Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Vicarious Liability for Sexual Abuse and Sick Notes for Traffic Court
The complex legal landscape of vicarious liability takes center stage in this illuminating discussion with Lawyer Michael Mulligan. At the heart of our conversation is a heartbreaking Victoria case where a retired teacher-turned-tutor sexually abused a grade six student, resulting in a $2.3 million judgment. We dissect the Court of Appeal's reasoning on why, despite creating the initial relationship, the school board wasn't held vicariously liable for the teacher's actions that occurred after retirement and away from school grounds.
The legal principle at stake here affects countless institutions across Canada. While the abuse would never have occurred without the school's arrangement, the court determined this causal connection alone wasn't enough to establish liability. Tragically, with the perpetrator deceased, the victim's substantial judgment may go largely uncollected, demonstrating how technical legal distinctions can profoundly impact survivors' ability to receive compensation.
We also examine two other rulings with everyday implications for Canadians. If you've ever missed your traffic court date due to illness, take note: the BC Supreme Court has confirmed doctor's notes aren't mandatory for appeals. Alternative evidence, like medication receipts or witness affidavits, can suffice – a welcome clarification that removes unnecessary barriers to justice.
Looking toward our digital future, we analyze a split Supreme Court of Canada decision determining that 5G antennas don't qualify as "transmission lines" under telecommunications regulations. This seemingly technical ruling means telecom giants must now negotiate with individual municipalities to install the hundreds of thousands of small antennas needed for nationwide 5G coverage, potentially affecting the rollout of next-generation wireless technology in your neighbourhood.
Have you encountered any of these legal issues? These cases highlight how judicial interpretations directly affect everything from institutional accountability to your traffic ticket disputes and even your cell phone reception.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment with barrister and solicitor, with Mulligan Defence Lawyers it's Michael Mulligan with Legally Speaking on CFAX Morning, Michael, or afternoon, I should say. How are we doing?
Michael Mulligan:I'm doing great. It's always good to be here.
Adam Stirling:One of these days I'm going to say afternoon instead of morning, and then I will finally have learned what's on our agenda today.
Michael Mulligan:So the first case on the agenda is a local case from Victoria. It's a decision that just came out from the BC Court of Appeal and it dealt with the issue of what's called vicarious liability in the context of sexual abuse. That's the context and so the idea here, and I should say that the case involved a teacher who had taught in Greater Victoria School District 61, taught in Victoria for some 25 years, retired in 1997. And a number of years after the teacher retired there was a civil claim brought by a former student suing both the defendant, who was a retired teacher who took on the role of a tutor and we'll come to that in a moment and also the school board, on the basis that the school board claim was was vicariously liable for what the retired teacher-cum-tutor did to this boy. And so that was the issue that had to be decided. And it was meaningful because at the original trial the judge accepted what the then-adult former student testified happened to him and awarded him a substantial amount of money in damages a total of $2.3 million in the form of lost future income, aggravated damages, pain and suffering, future care, counseling, that kind of thing. The claim was brought when the former grade six student was 35 years of age, and so there was lots of evidence before the judge about what impact this had on him. And the reason this vicarious liability issue is so significant is that the teacher-cum-tutor-cum-abuser had died before the trial finished, and so the former student wound up with a judgment against the estate of the dead teacher-abuser teacher abuser but was unsuccessful at trial in terms of persuading the trial judge that the school board should also be responsible vicariously for what the teacher slash tutor had done. And so that's the issue that was appealed to the Court of Appeal.
Michael Mulligan:And so the Court of Appeal reviewed and there's case laws about this from the Supreme Court of Canada in terms of what needs to be established, and the Court of Appeal looked at the nature of the relationship, how this developed, and essentially the plaintiff student when he was in grade six, apparently he was very good at English and he was trying to write a novel and the school didn't have enough resources to kind of help him and Green Six English wasn't challenging enough and they had no funding to hire a tutor to help him. But the teacher thought of this recently retired teacher and they managed to arrange him to be a tutor for the boy while the English class was going on, and so the relationship started with these 40-minute tutoring sessions in the school, and those went on for a significant period of time. And then the Court of Appeal as the trial judge found this retired teacher volunteer tutor started the process of grooming this boy for what he eventually did at the school, but then moved to having the boy come over to his home, originally doing things like helping with some yard work and then watching movies and so on, eventually grooming him to the point where he engaged in this abusive sexual behavior with him. And the trial judge and the court of appeal found that, if you apply a but-for test like the issue of could this or would this have happened, would this boy have wound up being abused but for the fact that the school board made this arrangement for the retired teacher to come in and do this tutoring? The answer to that question is no, right, I mean. But for the fact he's brought in there, he wouldn't have had a chance to form this relationship and start grooming the boy and invite him over to his house and so on, and so it wouldn't have happened. And so the issue, though, is that whether the nature of that pattern and that relationship was a strong enough connection to the arrangements made by the employer in this case the school board. Right, he was a volunteer, but it was the same test whether that was a strong enough connection or not right, because you know, an employer isn't of course responsible for anything some employee might do at any time to anyone. That's not it right. But on the other hand, if there's a really strong connection between what the employee is doing and the harm, like this kind of abuse, the employer is responsible.
Michael Mulligan:And one of the several cases that was actually out of the Supreme Court of Canada involved a circumstance where there was a care facility for troubled children where one of the employees of that facility, who was authorized to sort of fill the role of a parent basically like tucking the child into bed and bathing them and doing all those kinds of things turned out to be a pedophile and abusing children. And that was found to be a circumstance where there was vicarious liability. It's not just the person who was doing it, it's also the institution that employed them and put the person in that position. Right, and there's good reason for that kind of liability because it creates a very strong incentive for employers to vet and monitor their employees. Those sort of things don't happen.
Michael Mulligan:But this case was sort of on the bubble of that, because there's no evidence, no suggestion that the abuse occurred at the school. It occurred at the home of this teacher slash retired teacher slash tutor. And so the court of appeal looked at things like you know, was that relationship put in place by the school? And the answer was no. Like the school board didn't know, this was going on afterwards and furthermore, that relationship continued like after the role of tutoring had finished. The boy finished up his novel with the assistance of this tutor shortly after he finished grade six, but the abuse wasn't going on yet the grooming was, but the teacher tutor managed to continue the relationship and eventually, by various means, including, you know, telling he's going to kill himself. You know, there's a slow, just completely disturbing pattern of grooming continued until the abuse occurred. Just completely disturbing pattern of grooming continued until the abuse occurred.
Michael Mulligan:And so on that basis it didn't meet, according to the trial and now the Court of Appeal in this decision that just came out, even though this never would have happened but for the fact that the school board and the teacher and so on arranged this man to do this tutoring so it wouldn't have happened. But for them that was enough, that was clear. But it didn't represent a strong enough connection between what the employer had arranged you know, the tutoring at the school and at the school things like the door was open, other people could see it and no abuse occurred at the school. So there wasn't something that was so tightly tied to what the school board had orchestrated in terms of the relationship. Nor was there something apparent there, nothing the teacher in the class saw that was inappropriate. And so, on that basis, no vicarious liability.
Michael Mulligan:And so, on that basis, no vicarious liability. And so the net outcome of that for this boy, who clearly suffered, has major impacts on his life, but I think, post-traumatic stress disorder and engaging in risky behavior and all the kinds of things that can occur where somebody is abused in that way. He has this judgment for two point three million dollars, but his only avenue to collect it would be whatever was left in the estate of the retired teacher-tutor abuser. And so while the amount of collection isn't specified in the Court of Appeal decision, you can be sure that the amount collected was nowhere near the amount ordered, or else there would have been no appeal to the Court of Appeal and so that's the latest out of the BC Court of Appeal in the case of the victoria teacher tutor. And when you can and when you can't have vicarious liability for this kind of terrible abuse all right, we're going to take a quick break here.
Adam Stirling:On cfax 1070 legally speaking with michael mulligan continues right after this. Legally speaking continues on cfax 1070 michael Mulligan from Mulligan Defense Lawyers. Michael up next it says you're a doctor's note not required for appeal of a traffic ticket.
Michael Mulligan:That seems like a good rule, doesn't it? So this is a BC Supreme Court decision and it deals with the Offense Act and tickets and how those work. So it impacts a lot of people with the Offence Act and tickets and how those work. So it impacts a lot of people and the particular provision of the Offence Act here at issue is Section 16. And essentially the way that works is that if you dispute a traffic ticket and then you don't show up at your trial, you miss it for some reason, you are deemed to have pled guilty right to the ticket and it's fine. We'll go into your license points whatever is going to happen. And that's different from what happens in a criminal case. Right, in a criminal case, if you don't show up for your trial, you're not deemed to have pled guilty. They'll issue a warrant for your arrest and make sure you're brought in to have your trial. But you know that's not really on for the speeding ticket or whatever is being disputed. Now the problem with that, or one of the common problems with it, is that when somebody disputes their ticket, they mail you out your court date and you can just imagine how successful that is. Right. Sometimes the mail gets there. Sometimes they're on strike, sometimes you've moved, you don't pick it up, whatever right, and so a lot of these things get missed, or there are other reasons people wind up not being there. Just as an aside, it used to be that if somebody missed their traffic ticket dispute, the only avenue to appeal that was to it by way of a appeal to the BC Supreme Court. And what used to happen is like in Victoria every Wednesday at two o'clock we have a thing called criminal chambers and it's kind of like criminal cases where they're deciding procedural things like scheduling dates or, you know, doing bail reviews, other kind of procedural stuff for criminal cases, right, so many of the things in there are pretty serious in Supreme Court. But that's also where they have to put everyone who would try to dispute their traffic ticket and they missed it, didn't get the mail or they missed the date for some reason, and so they all used to have to come in there. This was up to I don't know, 10 or 15 years ago, and so you'd have in that room like 30 people every single week who would like miss their traffic court date because they'd mailed it out and the only thing they found out later they were deemed to have been convicted, and we used to have a experienced judge in town, judge Melvin, who's now passed away.
Michael Mulligan:Nice guy, he used to sit in there and he would at the beginning of criminal chambers. He would look. When he was sitting in there, he would look at everyone and say, okay, who here is here to dispute because of your traffic ticket? And 30 people would put their hands up and say, okay, and amongst the 30 of you who didn't get your notice in the mail, put your hands up. They all put their hands up. He would just say, appeals allowed. He kind of laid his hand over it Go, kind of leave his hand over it, go get new dates. They would all go down and line up at the court registry and get new dates rather than spending two hours hearing every single person about how they didn't get the letter and they moved or whatever.
Michael Mulligan:Anyways, they improved upon that the provincial government did by creating a process. So if you had on the first time you didn't get your date or you missed it or whatever, you could show up at the court registry and swear an affidavit. So it's punishable by perjury if you're lying, setting out what happened, why didn't you get your mail or why did you miss the court date or whatnot, and then a justice in the court registry, rather than the Supreme Court judge, can decide whether to give you a new court date to go dispute your traffic ticket. And there's a list of things they have to consider, like you know. Did they miss it by no fault of their own? Did they have a genuine interest to dispute it? Is there any undue prejudice? You know, for the police due to the time? You know additional time taken? Is it in the interest of justice? You know there's a scheme, as you would expect, and this particular case involved a person who did get the notice but then got sick and so he missed his court date because he was sick.
Michael Mulligan:And so he went into the court registry when he recovered and swore one of these affidavits just not very long, saying I was sick. I got sick two days before the hearing. I thought it would get better. I wrote a letter about it. You know, can I have my trial date again please? And the justice of the court registry. Their entire reasons were, quote no evidence was supplied to confirm illness. Close quote those are the entire judicial reasons. And he was denied and so he appealed that to the BC Supreme Court and so this is the decision by the BC Supreme Court having to sort out, you know, when he says no evidence was supplied to confirm illness, was that reasonable? Because the judicial review of that decision is on a reasonableness standard.
Adam Stirling:Sorry about that. That's my fault. Oh okay, so is that reasonable right?
Michael Mulligan:Is that reason enough? And so the suggestion by I guess you got a lawyer to help them with the appeal was that well, that really would mean that a person would have to go and get a doctor's note every time they had the flu or something right, bearing in mind, of course, we've just implemented provincially a scheme so you don't have to get a doctor's note if you're missing work. So is that really appropriate? Should every person with the sniffles or a sore throat or whatever have to go in to get a doctor's note? And the Supreme Court judge here said well, no, it doesn't necessarily those reasons, although they're very, very short, it's one sentence. It doesn't really say you've got to get a doctor's note and you know the justice does have to be satisfied that you missed it through no fault of their own. But he said well, you know you could be other evidence could be provided, maybe like a copy of the receipt for the cold medication you bought, or maybe another affidavit from your mom or spouse or roommate or something.
Michael Mulligan:So the judge didn't really say that it had to be a doctor's note, said he said the language used there, that one sentence reason for denying the person his trial for his ticket was not reasonable because it suggested that the justice who said no had sort of interpreted those things that have to be considered as sort of an additional test that there would have to be a quote, confirmation of illness. And that's not on there, right, and I guess when you read it there is some evidence of the illness. It's the person's affidavit saying I was sick. So you know there is some evidence of that and those reasons. The one sentence just didn't cut it and so the I guess, like Judge Melvin waving his hand over the courtroom, the judge here hearing this judicial review concluded that that one sentence reasons for denying the person their trial was not reasonable. And back to the drawing board he gets to have his day in court for his traffic ticket.
Michael Mulligan:And so I guess really the takeaway there for you is that if you do find yourself in a circumstance where you know you don't get the notice in the mail because they just mailed it out or you moved or you were sick and you're down there trying to get your day in court, you might be well advised to well you. Example here are the persons that they were sick but they didn't say with what and they didn't explain why, being sick, didn't let them come in, which is also, I guess, interesting in a post-COVID world. You know, at one point if somebody said I was sick so I didn't come to court, everyone would have said yeah, okay, no-transcript.
Adam Stirling:All right, we have four minutes left. And it says here the SEC finds that quote. Transmission line does not include small 5G antennas.
Michael Mulligan:There's a lot going on.
Adam Stirling:There isn't there, there is.
Michael Mulligan:This is out of the Supreme Court of Canada. It's a brand new decision and it's meaningful, even though it sounds sort of obscure. And what's going on here is that the various telecom providers TELUS and Rogers and so on right, are busy trying to roll out 5G connectivity so everyone's cell phones can work faster and we can all stay on social media at all time of the day, no matter where we are. And unlike the previous generation of cellular networks, which required something like 13,000 large cell phone antennas across the whole country to produce coverage, the 5G setup uses like uses like apparently many smaller antennas, and so they're fast, faster. But you need more of these little things all over the place, and they would commonly be installed in places like telephone poles, lampposts, bus shelters or buildings. And many of those places are on municipally owned property, and so if you had to in every case get permission from every municipality to, you know, run wires or do various things, it would be a very slow process if you're trying to build out well, near anything, right, you know, you've seen that with pipelines you imagine every single municipality having to approve every telephone line, and so on lines, you imagine every single municipality having to approve every telephone line and so on. And so we have some special rules that the crtc, the telephone, the federal canadian radio, television telecommunications commission, has the power to grant carriers, cell phone carriers, uh, access to public property for the purpose of constructing, maintaining or operating their quote transmission lines, close quote.
Michael Mulligan:And so the legal issue is well, what is a transmission line? Does a transmission line literally mean the wire? Can the, you know, can TELUS or Rogers, when they're running the wire, can they stick an antenna on it? And it matters, because if they can, the CRTC can just give them permission to override, I guess, municipal wishes and go stick that little antenna up so that your cell phone works Well. So that wound up all the way in the Supreme Court of Canada.
Michael Mulligan:And the Supreme Court of Canada divided. It was a split decision. The majority found that antennas are not within the meaning of transmission line. Two of them judges disagreed. They said no, no, you know, transmission line, that's a pretty broad term. A line doesn't necessarily mean a physical wire. It could be like the line of communication, kind of a broader interpretation of it. But the majority of course prevails.
Michael Mulligan:And so, as a result of this decision, those little antennas that would need to go up to make 5G work everywhere are not covered by that term transmission line, meaning the CRTC can't just give permission to go in and put them up. And so where does that leave us? Well, where it leaves us is that either the communications companies will need to go and negotiate with each municipality about may I put up little antennas on the telephone poles, or may I put that up on the bus shelter or whatever it might be I put that up on the bus shelter, or whatever it might be. Or there is other federal legislation and the feds can override these things, I think happily or nobody's cell phone would work. But that process requires sort of ministerial approval under the Radio Communication Act, and so really, the consequence of this is going to be more negotiating with local municipalities in order to get.
Michael Mulligan:Well, you could put your line up If you wish to put the antenna at the end of the line. There'll need to be negotiations and get agreement for all of these 250 or 300,000 tiny cell phone antennas or, failing that, they'll have to go off and get permission, ministerial permission under that other Radio Communication Act, in order to get that to work, or else, you know, all hell will break loose and nobody will be able to get onto, you know social media for at the highest of possible speeds while they're waiting for the bus. So that's the latest from the Supreme Court of Canada on what a transmission line is, and you now know who you might blame if you've got a dead zone on your cell phone, or at least it falls back to 4G, and you're waiting for your picture of the cat or whatever to show up on your screen. That's the latest from Supreme Court of Canada.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always.
Michael Mulligan:Thanks so much. Always great to be here.
Adam Stirling:All right, we'll take a quick break Back after this.