Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The Hockey Canada Trial Verdict and ICBC No Fault Formula = $0
What happens when legal formulas, charge approval standards, and competing legitimate needs collide with real human lives? Today's deep dive examines three significant cases that reveal the profound human impact of our justice systems.
The Hockey Canada sexual assault trial verdict brings crucial lessons about the presumption of innocence and the value of detailed judicial reasoning. Unlike jury trials that provide no explanation, this judge-alone trial delivered a comprehensive analysis of why all the accused were acquitted. The judge methodically explained finding the complainant neither credible nor reliable, citing multiple conflicting statements and video evidence contradicting later allegations. This case powerfully demonstrates why we cannot start from assumptions of guilt when allegations are made, regardless of how emotionally charged the circumstances might be.
Meanwhile, a shocking Civil Resolution Tribunal decision exposes the harsh reality of ICBC's no-fault insurance system. A driver suffering permanent vision impairment after being rear-ended received zero compensation because his "floating pink blob" injury—though permanent and debilitating—didn't fit neatly into the mandatory mathematical formula. This case starkly illustrates how dehumanizing rigid regulatory systems can be when they fail to account for individual circumstances. Those ICBC rebates come at a steep cost: significantly diminished rights for accident victims.
Finally, a Songhees Nation land dispute reveals painful competing needs. Elderly mobile home residents face eviction and potential homelessness as the Nation reclaims land to address severe housing shortages for its members. Despite decades of paying property taxes, the court found these residents have no special protections since provincial mobile home regulations don't apply on reserve lands. Both sides have legitimate needs, yet our legal framework offers no elegant solution.
These cases remind us that behind every legal decision are real people facing life-altering consequences. How do we balance competing rights? When should human judgment override mathematical formulas? What protections should our justice systems provide? Listen now to explore these essential questions about justice in our communities.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers. It's Legally Speaking on CFAX 1070 with Michael Mulligan Afternoon. Michael, how are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Now, while I've been covering other topics on the show, I am aware that there's a rather lengthy verdict that has been being read out in regards to a rather well-covered legal issue that we've talked about in the past. It's been covered elsewhere in the past. I know that we're still in the very preliminary stages of this information being made public, but is there anything you'd like to mention about it?
Michael Mulligan:I think, yes, it is worth commenting on, in part because of just how much attention the case has received. It's, of course, the verdict in the sexual assault trial in Ontario for the Hockey Canada players and the first thing to be said about that and there have been detailed accounts of all of the judges' reasons so far the judge has acquitted all of the accused, found all of them not guilty and I must say, in just reading the detailed reports of the judge's reasons, the first thing to be said about it is that I think it's a circumstance where we, the public, are fortunate that the case ultimately turned into a judge-alone trial, in the sense that when you have a jury verdict, of course you get no reasons. A jury just comes in and makes a decision right, which then leaves people speculating about how they might come to that conclusion. Here, as is required in cases that proceed with a judge alone, the judge doesn't simply come in and give a thumbs up or thumbs down. They need to provide very detailed reasons for how it is they came to their conclusion, and so in a case like this, which of course raises all sorts of issues and concerns and so on, it's very helpful that we know exactly how it is.
Michael Mulligan:The judge came to her decision and the essence of it is that the judge found the complainant in the case to be neither credible or reliable. And in reaching that conclusion that the complainant was neither credible nor reliable, again, the judge doesn't just come in and say that they and she, as in this case explained in very significant detail why it was that she found her to be not credible and not reliable. And so the judge took the time to go through what she described as this long history involving several layers of investigation, which led to what the judge described as multiple, often conflicting, statements from the complainant and other witnesses. And the judge, in detailing that and I should say those multiple statements came in the form of, of course, the investigation that the Hockey Canada conducted and there was a civil claim, of course, that got much coverage and was controversial. She sued civilly and wound up settling it for what appears to be a very substantial amount of money. She was paid and so, in the course of those things, she gave various different accounts about what happened. The course of those things, she gave various different accounts about what happened and the judge concluded and laid out carefully how it was those different accounts changed and were not consistent with one another and that's one of the things that the judge placed significant weight on is that the complainant just changed her version of events over the years in the various tellings Also interestingly, interestingly in this case and this is, I guess, a sign of the times, as listeners may recall one of the interesting elements in this case was that the complainant was video recorded, apparently in two different occasions, asking her whether she was okay with the sexual activity that was going on, and she was asked are you okay with this?
Michael Mulligan:And replied yeah, I'm okay with this. And then there's a second video, described as a 12-second clip, where the judge reported she said okay, good, it was all consensual. You are so paranoid. Holy, I enjoyed it, it was fine, it was all consensual. I am so sober. That's why I can't do this right now and in considering that the other significant finding that the judge made that contradicted the complainant's claims, or at least as the claims progressed, the judge found that she observed no signs of intoxication in those recordings and that the complainant was speaking clearly and no slurring was involved recordings and that the complainant was speaking clearly and no slurring was involved, and so that formed as well part of the judge's reasons for her decision, and quite properly.
Michael Mulligan:And this sort of case demonstrates that the judge expressly said some of the sort of slogans that are used in cases like this, saying oh believe the victim play no part in a criminal case. And it is a very good reminder that when you start, when sometimes there's reporting or that somebody is a victim or that they should be believed, necessarily when there's a complaint made, having this sort of a detailed analysis of what exactly the evidence was is a very good reminder to all of us why we should and cannot start from the proposition that somebody who makes a complaint is necessarily a victim. And if we knew them to be a victim there would be no need for a trial at all. Right, we would move on to the sentencing stage. A trial at all, right, we would move on to the sentencing stage and the case and these reasons and the judge's careful assessment of it and ultimately the conclusion that the complainant was neither credible nor reliable. And of course, the result here should also resonate with people, and I know there's been current discussions with the premiers and others talking about how somehow the solution to concerns about crime and safety is bail reform, which is sort of a euphemism for keep people in jail before they have a trial, and this case should be a reminder to everyone when you hear that sort of language.
Michael Mulligan:You are dealing with, in criminal cases, not a person who has committed a crime. You are dealing with somebody who is alleged to have committed a crime, and it may well be that at the end of that and it can take some time the conclusion is they simply didn't do it, and so that is why we have a bail system that starts from the proposition that our criminal justice system starts with, which is that people are presumed to be innocent, and it is incredibly important to remember that, particularly in the context of allegations like sexual assault that are often emotional and, of course, naturally engender sympathy from people, where you have somebody who is, in fact, the victim of that sort of a very serious offense, victim of that sort of a very serious offense. But we cannot start from the proposition that the making of an allegation equals truth, and here we are fortunate to have a very careful, very detailed analysis from the trial judge about why she concluded that these allegations were not credible and not reliable, and it's there for everyone to read and review, and so, once again, I think the case demonstrates why, at the end of the day, it's fortunate that it turned into a judge-alone trial. So we have the reasons.
Michael Mulligan:Another general thing to comment on that people may be interested in is that Ontario has a different and lower charge approval standard than in British Columbia. In Ontario, the threshold that's applied is whether there is a reasonable possibility of a conviction. In British Columbia it's whether there's a substantial likelihood of a conviction, and so a reasonable possibility is closer to. Well, nobody would be terribly, nobody would be surprised if this happened to turn into a conviction, which is something less than perhaps the slightly higher, perhaps more appropriate substantial likelihood, right, rather than just. Well, you know, anything could happen. You never know what a jury might do, and so we had this case eventually approved on that standard and after a very long legal process.
Michael Mulligan:This is the result. The other interesting thing to note is that, while the accused here were all received a great deal of publicity, the complainant, who the judge has found to be not credible or reliable, continues to have her identity protected by a mandatory ban on publication, and she has also been, of course, in this context, in this judicial finding been the recipient of a payment made in settlement of a civil claim advanced on the basis of this very same allegation. And so again, hopefully that causes people to reflect upon these things. That of course generated all sorts of political controversy at the time and I suppose with this outcome you know, of course in the civil world there are rational decisions made about settling claims and risks and uncertainty and so on, but it does cause you to wonder what the outcome of that would have been had the matter not been settled and instead been required to go to trial. So that's the latest from Ontario on that high-profile case.
Adam Stirling:Michael Mulligan from Mulligan Defence Lawyers on the latest breaking news this morning will continue legally speaking right after this. Legally Speaking continues on CFAX 1070, joined by Michael Mulligan from Mulligan Defense Lawyers. Thank you very much, michael, for those thoughts on the breaking news this morning involving the highly publicized sexual assault case involving a number of hockey players out of Ontario. We also have some other issues happening closer to home. I'm reading here and we've discussed this in the past the implications of the reforms brought by the government of British Columbia. It says here the civil resolution tribunal required to award zero dollars in compensation for permanent vision impairment due to a regulatory formula. What happened here and how does it relate to ICBC?
Michael Mulligan:Sure well, what happened here started with an accident that was in Nanaimo that occurred on the 29th of November 2021. The significance of that date is that we got ICBC mandatory no-fault insurance in May of 2021. And the fact pattern involved a driver who was stopped at a red light and another vehicle rear-ended him and it caused some damage to one of his eyes. I guess the impact did, and there was medical evidence from two different doctors which was accepted by everyone concerned, was accepted by everyone concerned that the result of this resulted in a permanent impairment in the form of a floating pink blob floating in the vision of one of this poor person's eyes, and the conclusion was that would never improve, it was just a permanent thing in his vision. And in the no-fault scheme, there are regulations that set out how there can be compensation for what's referred to as a, pursuant to a quote, permanent impairment rating, and the way that works in the regulations for vision is that there are actually two formulas set out in the regulations, and the formula involves various values, one being a visual acuity value, one being a visual field value and the other one being an ocular motility value whatever on earth that is. And the idea is you take those three factors, you multiply them together, so D times E times F produces the letter G, and then you put that into another formula and it's multiplied against the amount of money, which only government can, I'm sure, explain how this came about $167,465. $167,465. So I guess if the DE and F equals 100%, you're completely blind. For example, as a result of a car accident, you'd get $167,465.
Michael Mulligan:Now this particular case is an example of just how dehumanizing and inflexible the no-fault system is and how there is no remedy for that. This was a decision of the Civil Resolution Tribunal, which is where somebody can go if they wish to take issue with what ICBC is doing to them in a no-fault case. Icbc's position was yes, we accept that. He's got this problem a pink blob floating in his vision and for this man that was a significant matter, given that he works in the film industry as an illustrator and scene artist and he needs to use color coordination to do that, and in addition he's a painter, a military signal operator and a Canadian ranger where he has to be able to fire a rifle, and that he now has a dead spot in his dominant eye which causes him difficulty shooting to do that work. So everyone accepted. That's what's going on.
Michael Mulligan:The problem with the formula, which is mandatory, is that the various things there are defined like, for example, the field, the visual field, one of the letters there, the field, the visual field, one of the letters there E involves a test done whether you have a reduction in your degree of visual field lost and retained. And the pink blob floats around, it's always there but moves, and so that value is zero. And so when you multiply something by zero, what do you get? Yeah, zero. And then you multiply zero by 167, 465, and what do you get? Zero. That's awful.
Michael Mulligan:And so the case goes to the Civil Resolution Tribunal. The adjudicator at their tribunals says well, look, you know, this is troubling. You have a permanent impairment, but I'm required to. I must. He says, however, I must apply the law in British Columbia. That's what they're required to do. And the law in British Columbia no fault is a regulation with a math formula. And so the result for this man is zero.
Michael Mulligan:And it is just a stark reminder of just how dehumanizing that scheme is. And it should be a reminder for everyone. When the government sends out their yearly rebate for your ICBC payment and you're paying less for your insurance. You need to know you're getting less, so you know you're really in trouble. If somebody piles into you from behind and your particular injury, while permanent and accepted by everyone involved, doesn't fit into some formula, you're out of luck, and it's not as if you can go to the fairness officer, the Civil Revolution tribunal or anyone else and you can't sue the person who hit you. They're off the hook completely, and so you're left with nothing, and so it's just a really stark reminder of just how problematic that is and how it can be just dehumanizing, and the result for this man is nothing, because the accident occurred in November and not May. So that's the latest from the Civil Resolution Tribunal.
Adam Stirling:All right, we've got four minutes left. Certainly time for one more. Shall we do the Songhees Nation one.
Michael Mulligan:Sure, I guess, a good local and interesting case. So this is a case arising out of the Songhees Nation here in our community and it's a case involving a mobile home park and the history of the mobile home park. It was set up in the 1970s by a couple of members of the Songhees Nation. They had an ownership interest in the land and they set up a mobile home park and people built mobile homes on it, not surprisingly. Now the challenge of mobile homes is that mobile homes at a mobile home park is a bit of a misnomer, right, they're not usually the camper trailer you can pick up and tow somewhere else. The practical reality is they can't go anywhere. Right, If you have a home that was constructed in the 1970s, it's long since going to be past the point where you can wheel it away somewhere else. And for mobile home parks that are not on reserve land, we actually have in British Columbia some regulations and law that tries to provide some protection for people in the event that they're being evicted here.
Michael Mulligan:The Songhees Nation decided that they needed the land for housing for their members. The Songhees Nation this is interesting has 650 members. 350 of them live on reserve and the evidence here is that that means that there are 4.5 people on average in each residential unit and there are apparently significant problems with some of the housing that's available there and overcrowding, and so, not unreasonably the nation wants to try to improve that circumstance. But to do that, they gave notice to the people in the mobile home park that they had to leave and, as the judge described here, the court said look, the court has great sympathy for the plaintiffs and described the plaintiffs in this case as vulnerable due to age, disability, illness and tenuous financial circumstances, and the effect of being evicted will mean for some of them imminent homelessness. And so that's the unfortunate circumstance that gave rise to this litigation, and the basis for resisting the notice to get out of this mobile home park included concepts of, first of all, promissory estoppel, which is an equitable concept.
Michael Mulligan:The idea is, if somebody's made a representation with respect to your right in property or to stay there, it can be unfair or unjust to then try to go back on that promise. To then try to go back on that promise, and the lawyer for the residents of these mobile homes was making that argument and relying in part on tax notices, because the First Nation has taxing authority and so these people had received and had been paying taxes on their mobile homes. And you don't ordinarily, of course, pay taxes. If you're renting, like in an apartment, they'd be paid for by the landlord right. And so there's reliance here saying, well, hold on. You know that may constitute the sort of promissory estoppel. You were sending out tax notices. People have been paying those for years and so they had a. You should be prevented from now trying to enforce your right to evict the people from where they were living.
Michael Mulligan:That did not succeed. The judge said it's not reasonable to rely upon those things and the result of that when you're not a tenant within the meaning of the Residential Tenancy Act and you're not subject to any of those provincial restrictions that try to prevent or protect tenants in mobile homes. You're just subject to a contractual relationship. And here the First Nation was within its rights, found the judge to require them to leave, leave, and so that's the order and the net result is that, barring an appeal or something to overturn this, the people described as vulnerable and elderly and ill are going to be required to get out so that the Songhees Nation can develop the property for its members. So a very unfortunate case and competing rights of people who I think everyone involved have legitimate needs. But that's the latest from the courts of the Songhees Nation and the soon-to-be-finished mobile home park.
Adam Stirling:Second half of our second hour every Thursday on CFAX 1070, Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. Thank you, Michael Pleasure as always. Thanks so much.