Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
From Picton’s Farm to the Coroner
A notorious criminal case and a sweeping policy change collide in one packed hour, and the throughline is unmistakable: how law balances dignity, proof, and practical consequences. We start by unpacking the latest development in the Robert Picton matter: with the RCMP ending their investigation and holding thousands of seized items—some believed to be human remains—families sought a court order to keep everything preserved for a civil occupiers’ liability claim against Picton’s estate and his brother. We walk you through why the judge refused. The key: meticulous police documentation, DNA profiles, and forensic records made the physical remains unnecessary to the civil issues, while the coroner is legally mandated to identify, notify families, and ensure respectful disposition. It’s a difficult ruling with a humane core—moving evidence out of limbo and toward answers.
From there, we pivot to construction law’s next big shake-up: Bill 20, the Construction Prompt Payment Act. If you build, supply, wire, pour, or manage, this matters. We break down the “proper invoice” requirements, the 28-day payment clock (plus seven days per tier), and the new adjudication system designed to unstick payment disputes before they snowball. We map real-world risk: multi-layered chains, scope changes, and deficiency claims colliding with statutory deadlines. And we examine oversight, including how judicial review is framed, why documentation will be your best defence, and how to align contracts, invoicing, and site practice so cash keeps moving.
By the end, you’ll understand why the court’s decision may bring families closer to closure—and why construction businesses need to prepare now for compliance, adjudication, and potential work stoppages if payments fail. If this conversation helps you think differently about evidence, dignity, and getting people paid, follow the show, share it with your team, and leave a review to help more listeners find it.
Follow this link and a transcript of the show and links to the cases discussed.
So no doubt a very grim fact matter. Most most people I think will be familiar generally with the case, right? It uh goes back uh to uh the early 2002 uh 2005 date range. Uh and originally Robert Picton uh was charged with 27 counts of first degree murder. He was ultimately convicted of six counts of second degree murder, which is itself an interesting outcome. A number of the charges were later stayed, uh, but uh it's uh uh interesting that the jury was not persuaded that it was a first-degree murder case, because first degree murder involves usually the uh gets there by planning and deliberation, and it is to some extent difficult to comprehend how you could have six non-planned and deliberate murders. There was some suggestion at the time that perhaps they thought he was involved with them, but maybe not the person who planned them. Hard to know, of course. Juries don't give uh reasons for their decision. Nonetheless, that's a broad background. The other uh important uh thing is that uh, as many listeners will will know, uh Robert Picton was himself uh murdered in jail uh relatively recently, and there's another uh inmate charged with that. I don't know whether that person's pled guilty or there's a trial coming up, but um that's what happened to him. Now, in that context, what this case is about um is that several of the family members uh of uh people who were uh believed to have been killed on the farm, um uh Robert Picton's farm uh are suing both Picton, now his estate, and also his brother. Uh and the theory of suing the brother is an interesting one. It's framed as an occupier's liability claim. Uh and the theory of it, according to the judge, is a uh on the basis that the brother was a co-owner of the pig farm. Uh the theory of it is that he would have had a duty to warn the women uh before coming onto the farm about what they would argue would be information he would have had about what his brother was doing. That's the theory of the case, so interesting uh uh allegation in a grim fact pattern. Uh but what's happened is as a result of the fact that Robert Picton hit was himself murdered, uh that's the the police have ended their investigation. Uh and the police had seized thousands of exhibits from the farm, uh, including all manner of things, including things which were believed to be human remains, some of which were identified, some of which were not. Um and so the um uh position of the RCMP uh was during the period of time before uh the investigation ended, what the way those things would have been dealt with are under provisions of the criminal code, it's a section 490 regime, that deals with the seizure uh of uh exhibits in a criminal investigation where there has been no charge laid, right? Uh because these could be other potential victims. There could, in theory, be other charges, I guess, if new evidence had come to light, um, and it was deemed in the public interest to prosecute uh them given he was already serving a life sentence. Uh but uh at the end of that investigation, and the investigation, police investigation is now done, the question first of all becomes, well, what happens to all that stuff, right?
Speaker 1:Yeah.
Michael Mulligan:And the starting point under 490 is either the stuff would be the thing seized, the exhibits would either be, yeah, criminal cases started, and they could wind up as like exhibits in the trial, for example.
Speaker 1:Right?
Michael Mulligan:Or where there is no trial, uh, no charges are laid, then the presumption would be, well, they're returned to the person from whom they're seized, right? Like if the police come in and seize a bunch of tools from your house or investigating you for doing something, no charge is ever laid, investigation finishes, presumptively you get the tools back, right?
Speaker 1:Yeah.
Michael Mulligan:Now, that cannot happen with human remains or suspected human remains. They don't belong to anyone, and they certainly could not be returned to the uh, you know, uh suspect uncharged uh in the murder investigation. That's not going to happen. And so the there's uh that is contemplated, and the the way the what would happen in the ordinary course of things is that that material would go to the coroner. And I'll come back to that in a moment. So we'll go to the coroner, and there's a scheme for dealing with that. The confounding factor here, and what this decision is about, um, is that some of the family members, the ones that are pursuing this claim framed as an occupier's liability claim against the brother and the estate, um, who are applied to a judge to preserve all of these items, to not have the police release them to the coroner, um, wanting an order that all of that be kept, these thousands of exhibits, some of which may be human remains from people identified or not identified. Um and there's a legal test for that. It's under Rule 76 sub-4. Uh and there's a four-part test that a judge needs to apply when effectively it's an application to preserve evidence. Like the argument was, hey, we may need this stuff in our occupier's liability uh case, keep it, don't destroy it, or don't give it to the coroner.
Speaker 1:Yeah.
Michael Mulligan:Um, and the judge has to analyze look, is this material uh relevant to an issue in the proceedings? Is there a serious issue to be tried? And then a balancing of convenience, and sort of there's this test the judge has to apply in terms of whether to order the material preserved. Because what happens otherwise is that when the police turn over this sort of material to the coroner, the coroner has a number of duties that are set out in the coroner's legislation. Um, and the coroner would be tasked with doing things like uh you know, trying to identify the uh uh identity of a deceased or how and when they were killed and how that happened. Um and uh, you know, they're pr they are authorized and required to do things like take possession of uh human remains to try to make those inquiries, right? That's one of the tasks the coroner has. And and in a non-criminal way, right? And so it it's entirely possible that you know the coroner will be able to examine uh these things that were seized and would be able to make some determinations that may not have happened in a criminal context, right? You can well imagine that, for example, the crown might say, well, we can't prove beyond a reasonable doubt that this person was um murdered. We don't have evidence of that, but the coroner may be able to, you know, do DNA analysis or other analysis of these things in a different way and to a different standard, and they may be able to make those kinds of determinations, which of course are important for family members and others to know what happened here, and then the coroner has an obligation to, once they're done that, they have an obligation to quote, dispose of, close quote, the human remains, but that's to be done in accordance with the cremation, internment, and funeral act. So there's a scheme for that. And so the coroner would be required to take these things, do their investigation as best they can to try to determine it, determine who are these people and try to notify family members and uh you know determine what happened and who you know who these um remains belong to. Uh and then once that's done, they would be required to uh to deal with the remains in accordance with um that uh funeral legislation in a respectful way. Uh and so the position of the coroner and the RCMP, the RCMP's position was, look, we're done with these things. We can't return them under you know the 490 scheme. They need to go to the coroner. And the coroner's view is look, we're required to do these things, it should come to us so we can make these inquiries. The other important thing that the uh judge relied on in this decision is the fact that you know the police haven't been just sort of keeping these things randomly. Uh the uh evidence uh before the judge was that the uh police have carefully uh photographed, documented, done DNA profiling, uploaded all the information and evidence they've gathered to a database. They've like, you know, carefully recorded what they had here, right? And so in that context, in applying the tests that the judge has to apply in terms of, you know, what do you do with these things? Is it necessary or desirable to preserve these things as evidence, right? Uh potential evidence. The ultimately the judge concluded that uh it would not be appropriate to order that these actual physical human remains or suspected human remains be kept indefinitely for the purpose of being potential evidence in the occupiers liability claim. Uh and uh an important part of that is the judge found there's just no uh foreseeable way in which the actual physical human remain could somehow form uh uh uh evident have evidentary significance in the context of that kind of uh claim. Uh and so because you know these things are carefully documented, we have DNA samples, we have photographs of them, they're careful records of where they were found. Um it uh ultimately the uh test is that on a balance of convenience favor retaining these human remains versus having them transferred to the coroner so the coroner could do their investigation, try to determine who these people might be if they are human remains, and then you know, respectfully return them to families or arrange for their uh burial or whatever they has to be done under the respect under the various legislation that deals with that. The judge concluded that it's just not um uh there's just no basis to believe that these actual physical things are relevant to the civil proceeding which is contemplated. There is the there is no serious issue to be tried with regard to the actual remains. There may be legal issues there, maybe this uh maybe the uh claim under the Occupy's Liability Act succeeds, maybe it doesn't, but we don't need to have all of these all of these things kept in that way. And so ultimately the uh judge uh denied the application by the uh family members and accepted the submissions by the RCMP and the coroner, and so the net result is exactly that. All these things now, the police investigation is done, they're gonna be turned over to the coroner, coroner will do their uh review and examination as they are required to do. Maybe that will provide some closure for some family members, right? They may be able to be able to make some determinations that would be helpful there, uh, and then uh return remains for burial or whatever the family chooses. Uh and if that is not possible, uh then they will be resort to that cremation, internment, and funeral services act to determine how they should be respectfully uh buried and dealt with. And so they won't remain in the possession of the RCMP at a warehouse somewhere that's going to be moved on to the corner. So that's the uh latest chapter of the uh Robert Picton uh case with some uh rather unique issues in terms of not only that sort of claim framed under the Occupier's Liability Act, uh, but that's the framework that has to be applied when determining what do we do uh with these remains in these very grim circumstances. So hope hopefully the outcome is some c at least some closure for some of the family members that may be wondering what happened to their loved ones many years ago.
Adam Stirling:All right, we'll take our first break here. We'll continue right after this. Michael Legislature being introduced and debate in the altar legislature. Bill 20, the construction prompt payment act.
Michael Mulligan:Well, who can be against prompt payments? Uh so the uh the it's an interesting piece of legislation. It's Bill 20, um, probably under a lot of people's radar, but I think worth knowing about. It would affect a whole lot of people if it's uh passed and implemented. And the the government press release that accompanied this legislation says that the legislation will ensure that contractors, subcontractors, and workers are paid fairly and on time. That's a big promise. Uh so maybe a little bit of skepticism is required, but uh certainly the the issue is uh a worthwhile one. The underlying problem, I think, that can arise, particularly with larger construction projects, is you often would have multiple layers of people, like you'd have somebody who's contracted to build something, you'd have a contractor, subcontractors, people who are sub-subcontractors, right?
Speaker 1:Yeah.
Michael Mulligan:And you can have circumstances where you know people, you know, up and down that chain, if the first person doesn't get paid, well, that's bad news for person two, three, four, and five, and so on down the payment chain. Right.
Speaker 1:Indeed, yes.
Michael Mulligan:And so you you can wind up with like some small person, tradesperson who's or small company doing some work in a big project, it could wind up waiting a long time to get paid for the work they've done. So trying to achieve a solution to that, that's a wordy goal. Um this is an interesting approach. Uh and so the the approach contemplated here, and I should say it will also be important if this is passed and is put into force, it will become important uh for all of those various people uh up and down the chain to be familiar with what's required uh of them under this legislation. Uh the concept here, first of all, it the core the start of it is that this uh legislation would re requires, first of all, what are referred to as and it's defined proper regular invoicing and then there's a requirement for regular invoicing, also capitalized and defined. And so there'll be a bunch of statutory requirements and other regulatory requirements in terms of what must be in a proper invoice, quote unquote. And so if this comes into force, some b everyone involved in the construction industry is going to need to become familiar with what is a proper invoice um so that they make sure that all of the requirements are in there, and then also there's a requirement that all of these quote proper invoices are to be going out monthly unless the contract says otherwise. And so there'll be an obligation to create these proper invoices and to um make sure that they are delivered on that schedule. And then the idea is that if you do manage to get out a proper invoice, uh uh then the uh there have to there should be payment within 28 days, and then adding to that seven days for each other layer in that chain that we talked about, right? Uh so there's a lot going on there, right? And you can easily imagine, you know, some small company is trying to, you know, put in the wiring or something now is going to need to be concerned with is that invoice proper? Does that meet all the requirements? Are they out on the crate schedule and so forth? Um, lest they run afoul of those requirements. Uh and then if that happens, if you do what is required of you there, um and you don't get your payment, then what's contemplated is that there will be a scheme of adjudicators who are uh by the legislation sort of contemplated to be kind of roving adjudication people uh who would do things like uh you know drive around and go to work sites and so on trying to uh resolve uh payment disputes, right? So and these things get complicated very quickly, as you might imagine, right? If you've got a chain of you know, seven or eight layers of contractors and subcontractors and subsubcontractors, right? You can very easily imagine just how complicated sometimes these construction issues are going to become, right? You know, person two doesn't do such and such, so person three can't do their work, and you know then what about person four didn't have a proper invoice? What happens to person five down the chain, right? And so the scheme here would be you would create this group of adjudicators who would then try to uh enforce and make determinations about uh what's going on and was that a proper invoice, was it properly served, and uh and so forth, to try to then make determinations about what should happen. And one of the uh concepts in this uh legislation is this concept that you know if you have a determination by one of these roving adjudicators uh that uh a payment wasn't made, one of the remedies would be people down the chain that aren't getting paid can stop working. So okay, yeah, what's that gonna do to a construction project, you know, when whatever the person that hired the person doesn't pay the contractor, so the subcontractor isn't paid within 28 days plus seven days after filing their proper invoice in the prescribed form, and they then get a determination on they stop work, and so do the other people down the chain and on it goes, right?
Speaker 1:Yeah.
Michael Mulligan:Uh because of course the other thing that happens to these projects, you wind up with disputes about things, right? You know, the uh person who's having the work done says, Well, hold on, you you haven't properly put in that wall, or you haven't done whatever we asked you to. I'm not paying you. Yeah, and then down it goes, and so you know, they are very, very complicated. Big projects, and we've seen them in the like municipal and other contexts here, often wind up in court at the end of the day, and often those cases go on for a very long time. Yes. Um, and one of the other things that causes that, uh of course, but it's just human reality, is that things change, right? Like you have a you know, some plan to build your bridge, uh, and then you go along and it turns out, oh no, there's a big rock in place there. We thought we could put that piling there. We can't, we have to move it over here. Now, if we're doing that, do you want that the whole lane's got to be a foot wider? Is that okay by you? Yeah, let's do that. Now, now think about that, right? Suddenly you've got the metals change, the contractor, the concrete, everything got delayed, and now everyone's standing there with their big fist full of you know regular invoice, proper invoices, and then person nine down the chain says, Well, that's it, I'm crossing my arms, I've got I'm not going to waterproof the bottom of the concrete pole, and the whole thing stops, right? Uh, and so it's very, very hard, and that's why many of those big projects just do wind up in very complicated litigation at the end of the day. So, with that background, I guess I would say about this, it's an interesting approach. Um, the one of the other things about it is that, and this is maybe a little bit of relief for uh those people in this industry thinking, oh my goodness, do my invoices comply with this legislation? The uh what's contemplated here is that the act won't apply to contracts entered into before the date of the sec before the section comes into force, which is important because you can imagine what chaos that would cause if suddenly there's been some change of requirement. Um the other thing is this requires a whole bunch of like regulations and like creating this new body of adjudicators and setting out even more detail what has to be in these detailed monthly invoices. Um and so how exactly this works and what exactly everyone needs to be trained to do is not yet completely clear. Another thing, if anyone's listening, by the way, this is the first reading bill, uh the uh current bill contemplates judicial review and sets out circumstances in which there can be a judicial review, but it limits it to things like uh where there is a uh dispute about the subject matter of the adjudication or jurisdiction. Procedural fairness is listed there, but it doesn't list the traditional one of look things like unreasonable decisions.
Speaker 1:Yeah.
Michael Mulligan:Um there may be some further consideration required for what's contemplated here by way of judicial review. You can easily imagine, you know, how you know complicated those cases are. Now you've got this roving person driving around in a pickup truck trying to go out to sites and figure out what's going on with the waterproofing of the concrete pylons or whatever has gone off the rails and who hasn't paid whom. And you can easily imagine there being a case where there does need to be some review of it, particularly because the amount of money involved can be huge. So, anyways, that's the uh latest on the construction the construction prompt payment act, Bill 20. Uh maybe not setting everyone's hair on fire, but certainly if you're in the construction industry, be aware of this, keep an eye on it. Uh, and if this comes into force in some form, you're gonna need to make sure you comply with it, uh, lest you be caught out by the form or service of your invoices or when you've done something, and it may affect what you need to be putting into agreements if you want to modify what would otherwise become statutory requirements under this uh piece of legislation. So that's the latest on the Construction Prompt Payment Act, and we shall see if it ensures contractors and subcontractors are paid fully and on time. So that's the latest piece of legislation.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thank you so much. Always great to be here. All right. Quick break for the news.