Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
When Dogs Bite and Gas Stations Annoy: Legal Insights with Michael Mulligan
Ever wondered if your dog could land you in legal hot water? Or what happens when your neighbour's business becomes an unbearable nuisance? Legal expert Michael Mulligan returns to Legally Speaking with three captivating cases that reveal the fascinating intersection of everyday life and Canadian law.
The spotlight first falls on Juliet, a miniature Australian shepherd whose elevator encounter led to a $4,800 claim after she allegedly bit a woman's hand. Mulligan unpacks the surprising legal doctrine that essentially gives dogs "one free bite" before owners face liability. The Civil Resolution Tribunal's dismissal of the case highlights the important distinction between a single incident and established patterns of behaviour in animal liability cases. Dog owners across British Columbia might breathe easier knowing that, without prior knowledge of aggressive tendencies, they're unlikely to face legal consequences for an otherwise well-behaved pet's first transgression.
Things heat up with the case of a small-town gas station that found itself embroiled in a 20-day trial complete with acoustics and vapour experts. When the station relocated its underground tanks, neighbouring residents endured years of noise, fumes, and bright lights from fuel deliveries. Though the court acknowledged these disturbances constituted a legal nuisance, it rejected demands to shut down operations. Instead, the judge awarded $80,000 to the affected family, demonstrating how Canadian courts balance individual property rights against broader community needs. The Court of Appeal's affirmation of this approach reveals the remarkable discretion judges maintain when crafting remedies that serve competing interests.
The final case delivers a cautionary tale featuring a BC Housing tenant known variously as "Lover-Peace" and "Emotions Universe," whose troublesome behaviour resulted in his designation as a "vexatious litigant." After breaching an agreement to vacate public housing in exchange for rental supplements, his attempt to appeal his eviction order led to a full-day hearing where his pattern of harassing behaviour toward legal professionals came to light. The $2,500 special costs penalty imposed sends a clear message about the consequences of abusing the legal system.
Want to explore more fascinating intersections of law and everyday life? Join us next week for another edition of Legally Speaking, where Michael Mulligan continues to demystify Canadian jurisprudence one compelling case at a time.
Follow this link for a transcript of the show and links to the cases discussed.
Joining us now a regular feature on the Adam Sterling Show Michael Mulligan, legally speaking, joining us on the line. Good day, michael. Welcome to the program again.
Michael Mulligan:Hey, good afternoon.
Steve Young:Always great to be here, Well you've prepared some great stories for us this week, and let's get right into it. Everybody loves dog stories.
Michael Mulligan:We do, that's true.
Steve Young:We all love them.
Michael Mulligan:And I must say the legal world serves up endless streams of human affairs, including ones that involve dogs, which is where we're starting. So the first case to talk about is a new decision. It came out actually from the Civil Resolution Tribunal and, as listeners may know, the Civil Resolution Tribunal will hear very small claims, claims that are for less than $5,000. And the idea is that the Civil Resolution Tribunal can do those in a variety of ways, like they could have a telephone hearing or online or in person, whatever made the most sense. And this particular claim was a claim based on an allegation of being bitten by a miniature Australian shepherd named Juliet.
Steve Young:Juliet seems like a nice name, though.
Michael Mulligan:Yes. So Juliet, the mini Australian shepherd, was being taken care of by, I guess, her grandfather, in the sense that her owner was out of town and so her father the father of the owner was taking care of Juliet. He lived in a condo or apartment. He was coming down, walked out of the elevator apparently a narrow space and the woman who was bitten was getting on the elevator, and there in fact was a video of what transpired. It didn't show everything, but it did show Juliet jumping up and briefly making contact with the woman's left hand. The woman on the video looked at her hand and then showed it to the grandfather taking care of the dog, and it precipitated eventually a claim for some $4,800, claiming that the dog bite resulted in lost wages, medical expenses and pain and suffering, and so the adjudicator had to sort out is there liability here and in BC?
Michael Mulligan:There are three different ways you could get to civil liability for a dog bite. One of those ways would be what's referred to as occupier's liability right. There can be liability for the owner or occupier of property right, like, for example, that would be applicable if you had don't clear the snow off of your walkway or if you have a dog kind of wandering around there that bites somebody when they come into your property. But that didn't apply here. Nobody had sued the strata and the fellow taking care of the dog didn't own the place, didn't own the elevator. So that didn't apply.
Michael Mulligan:And so what the adjudicator had to consider were two different concepts.
Michael Mulligan:They're sort of related.
Michael Mulligan:But there's an interesting doctrine that the adjudicator applied, sentier, and that concept is that a domestic pet like a dog is presumed to be harmless, and sometimes that gets expressed as the idea that every dog is entitled to one bite.
Michael Mulligan:Now it's not quite as clear as all that, but the idea is that if you're suing somebody trying to get compensation for a dog biting you, you're going to need to prove several things, including that the person you're suing was the person who owned or was keeping the dog. That wouldn't be too much of an issue here. You would also have to show that the dog, juliet, would have a propensity or an inclination to bite or lunge at people do things like that and that the owner or the person taking care of it knew that. Now here there just wasn't any evidence of that, the evidence from both the fathers taking care of the dog dog's grandfather I guess, and the owner both testified that there was no history of the dog biting anyone before, no indication of any propensity to do that, and that what happened here must have been the dog getting startled and acted quote out of character in terms of this nip on the hand.
Steve Young:Most dog owners say they have character, don't they? That's right.
Michael Mulligan:The dog you know, maybe yeah, so out of character for Juliet, and there was some evidence here that the woman also reported this incident to the dog catcher, I guess, over in Vancouver, who looked into it and there had been no history of any prior complaints with respect to this dog doing anything. And so that wasn't consistent with the dog having a propensity to bite people or lunge at people. Found that indeed there was. The person suing just hadn't made out a claim on the basis that this dog had some propensity for harming people or biting people, and so the adjudicator then moved on to the issue of negligence, which is sort of a general concept. You're suing somebody for negligence. To do that you have to show that the person has a duty of care to you, and indeed somebody having a dog would have a duty of care to somebody getting on the elevator. But you also need to show that the person breached their duty of care. Perfection is not required, and here the evidence, including on the video and what they testified about was that the fellow taking care of the dog was headed on a short leash, headed under control. There was no indication of the dog ever in the past having done anything to anyone, and so, even though the dog did manage to nip the woman on her hand, the adjudicator found that the fellow walking the dog, the dog's grandfather, hadn't been negligent, and that's what you need to prove negligence.
Michael Mulligan:And given that presumption that I mentioned in terms of, you know, dogs being presumed to be harmless, even though here the woman may well have been nipped on the hand, she was unsuccessful on the basis of those two principles. So that's the legal result of the claim for the $4,800. And I guess the summary of it would really be that every dog's entitled to one bite, and if you've got a dog like this that doesn't ordinarily behave in that way, even if there is some damage caused, the owner may not be at least legally responsible for pain and suffering and other expenses that might flow from it? Does Juliet feel exonerated? I guess so, at least on a balance of probabilities, and you know, if I were Juliet I'd be probably putting a copy of this up above my dog bowl, given that there is no indication, at least officially found, to have any kind of propensity for doing this. It was just a good dog who was startled and acted out of character.
Steve Young:All right, I'm on board with Juliet being found not responsible. The second one is about a gas station nuisance. Tell us about this one.
Michael Mulligan:Yeah, so there are a couple of, I think, interesting things in this case, and it's a case brought, as you've indicated, on the basis of an alleged nuisance, and the idea there is that if you have an interference which is substantial, not trivial, and interferes with the use and enjoyment of somebody's property, yeah, you can sue uh under this concept of nuisance and the particular case involved. It was in a small town, uh, and it was a gas station that was being sued by somebody who lived across an alley and the uh. The alleged nuisance commenced a few years ago when the gas station decided to move where it kept the gas its storage tanks. Previously, the tanks were underground, but they decided to install them in a different location, on the alley, back in 2018. And, as a result of that change, the trucks delivering fuel had to go down the alley and, rather than letting the fuel run by gravity out of the truck into the underground tank, they go down the alley and, rather than letting the fuel run by gravity out of the truck into the underground tank, they had to pump the fuel into these above-ground tanks and the result of that were, as you might expect, some noise and fumes and there were deliveries there two or three times per week. Other things that contributed to the nuisance included an installation of a bright light that illuminated the area, and you would have these deliveries occurring at various random times. I must say, as I read the decision for those of us of the appropriate age it caused me to think of the Seinfeld episode with the Kenny Roaster sign across from Kramer's apartment with the blindingly bright red light shining in. I'm not sure it was all that, but certainly it was something the judge determined was a non-trivial interference with the enjoyment of property.
Michael Mulligan:And so the judge at trial found, indeed, they had managed to establish that there was a nuisance. And boy, they really did litigate this one. This was actually. It went to the Court of Appeal. The original trial lasted 20 days, if you can imagine that, and it involved the court hearing from numerous experts, including experts on acoustics and gas vapors. You can just imagine that would have been a very not only complicated but expensive trial to conduct, but nonetheless, I guess they were really quite concerned about the vapors and the noise.
Michael Mulligan:And the controversial thing is, at the end of all, that the judge found that, yes, they had made out a nuisance, and despite the fact that the gas station had done various things to mitigate it, going forward, like putting in a filter to get the smell and putting the light on a timer and doing various other things, they found that there was a nuisance and the nuisance was, at least to some extent, despite the efforts of mitigation, still going on. There were still these trucks delivering and pumping fuel. They were noisy, there were some vapors still there, the light was still bothersome and the judge and this was the controversial part rather than doing what is the presumptive thing when a judge finds that there is a nuisance like that that's continuing, there is a presumption that where a judge finds there's both a nuisance and the nuisance is a continuing nuisance, that the judge would issue what's referred to as a permanent injunction, like in order to stop being a nuisance, which sort of makes sense. Right, yeah, now that's what they asked for. They said, look, we want to have a permanent injunction no more fuel deliveries, no more trucks, no more pumping and turn the light off.
Michael Mulligan:And the judge interestingly refused to do that. And the judge took into account various things, including the efforts of mitigation and the social utility of the gas station, which otherwise might have to be closed down in a small town to avoid any of that. And so instead of granting the permanent injunction, ordering no more pumping or delivery or bright light, the judge decided to deal with it by ordering the payment of money. And so there were two adults in the home and a child and the judge ordered one of the adults get $20,000, the other adult $30,000, and the child in trust another $30,000. So the family living across the alley was putting up with the bright light, the noise and the smell wound up with. You know that's not an insignificant amount of money. Probably a good start for the child's future college tuition or whatnot? Future college tuition or whatnot? No injunction.
Michael Mulligan:And so after that 20-day trial and that decision, they appealed that to the BC Court of Appeal and the Court of Appeal decision on that just came out Again. All of this would have been fabulously expensive, having a 20-day trial with experts and then on to the Court of Appeal. But the neighbors lost and the Court of Appeal said yes, it is true that a permanent injunction is the presumptive remedy. And they found that some of the language used by the judge in deciding not to provide the permanent injunction wasn't quite as clear as it could have been. They said the judge should have engaged in a balancing of convenience, which wasn't quite the right approach. But the findings were otherwise not inappropriate, and so the Court of Appeal didn't interfere with that call, pointing out that getting an injunction like that a permanent one, to stop being a nuisance, even though that's a presumptive remedy remedies like that injunctions are inherently discretionary.
Michael Mulligan:Judges have pretty wide discretion to determine how you're going to resolve that sort of a problem, and here they upheld what the judge did, and so the net result is that there's been some mitigation, but the gas station can stay open, the family can enjoy their $50,000, $80,000, the family can enjoy their $80,000, but there won't be an order that prevents the fuel from being delivered and all the things that come with that.
Michael Mulligan:So I thought it was an interesting case, both because it deals with that concept of nuisance, that something's going to arise for people, and that issue of, well, what's to be done about that? When you find there to be a nuisance, does winning in court mean that the nuisance has to stop? And the answer is no. Usually that would be the result, but here it's reasonable for the judge to take into account other things, like the fact that a permanent injunction would mean that the gas station in the small town would have to shut, and pointing out that some of the things done like I guess the bright light really amounted to an effort at safety. I guess you want to have a well-illuminated area when you're pumping gas into a giant above-ground tank right.
Steve Young:That doesn't seem all that unreasonable, does it?
Michael Mulligan:No, no doubt an irritation if you live across the alley, but here they're going to have to just sop up their nuisance with the cash award, rather than in order to stop pumping gas.
Steve Young:I know you've got one more. We're going to take a break and get right back to you with a third one involving BC housing that's coming up right after this Midway through Legally Speaking with Michael Mulligan a regular feature here on CFAX 1070 and with the Adam Show and BC housing involved in this third story. You've identified third case for the day. Maybe take us through that one.
Michael Mulligan:Sure, I think this. Maybe I describe this as a cautionary tale before you decide you want to take a job with BC Housing, or maybe indeed with the Residential Tenancy Branch, or finally, here as a Supreme Court judge. So this case involved this man, and he's described in the style of cause here as goes by alternately, lover Peace, also known as Emotions Universe, or finally, osama Karman al-Samai Salamani Samai get that pronounced correctly and this fellow apparently was a tenant of BC Housing since 2013, and not a good one. According to the judgment, he, over a period of years, engaged in what's described here in the judgment as creating ongoing disturbances, continuing harassment of staff and other tenants. His behavior included things like disturbing, harassing, interfering and threatening the safety of other tenants and staff, videotaping them, photographing them, using racial slurs and sleeping in common areas, including the lounge and bathroom.
Michael Mulligan:Now, in response to that, it looks like, eventually BC Housing tried to basically buy him off, to get him out of the premises, and they entered into an agreement with him.
Michael Mulligan:Maybe that's why the judge in fact ordered that all of his aliases be included in the style of cause, but maybe it was a warning to future landlords.
Michael Mulligan:So BC Housing eventually entered into an agreement with this fellow that he leave, he vacate BC Housing, and that they would provide what's described as a rarely available rent supplement to pay the difference between his income assistance and the market rent of some new private unit. He found, for, no doubt, some unfortunate landlord who maybe didn't look up the fellow's background, maybe didn't look up the fellow's background. Now, having come to that unusual agreement to pay him more to get out, he then went on to breach the agreement and refused to leave, and so BC Housing then went to the residential tenancy branch and got an order that he get out, and he then decided he wanted to appeal the order to get out. But because of this fellow's really problematic history, including in a previous file where he filed what the judge described as numerous unfounded claims and repeated inappropriate conduct, he had been declared what's referred to as a vexatious litigant. And when you get declared a vexatious litigant, what it means is that you need to get permission from a judge before you're allowed to go and sue somebody.
Steve Young:Right. Wow, I didn't even know this existed. Wow, that's interesting.
Michael Mulligan:Legal system kind of operates a little bit of the expectation that people are going to act reasonably Right, and if you're not somebody who's acting reasonably and you're inclined to just sue people for various unfounded reasons and drag people into court and so on, you know you can imagine that's rather unpleasant. And so this declaration of being a vexatious litigant is what the system does to prevent that. And so this fellow wound up in front of this poor Supreme Court judge. She's a nice person. She actually used to be crown counsel over here before she became a judge. She had to listen to a full day hearing with this fellow about his desire to appeal the decision from residential tenancy branch to effectively get out and finally vacate BC housing, to go then and accept his rarely available rent supplement to move in somewhere else a rarely available rent supplement to move in somewhere else. And during the course of that, that's to say the full day hearing that this judge had to endure, it also came out that this fellow not only did the particular effort to appeal the decision to get out which was itself a breach of an agreement to do just that get out, the fellow had continued to engage in activity described by the judge as continuous attacks on the lawyer for the residential tenancy branch who has had the unfortunate job of having to respond to this fellow's efforts. And this fellow engaged in behavior, I guess, sort of akin to what got him eventually ousted from BC housing. He engaged in what's described by the judge as launching continuous personal and professional attacks on the lawyer, calling her a liar, referring to her as evil, sending mass emails to lawyers and other law firms, just engaging, posting defamatory videos on YouTube just almost unbelievable conduct. And so the judge, having first concluded that there was no basis for what he was asking for, which was to say he wanted an interim injunction to permit him to stay longer in the BC housing location, despite the agreement, agreement to pay and eventually the order to get out by the residential tenancy branch, the judge found that that had no merit and so refused that. But that wasn't the end of it is.
Michael Mulligan:It then went on to both parties, both this fellow Mr Lover Peace and the housing residential tenancy branch, seeking what's referred to as special costs, and in civil cases the concept of costs applies where, presumably presumptively, the party who loses is ordered to pay part of the legal expenses of the party who succeeds. And we have that to encourage people not to bring nuisance lawsuits and also to encourage people to settle claims. So you act reasonably, think carefully about what you're doing and try to resolve things. But this concept of special costs is intended to be a punishment or for reprehensible conduct in the course of how you're engaging in the litigation. And the judge found that this fellow's approach sending all these emails to the, calling a lawyer a liar and emailing things to other lawyers and law firms and law society and everyone under the sun had absolutely no merit, was in fact reprehensible and was in fact, deserving of a strong rebuke. And so the judge did exactly that.
Michael Mulligan:And not only did she dismiss this fellow's claim after listening to him for a day, but determined that that kind of special costs award was appropriate.
Michael Mulligan:And the challenge, of course and this may also explain why you'd have somebody in that position as a frequent flyer, vexatious litigant is he has no money, and so the issue is okay, well, how much should the special costs award be?
Michael Mulligan:And the judge concluded that, but for the fact that he had no money, or very little money, it would have been a $5,000 award against him to teach him a lesson not to behave in that way, but because of his financial circumstances, she significantly tempered that award to $2,500, but indicated that if he were to continue with that kind of conduct he could expect those figures to go up and up. And so hopefully the fellow has gotten the message and, as I said, the fact that the judge specifically ordered that the style of cause be amended to reflect his various aliases may have been an intent, may have been an effort to try to warn others, if they wind up in litigation with any of these aliases, about just how things can go south and that you are in fact dealing with somebody who is a vexatious litigant. So that's the latest from the BC Supreme Court against the unsuccessful claim against the residential tenancy branch.
Steve Young:Thank you as always. Enjoy the three cases and have a good week and enjoy talking to Rob next week. Thanks so much. It's always great to be here. Michael Mulligan, legally Speaking on CFAX 1070.