the judge found existed in this case. On this evidence, given this particular person, right, there may well be other children who are not likely to be much of a financial help to their parents. They're not realistic, right.
Michael Mulligan:But by treating everyone sort of as a cog, the result of the no fault system, using the language which I find every time I read it as the most offensive government speak, they call it enhanced accident benefits right, and so what we have now is you could not sue the driver who was careless and killed the 17-year-old, and instead you would be entitled to the enhanced accident benefit for the funeral cost and, where there isn't support for the person at the time of the accident, you'd wind up with funeral costs, grief counseling and $16,256, which this case demonstrates would be grossly inadequate to compensate properly for the real loss involved. And so, to the extent you find you're paying less for your enhanced accident benefit, no fault insurance you should bear in mind that if tragedy strikes, like most things in life, you're going to get what you paid for, and that's what's available to you now.
Adam Stirling:Michael Mulligan from Mulligan Defense Lawyers, legally speaking, we'll take our first break right now and be back in a moment, back on the air. Here at c-fi extensivities, we continue legally speaking with michael maligan from all again defense lawyers. Michael, back on the air, where were we?
Michael Mulligan:well. The next case on the agenda is a decision involving uh first nations that were challenging the mineral exploration legislation in british columbia. Uh, and there are few interesting elements of it, including it's the first case to uh interpret how the declaration of the rights of indigenous people act ought to uh play into court claims, which is no small matter uh, and to understand the legislative stand the case, you need a brief explanation required for how somebody would explore for minerals in british columbia, and that's governed by the mineral tenure act, and the way that works is that somebody who, in the language, is a free minor, is entitled to register a mineral claim over unclaimed crown land. Uh, and if they uh register such a claim, uh, they have some rights to do things like explore for minerals, dig to look for minerals, search for them. But then, if minerals are found, uh, before they could be exploited any commercial way, they'd have to bea separate kind of permit obtained. Now the provincial government would consult with first nations groups at the stage of people applying to get a permit to set up a mine, but not at the stage where people are, you know, digging with a shovel looking for minerals. Right, uh, after filing one of these uh mineral claims.
Michael Mulligan:And this was a court case where some first nations were arguing that that legislation was unconstitutional on the basis that it was either interfering with their constitutional rights uh to uh land uh or uh that it was unconstitutional because they weren't uh consulting before permitting people to do things like that kind of exploration, like digging around with a shovel looking for minerals uh. And then they also made a claim that the legislation was inconsistent with the piece of legislation that bc passed in twenty nineteen called the declaration on the rights of indigenous people. That's that particular act as a lot of pretty broad things in it, and it attaches to what the united nations declaration on the rights of indigenous people uh, which starts out with the proposition that uh, you know, did you speak for equal to other people, should be not at all surprising uh or controversial, sorry to imagine. We need to confirm that but then goes on for many, many pages listing various other rights when. So the claim here was first of all you know, you didn't follow that the judge in the case first of all found that indeed, uh, there's a test to be applied as to whether there is an obligation on the uh government to consult uh with first nations before uh doing things. Like you know, setting up minds are putting in pipeline system and that test uh is referred to as the height of test uh and really there are three components to it. The first part of it is the problem is the province where the first nations uh asserted claim to a territory that's basically the whole province, I think it's claimed a hundred and fifty percent or something that multiple claims overlap. That's not usually going to be controversial. Does the province contemplate doing something? And then, finally, could the conduct adversely affect or impact an aboriginal claim or right? That's the test.
Michael Mulligan:And the judge found here that, in fact, what was being uh, what can be done by somebody once they file one of these uh, uh claims that would allow them to explore, looking for uh, whether there could be minerals somewhere? Uh does, in fact uh trigger that duty to consult uh. And the judge found that because uh judge concluded on the evidence that uh, that sort of activity you know, digging, looking for minerals, for example, uh could impact areas of significant cultural, spiritual importance, I guess, depending where somebody was digging uh. And further, there's a uh, a right uh that somebody can assert to financial benefit from minerals within a claimed territory right. And so the judge found that, indeed, the latest systems currently working doesn't comply with that requirement as found to exist under that height of test. And so the judge? Well, the judge declined to find that the legislation was unconstitutional on the basis that the current legislation would allow for consultation right. The system could be set up to consult with First Nations before somebody would be permitted to start digging with a shovel looking for whatever right. Yes, and so, rather than finding it to be unconstitutional, the judge has made a declaration that there is an obligation to consult and has given the province of British Columbia 18 months to set something up so that there can be meaningful consultation before people are out there dig free. Miners are out there digging, looking for minerals, even if it's not on a commercial scale. They're just looking for things.
Michael Mulligan:Now, the other interesting element of it and this may have much broader significance is that the First Nations, in this case, were claiming that not only was this a violation of the constitutionally protected rights, their rights, they also claimed that there was a separate obligation under this declaration on the Rights of Indigenous Peoples Act. And it's pretty broad right when you read this thing and you read the attached UN declaration. All manner of things should be covered by this. Now the judge interestingly found that, first of all, this was the very first case that anyone was aware of that interpreted. Well, what does that mean? And the judge concluded that that act, the Declaration on the Rights of Indigenous Peoples Act, first of all does not implement that UN declaration on the Rights of Indigenous people. And what that means is that when you have some sort of like a foreign treaty or UN declaration, something of that sort, it doesn't really have any legal impact directly under domestic law. Right, and the claim here by the First Nations was well, now it does, because look at the it's been attached in this declaration on the Rights of Indigenous Peoples Act.
Michael Mulligan:The judge rejected that and found that the Declaration on the Rights of Indigenous People Act did not implement that UN declaration in domestic law, didn't make it part of British Columbia law, and further found that the Declaration on the Rights of Indigenous Peoples Act did not create a justiciable rights like you can't go to a judge and say I want you to enforce section such and such of the Declaration on the Rights of Indigenous Peoples Act.
Michael Mulligan:Instead, the judge found that that act was an interpretive aid when looking at existing legislation and that when you carefully read what's set out in it, which begins with the fact that the talks about in section two of that act, the purposes of the act.
Michael Mulligan:Talks about the way in which the government should take measures necessary to ensure the laws of British Columbia are consistent with the Declaration, and so found that it is a direction and aspirational and a direction to the government in terms of what they ought to do and in some cases, might help interpret what a section of another piece of legislation ought to mean.
Michael Mulligan:If that's ambiguous, but that act does not create standalone rights, you can go to court and say look, you're not doing what the UN says should be done under article section such, and that's very significant because otherwise that act could have really brought implications in terms of what rights and obligations there are. Now, that's unlikely to be the final word on the matter. Right, it's one of these cases that the thing that the printer was really working hard is a 118-page judgment and it's the kind of judgment that is likely to wind up being appealed. Right, these things, because there's so much at stake here, that's a likely outcome, but at least that's the legal word for the moment is that that act doesn't implement all those things. They are not legal rights you can go to court and insist upon. They are helped for interpretation and their aspirations for government in terms of what they should be trying to accomplish, but that is a different thing from what was claimed in this case and that's the first legal word on that and I guess we'll wait and see how that plays out.
Adam Stirling:Michael Malgen. We've got just over three minutes remaining on today's time.
Michael Mulligan:Sure.
Michael Mulligan:The last case on the docket for today involves the application by special constables at the Legislative Assembly to unionize. There are a group of special constables they are, I think, often retired police officers who would work at the legislature and they would do things like provide security there, remove disruptive protests. They can even do things like ejecting a member from the chamber or from a committee where the speaker determines that they've been disruptive. So they provide security at the legislature, and that group of people wished to unionize and so they made an application to do that, and the Labor Relations Board said that they could. That was contrary to a claim by the Legislative Assembly. So really, the current government right, they have the majority there who argued that permitting the unionization of these people would violate parliamentary privilege. The concept there is that parliamentary privilege requires a separation of powers between the legislative, executive and judicial branches. So, for example, the legislature needs to carry out tasks such as acting as a check on executive power and enacting legislation, and if you could have some other branch of government preventing it from fulfilling those functions, it couldn't operate right. You can think about how that might be right, and so that's a pretty important principle. And so the legislative, the legislature, the legislative assembly, appealed by way of a judicial review the decision of the Labor Relations Board, arguing that no, no, no, no, no, parliamentary privilege should prevent this group of Special Constables from being able to unionize, because if they unionized, they might be able to, for example, go on strike, and of all these Special Constables are on strike. It might mean that the legislature couldn't function If there's no security there, doesn't that just hold up an entire branch of government? Yeah, I can see that. Yeah, so that's the argument.
Michael Mulligan:Now, the there's a test for that from the Supreme Court of Canada and really it boils down to a necessity test. Is this something that's so sort of core and necessary to the proper functioning of the legislative branch? That privilege ought to prevent that kind of oversight by some other branch potentially of government. And the judge here carefully considered that but ultimately concluded that, uh, well, parliamentary privilege is important and it must prevent some other branch of government from like, stopping the other one from working.
Michael Mulligan:Yeah, um, you, uh, you shouldn't have a circumstance where it would immunize that, like the legislature against ordinary laws and so forth, including, in this case, the right to um, unionize, uh. And so the net result here was that the uh legislative assembly was unsuccessful on the judicial review and the group of special constables does have the right to uh unionize, as the labor relations board found, despite that concept of uh parliamentary privilege. So very interesting case on a interesting topic, and all the other element that's, uh must say, a bit of a head scratcher is uh there have been now a couple of recent examples this one uh and uh ongoing legislation over the government trying to force government lawyers into a union they didn't want to belong to, where you have a circumstance with a labor backed in the p government uh in court now on the second case in recent memory fighting against uh unionization efforts, uh of government employees. So uh interesting decision and uh broader state of affairs.
Adam Stirling:So that's what's happening at the legislature michael mulligan with mulligan defense lawyers, legally speaking, during the second half of our second hour every thursday. Michael pleasure is always until next week. Thanks, a much of a great day. All right, you too, take care.