Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The BCNDP's Bill C-7 threatens retroactive offences and attempts to bypass courts
Democracy stands at a crossroads in British Columbia as Michael Mulligan delivers a powerful analysis of the NDP's proposed Tariff Response Act (Bill C-7). Drawing on historical parallels that send shivers down the spine, Mulligan unpacks how this legislation bears troubling similarities to Nazi Germany's 1933 Enabling Act—legislation that effectively rendered their legislature irrelevant and set the stage for catastrophe.
The bill's provisions would allow the government to make retroactive amendments to laws, shield officials from judicial review for procurement decisions, and potentially criminalize non-compliance with up to two years imprisonment. Most alarming is how the exclusion of the Offense Act creates a backdoor to criminal prosecution under Section 127 of the Criminal Code—potentially criminalizing actions that weren't illegal when performed. "The response to right-wing populism and erratic behaviour ought not to be a populist, left-wing, arbitrary response," Mulligan warns, as he urges Green Party MLAs who hold the balance of power to consider the weight of history before supporting such a transfer of power.
In the second segment, Mulligan discusses a recent Victoria case with significant implications for homeowners and contractors. The court ruled that consumers can cancel construction contracts lacking specific completion dates within 12 months under the BC Business Practices and Consumer Protection Act. When a sunroom company demanded an additional $17,310 and dumped materials "the size of a small car" in a homeowner's driveway after cancellation, the judge ordered a full refund plus damages for trespass. Take note whether you're planning renovations or providing services—completion dates aren't just good business practice; they're legally required. Have you checked your contracts lately?
Follow this link for a transcript of the show and links to the cases discussed.
It's time for Legally Speaking, joined as always by Michael Mulligan, barrister and solicitor, with Mulligan Defence Lawyers. Morning, michael, how are we doing? Hey, good morning. I'm doing great. Always good to be here. Some very interesting items on the agenda, including something we briefly touched upon last week because the legislation had just been introduced in the Legislative Assembly, but I know you've had more time to review it Bill C-7, what many know now as the NDP's so-called Emergency Powers Act.
Michael Mulligan:Your thoughts Well, there are some elements of it that are very troubling. Having read it now more carefully, and I should say there's a long and sort of historic background to why this kind of legislation is viewed so skeptically and why it can lead to disaster. And one of the early examples of it and I should pause here to say that the BCNDP is not the Nazi party in 1933 Germany, but there's a piece of legislation from 1933 in Germany. It's called the Enabling Act and it was an act there which was introduced by Hitler and the Nazi Party in 1933 in response to their legislature being burned down. They believed it was burned down by the communists At least that's who was blamed for doing it and so the Nazi Party responded with the purported need for emergency legislation to transfer power to the executive sounds familiar in order to immediately respond to that and threats from then the communist party, without the need to go back to the legislature to pass laws, and so they introduced the Enabling Act.
Michael Mulligan:At the time the Nazi party had a plurality, but not even a majority of the seats in their legislature. They had 288 of 647. But they proposed that bill, the Enabling Act, in order to allow effectively the Nazi Party, hitler to pass laws and amend laws without having to have them go through their legislature, and it passed. And that legislation passed with the support of most of the other parties. The Social Democratic Party there, which is in government for a long period of time in Germany I think they may have been just reelected they voted against it, the Communist Party abstained or they weren't present, and then a whole list of other kind of more moderate parties voted in favor of it the Centre Party, the National People's Party, the Bavarian Party, and on and on it went, and so they wound up with the vote was 444 to 94, and it passed and the effect of that was to make their legislature effectively irrelevant became a rubber stamp. And World War II and history is a result of exactly that sitting with potentially the balance of power in terms of whether this piece of legislation will be passed, I would imagine is feeling the weight of history, in terms of just how badly the idea that some emergency justifies giving up the legislative process and allowing the executive to summarily pass changes to laws or whatever they think on the quick are appropriate. Because that's really what's being asked for here.
Michael Mulligan:And with that historic background, reading some of the provisions in the particular BC bill are troubling. For example, one of the provisions in there which I don't think has got much at least public attention I don't think it's gotten much at least public attention With respect to the various sections of the bill that would give various extraordinary powers to the government to do things without them having to pass through the legislature. And one of the sections there deals with procurement government buying things and contracting for things and so on government buying things and contracting for things and so on and it would allow there to be decisions made arbitrarily in that regard and without any legislative review. And one of the troubling provisions there purports to prevent court proceedings seeking damages for that happening. And so there is a Protection Against Legal Proceedings which is a bit of an ominous title. We should assume courts are going to act in a partial way. We don't need protection from court proceedings. But with respect to that part of the bill it purports to say that no legal proceedings for damages lies or may be commenced or maintained against a protected person, which is defined very broadly to include the government and any government procurement agencies or government ministers or anyone else because of anything done or admitted to be done under that part, and so it purports to stop courts from reviewing that to determine whether damages would flow from it. Now you've seen in the US context, with various arbitrary decisions made by Trump, one of the pushbacks there are the courts, and so this would be an effort to, at least with respect to some parts of Bill 7, prevent the courts from reviewing those for the purpose of awarding damages for what's been done. And you know, we may hope that everyone acts in a good and sensible way. I'm sure that was the thought of 1933 in Germany, but history tells us that's not always so, and so you know you could have, you know, government deciding that well, we want to have whatever group or person awarded government contracts and the effect of that would be that others would be unable to review them in court and determine whether damages should flow from it and protect the government from the courts, in my view, is very troubling. Other provisions here and there's some really broad, really really broad ones later on in this bill that would allow sort of amendments to legislation, including retroactive amendments to things which you also have to think carefully about, right. It would allow Governor General and Council effectively the Premier, to retroactively amend laws that were otherwise passed. That is profoundly troubling.
Michael Mulligan:There's another section here which I don't think many people would appreciate what the import of it is, but one of the sections here it provides section 27,. Section 5, general. It provides that the offense act does not apply to this act, regulations or the directives. And so at first blush you might say, well, what does that really mean? The offense act doesn't apply, that seems to mean that somehow it would be less serious. But it means the exact opposite, and the reason for that is that there's this act called the offense act. It's a provincial act that provides for, makes it a provincial offense for somebody who doesn't comply with a general provincial law right, like if there's no other specific penalty provision in a bill and you don't comply with something that's required by a provincial statute, the Offense Act would allow a provincial offense prosecution for doing so.
Michael Mulligan:But this Act does not include a specific penalty provision.
Michael Mulligan:It includes this provision saying the Offense Act doesn't apply, and here's what that means.
Michael Mulligan:What that means, at least potentially, is that Section 127 of the Criminal Code may then be operable.
Michael Mulligan:Section 127 of the Criminal Code says that everyone who, without lawful excuse, disobeys a lawful order made by a court of justice and this is the important part or by a person or body of persons authorized by any act to make or give the order other than an order for the payment of money, is, unless the punishment or other mode of proceeding is expressly provided for by law, is guilty of A an indictable offense and liable to imprisonment. The effect of that sleeper provision the most people aren't going to be sure. What does that mean could be a prosecution under section a criminal code, prosecution under section 127 of the criminal code, the effect of which could be a two-year prison sentence. And so this legislation, if passed in this form, could allow there to be modifications to provincial legislation. Orders for people to do things. They could even be retroactive. They could effectively criminal. Retroactive, they could effectively criminalize past conduct, past conduct, wow, right, because you could have a retroactive provision there, right, wow? And so you might find yourself in breach of something that occurred before you even did it.
Adam Stirling:I didn't think we could have criminal prosecution for past conduct. That wasn't a crime at the time. Haven't we discussed that, or am I misremembering?
Michael Mulligan:Well, there are sections dealing with penalties and changes to penalties, and no doubt all of these things would be subject to eventually some hopefully some judicial scrutiny. But don't hang your hat on that.
Adam Stirling:No.
Michael Mulligan:Right. What you have here is a piece of legislation that would allow the government to, in a summary way, modify provincial laws and then, if there's a failure to comply with one of those orders, a criminal code, prosecution and a two-year jail sentence. And so you need to ask yourself is that sensible? So you need to ask yourself is that sensible? And you know, we are seeing every day the operation of erratic decision-making in the United States and the effect that has on the world, including Canada. And in my judgment, when you look at the historical examples of how that sort of power works out, as we're watching right now in real time, an appropriate response to that kind of arbitrary, unreviewed decision-making ought not to be to engage in a scheme which would remove the procedural protections we have in place that require, you know, debate and consideration and public scrutiny of changes to laws, and to replace that with what would amount to at least potentially arbitrary, poorly thought out, on the quick decisions by a government in some cases that would try to shield themselves from judicial review of the consequences of those things, and to draft that legislation in a way that would criminalize a failure to comply with even retroactive changes to the law. And so I would very much hope that there be really, really careful reconsideration of this idea and, in the historical context that I've spoken about, I would hope that, in particular, the Green Party MLAs think carefully about whether they wish to be the minority members of the legislature that countenance this on the theory that, well, this is an emergency and we just need to hand over all powers and make ourselves, that is to say, the legislature, irrelevant to allow the government to do this kind of thing, with the hope and promise that the decisions won't be arbitrary and capricious and harmful in the way that we're currently seeing them in the United States.
Michael Mulligan:And so, you know, you could well appreciate if you're David Eby or the NDP. Well, I'm a doer of good. Everything I do will be great. You know why should I have to be fettered by the need for things to be debated or reviewed in public? Surely I should be able to just sign documents and look tough. And, you know, maybe they want to get themselves a big stack of folders or whatever to try to pretend to be some miniature Donald Trump.
Michael Mulligan:But, in my judgment, when you look carefully at this legislation and you look at the arc of history and how things like this have worked out in the past. This would be a serious mistake and ought to be rethought. The response to right-wing populism and erratic behavior ought not to be a populist, left-wing, arbitrary response. And some of these provisions, when you look carefully at them, are just extremely troubling and so and I don't think, have been well understood by people, because, of course, when you read something that says the offense act doesn't apply, most people would shrug and go. What does that mean? But that's what that means, and so hopefully cooler heads will prevail and we don't go down this road, because you can well see from what I've described just how badly that could turn out.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Thank you for your thoughts on that and the debate will continue when the legislature resumes sitting within the next couple of weeks. We'll take a quick break, legally speaking. We'll continue right after this. All right, we're back on the air here at CFAX 1070 doing Legally Speaking with Michael Mulligan with Mulligan Defense Lawyers. Michael, let's bring it back up on the air here. Hi Michael, we've got about six minutes left. Where should we go next on this?
Michael Mulligan:Sure.
Michael Mulligan:So another case to talk about that I think would have some implications for quite a few people is a Victoria case and a decision that was just recently released. This is a case which involves a contract to do construction work contract to do construction work and in particular it was somebody in Victoria who hired a company that builds sunrooms to build them a sunroom. That's the basics of it. That sunroom company, by the way, has been frequently in the news over litigation. The same company was just recently reported on having been successful in a review of a case involving whether they had lawfully in a review of a case involving whether they had lawfully reduced the salary of a foreign worker who had misrepresented their qualifications when they got hired. But that's just a side note. The particular issue in the case that was just decided revolved around the operation of an act called the British Columbia Business Practices and Consumer Protection Act. It's sort of an act called the British Columbia Business Practices and Consumer Protection Act. It's sort of an act that is intended to do kind of what the title would suggest protect consumers and a provision of that act deals with the necessity of providing a completion date for contracts to do things in the future, and the issue in this case was whether that act applied to construction contracts. The fact pattern was that the homeowner had entered into a contract in 2021 to build a sunroom a rather expensive one it was $100,000-something and the contract didn't include it at any date when the work should be done. There was a discussion about that, a verbal discussion about it, and the representation was that the building permits would be obtained. The construction would start in July of 2022. Well, we all know what was going on back in 2021 and 2022, nothing good, and so nothing got started in July.
Michael Mulligan:Furthermore, various things took hold inflation and supply chain issues, and this and that and the company communicated with the homeowner saying that well, costs have gone up, shipping costs have gone up, parts have gone up, aluminum's gone up, everything's gone up and so said they're going to require another $17,310 plus tax to complete the project and the project is going to be delayed. The homeowner responded to that eventually with I'm not proceeding. No, I'm not paying the extra money, I want my money back. The homeowner had paid a deposit of some $10,000. And so he was asking for his money back. The company refused and said no, we're not giving the money back, we've already spent a whole bunch of money on your project. They said $23,000, some odd dollars, with a bunch of getting, I guess custom aluminum windows and stuff made things you might need to build a sunroom. And they said, no, we're not giving the money back. And eventually, after much back and forth, the company drove over to the homeowner's house and deposited all of that stuff in his driveway the size of a small car, and there it sat until then litigation commenced and so the court wound up in. So the case wound up in court, the homeowner claiming I want my money back. The company's saying that's not fair. We've spent $23,000, which everyone agreed they did spend on the stuff, and furthermore, the homeowner was making a claim for trespass on the basis that they came onto the property despite the homeowner saying no, don't put that there and dump this giant pile of aluminum stuff in the homeowner's driveway where it remains.
Michael Mulligan:And so that was a fact pattern that eventually went to court, and the issue for the judge was to determine in the context of a construction contract, does that act that Consumer Protection Act? Does that apply? Is that person a consumer? Is the other person a supplier? And both those things are defined in the act. And so the judge went through the process of reviewing those things what do those terms mean? And ultimately concluded that, indeed, the act does apply to construction contracts where the person's a consumer. You know they're not doing this for some commercial purpose. He's putting in a sunroom, right, he's not building a factory or something.
Michael Mulligan:And so found that the Act did apply. And because the Act, because the contract didn't include a completion date. What that Act says is that the consumer has the right to cancel a contract within 12 months, and when that happens, the consumer is entitled to their money back. And so the result of the case is that the homeowner won, effectively saying, yep, they were a consumer, this act does apply. And even though the Sunroom company had spent that money on all that stuff that they dumped in the driveway, nonetheless the contract didn't meet the requirements of the Act, and so the consumer was entitled to a refund. And so the judge ordered that the consumer be not only provided with a refund, but also be paid $500 for the trespass, for dumping what was described as large boxes the size of a small car in the person's driveway with the stuff that the company had already produced.
Michael Mulligan:And so the judge pointed out that, look, you know the act doesn't require when the date be, and there could be negotiations about changing the date, but there has to be a completion date and there wasn't one here and it allowed the consumer to cancel the contract. And so it's going to be, I think, impactful, because there are going to be all kinds of people who have contracts out there to renovate their basement or, you know, change their windows or do whatever they're doing, and so it's important people be aware of this, both consumers and contractors, so they make sure that their contracts have a completion date. Otherwise they might find out that they're not enforceable or they may be enforceable. The consumer might be able to get their money back if they don't do what's required under the Act. So put a date in there. Leaving it blank and talking about it on the phone won't do it. So that's the latest decision on consumer protection in BC.
Adam Stirling:Michael Mulligan, with Mulligan Defence Lawyers, legally speaking, during the second half of our second hour every Thursday. Michael, thank you, pleasure as always. Thanks so much. Always great to be here.