Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Flight Compensation and Your Car Knows Too Much
Frustrated by an airline refusing compensation for your delayed flight? You might have more power than you think. Legal expert Michael Mulligan walks us through a fascinating Civil Resolution Tribunal case where passengers successfully challenged WestJet's weather-related excuses and secured $1,000 each in compensation. By gathering evidence showing other airlines operating during the supposedly problematic conditions, these passengers demonstrated how everyday Canadians can effectively navigate the Air Passenger Protection Regulations through BC's accessible online tribunal system.
The conversation shifts to judicial impartiality with a cautionary West Vancouver demolition dispute. When a judge ordered a fire-damaged house demolished, no one realized she had previously advised the municipality on that very case before her appointment to the bench. This oversight led the Court of Appeal to cancel the injunction, highlighting the critical importance of judicial independence and the challenges judges face in identifying conflicts without the robust database systems used by law firms.
Perhaps most eye-opening is the revelation about what your modern vehicle knows and remembers about your driving. Event data recorders in today's cars capture crucial information during accidents - your speed, whether you were wearing a seatbelt, and if you applied the brakes before impact. In a groundbreaking decision, a court determined that this extracted data constitutes a "thing" rather than a "document" under criminal code provisions, requiring police to obtain judicial permission to retain it when no charges have been filed. This legal distinction reinforces important protections against indefinite police retention of digital evidence.
Whether you're planning air travel, wondering about judicial ethics, or simply curious about what your car might reveal after an accident, this discussion offers valuable insights into how our legal system addresses everyday challenges in an increasingly technological world.
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 with Michael Mulligan on CFAX 1070. Afternoon, Michael, how you doing? Hey, good afternoon, I'm doing great. Always good to be here. Some very interesting items on the agenda today, including a topic we often refer to and that is the various findings sometimes difficult to predict, of the Civil Resolution Tribunal of British Columbia.
Michael Mulligan:I'm noting here compensation for delayed airplane flights Indeed, and I must say this seems like a pretty good forum for that particular problem, which will not be an uncommon one, I would imagine, for listeners. And so the background of it is that in Canada we've got this thing referred to as the Air Passenger Protection Regulations, the APRC Everyone likes a lot of acronyms, appr and those regulations set out a bunch of requirements for airlines in terms of treatment of passengers, and the requirements there include compensation for people who have their flights delayed. And in that regard, one of the starting points is whether a delay is either within or outside of the control of the airline. And whether it's in or outside of the carrier's control, as specified in the regulations, will dictate whether somebody is entitled to financial compensation. If you are entitled to financial compensation, the amount that you're entitled to is a function of two things First of all, how long is the delay, and then whether you're dealing with a small airline or a large airline. If it's a large airline, the compensation amounts large airline. If it's a large airline, the compensation amounts are larger. If it's a small one, they're smaller, and the time periods at issue they start at three hours. So if you have a flight delay that is caused by something within the carrier's control, you can be entitled to $400. If it's between six and nine hours, $700. And if it's more than nine hours, that's a thousand bucks. The numbers are lower for small airlines. Now, the first thing to be said about that is that you know you could try with the airline to file your request and maybe they pay up, maybe they don't. If they don't pay up, it's, I think, a good thing for people to be aware of that.
Michael Mulligan:In British Columbia, we have this thing the Civil Resolution Tribunal that is set up to deal with tiny claims, relatively speaking, of less than $5,000. And the idea is that you can start a claim. It's basically like a PayPal dispute resolution system online, and the adjudicators have discretion to allow all kinds of different hearing types. It's not like in a courtroom. They can have hearings that can be just in writing or by telephone, or using video conferencing, zoom or Teams, whatever email combination of those things, whatever works. And the idea there is you don't have to spend a day off work trying to get your $400, right, because that probably is not worth it. And so this case is an example of a claim made by a couple of people who bought tickets to fly from St John's, newfoundland and Labrador to Vancouver, connecting through Toronto, and they were hoping to take off and then they got a notice 17 hours before their departure saying sorry, your flight has been cancelled. We've rebooked you two days later. They were going to go on March 6th, they just got rebooked to March 8th. Now clearly that's more than nine hours. So that would be a thousand bucks.
Michael Mulligan:If the issue is something outside of the control of the carrier and in that regard the regulations settled a bunch of things that are the control of the carrier and in that regard, the regulations settled a bunch of things that are outside control of the carrier. They include things like war or political instability. It's not the airline's fault, I guess. Right, illegal acts, sabotage. You know directions from the air traffic controller. Turn back things like that security threat. If they collide with wildlife, that's not their problem. And indeed one of them and this was the pointed issue in this case would be meteorological conditions or natural disasters, bad weather basically. And so in this particular case the airline said oh yes, no doubt we were delayed, but that was due to weather, so nothing for you.
Michael Mulligan:Now the thing about that the passengers in this case, the plaintiffs in the Civil Resolution Tribunal claim, were pretty bright in terms of what they did gathering evidence, and so it's, I think, a good lesson for people. What they did is they went online and they collected up the information from all the other flights that took off from the same place, flying into Toronto without any problem, and they presented that as part of their written material. Right? Everyone else took off here, canada went. This was WestJet that was being sued. This happened, and so they said, look, obviously the weather wasn't that bad. Everyone else could take off and go to Toronto. Why not us? Off and go to Toronto, why not us?
Michael Mulligan:And in that regard, the airline filed material that included what are referred to as TAFs again, everyone loves acronyms, terminal Aerodrome Forecasts, which are like technical things about what the conditions were at the airport. Right, and the TAFs showed that there was wind speed greater than 62 kilometers per hour, and then a bunch of other things that the adjudicator referred to as a bunch of unexplained acronyms, codes and numbers, which meaning was far from obvious. Also, importantly, the airline didn't provide any information about, like, the capabilities of the airplane that was going to be used. Is 62 kilometers too much, too little, just right, who knows? And so, even though there was this weather information about wind speeds in this technical weather briefing, the evidence was, well, other planes were taking off and there was no information about what plane WestJet was going to be using. And so the adjudicator found that that wasn't established by the airline. They were satisfied, based on the evidence that other planes were going, that there wasn't a meteorological condition beyond the control of the airline.
Michael Mulligan:Another note here I should say, on all of this, one of the other objections that WestJet made is the objective saying well, we're not really WestJet, westjet Incorporated is not the entity operating the flight. Indeed, the flight was being operated by a WestJet Alberta partnership, whatever that might be. And so they say, well, you've sued the wrong entity, and I should say that's important to bear in mind. Generally in civil litigation, one of the things a lawyer is carefully checking is sue the right entity. Right, you don't want to sue Microsoft Incorporated if it turns out that the entity operating you know this is an example was, you know, microsoft LLC 2023 Limited, bc Corp. Right, you don't want to, as a problem can be. Even if you succeed, you could wind up with a judgment, you have a really hard time collecting if that entity doesn't exist. So that's something to be really careful about here.
Michael Mulligan:The adjudicator, I think quite sensibly, said well, whatever is going on there, they seem to respond with all the information necessary about the claim. They had this weather information. They didn't seem and furthermore, they didn't provide any information about what this partnership was. And given that that process, the CRT process, is designed to be kind of informal people don't have lawyers, basically they brush that off. But I would say, be careful about that. You would not want to wind up with a circumstance where you get an order and you have a hard time collecting it.
Michael Mulligan:Also of interest, I should say, just looking through the regulations that apply. It also has some interesting bits and pieces in there you may not know about, including things like where there's a delayed boarding or a denied boarding, like, let's say, the oversell of flight. Who gets priority? Who goes first? There's not enough seats, and it actually specifies that, like the number one priority is this is a good one unaccompanied minors. So you don't want to leave the 12-year-old stranded in the Toronto airport, you know, when they don't have enough seats, when they've oversold the flight Number two and the other high priority is anyone traveling with a service animal or an emotional support animal also gets priority. So and if you recall, online there were some good pictures of the emotional support duck a few years ago somebody was bringing on an airplane. So if you have your emotional support duck with you and you're familiar with the you know the air passenger protection regulations you may be able to you and your duck might be able to get some priority for the flight. So that's covered in there too. Have a look.
Michael Mulligan:Anyways, in this case the couple succeeded there were two of them, so they got a thousand dollars each, plus the prejudgment interest of 126.72 per person, plus the $125 it costs to file for a CRT claim. So I thought a good case to know about a good example of collecting evidence and presenting it and how. That forum seems, to my mind, like just the right kind of forum to sort out that kind of a problem. Because if you had to actually go to small claims court, a lot of people would probably say that's not worth it because of the amount of money involved. But when you're able to present it in writing in this way and get a resolution, that seems to me to be just the perfect level of adjudication to sort out problems like getting bumped off your flight or getting rescheduled for two days. So bear that in mind. If you have any travel trouble over the summer, you've got a remedy.
Adam Stirling:All right, Michael Mulligan with Mulligan Defense Lawyers. Legally Speaking will continue right after this. Legally Speaking continues on CFAX 1070, joined by Michael Mulligan from Mulligan Defense Lawyers. Up next, Michael, it says your injunctions canceled by the Court of Appeal when it was discovered that the judge who issued them acted for the defendant and provided legal advice in the dispute before being appointed. What happened?
Michael Mulligan:Not good.
Adam Stirling:Not good things happened.
Michael Mulligan:Not good, not good. So the challenge here is this really Lawyers, when they're in practice, before they would start helping a client, are going to do what's called a conflicts check and basically that's looking through information about clients of that lawyer and clients of the law firm to make sure that they're not on the other side of the file. Basically right, because a lawyer has to act with undivided loyalty and can't be using information they might have got when acting for somebody else in some future dispute. Seems pretty fundamental right.
Michael Mulligan:Your lawyer is there to help you, and so one of the challenges is that when somebody becomes a judge, they don't have that anymore, right, and so the judges are left there kind of wondering. It's potentially wondering did I have anything to do with this before? Right, and for some lawyers that is going to be more challenging than for others. Or lawyers become judges right, particularly where you have a lawyer who might have acted for like a larger institution or body that would have all kinds of dealings, right, and that's what happened here. So the underlying dispute involved a house in West Vancouver that had been damaged by fire and it would appear that, for whatever reason, the municipal government there wanted to have the house torn down. They wanted it demolished, and the owner of the home didn't want to demolish it, they wanted to fix it, and so they were in a long-term dispute back and forth about whether they could fix the house or the house had to be knocked down. That's really what it amounted to house or the house had to be knocked down, that's really what it amounted to, and eventually it resulted in the municipality going to court and getting an injunction ordering the house be knocked down. Basically, and at the hearing of that application.
Michael Mulligan:A concern was raised that the judge, who had been a judge, I think for some seven years or so, had previously worked in the law firm that was acting for the municipality Right. And the judge said, well, she couldn't remember having a recall having any involvement with a particular file and was obviously concerned about that Because during the hearing asked several times is there some chance I was involved with this file? Is anyone aware of me having dealt with the file? Nobody seemed to be aware at the time, and it's subtle because it's not every case where there's some really remote connection that's going to make somebody biased and incapable of dealing with the case right. The test is the legal test is whether an informed person who's thought about it would think that there is a realistic or practical concern that the judge, either consciously or unconsciously, would not decide the case fairly.
Michael Mulligan:And so an example of where that, even though there might be some connection, didn't go over the line, there's a case from a number of years ago that involved a judge who acted for a law firm that was involved in litigation 30 years earlier, and so the argument was well. In that case the decision was well. That doesn't really disqualify the person. It was 30 years ago. It's just not realistic that the judge is making a biased decision because of representing somebody three decades earlier, right? So not every connection is going to mean that's it. The judge has got to get out.
Michael Mulligan:But you know, in most cases a judge like this particular one is not going to want to continue. Why would they right If there is some reason to think it could be a problem? And so that's why, at the hearing, the judge was asking those kinds of questions. Anyone aware of any problem? Anyone aware that I've acted on this thing? No, nobody knew anything.
Michael Mulligan:Judge makes the decision ordering the house be demolished. Then the other side determines that, oh yes, not only did she act for the municipality, she provided emails to the district advising them about the demolition of this very house. Uh-oh. And so that's the basis upon which it gets to the Court of Appeal. And the Court of Appeal says yeah, that's just not on. Right, this isn't the 30-year-old remote connection. The connection is reasonably new.
Michael Mulligan:It's with respect to this very case, right, this very issue. Even though the judge didn't remember it. She'd obviously had something to do with that particular file, not just acted for the municipality on some other dispute. Right, you know what I mean. That probably would be fine If you said, look, you've been a judge for seven years. Seven years ago you acted for that municipality dealing with I don't know contracts about plumbing or something. You're probably not going to be viewed as biased, right? Would a reasonable and informed person who thought about it think there would be. You know, you're going to look at what was it? How closely connected was it? How much time's gone by? What's happening here? Right, but this is too much.
Michael Mulligan:And really the source of the problem is that it's very hard because the judge in this case was saying like, oh, I've looked through the affidavits, I don't recognize anyone's name. I is, I don't recognize anyone's name. I don't remember having anything to do with this. But she was just wrong, and that's why lawyers don't depend on their memory when they're deciding whether to take on a file. It goes through a database and in a large firm that can actually be pretty complicated.
Michael Mulligan:Let's imagine you're in a firm with 300 lawyers, that's in you know or more, in different provinces and all over the place. You're going to wind up with circumstances where it's very likely that somebody somewhere in that you know rabbit-worn law firm might have acted for particularly some large client right, and so it can get tricky and there has to be a you know judgment call about whether that's permissible. But that's the test here. This one's clearly over the line in one direction, but it's a an indication of how that can be a problem. Judges have to be alert to it and you know, it would have been obviously ideal had they figured out that she'd actually written emails about this particular file before making the decision. But in any case the Court of Appeals sorted it out and they can. I guess they'll have to wait their effort to knock the house down to go have a hearing with another judge. So we'll have to wait and see what happens with the fire damaged house in West Vancouver.
Adam Stirling:All right, Five minutes left. The final issue Data RCMP seized from an event data recorder in a car is a quote thing. The police need judicial permission to keep longer if a charge not approved yet. So the data is itself a thing independent from, perhaps like a data unit or something yeah, that's right.
Michael Mulligan:So there are a few elements of this I thought were interesting for people.
Michael Mulligan:One is the fact that you probably have one of these if your car isn't, you know, very old, and what that is is there's a thing called an event data recorder, which is in most modern cars, such that if you have a serious accident, you know I think sometimes it's tied in with the airbag going off or you know a certain amount of deceleration, whatever it might be, they'll be triggered to record information about what happened there.
Michael Mulligan:And this particular case involved a Mercedes that crashed into a tree and there was one person in the car, and the police were wanting to investigate whether the person was driving dangerously at the time they crashed into the tree or whether they might have been impaired. What's going on here? And as part of that investigation, they took the car and then they extracted data from the event data recorder. So that's the first thing to know is that your car might rat you out, if you get into an accident, about how fast you were going. This particular event data apparently revealed that the speed of the Mercedes prior to the collision although the decision doesn't say what that is that the drivers did not have their seatbelt on and that the brakes weren't applied prior to crashing into the tree. Wow, probably not helpful but anyways, that's the kind of stuff your car is recording.
Michael Mulligan:It knows everything, it's all-knowing. Some cars have cameras. You'd have to wonder okay, is it also taking pictures of you? What's happening? So here the police sees that stuff. Now the first thing to know is that when police sees something in an investigation, the first thing to know is that when police see something in an investigation, if the person is promptly charged with an offense, they can generally keep that stuff until the trial's over, right. But an issue can arise where the police sees things, potential evidence, but then there is no charge, at least for some time, because the police are wanting to do further investigation or get that analyzed or whatever the case might be. And so we have a scheme in the criminal code that provides judicial oversight of stuff the police seize, which is a good idea. You probably don't want to live in a place where the police can just come and take your stuff and it disappears into a black hole and you never find out about it again. It's not good. And so when the police seize things, they have an obligation to file a report saying we seized whatever it might be the gun, the mask, the event data recorder. And here, uh, they seized it and they fought and they uh, what they then did is that they extracted the data from the recorder and and no charges were approved yet. So they're still doing further investigation, I guess, analyzing that or other things. And so the issue then becomes when they file that kind of a report and there is no charge laid, there are time limits how long they can keep stuff for, and if they want to keep it longer and there's no charge, they have to make an application to a judge to be allowed to keep it longer. So they just can't take your stuff and keep it forever.
Michael Mulligan:Good idea right here the RCMP were arguing that well, there is an exception in that scheme for copying of records, with the idea being like, let's say, they were doing a fraud investigation and they get a box of documents and they photocopy it and then they return the documents. They don't need for a copy of a document to get judicial permission to keep it. I guess the theory is well, you photocopied it, you're giving it back off, you go right. So the issue was is the data from the event data recorder a copy of a document that was the RCMP's position or is it a thing? Because if it's a thing, then they have to get permission, and so that's what the case was about, and the judge analyzed how that's been dealt with in other provinces, how it's been dealt with in BC, how different kinds of data are dealt with, and then one of the important things is surveilling. Well, why do we have that scheme, what's the purpose of it, of it?
Michael Mulligan:And ultimately, the judge concluded that the RCMP's argument that this was a copy of a document doesn't wash, because the idea of extracting data from an event data recorder is not the equivalent of I photocopied your tax return or something, and so the result of that is that the data from your car that might have ratted you out for not having your seatbelt on or how fast you were going when you hit the tree, is in the category of a thing, and even though you might not have, at the end of the day, a expectation of privacy in that which is a separate legal issue that can be an interesting one the police are still required to comply with this 490 scheme that allows judicial supervision over stuff the police have taken.
Michael Mulligan:When they don't charge somebody, they just got your stuff, and so it means that that kind of data is a thing, not a document and that means that the police are required to get permission from the court if they want to keep it longer, and there's been no charge laid. So I thought it was really interesting. What's a document, what's a thing? And just to give people some sense of the sort of information that your car might be recording. If you're not driving around in a 57 Chevy, if you're driving around in a Mercedes, you're being watched. So that's the latest on what is a thing and stuff from your car.
Adam Stirling:Michael Mulligan, with Mulligan Defence Lawyers, legally speaking after the second half of our second hour every Thursday. Michael, pleasure as always. Thanks so much. Always great to be here. All right, the news is next.