Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Public Park Liability and Marine Mammal Regulations
What legal responsibilities do towns have when a simple stroll through a park turns tragic? Join us as we sit down with Michael Mulligan to uncover the layers of liability and negligence that come into play when public spaces fail to safeguard their visitors. Through the lens of a heart-wrenching case involving a young boy in Gibsons who became tetraplegic after a dead tree fell on him, we explore the critical question of whether the town fulfilled its duty of care under the Occupiers Liability Act. Michael helps us dissect the legal obligations and expectations placed on municipalities to ensure safety, including how standards like the Wildlife Danger Tree Assessors course influence these responsibilities.
Pivoting to the realm of marine life, we navigate the murky waters of marine mammal regulations with a keen eye on a legal case that raises questions about the fairness of prosecution. When a woman was accused of disturbing killer whales while paddleboarding, it highlighted the labyrinth of modern legal statutes that can ensnare even the most well-meaning individuals. Michael guides us through this legal conundrum, addressing the principle that ignorance is no defence and the peculiar world of licensing fees for hunting marine mammals. We spotlight the legal processes, from evidence handling to upholding an individual's right to a fair trial, ensuring that justice remains not just a concept but a reality.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our conversation with Barrister and Solicitor with Mulligan Defence Lawyers. It's Legally Speaking on CFAX 1070 with Michael Mulligan. Morning, Michael, how are we doing? Hey, good morning. I'm doing great. Always good to be here. Some interesting items on the agenda this week. I'm just reading here it says claim against the city for a tree falling on a boy in a park, pursuant to the occupier's liability. What happened?
Michael Mulligan:Well, it certainly was a tragedy. I'll tell you about the factual background and then the operation of that piece of legislation mentioned there, the Occupier's Liability Act, which I think is a worthwhile thing for people to know about. The particular fact pattern involved a maybe boy would be a bit too strong, he was 17,. Involved a maybe boy would be a bit too strong, he was 17,. So a teenager and three friends went into a wooded park area in a park that's owned by the town of Gibson, and they went into the park. They went there for this part of the park which is kind of off the beaten path, basically in order to drink alcohol and not be noticed. They started throwing rocks at dead trees and then started to try to knock them over by pushing them. I guess that's what teenagers who are drinking in the park might do, and sadly well, the particular 17-year-old that forms the subject matter of the case was pushing one of the dead trees. Part of it broke off, fell down, struck him in the neck and back, severing his spine, and he became a tetraplegic as a result of that. And so just a tragic circumstance, from his perspective, life-changing event he wound up suing a number of people. He sued the town of Gibsons. He also sued the friends that he was with, claiming they were 5% responsible for what happened, and alleged that the city, the town, was 70% responsible for this occurring. And the issue at trial and then on the appeal that was just decided, turned on the issue of whether and what the duty of care was owned by the city or town to him. And the reason that's important is that to successfully sue somebody you need to. For negligence like this, you would need to establish that, first of all, that they owed you a duty of care that they breached, whatever the appropriate standard of care was, and as a result of that breach, you wound up getting injured or suffering a loss. And so what the trial judge had to decide and I must say it was quite a trial apparently went for 60 days over a period of 13 months, and now we've had an appeal from it, no doubt all of that legal effort being put into this because of the devastating nature of the injury and I guess how much money would be on the line in terms of the lifetime of care for this young man. And so the issue turned on through the operation of that act. We mentioned the Occupiers Liability Act and that's something people should know about. And so in BC we have that act Occupiers Liability Act and what it does is it creates a specifies a duty of care owed by someone who is the occupier of a premises.
Michael Mulligan:So that can include land, it can include other things like ships or trailers or structures or things like that, and what it says is that the occupier of a premises so that might be the owner could be somebody who's physically in possession of it, the renter, whatever it might be. They owe a duty of care to ensure that they take reasonable care to see that a person or persons on the property will be reasonably safe in using the premises. Okay, so let's just think about that. That can be the basis for things like you know, you hear of claims somebody might be making, let's say, you don't shovel off your step and the mailman falls down and hurts himself. That's something you could be liable for on the basis that, hey, you didn't make reasonable efforts to ensure the premises were safe by, like, clearing the snow or getting rid of the ice, that kind of thing. The Act does specify circumstances in which you don't have liability, or at least reduced liability, an interesting one that was added after the Act was originally put in place was that it provides that somebody who trespasses on your property while committing, or with the intention to commit, a criminal act is deemed to have willfully assumed all risks. The occupier of those premises is subject to some specific, intentionally dangerous things. So they are things like if you set out to, if you create a danger with the intent to harm somebody, for example, you could be liable for that, even if the person is on your property for the purpose of committing a criminal act. Like if you create a I don't know a pit with spikes on it in front of your house to protect it from burglars, or something which could also, by the way, be a separate criminal offense relating to man traps, you could still be liable for it.
Michael Mulligan:But in the context of the tree circumstance here, the way it's analyzed first of all is does the city have a duty to these teenagers who are pushing over trees when one of the pieces fell off? And so the starting point would be well, is the city or town an occupier of the premises? And the answer to that question would be yes, it's pretty broad. Right, they own the park. Right, they are in control of it? And the answer to that question would be yes, it's pretty broad. Right, they own the park, right, they were in control of it. But the next question then is did they take reasonable steps to ensure safety there? And what does that mean in the context of something like a dead tree part falling off and hitting somebody in the back?
Michael Mulligan:And at the trial there was evidence led with respect to a thing which many people may also not know about. I'd never heard of it before. There is apparently a thing called the WDTAC standard, which comes out of the Wildlife Danger Tree Assessors course, so there's actually some authority for the issue of like well, what should you do to make sure your trees are safe? And there was expert evidence led about that. I guess that's the sort of thing that an arborist would reference when they were deciding whether a tree is unsafe, determining should this thing be cut down.
Michael Mulligan:And particular emphasis was put on a harsh portion of the workbook from this particular thing that defines what a dangerous tree is. And at trial, the experts that testified at the trial specified this in reference this particular part of this tree assessment workbook. And here's what it says One cannot have a dangerous tree unless there is a target For purposes of parks and recreational sites. Targets are those established trails, campsites, roads and facilities that are provided to the visiting public to help them safely enjoy the park or recreational site. And so the idea there is that if you have a tree, dead or not, which has a target on one, you know it could fall over and hit one of those sort of things places where you'd expect people to be, like campsites, roads, facilities and so on then you need to, according to this uh code of uh tree risk assessment, you need to assess whether the tree is dangerous, and so the argument made at trial was well, that should have been done.
Michael Mulligan:The contrary argument was well, look, these teenagers weren't on the trail, they intentionally went off to some sort of hidden place in the park where you wouldn't generally expect people so they could drink and not be seen. And that particular code used to assess dangerous trees essentially says where human activity is in a forested area, it's a very low risk, no assessments required, like, you don't need to hunt through random forest land looking for dead trees and cut them down, right, you only need to do that kind of an assessment if the tree is kind of has a target, which would be a place where you'd expect people to be, which sort of makes sense, right, yeah, and so on that basis, the trial judge found that, uh, the township had not breached, um, its of care. It was an occupier, right, so in some circumstances has a duty of care, but they hadn't breached that obligation to make sure that people were reasonably safe using, in this case, the park. They didn't have to go and assess dead trees in some part of the park where you wouldn't expect people to be going. And so after 60 days of trial, the claim was dismissed and so they appealed.
Michael Mulligan:And on the appeal they argued that, hey, maybe that code is too strict, maybe there should be a lower standard applied or a different standard. That was rejected by the Court of Appeal on the basis that you can't make a new argument for the first time on an appeal. Right, and that kind of makes sense, because the idea is look at a trial, you can call evidence, the other side can call evidence, respond to it. Right, and an appeal isn't like a do-over. Let me try something different to see if that works right. The idea is that on an appeal, you could look for mistakes and errors and what test and so on, applied, and so the Court of Appeal said no, you can't, for the very first time on an appeal, argue that a different approach or standard should be applied.
Michael Mulligan:Everyone, including the plaintiff, agreed at trial the proper standard was one from that WDTAC standard about when you have to assess a tree and on what basis, and so the Court of Appeal upheld the trial judge's decision, the net result of which is no compensation for the 17 year old.
Michael Mulligan:And you can see why there was such effort put into this thing obviously because the you know the potential award would have been enormous, the, it looks like.
Michael Mulligan:Also, they abandoned that is to say the plaintiffs abandoned the 5% claim against the teenage friends that was originally pled, and so there was not even any finding on that point at the trial, and the Court of Appeal didn't have much time dismissing that as any kind of a problem, given that nobody even suggested at the end of the trial that the other teenagers were to any extent responsible for the fact that the teenager who was shaking the tree or trying to push it over had the branch fall on him. The friends weren't on the hook for that, and so the result of it, on that analysis is no compensation, which is certainly going to be a harsh reality for the 17-year-old young adult, but in this case the township just wasn't negligent, despite the provisions of the Occupiers Liability Act. So that's what that act is and that's what your obligation is when you are responsible for a premises, you've got to make sure you take reasonable steps to ensure that it's safe for people that are going to be there. So that's the latest from the Board of Appeal.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking. We'll continue right after this commercial break, back on the air here at CFAX 1070 as we continue with Legally Speaking with Michael Mulligan from Mulligan Defense Lawyers. Michael up next it says a conviction for disturbing killer whales on a paddleboard. I mean motorboats. I think all of us get but a paddle board.
Michael Mulligan:What happened here? Well, this is an event. It came out of Uculet from a few years ago and the judge's description indicates that there was a lively pod of orcas also known as killer whales that came into the harbor. I must say on that just as a slight aside, some listeners may be old enough to remember when on BC Ferries, when they would see orcas, they would used to describe them as killer whales, and so I recall announcements on BC Ferries where they would say things like off the port side of the ship we've spotted a pod of killer whales, and you would see like a bunch of people run over to that side of the ship to try to see them, and then other people with a look of fear, wondering whether they should be running to the opposite side of the ship, having been told there's a pod of killer whales off one side of the boat. Anyway, they moved on to orcas. So this involved this pod of orcas that was in the harbor there in Uculet and there were apparently hundreds of people all lined up around the harbor watching the judge in, I think, a really eloquent judgment described as a spectacular sight of whales splashing around, and the judge noted that he never thought, as a judge, he would be watching a video of beautiful whales saying hello to a community and trying to decide whether an offense had been committed. And so that's the scene these whales in the harbor, hundreds of people around and a woman who was the accused here hopped on her paddleboard and started paddling towards the whales. Now, interestingly, there was also somebody in a boat who was out by the whales too. The Crown chose to charge only the woman on the paddleboard and not the person in the boat, and the judge commented on that that that gets completely within the prerogative of the Crown. They can choose to charge somebody or not charge somebody. And they chose to charge the woman on the paddleboard and not charge, I think, the man on the boat motorboat. And in fact the Crown called the man on the motorboat as a witness at the trial to try to establish how close the woman was on her paddleboard. But again, judge pointed out that's completely within the prerogative of the Crown. The woman wound up being charged under the Fisheries Act with unlawfully disturbing killer whales by approaching the killer whales at a distance of less than 200 meters while on a paddleboard.
Michael Mulligan:And you might wonder what does it mean to disturb a killer whale. Well, we've answered that, or there's a legal answer to that, and it comes in the form of the marine mammal regulations. And the judge also, I think, astutely pointed out that even if you've never heard of the marine mammal regulations, you still must abide by them. And that's an interesting thing too, of course. Right, I think most people have heard of that concept.
Michael Mulligan:That sort of ignorance of the law is no defense. But I should say, in that regard, the modern reality is that we have so many laws and pursuant to many of those laws, there's even more regulations under those laws that create various rules and things you must do. That concept of the ignorance of the law is no defense, makes more sense, you know, when you're dealing with something which would be almost universally considered, at least morally wrong. Right, like you know, somebody says I didn't realize that assaulting somebody was a crime. Right, I think most people say well, that can't be relevant here. But that same principle applies even to the obscure and in the form of, in this case, the marine mammal regulations, which takes the time to define what it means to disturb a marine mammal, and there's a long list of things that can, apparently, according to at least the regulations disturb a marine mammal, including things like feeding it, swimming with it, interacting with it, moving it or enticing it to move, separating it from members, tagging or marking it, et cetera, et cetera. And then there is a provision that says you have to list various things in a column and look up another table, and then a requirement that you remain 200 meters away. That, by the way, doesn't apply to vessels that are in transit. There's another complicating factor, and I must say say in defense of this woman and in response to that general comment, which is accurate as a matter of law, right, I'm a lawyer, I do this all the time. I've just been trying to read through these regulations, trying to compute what exactly are you allowed to do and what cannot you, what you, what can't you do? Yeah, and it's far from clear. And so I do think there is an important question about policy question for people to ask you know, should we have, you know, prosecutions for things where the rules are so opaque that almost no one would know exactly what's going on, right? Even somebody who's sitting here reading them carefully is going to be left with a bit of a head scratch. You know whether that just accords with principles of fairness. By the way, those same that just accords with principles of fairness.
Michael Mulligan:By the way, those same marine mammal regulations interestingly set out a table of licensing fees. You can get a permit, apparently from the minister, to go and hunt various marine mammals and they have various different fees to do that. So, oddly, for example, if you wish to hunt a seal for personal use, the fee is $5. If you wish to hunt a narwhal whale, that's free. If you wish to hunt a bone whale, bonehead whale, no charge for that either. And they've oddly defined a personal use seal, that's $5, a commercial use seal, also $5, and the oddly unnecessary definition of a nuisance seal is also $5. We could probably at least get a little bit of streamlining here by combining all of the seals so that at least when you're the seal that gets hunted for the $5 fee, you don't have the additional indignity of having been labeled a nuisance seal on the license issued for the purpose of hunting you. By the way, walruses are also $5.
Michael Mulligan:So we have all of these regulations and in this case, as the judge pointed out, whether she knows about them or not, she's still subject to prosecution. You know some of those questions like does a paddleboard count? Right, yeah. And so here the judge concluded yes, paddleboards are captured. The judge had evidence from people, including the guy in the boat motorboat who was also within 200 meters, who was called by the Crown as a witness in this case, rather than having him prosecuted. When that guy testified, his opening line, when he was asked why are you here? His opening line was because I got too close to the orcas. So that guy's testimony was he thought the woman on the paddleboard was 50 meters away from the orcas. And so the judge relied on the evidence from the boat guy who was too close to the orcas, who alleged that the woman on the paddleboard was too close to the orcas, in part of his reason for convicting her.
Michael Mulligan:The judge then had to go on to deal with the issue of sentencing, and there are a few interesting comments on the case that people should be aware of. First of all, as the judge quite properly pointed out, um, the uh, you know some people were complaining oh, should this woman have had a trial for this? Look at all the time it's taken to call evidence about these things. And the judge quite properly pointed out she's in charge of the defense, she's perfectly entitled to be presumed innocent and and it's not at all unreasonable to make the Crown prove all the elements of the offense. And so that's an important thing to know about. There is no punishment in Canada for having a trial right. If a judge ever said, well, you had a trial, you didn't plead guilty, I'm going to punish you more severely. That would be an immediate error and almost certainly overturned on an appeal.
Michael Mulligan:And so the judge pointed out there's nothing improper about the woman having a trial. And I must say, having read at least some of the marine regulations and all the various things like the definition of what constitutes to disturb something and is a vessel in transit, and is it one of the required vessels or specified types of vessels? And you know it's not crazy that somebody would say types of vessels, and you know it's not crazy that somebody would say, well, perhaps we should have a trial to determine whether all of these various elements have been made out. So he convicted her, found there was no additional penalty for the fact that she had a trial. That's not how we do things here. And then this was also interesting. The judge pointed out she had no previous criminal record, no history of breaching any fisheries regulations, when deciding what sentence to impose. But and I should say this some of the fisheries sentences are pretty serious, right, so be very careful. If you're going around in a boat or planning to do any of these things, you might want to at least try to your very best to figure out what all you're compelled to do under all the various regulations. Some of the fines and penalties are really serious.
Michael Mulligan:Here, interestingly, the judge points out that, despite having no criminal record and no history of breaching fishing regulations, he did take into account what he describes as potentially concerning comments she made when she was interviewed by a reporter about the paddleboard incident. And she said to the reporter I don't get scared of them. Ever, even times, every time I see whales it doesn't matter if they are, if it is an orca, humpback greys I always cry when I get close to them. And so the judge is a little worried about oh my God, is she getting close to? What about the humpbacks grey whales? I don't even know if we have those things here, but that was a little problematic from the judge's perspective, suggesting she might have gotten a little close to a few other marine mammals over the years whether it was 200 metres and whether the thing that she was on was listed in the requisite schedule and whether it constituted disturbing them and you know, whether it's a porpoise or a marine mammal or various other things. All would be legitimate questions but that caused the judge a little bit of concern.
Michael Mulligan:But ultimately, with that entire fact pattern, the judge concluded that the appropriate penalty to impose for this particular woman was a fine of $2,500. And you know, on one level there are certainly fines under the Fisheries Act which could be higher than that. This particular judge, by the way, he's well-named and this is a really well-written judgment I thought pleasure to read His name is Judge Wolf, a good name for a judge dealing with fisheries or other wildlife matters. He pointed out he was the same judge and you may recall this who sentenced a man to prison for killing a bear. Remember there was a bear and bear cub in a backyard. It was a conviction for shooting one of them, I think, with an arrow and he sentenced that man to prison and he made some passing reference to that oh yeah, offense of killing two bears and said that in that case he said sometimes fines are not enough and sent the man to jail for killing these two bears. I think it was like a mother and cub. But here the fine was $2,500.
Michael Mulligan:So certainly less than a lot of wildlife or fisheries or related sentences, but nonetheless a $2,500 fine for paddleboarding by the whales is pretty significant, probably more than the paddleboard cost. And so there it is. People should be aware of that. I guess as best you can, as best you can say, is give a very wide berth to marine mammals. Don't swim with it, whatever that means. Don't interact with it, whatever that means. Perhaps you're in danger if you're waving at them from the shore, but give the whales a lot of space and, if you can, maybe orcas rather than killer whales would be a good start in terms of how we refer to them.
Michael Mulligan:Legally speaking. So that's the latest from you.
Adam Stirling:Kulit. All right, legally speaking, during the second half of our second hour every Thursday, Michael out of time. But thank you so much as always. Thanks so much, Always a pleasure. All right, bye now.