Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
When A Guest Won’t Leave
A single sentence in the Criminal Code can decide whether you can legally remove someone from your home—or whether you’re suddenly the one at risk of an assault charge. We break down a fresh BC Supreme Court ruling that reads purpose into Parliament’s 2011 reforms on self-defence and defence of property, answering a practical question with big stakes: if you invite someone in and later revoke consent, can you use reasonable force to make them leave? Short answer: yes, if you give a reasonable time to go and the force is proportionate, because the law was never meant to grant squatters’ rights to rowdy guests and stubborn salespeople.
From there, we follow the thread of “reasonableness” into family law. British Columbia treats partners who live together in a marriage-like relationship for two continuous years as spouses for property division, but the crucial trigger is separation. The two-year limitation period starts when you separate, not when the romance finally fizzles. In the case we unpack, on‑again, off‑again reunions couldn’t reset the clock. If you plan to claim division of property, mark the separation date, organise documents, and act before the window closes.
We close with a cautionary tale about civil procedure and proportionality: a $9,000 used SUV, mechanical trouble, and a claim that ballooned to $250 million. The court ordered security for costs, balancing access to justice against the burden of defending an outsized, low‑merit case with little chance of recovering expenses. Together, these stories showcase how Canadian courts weigh text, purpose, and fairness—guarding property rights, enforcing clear timelines, and filtering litigation through practical safeguards.
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Follow this link for a transcript of the show and links to the cases discussed.
Well, it's complicated. Uh and it uh in fact the particular complication that the uh judge was uh sorting out in the case we're gonna talk about uh is a complication that arose out of an effort at simplification, if you can believe it. Uh and what happened is this it's back prior to uh 2011, we had various sections in the criminal code that dealt with self-defense, but they were complicated and often difficult to explain to, for example, juries, right? Which is what this case involves, a judge having to give instructions to a jury. Uh and so in 2011, uh Parliament kind of redid the self-defense provisions, trying to make them sort of more coherent and easier to explain. And one of the things that got uh changed were the provisions dealing with the defense of property, that's section thirty-five in the criminal code. And we we have to have that section, or the reason we have that section is an assault as a starting point would include any nonconsensual application of force to another person, right? And so if you didn't have the provisions dealing with defense of property, uh you would wind up committing an assault if, for example, you tried to physically stop somebody from stealing something from you, or uh you came across somebody who was busily damaging your property and you tried to stop them from doing that, right? Um and uh th that provision, section thirty-five, provides uh that it's not an offense if somebody's using reasonable force to stop those kinds of things happening. But that section also deals with the issue of defense of property in the context of like keeping somebody out of your house or getting somebody out of your bar or whatever it might be, right? Um without this, you could have a circumstance where somebody just said, Hey, guess what? I'm coming on into your living room, right? Well, hold on, can't have that. Right? And so the this section, this changed section, the issue uh arose because of the wording that uh Parliament used when it was describing when it was a person could use reasonable force for the purpose of, you know, getting somebody out of there, fill in the blank, house, bar, restaurant, whatever it might be. And the language they use is this it says another person who is about to enter, is entering, or has entered the property without being entitled by law to do so. And so when you read that quickly, you sort of think, oh yeah, okay, that that seems to cover what we're talking about here, right? But the problem is, what about a person who originally was permitted in, like a person's allowed to come into the bar and sit down and start drinking? What happens when they get extremely drunk and rowdy and are disturbing other people, they won't stop and they're asked to leave, and they won't leave? Can they just stay there forever? Because when you look at the section, is it as about to enter, well that doesn't count, they're already in there, is entering, well that's not it either. They're they're they've already entered, they've been drinking for the last three hours. Or has entered the property without being entitled by law to do so. Well, no, they were entitled to come in to begin with. So does that mean once you're in, you're just in? Yeah. And that's what was being dealt with in this particular case. And the fact pattern is is this. It's an interesting one, uh, and probably not that uncommon. Um it was a case where a fellow of the accused, the homeowner, had a number of people over for a social event, including his brother. And the brother came into the was into the house in the house for some period of time, and then uh for whatever reason the uh homeowner had asked the brother to leave. Maybe some disruption, who knows? Uh asked him to leave, he wouldn't leave. Um and then uh after repeated requests to have the brother leave the house, a physical altercation occurs between the brother and the accused. Um and at least according to uh one or one or more of the witnesses, uh the altercation becomes physical and commences with the brother who's not going, uh perhaps hitting or taking a swing at the accused. And then there's uh so now there's a physical altercation going on um with respect to getting the brother out of the house. Now things don't go uh well here in part because the homeowner arms himself with a knife. And so he's holding a a knife, um, and the physical altercation continues. There's no suggestion that he's trying to do something with the knife, but the the altercation try to get the brother out of the house eventually winds up in a wrestling match on the couch, and it would appear the brother got stabbed with the knife accidentally and dies. And so the charge is manslaughter, and the concept of the manslaughter charge is that um if there's a uh death caused by somebody um and it occurs by means of an unlawful act, that's enough to constitute manslaughter, right? There is no intention to kill the brother, that's clear. Uh, and the accused was immediately trying to save him and you know, very upset, and no indication that was the intention, he was just trying to get him out of the house. But the crown's argument in the case uh is that this constituted manslaughter on the basis that the possession of the knife was for a purpose dangerous to the public peace, and that's a criminal code offense, even if you didn't do anything with it. And so the crown's argument was, well, look, uh he possessed it, that's the crime, even if he didn't intend to use it, even if that was an accident, uh, well, that's an unlawful act, that caused the death, and so he's uh should be convicted. And the uh Crown or the Crown then also opposed the jury being instructed about that section, uh the self-defense provision that we just talked about, on the basis that, well, hold on, he was originally invited, that doesn't count. Look at the wording, just read the wording, right? And so the crown is saying you can't do that. It shouldn't tell the jury about it at all. And so that required the judge in this case to interpret that section to determine, well, w what does what does that include? Uh and the starting point when you're doing something like that is you would look at the plain reading of it, wording of it. Well, does that is it clear? But really what's required, and the judge does this, is that there's an effort to try to assort try to determine, well, what was the intention of parliament when they did this? You know, you you've got to read the words, and it can't be something that doesn't fit with the wording at all, but you know, you're trying to divine what what's meant by this. And and furthermore, in the criminal context, where there are two equally possible interpretations, the sort of the one concept would be, this is to simplify it a bit, the tie goes to the runner, in the sense that, you know, if there's two possible interpretations of something, uh, you should pick the one that's less likely to wind up with somebody in prison, right?
Adam Stirling:Okay.
Michael Mulligan:Um, and the so the judge is left with trying to interpret it. So the judge when it looked at things like the parliamentary debate, so what did the minister say about it, what information the government released about the section at the time, uh, and then also just some of the practical considerations, which would include things like if you interpret it in a literal way, it would mean that, for example, the rowdy drunken bar patron could just stay. You say, Well, if you touch me, you're committing an assault. Yeah. So I'm just staying here, right? Or once the person gets into your house, there's just no getting rid of them. You know, the vacuum cleaner salesman shows up, you say, Okay, come on in, I'll chat with you. No, I'm not interested. Thanks so much. Uh, you know, please be on your way. And the person could just say, Nope. I got in, that's it, I'm here forever. Or you committed an assault. And so the idea is, well, that literal interpretation does not appear to be consistent with what Parliament intended, not what they said about it, and it would have a bizarre outcome, which would be that once you're in, you can never get out. Uh and found the judge found that there was not the intention to make a major shift in the substantive law, which would mean that, you know, you could remain in bars and houses and everything forever once you got through the threshold, right? Um, and so found that that's not how it should be interpreted. That was not the intention of parliament to make a major change in the law with that bizarre outcome. And the judge did point out that, and this is in keeping with the uh how that the previous actions were interpreted, and indeed the common law, which was they tried to codify, that when you're asking somebody to leave, they have to be a person has to be given a reasonable amount of time to go. It can't be like, get out. No, okay, I've leapt on you, right? There has to be a reasonable time to leave. A person's entitled to, for example, take their belongings with them. And furthermore, any force use has to be reasonable. It can't be completely excessive, right? Uh but as the judge pointed out, the Supreme Court of Canada has also been clear that there's no universal rule that says a a weapon couldn't be used when somebody's trying to protect their property. Uh and so for the judge, and this is a jury case, it's not for the judge ultimately to make the decision. Some of the factual findings will be up to the jury, right? What facts do they find? Do they believe this witness's description of what happened on the couch or another ones, right? But the threshold is whether there's kind of an air of reality to a potential defense. Could the jury, if it accepted uh certain things, uh, could that make out the defense here? And the crown is arguing, no, it couldn't possibly, because look, just read this thing literally, and it can't apply to anyone who got through the threshold with permission. And so the judge has rejected that. It's the first time, and at least a reported decision that anyone could find, where a superior court judge has uh defined this section in this way. Some other provincial court judges had come to the same conclusion this judge had, but no Supreme Court judge. And so we now have a clear decision in this case that indeed the self-defense provisions that allow you to use reasonable force to get somebody out of your home bar or whatever it might be, if they won't go and you've asked, you've given them a reasonable period of time, um, and and so on, at that point, yes, you can use force to get the person out of your bar. Not every bouncer is committing a crime uh when they're getting the person out, and you're not forced to have the you know uh encyclopedia salesman or whatever in your living room forever uh once you've invited them in. So that's the latest from the uh BC Supreme Court, uh, and I think a uh a practical and realistic uh definition uh of what Section 35 meant and uh not the the uh interpretation that you could come to on a plain wording without considering intention and what was said at the time. So that's the latest on self-defense and defense of uh property uh from the BC Supreme Court.
Adam Stirling:Michael Mulligan Defense Lawyer will continue right after this. Michael Mulligan from Mulligan Defense Lawyers Michael is too long. For division of property, there is a time limit from the date of separation. What's the story?
Michael Mulligan:So the the background of this is that uh in British Columbia, under our family law legislation here, um we have uh created a uh scheme that uh provides for the division of property where people are in a marriage-like relationship. Now, as you probably can imagine, just given that description, uh, it can be sometimes complicated about, well, when do these things start and end, right? As the judge pointed out in this case, you know, often relationships will kind of progress over time, right? And so it can be uh sometimes ambiguous about, okay, well, when did this marriage-like relationship begin? How much time do you need to be spending together, and what how do you have to be holding each other? Uh, how do you present yourself? When does it turn into a marriage-like relationship, right? It's obvious when somebody gets married, well, there's the date, right? Um, and equally it can be complicated when relationships kind of uh end, because they don't always end with, well, there's the date of the divorce. We can all see what that is, right? Um, you can have circumstances like in this case where you had a uh couple, they eventually they originally met, looks like back in 2012, one of the uh the uh uh woman had come over from the UK, Scotland, uh, and she had met a fellow here. He was married at the time, he agreed to leave his wife, they eventually started a long-distance relationship, and then they wound up eventually buying property together and cohabiting for a period of time, and there was little doubt that they were in a marriage-like relationship. Uh, but uh the things were, I guess, rocky at some points. It sounds like there may be some disputes over financial matters, and they uh eventually wound up sort of separating, but not in the clearest, crispest sort of way anyone can imagine, because they separated, they were dating other people, but then they got together uh the following year, they were going on trips together, you know, it was kind of on again, off again, uh, you know, meeting each other, up, going on vacations, living together for shorter periods of time. And so the thing kind of petered along until eventually it ended, right? Uh and then the uh fellow in this case brought uh an application uh under those provisions that we mentioned for uh division of half of the property that the uh woman had acquired during the course of their relationship. Uh and he filed that claim in 2022. Uh and the case uh eventually wound up uh proceeding to uh trial and now eventually now to an appeal. Uh and one of the principal issues here was whether he has done this in time. Uh and uh at the trial, they they seemed to be focusing on everyone, it sounds like both lawyers and the judge were focusing on when the marriage-like relationship ended. And so it got into those things about well, is it a marriage-like relationship when you were going to Hawaii together for two months, but weren't after that? Uh, what exactly did that end? But as the Court of Appeal pointed out, the act actually is queerer than all that because it says that, you know, when you define what a marriage-like relationship is, uh, for the purposes of this act, the languages has lived with another person in a marriage-like relationship and has done so for a continuous period of at least two years, right? So if you're in that, if you're doing that continuously, but then you break up and you're dating other people for a while, and then you get back together, well, that's not continuous, right? Um, and it's clear there was a period of time that was more than two years where they were living together and you know, uh as acting as spouses would, and so there's no doubt there was that kind of relationship at one point. But the act actually says, under in section 198, uh that you can bring a claim uh no more than two years after uh the date the spouses separated. And so you don't need to actually parse out too cleanly when did the marriage-like relationship end, because that can be a little bit ambiguous. Once there's a separation, and here there appears to have been one, right? Okay, you separated, you're in dating sites, you're dating other people. Well, you got back together later. Well, they clearly separated. That's when the uh flair would go up for two years. Uh and he just waited too long. And so by the time on either formulation, whether you got into the uh you know the Court of Appeal, unnecessary, uh complicated figuring out of when does the marriage-like relationship end, if you just run from the when they separated, and that was clearer, uh, in either case, it was just outside of two years. And so he's just out of luck. Um and so that's an important thing for people to bear in mind. First of all, to know this exists. I think many people would know it exists, but as I said, people can drift into these things, and if you drift into the marriage-like relationship, you're then, and that goes on for a continuous period of at least two years, you're then going to be subject to this division of property regime. So people should know about that because it's not like getting married where it's clear what you're doing, right? It can just kind of drift drift, you know, happen by drift. Um, and then uh there uh it can be a division of property, but you've only got two years to do it. So uh first of all, pay attention to what you're doing so you don't inadvertently wind up in this circumstance that's not what you intended. Uh and then if you do, bear in mind that if you are going to be making a claim or the other person's making a claim, it's two years, and the two years runs from the date of the separation. And so as a result of that, uh, this fellow was just out of luck, no division of property. So lots of public policy questions there about whether we should have that in those sort of relationships, but we do, uh, and that's the time limit. So everyone mark that on your calendar if you've drifted into potentially the uh the unintended uh marriage-like uh relationship.
Adam Stirling:All right, we've got four minutes left. Security for cost ordered for a trial, a 10-day trial. And does it take a $250 million claim over a vehicle?
Michael Mulligan:It indeed it does. So this claim started out, uh, I guess, sort of in the realm of reality. Uh it started out with a fellow who purchased a 2013 GMC terrain, uh SUV, I guess, of some kind, from a used car dealership. It had $113,000 kilometers on it. He bought it for $8,995. A couple of days after he bought it, took it in for servicing at the dealership, uh, and uh then he uh oil changed, various other things done, got the wheel rotors done. Uh, and then apparently the vehicle didn't work that well. He described as burning oil at a problematic rate, and he described driving it as continuously shuddering, shaking, and lunging around while slowly idling in traffic. That's probably not in the sales brochure for the 2013 GMC terrain. But anyways, he didn't the car wasn't working well. Uh and he had this particular complaint about the oil getting used up and having to top up the oils, burning oil. And then he got a letter from the dealership that said that uh there were problems with uh some vehicles, including that one, uh, and that if the oil consumption was excess, found to be excessive, GMC would replace the piston rings. So uh good news. The dealership required him to uh bring it in to have it topped up again and to then bring it in a number of times to monitor the oil usage, basically, to see whether the piston rings need to be replaced. And eventually they sent him uh an email offering to replace the piston rings. Good for GM. Uh but the fellow didn't think that that was sufficient, and he wanted the didn't think that would solve the problem, and his view was the entire engine needed to be replaced. Uh, and then he brought a claim alleging that they had done various things fraudulently like uh overfilling the oil and uh failing to replace the engine for thirty thousand dollars and requiring unnecessary service visits and potentially losing possible business profits, and then he wanted money for emotional worries and distress. So the claims went on and on. And then he eventually started seeking uh $250 million in damages against the dealership and the place that sold the $9,000 used car. Uh and this claim had been then peep going on for some four years, but not advancing very far. And it eventually led to an application by the dealership in the used car lot to seek uh an order for security for costs. And the idea there is that if you don't have any money and you sue somebody unsuccessfully, even if they're ordered, there's an order that they pay a part of your legal expenses, you're never going to get it because they have nothing. And so the judge had to weigh up is that appropriate here. And there are a number of considerations, and it's sort of uh it's discretionary because the the flip side of it is that if you require somebody who doesn't have much money uh to provide security for costs, it may mean that the claim just can't go forward, right? They just don't have the money to provide the security for costs. On the flip side, we don't want to have a circumstance where somebody with no money, or let's say a shell company, is just going to sue you randomly at great expense, lose, and then have no way to collect. And so a judge has to weigh up things like balancing possible injustice and can consider to some extent things like the merits of the application or the merits of the action. And I think that's one of the things which really hurt this fellow because the outrageous amount claimed uh didn't s suggest that this had uh much merit. It was described as grossly disproportionate to what was actually at stake. And then the other consideration here was this fellow had previously sued over an unrelated patent dispute in the UK, unsuccessfully, got a $50,000 cost award against them, and then went bankrupt. And so that was a consideration for the judge as well. And so eventually the outcome here, after four years of uh this litigation over the enormous claim uh arising out of the oil-consuming GMC terrain, the judge concluded that uh, you know, even though this fellow might not have the m money to uh provide this, justice required, given all of those sort of factors, that he provide the security for costs. And so that's what they've got ordered. Uh and if the fellow doesn't come up with the money, uh the uh they asked for some uh I think it was twenty thousand dollars or so in some payments, the the uh to twenty-five thousand dollars, the effect will be that he won't be able to carry on with his multimillion dollar claim for mental distress over his uh oil burning car. So that's the latest on security for costs again from the BC Supreme Court.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking, during the second half of our second hour of your Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. News is next.