Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Document Dumps and Fluffing Cushions
Ever wondered what happens when one party drops 4 million documents on their opponent in a lawsuit? Michael Mulligan explains the fascinating legal concept of an "impermissible document dump" through the lens of a billion-dollar dispute over the North Shore Wastewater Treatment Plant. The case reveals how modern litigation handles vast electronic records and when providing mountains of documents crosses from thorough disclosure to litigation obstruction.
The contrast couldn't be greater when we shift to a dispute over sofa cushions that need "fluffing." When purchasers discovered their $4,400 sofa required constant maintenance despite requesting one that was "solid and not floppy," they sought a full refund seven months later. The judge's decision offers a perfect example of how consumer protection laws balance remedies against practical realities. While the customers couldn't return a seven-month-used sofa for a full refund, they did receive $500 for the "inconvenience and distress" of cushion maintenance – a small but meaningful victory.
Perhaps most illuminating is our examination of what constitutes a "marriage-like relationship" under BC law. When a woman claimed two separate periods of cohabitation (18 months and 22.5 months) should qualify her as a spouse entitled to property division and support, the court had to determine if discontinuous periods could be combined. The judge's 39-page decision dissecting the intimate details of their relationship highlights the challenge of applying family law to complex human connections. The ruling that periods must be continuous serves as a critical warning about the unexpected legal implications of your living arrangements. This case demonstrates why clarity in relationship status matters and raises questions about whether our current approach to defining common-law relationships serves those it aims to protect.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for a regular segment, joined as always by Michael Mulligan, barrister and solicitor, with Mulligan Defence Lawyers. It's Legally Speaking on CFAX 1070. Afternoon, Michael, how are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Some interesting things on the agenda today. I see a question posed to us at the outset. Is providing 4 million documents in a civil case a quote? Impermissible document dump.
Michael Mulligan:Well, I tell you, you sure don't want to be on the receiving end of four million documents. But the background is this right, unlike in criminal law, where a party has a right to remain silent. Right, the crown has to provide disclosure, but the accused doesn't. In civil cases, when you're suing over money, the watchword is that both parties have to provide disclosure, but the accused doesn't. In civil cases, when you're suing over money, the watchword is that both parties have to provide disclosure to the other of all the relevant documents they've got that has anything to do with the case. And the reason for that is to allow for cases to settle. Right, you don't want one side, you know, keeping close to their chest something that's going to completely determine how the case is going to go right. So the idea is both parties exchange all their stuff, lawyers can look at it and then most cases settle because most people are reasonable, rational actors, right? So that's the background. Now it gets complicated in complicated cases like this one, and the case that poses this question about the 4 million documents is civil litigation that's ongoing right now over the North Shore Wastewater Treatment Plant, and what happened there is that the district contracted with the company that's involved with this litigation, and some others to design, construct and partially finance the wastewater treatment plant. Now, the problem with any large project like that is they are generally one-offs, right, you know, there hasn't been another exactly the same wastewater treatment plant somewhere, and so almost inevitably and we've seen this in Victoria and the area with projects here things happen Like you sort of go along and say, oh well, you know the pilings for the bridge can't go there, there's a big rock, or you know the pipe doesn't fit, or whatever it is right, and so things get changed and the person doing the you know hiring has the right to change them. Right, you know? Just like if somebody is contracting to have their kitchen rebuilt or something redone, you could come along and say, well, hold on, stop, I've decided to move the island one foot to the west or something right, okay, fine, says the contractor.
Michael Mulligan:And here eventually things completely broke down and the company that was doing the building and design and so on claimed that the district had made it impossible to construct the project in accordance with what had been contracted for without huge changes. And on the flip side, the district alleged that the company had failed or delayed to perform the obligations under the contract. So things broke down and eventually the district that did the hiring terminated the contract well into the construction of it. Hiring terminated the contract well into the construction of it, resulting in claims back and forth of, on one hand, $250 million and the other direction, potentially $1 billion. All terrible, right? You know, cancelling one of these things and you're that far into it is sort of like having a mechanic disassemble your engine and then deciding to tow your car to another mechanic. Right, that's not going to go well. So parties are suing each other over what happened here. Was it one party failing to do what was required, or is the other person changing things so much that you couldn't do it? And so that's the nature of the litigation.
Michael Mulligan:Now, in large, complicated cases like this, there are so many documents involved that it is beyond the scope and scale of what most even large law firms could handle individually, unless you wanted to have lawyers spending, you know, months and years of their life trying to collect all these things. And so there are companies called e-discovery services, and those companies specialize in collecting up electronic documents, because, after all, most things these days are electronic emails, messages, posts, whatever. And so both parties hired well-respected e-discovery companies and then they came up with a protocol for search terms, right? So imagine now you've got lawyers on both sides, sort of like giving search terms for Google, and they each came up with what amounted to a total of 500 search terms, which were applied to all of the documents that were collected. And to give you an idea of the scope and scale, the company doing the building had collected up 29 million documents that had been held by 200 different bodies or custodians I guess it had been held by 200 different bodies or custodians, I guess subcontractors or whatever 29 million and they applied the 500 search terms to it, which produced 4 million documents.
Michael Mulligan:And then they did some automated. The e-discovery companies did some automated work on the 4 million documents that came up, trying to filter out things like duplicates and emails and things. Because, if you're familiar with this, you send email back and forth to 10 different people with a person responding thanks for that, and suddenly you've got 20 copies of what amounts to really the same thing, right Back and forth, and that's just one little email. And so that's how you can very, very quickly wind up with 29 million emails over the construction of a wastewater treatment plant. And so the effort was made by the e-discovery service providers to sort of filter out stuff that were exact duplicates and email chains so that each email didn't turn into you know a thousand copies of it when you know they were forwarded to various people. People hit reply, all and so on, but still 4 million documents.
Michael Mulligan:And so the district was claiming hey, you've engaged in what's been referred to as in the question posed. Is that an impermissible document dump? And the idea there is that there could be a strategy not a good one, I should say in litigation for a party to just say well, you want disclosure, I'll show you disclosure. Right, and you know, you can imagine the old days, sort of backing up you know a thousand boxes of paper or something. Oh, there you are, I've given you everything. Good luck with that Right To make it so expensive, so time consuming, or the alternative, or, in the alternative, impossible to find something meaningful that the litigation just comes to its knees.
Michael Mulligan:And so in this case, the district was claiming that they were the victim of a document dump and so it required the judge managing this to call you know clear evidence about what these things were and how they were sorted out. And what about the 500 search terms? And how did they come up with these things? And you know it wasn't practical. You know the district wanted an order. The order they were asking for was in order to remove any and all documents that are irrelevant, and I just feel that's just entirely impractical, right? And you think about that. If I say, do you hear 29 million possible documents? Remove anything that's possibly irrelevant, what kind of a task is that? Right, it would be an impossible thing to comply with. And so here the judge pointed to the fact that, look, both parties worked on these search terms for months. They agreed upon the 500 terms and the company did what was agreed upon and they said, well, look, yes, appreciate that you may get like.
Michael Mulligan:The district was complaining you know, some of these emails are very similar, only small changes, things like that. But here the judge said, no, they've done what was agreed to. It wasn't some effort to obscure things by providing too many. After all, this was 4 million of whatever it was. 29 million things to begin with, like you know, 20 million emails and 5 million documents from an internal share drive and 2 million documents from a thing called ThinkProject, platform Boy. You really don't want to be in a project with 2 million ThinkProject platform documents.
Michael Mulligan:And so the judge found that this wasn't impermissible. The company had done what was agreed upon and the district is going to, and the Greater Vancouver Sewage and Greenage District is just but boy. It's a cautionary tale with these big projects and you can just imagine how these things go off track and it's frequent that they unfortunately wind up in litigation. They're just naturally disputable. Okay, well, you told me to move. I hit a rock when I was trying to put in that piling. You specified go right, exactly here. You told me to move it over two feet. I moved it over two feet. Now here's the bill, right, and you can just imagine how that almost inevitably leads to litigation. And that's what's going on over the wastewater treatment plant in North Vancouver and, having fired the company, as they've towed their disassembled car on, and so I guess, well, we can see whether there's ever a sewage treatment plant in North Vancouver and at what cost. But that's litigation and that's what an impermissible document dump is.
Adam Stirling:All right, We'll take a quick break. Legally Speaking will continue right after this. Back on the air here at CFAX 1070. Legally Speaking joined us always with Michael Mulligan from Mulligan Defence Lawyers, Up next on the agenda. I read a question Can you get your money back after seven months when your couch requires quote fluffing? I don't know, Can we?
Michael Mulligan:Well, I tell you this was a piece of litigation at the other end of the continuum from the North Shore Wastewater Treatment Plant. But it's a little piece of justice, I think, and it's a small claims case involving exactly that issue. And the factual background is that a company showed up at a large furniture store and they advised the salesperson that they were seeking a sofa which was solid and not floppy. And in response to that request, the salesperson showed the customers five or six different sofas and they said that they wanted one that would hold its shape and form. Ultimately the purchasers settled on a particular sofa, a pretty nice one, from the price. They wound up purchasing a floor model of this sofa, which was regularly $5,600 for $4,400. On the and they also bought the stain package, it would seem. On the receipt it said sale final, no returns, but that's not necessarily determinative of this issue. They got the sofa, got delivered to them eventually and they discovered to their horror that after sitting on the sofa for an hour or two the cushions would deflate and angle towards the floor. Otherwise they agreed the sofa was of good quality, but the cushions flattened over time. They got distracted the purchasers, that is, with some, I think medical issues or something and then decided, seven months plus after the purchase, to go back to the store to complain about the cushions that needed fluffing and wanted a refund for the money. The store manager went over to their home and inspected the sofa and showed them how to maintain the cushions and explained that they weren't defective. They were. It turned out feather cushions which required some fluffing and the purchasers were dissatisfied with that assistance. The store then suggested that they could, at their own cost, replace the feathers with foam. That would cost $1,200. They decided that that wasn't satisfactory either, and so off the case went to small claims court.
Michael Mulligan:The judge at the trial found useful some warranty information that came from the manufacturer of the sofa, which includes specific notice about what are referred to as feather soft insert cushions, indicating that they needed more maintenance, including fluffing, and rotation would be frequently required. Now there was no evidence. The salesperson was aware of the warranty information about fluffing and rotation, but nonetheless the judge ultimately found that there was a misrepresentation by the salesperson in terms of the sofa or the sofas being shown whether they were solid and not floppy. So the judge concluded yes, there had been a misrepresentation by the salesperson. But then what is the remedy for that?
Michael Mulligan:And when you're asking for your money back, that legal concept is actually referred to the concept of recession. And the idea with recession is it's canceling a contract, treating it like it never happened. So, sofa back, you get the cash right Like you never agreed to buy the sofa. But, as the judge pointed out in this decision, that concept, that legal concept of rescission, is only available if it's possible to restore both parties to their original position, which you know. Let's say, for example, they have the same fact pattern, and the day the sofa arrived at the people's home, they went back to the store and said oh my goodness, it's floppy, I have to fluff it, I want my money back. You might, in that circumstance, get that remedy of recession if a judge was satisfied that, yeah, this was misrepresented to you and we can put everyone right back in the position they would have been in. Just take the sofa right back.
Michael Mulligan:Right, the problem here was that the people kept and used the sofa for seven months, and so returning a seven-month-old used sofa doesn't put the store back in the position they would have been in if recession, if that was ordered. And so the judge said that's not available. And so the judge had to then figure out well, what is the appropriate remedy here for damages? And the judge concluded that well, what's really due here are damages for, as the judge put it, the inconvenience and distress of having to maintain the sofa. And the judge said look, you know, this certainly is an inconvenience they don't have the quote peace of mind of not having to maintain the sofa. But the sofa is not defective, it hasn't lost its value and everyone agrees it's otherwise a good sofa. And so the judge ultimately awarded damages of $500, the $500 to compensate for the inconvenience and distress of having to fluff the cushions up.
Michael Mulligan:The judge then went on to deal with the issue of costs and expenses. Now, generally in small claims court you don't get costs like you do in Supreme Court, the idea being that parties are unrepresented and the amounts involved are relatively small. But here the amount of money received was very small and in fact small in the sense of being within the jurisdiction of the civil resolution tribunal. We've talked about that before. It's like the PayPal dispute mechanism for civil claims of less than $3,000. For rescission and having the money completely refunded for the seven-month-old used sofa had no real prospect of success or little prospect of success. And so the judge denied even the costs associated with filing a claim in small claims courts, which is a little more expensive, and there's some additional things about having properly serving notice and so on. That's a little simpler in the Civil Resolution Tribunal, and so ordered that the successful couch fluffing unhappy purchasers would only get $75 for their expenses.
Michael Mulligan:So after all of that, the unhappy fluffy feather couch owners were awarded a sum of $500 for their distress and inconvenience of having to continually fluff their cushions every couple of hours, along with $75. So they got $575. And so I guess really the other takeaway I guess the answer to the question posed is no, you can't get all of your money back. But the other takeaway from some of these cases even though I think at the end of the day that's probably just about exactly what justice required here you have to think about how much time you spent litigating in small claims court your claim over feather cushions. But we have a legal answer and the answer is 500 bucks. So that's what you can get back if you got a misrepresentation about whether your intended sofa is solid and not floppy, as this one apparently was, although otherwise quite lecherous and All right, four minutes remaining and an age-old question.
Adam Stirling:Well, maybe not really age-old. Is living together twice for 18 and then 22 and a half months considered a marriage-like relationship?
Michael Mulligan:Okay. So here's why this really matters in British Columbia. In BC, we've got the Family Law Act and for policy reasons, we've decided that if people live in a marriage-like relationship for at least two years, they can be spouses, and so it can very much matter whether you're in a marriage-like relationship. I should pause to say that that's just a policy decision, right, and I'm not sure it's always the best one. It results in cases like this that goes on for 39 pages, with a judge having to sort out like, was that really a marriage-like relationship when you were living on your brother's couch for that period of time, and what did you intend? And picking through everyone's life to try to figure that out. You know, after all, the concept of marriage is pretty clear. People have kind of agreed to this right, and so you could have a different policy approach where you, for example, require people to, you know, affirm that they want to be in a marriage-like relationship for the purpose of, as in this case, what really happened is, when the marriage broke down, one of the ex-partners filed a claim for spousal support and division of marital assets, which is really what gets triggered if you wind up in a marriage-like relationship for that period of time. And so the judge here wound up having to, like, pick through all of these sort of embarrassing elements of these people's lives, looking at things like, well, when one of them went into, you know, alcohol treatment for two months, did that end the period of time they were together? You know, after all, you know, marriages aren't ending when somebody goes away for some. You know temporary period of time, things like that. And poking through their emails, messages to each other how are you behaving with the children back and forth, and were you acting like a parent? And all of this, and so that creates a pretty substantial amount of legal uncertainty and certainly not a good circumstance for people to be in.
Michael Mulligan:This relationship eventually came to an end certainly not a good circumstance for people to be in. This relationship eventually came to an end. The parties, or the woman in the relationship, claimed that she was assaulted after a social gathering and that's why she left the house. The man was actually charged with that, but acquitted he claimed that in fact he kicked her out after her behavior at the social event. So we'll never know quite why the thing ultimately ended. But they've had another airing of those grievances in the course of this litigation. But here's the important legal point at the end of the very long analysis of the minutia of their lives is that the judge concluded that there were two periods of time when these parties were in a marriage-like relationship. There was an 18-month stretch when they were, and there's another stretch which was 22 and a half months.
Michael Mulligan:The problem, though, for the person wanting spousal support and to divide up all of their assets was that, in order to fit within the wording of the Family Law Act in British Columbia fit within the wording of the Family Law Act in British Columbia it has to be a continuous period of time. It can't be broken up, which, on one level, makes sense. You wouldn't want to have a circumstance where, let's say, people spent the weekend together every once a month and you wouldn't want to say, well, let's just add all that up and eventually it totals two years, and so, ha-ha, you get half the house or whatever. That would not be what's intended, and so the answer here is that yes, if you add all the time up and you take into account all the minutia, and who intended what and who was planning to move back in, and what about the treatment and what about you know, when you said this is done, you end up.
Michael Mulligan:You do all the math, it's over two years, but it hit a gap and because there's a gap, the net result is not a marriage-like relationship within the meaning of 3.1b of the Family Law Act, and so that result is that in this case, it was the woman in the relationship was unsuccessful in her allegation that they were spouses within that definition.
Michael Mulligan:And the result of that not only is that will she not succeed in getting the property divided, she will not get maintenance and, furthermore, she's subject now to a order for costs because, just like other litigation in Supreme Court, if you sue someone and you sue them unsuccessfully, you wind up on the hook for the portion of the legal expenses of the other side, which here would not be insignificant.
Michael Mulligan:This was a trial that went on in October, november, may, for, like you add it all up, it's like they spent more than a week in trial. So that's going to be a big bill. And it's the result of this definition that causes people to be spouses if they're in a marriage-like relationship and that has to have some legal meaning. That requires every event to be picked apart and excruciating in public detail this sort of litigation and allow people to order their lives would be to have people make some sort of an affirmative choice rather than coming along after the fact and trying to figure out whether people amounted to spouses when there was no sort of clear indication that that's what either of them wanted at the time. So that's the latest on what it means to be a marriage-like relationship and a spouse under the Family Law Act in British Columbia.
Adam Stirling:Michael Mulligan, from Mulligan Defence Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. It's always great to be here. All right, quick break Back in a moment.