Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Courts Versus Government: A Battle Over Rights and Autonomy
Can a province truly bypass judicial processes in the name of housing development? Join us as we tackle this question with Michael Mulligan of Mulligan Defence Lawyers, providing his expert insights into a legal storm brewing over a proposed 12-story housing project in Vancouver's Kitsilano neighbourhood. This episode uncovers constitutional tensions as the provincial government attempts to circumvent judicial review, sparking a broader discussion about the limits of provincial power and the essential role of superior courts as outlined in section 96 of the Constitution Act 1867. Listen closely as we dissect the court's stance on rezoning requirements and the implications for due process.
In another compelling narrative, we follow the legal fight for a young woman in foster care, spotlighting her struggle for adequate lifelong support against the backdrop of government-imposed financial caps. Delve into the province's contentious plan to offset compensation with potential aid from Community Living BC. At the same time, we introduce the novel "Peter's Promise" concept from the UK that challenges conventional compensation frameworks. Through this analysis, we emphasize the dignity and autonomy of individuals affected by legal decisions whilst navigating the uncertainties of relying on government support. Michael Mulligan's expertise brings clarity to these intricate issues, making this episode a must-listen for anyone interested in the dynamic interplay between law, community, and individual rights.
Follow this link for a transcript of the show and links to the cases discussed.
Time for our regular segment Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers, morning Michael.
Michael Mulligan:How are we doing? Hey, good morning, I'm doing great. Always good to be here. Happy New Year. Thank you very much. You too Hard to believe 2025. How did that happen?
Adam Stirling:I know I'm just looking at our agenda for today Up. First it says Attempt to Prevent Judicial Review by the Province of BC Unconstitutional. Help us understand this one. I was trying to work my way around it earlier in the show.
Michael Mulligan:I got confused so I know you can help us out. Sure, so this is a case that relates to a proposed housing development over in Vancouver, the Kitsilano neighborhood, and it's a proposal to build a 12-story development there which would be sort of subsidized and and in some cases, for some part supportive housing. And the project has been probably not surprisingly given that description controversial and there's been stiff opposition from people who live in the neighborhood. Issues included about things like whether there would be a safe injection site located in this property, something you might want to have next to your home in Kitsilano and so the project required there to be changes to bylaws to rezone the property, and how those are supposed to operate are set out in provincial legislation that dictates how municipalities are to conduct rezoning, and the process includes a requirement that there be a public hearing conducted, and the legislation as it stood at the time included a provision that at the hearing, all persons who deemed themselves affected by the proposed bylaw shall be afforded an opportunity to be heard, and so there was a hearing. In fact, that went on for several days on various occasions. However, during the course of that hearing, various various concerns were deemed to be quote off limits for discussion, including things like how this facility would operate, the tenanting decisions about the building. There were restrictions on questioning about, for example, the safe injection site idea.
Michael Mulligan:At the hearing the residents were told no, there wouldn't be a safe injection site. But then BC Housing said they would be providing quote supervised injection services, close quote to tenants. And how does that? How do you parse that out from a safe injection site? Maybe they're unsafe supervised injection services anyways? There the attendees were shut down and not permitted to ask about those things, and so the city went ahead and approved the rezoning, but there was then a judicial review filed, arguing that the city hadn't followed the rules that it has to follow in order to make the changes to the zoning right, because there's a scheme for that, and so off the thing went to court.
Michael Mulligan:The provincial government, who, who was supportive of this development, was concerned that they might either lose in court or that it might delay their plans. That effectively tried to prevent the judicial review by deeming what took place to be permissible, a sort of deeming provision, and so the legal issue was whether the province is allowed to conclusively deem something like this to have been done properly, which effectively prevents the judicial review process. And none of this, the court pointed out, is an assessment of whether this is a good or bad project, or whether we need more housing, or whether we need more supportive housing, or indeed whether we should have safe injection sites. The court reviews all of those considerations. This has nothing whatsoever to do with that.
Michael Mulligan:The legal issue has to do with whether the provincial legislature has authority to effectively prevent a judicial review from taking place by deeming the outcome and the legal analysis. For that comes from section 96 of the Constitution Act 1867. And section 96, when you read it, it speaks about the authority of the federal government to appoint superior court judges in the provinces. And so you might say, well, how does that have to do with anything? Well, the law that's developed around that and I should say the reason we have section 96, in part it protects the authority of the Superior Court, because the authority to appoint Superior Court judges, who can only be removed by, like you know, joint resolution of the Senate and House of Commons they have considerable protection, so they have autonomy would be pretty meaningless if legislatures could just, you know, say that well, those kind of judges don't do anything at all, or their only thing they're going to deal with are going to be missing pets or something right, and all other decisions shall be made by some. You know, star chamber of people that the whatever government of the day has decided to appoint. Right, that's not permitted. Right, and you can see why it needs to be interpreted in that way. Otherwise, that the constitutional sort of division of powers there and protections afforded by having superior court judges that do have this independence from government would be meaningless. Right, if you could just say well, they can't make any decisions at all, or we're appointing somebody else who can do all the same things, so we'll just give them no money and that'll be over. And so it is.
Michael Mulligan:In the alternative, as the Court of Appeal pointed out in BC, the government is permitted to change legislation to have different tests or different things applied, like, for example, the requirement that there be public hearings or that certain things be done before a municipality can amend the bylaw or do rezoning. There's nothing constitutional about that. And if the province just wanted to get rid of those requirements and just say, for example, you know, a municipality may rezone property at any time, in any way they like, and there shall never be any kind of public hearing at all. Well, that's likely fine. Right, there's not a constitutional right to a public hearing.
Michael Mulligan:But where you have a legal process, whatever it might be right, it's not permissible for the province to say, well, you can't go to court and have reviewed whether it was done legally, that's what's not allowed. Right, you don't have to have a provision that allows for a public hearing. But if you have a provision that allows for a public hearing, you can't pass a law which says no matter what the court says, this is deemed to have been done properly. That's a very different thing from deciding whether you wish to have public hearings or don't wish to have public hearings. That's completely up to the province. Right, we could have no zoning at all, that's permitted too. Right, you could repeal all of that. The provincial government could just say look, you can build anything you like anywhere and that's presumably fine. It certainly wouldn't interfere with Section 96.
Michael Mulligan:But what you can't do, and what the Court of Appeal found the province tried to do here, was to prevent a meaningful judicial review of the legislative scheme that did exist. They created that right and so you can't have. The province can't say this is the legal requirement to do something. But in this particular case, because this legislation was found to be unconstitutional, the language was it's conclusively deemed to have been validly done. Right, that's not allowed. You have a right, legal right in Canada to go to a superior court to judicially review an administrative decision to make sure that it was done in accordance with the law. Right, people have to act lawfully and you can't avoid that by just saying we're going to just deem it all to be lawful. Just think about that right. Otherwise you could just say you know, superior court judges can no longer do X and Y and, by the way, that's not reviewable right. You can't just immunize yourself from a review to determine if what was done was lawful by saying you can't review this right, that's not going to do it. And so the BC Court of Appeal found that the piece of provincial legislation that conclusively deemed what went on here to be valid was it is unconstitutional because it prevents the people from meaningfully going before a superior court judge to determine whether the process that was followed was in accordance with the law.
Michael Mulligan:Now, if the province wants to change the law, fine. The court also points out you can even change the law retroactively. That may not be fair, but you could do that right retroactively. That may not be fair, but you could do that right. But what you can't do is avoid changing the law and just say we're going to deem it to be fine. So there's nothing you can do, and you can't go to court.
Michael Mulligan:That's not allowed and isn't allowed, and so that's the latest and that's how it was decided. Really, it's not an issue about whether we should have, you know, something there that's a supervised injection service, or whether we need a 12-story building of this kind or what it's going to do to the neighborhood. It's none of that. It's just that you can't prevent somebody from going to court to make sure that a decision was made in accordance with the law, whatever that law might be, and so the way the province tried to do this was impermissible, though that is unconstitutional, and there can now be a proper review to determine whether the process that was applied meets the legal requirements. And so that's the latest from Kitsilano and what you can and cannot do to prevent a judicial review.
Adam Stirling:Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking will continue right after this. Legally Speaking continues with Michael Mulligan, with Mulligan Defence Lawyers. Up next on our agenda, michael. We've talked about where the province can intervene in regarding legal aspects, or perhaps be intervened upon by the courts. The next story, though, deals with what can happen when an intervention does not take place soon enough, when there is a duty of care that exists. Help us understand this matter.
Michael Mulligan:Well, I must say you're exactly right, and I got to say this is probably one of the saddest opening paragraphs in a court case that I've read recently. Here's how this case begins the plaintiff, now 17, suffered a deliberately inflicted brain injury at six weeks old. She was born premature to a 15-year-old mother in a household marked by multi-generational illegal drug use, commercial sexual exploitation, mental illness and physical and verbal violence. There's the opening, and this case involved a claim against the Ministry of Children and Families for failing to intervene to prevent this intentional brain injury at six weeks of age, and the provincial government conceded that that was so. They agreed that the Ministry of Children and Families fell below the standard of care and not intervening earlier to protect the plaintiff. It admits liability, and so this case involves a very interesting and novel legal question in Canada and this concept of what's been referred to as a Peter's promise, and here's what that's about. So the plaintiff in this case is represented by the public guardian and trustee who will act for people who are not capable of doing so on their own. So that's how the case has come to court and this poor girl, who's now 19 years of age and suffers just horrific impairment as a result of this intentional brain injury. As a result of this intentional brain injury, you know she needs help cooking, cleaning, going to bed at night, social impairment, borderline verbal functioning, massive problems, she. The issue is this the province has acknowledged that it's responsible for not taking steps to protect her, but the province argues that the amount of money that she should receive to pay for her ongoing care should be reduced by the value of potential future government welfare services, and so that makes a very big difference In this case, if she was to receive the amount of money necessary to care for her for the rest of her life, which amounts to effectively 24-hour care, and I should say, on that note, she's very fortunate.
Michael Mulligan:She's described as she has a foster family. The foster mother is described this way as a remarkable caregiver, patient, yet firm temperament which shone through in her testimony. A person who has a diploma in early childhood education and worked with children for 55 years, and continues to live with her foster parents as long as possible. They live on a rural farm near the Alberta border and sadly, it's described as. The foster mother is presently 76 years old and the remaining time is, of course, limited, but the conclusion is that, in order to pay for her care for the rest of her life, it's going to cost between 10 to 13 million dollars because she requires, effectively, 24-hour care and monitoring. The province's position is she should receive only two million dollars, and that being on's position is she should receive only $2 million, and that being on the basis that she should have to deduct from the full cost of her care what services might be provided by Community Living BC.
Michael Mulligan:And there is this legal principle that prevents the concept of double recovery. Right, when the idea is, if you injure somebody or you're careless and they're injured, they should receive what they need to put them back in the position they would have been in, but for what you did. Right, when you think about it, that's a pretty fair principle. Right, make it right, but you're not entitled to profit from it. Right, if you're recovering something in one way, you shouldn't recover it twice. So that you're better off. You should be put back in the position you would have been in. Now, hard to imagine quite how we do this with this kind of a horrific circumstance, but we can certainly care for somebody. And so the province argued that well, we should deduct from the tenor of $13 million what she might be expected to receive from Community Living BC. She might be expected to receive from Community Living BC, arguing that it is very likely that that would be available for her.
Michael Mulligan:And so the novel legal concept, as I mentioned, is this concept of a Peter's promise, which is a concept out of the UK. It came out of a case about 15 years ago where the plaintiff was Peter's and Peter's the concept there was and this is accepted in the UK now can the victim of a tort like negligence, can they promise not to accept government support so as to avoid duplicate, double recovery, a promise to take government support? And the reason that's important, as the court pointed out here, is that even though there might be government support available, that's far from a certainty right, and there was evidence about how Community Living BC's financial pressures and what they can provide might go down. And you know, as we talked about in the last story, legislation can change anytime. The government likes you might get it, you might not.
Michael Mulligan:Furthermore, as the court pointed out, if this young woman ever, for example, moved to Alberta and said right on the border, she would be no longer entitled to the BC community living support and so, taking the position the government advocated for would mean, effectively, she can never leave the province, and it would be hoping that there would be support available in that amount, which, of course, that's hopeful.
Michael Mulligan:That might be, so Might that be less? It sure might be. And then the other point that's made here and this is an important one, it's a very important one is the idea that people should have personal autonomy and dignity in order to make decisions for themselves about things like where they are going to live or what kind of care they're going to receive. And this young lady will need help doing that. But that's available through the public guardian and trustee. And so, for example, she would, at age 19, age out of the foster care system, and so then she would be over to community living BC, whatever they might provide. What if she wishes to continue to live with her foster parents living BC, whatever they might provide? What if she wishes to continue?
Michael Mulligan:to live with her foster parents right Should she be required to do whatever the government is telling her to do? And I must say that's also one of the changes which has occurred under no fault with ICBC. Prior to no fault, people would get a sum of money. If somebody chooses to modify their home or do whatever they're going to do in their life, they're free to make those decisions. Whereas we've adopted this model, the provincial government has adopted this model where, effectively, if you're seriously injured now you become a ward of the government and you have to go cup in hand every time you want to get a new wheelchair or put a ramp in or take some physiotherapy. You don't have dignity and autonomy, you're just a ward of the province. And so that was an important consideration for the judge in this particular case was that idea of having dignity, autonomy and security. And so it's a very interesting read, and the judge adopted that legal principle for the very first time in Canada, which evolved in the United Kingdom from that case called Peter's, and it was done in a way which, in addition to there being a promise not to you know, accept government, other government services to get double recovery. It was made a condition of the order that the person, that she not do that, and so that's an interesting thing as well. The province's argument was well, you can't really opt out of that, you're just entitled to these things right as long as they might exist and as long as community living might have the money and as long as you don't leave the province of British Columbia. But that did not carry the day and it's also, I think, an interesting example for everyone about how the common law evolves. It's not a static thing. This wasn't some legislative change right.
Michael Mulligan:This decision came out on December 24th and it was a matter of the judge analyzing those principles of law and analyzing the reason we have the tort system and the principles that underlie that, which, as I said at the outset, the idea is you put the person back in position they would have been in and that's just sort of fair right. If you do harm to somebody or you fail to do something you were required to do and they suffer serious harm, you should make that right and the idea that, well, I shouldn't have to make it all right now you should be able to collect welfare or you should be able to get help from Humanity Living BC, because surely those things might be around for the next 30 years in some acceptable form. You hope right didn't carry the day. And so it's a very interesting decision and I thought in many respects you know it comes from a core of total, absolute tragedy and you read this case about sort of what this young lady's life involves now and how she manages to survive. I must say it is quite remarkable.
Michael Mulligan:The place she lives, interestingly, in this rural farm as described, with the very supportive and experienced stepfamily. She's able to do things like ride horses there. She needs supervision but she has some autonomy doing that. She's able to get some autonomy helping out with farm tasks on the farm. She's able to help make some meals and so on with support. And as a result of this decision, she'll wind up with that lump sum of money which will be managed by the public guardian and trustee, and so she will be able to, you know, make decisions about her life that will provide the sort of dignity and autonomy that is not possible when you are having to go, you know, cap in hand, hoping that whatever facility they might deposit you in is going to meet your needs for the rest of your life.
Michael Mulligan:And so that's really, I think what people should think about when we have, you know, these discussions in this context and in a more common context of people that are injured in serious car accidents, about what does it really mean to somebody when you tell them that you have no autonomy and no ability to make decisions about where you're going to live or how your life is going to unfold?
Michael Mulligan:You're going to live or how your life is going to unfold and how?
Michael Mulligan:That's just an extra indignity piled on top of, of course, whatever it was that got you to court in the first place assuming you can still get to court and so this decision, I must say, in the position the province took in this case and in the case we just talked about, in terms of deeming the zoning to be permissible, and the province's position in terms of no-fault insurance and what that means to people, are all a consistent theme of how this provincial government has operated for the past number of years, in order, in terms of just that philosophy of you know what does it mean in terms of you know somebody's dignity and autonomy?
Michael Mulligan:Should you be able to go to court? Should you be able to have an independent judge decide something? Should you be able to make decisions for yourself about where you're living and what you're doing and how you're going to care for yourself, and there's just a very different philosophy between sort of the status view of don't worry, everything should be fine, we'll decide for you, and no, we're going to treat you with some autonomy and dignity. Anyways, this was a victory for the autonomy and dignity camp and fortunately young lady will be able to continue on at least as long as possible in the very good position that she's been in after about the worst start in life one could imagine that's all the time we have for today.
Michael Mulligan:That's the latest.
Adam Stirling:Yes, thank you so much, michael Mulligan. Thank you so much as always. A little bit over, but a fascinating and an important story, so thank you so much as always. Thank you so much. Have a great day, all right.