BC Law Society Defamation Claim and Boat Storage After Death

A  hyperlink and headline can change the stakes of a professional disagreement. We talk through a Victoria-based defamation lawsuit against the Law Society of British Columbia after a lawyer proposes changing mandatory Indigenous cultural competency training language about the Kamloops residential school from an asserted discovery of 215 bodies to wording focused on potential unmarked burial sites. When the Law Society links to a statement titled “Racist Resolution,” the dispute moves from policy and training content into reputational harm, defamation law, and what it means for a regulator to speak publicly during controversy. 

From there, we dig into the mechanics that actually drive cases forward: pleadings, applications to strike “scandalous” material, and why a judge would order certain loaded words removed before a jury trial. We also connect the litigation to bigger governance questions in BC, including the Legal Professions Act and the push to embed reconciliation and UNDRIP implementation into the Law Society’s core duties, alongside concerns about preserving the independence of the legal profession from government control. 

Then we switch gears to a surprisingly human problem with very real dollars attached: a liveaboard boat owner dies, the vessel sits in a Victoria marina for months, and the marina uses lien legislation under the Commercial Liens Act to secure payment and move toward sale. We unpack what counts as “storage,” why shore power can be essential, and how a redacted legal bill can backfire when a judge needs evidence to assess fairness and avoid double recovery. 

If you care about Canadian defamation law, lawyer regulation in British Columbia, Indigenous reconciliation policy, UNDRIP, or practical disputes like marina liens and moorage fees, you’ll want to hear how these decisions get made. Subscribe, share the show with a friend, leave a review, and tell us: when institutions speak, how careful do they have to be with their words?

Follow this link for a transcript of the show and links to the cases discussed.

Transcript

Opening And Case Overview

Adam Stirling 0:15

After the Victoria case, the last time in a defamation claim, what happened?

Defamation Claim And Striking Pleadings

Legal Professions Act And UNDRIP Shift

Court Of Appeal Ruling On Language

SPEAKER_01 0:22

This is a fascinating case. It's been uh ongoing for some time, and it's local in the sense that the lawyer who's brought it is a senior lawyer from Victoria. Uh and the case involves uh a uh resolution that this lawyer and one other brought uh to ask that the Law Society of British Columbia, the entity that's responsible for regulating lawyers, uh, make a change to a mandatory indigenous cultural sensitivity course that they have required all lawyers to take. Uh the law society implemented that requirement back in 2001. Uh it's a six-hour course, and they have required all lawyers to take it. Um and part of that course uh makes reference to uh the background and issues from the Kenloops uh Indian Residential School, uh, where there's been a uh a discovery of, depending who you ask and how you describe it, and that's really the subject matter of this, uh either potential grave sites or actual grave sites. Uh and the indigenous training course that the Law Society mandated uh used language in it uh that uh lawyers be told that, quote, discovery of an unusual burial site containing the bodies of 215 children on the former Kamloop's Indian residential school grounds. Uh that's part of what it says. It says affirmatively there were 215 children bodies located uh on the school grounds. Um and the uh lawyer brought uh a applicator brought a resolution at a meeting of the Law Society uh to uh request that the course, the language of that course be changed to read discovery of potential unmarked burial sites on the former Indian residential school grounds, changing it from 215 children's bodies have been found to potential uh burial site. Uh and that resolution at the time proved very controversial. Um and uh in response to the resolution, the law society itself um issued a press release and posted a number of things online. Um and in that press release, they also chose to provide a link to a press release which was put out uh by a the DC First Nations Justice Council. That release, the First Nations Justice Council release, was entitled Racist Resolution, close quote. Um and then the Law Society had things to say about that as well, opposing the um this resolution. And so uh the meeting at the time went ahead. The narrow the resolution was narrowly defeated. It was like 14,000 or 1400 and some odd to 1,500 and some odd uh against it, with 500 and some odd lawyers abstaining. So it was a really narrow margin of like a hundred and some uh votes. It didn't pass. Um, but what then occurred is that the uh the Victoria lawyer who brought this resolution, one of the two lawyers, um, has sued the Law Society of British Columbia for defamation uh on the basis that he says he was referred he was called racist, uh, both by the language used by the law society and by linking uh the statement which was entitled Racist Resolution. Um and so that's how this case has begun. Now uh it's been working its way through the court system, uh, and there was a uh hearing held, uh, an application brought by the lawyer seeking to what's called strike the pleadings. And what that's about is that when you sue somebody, you're required to set out in writing in your pleadings why it is you're suing the other person, right? And then the other person has uh an opportunity to respond saying, you know, here's why I disagree with that, or here's my legal argument, that sort of thing. Um, and so there are rules about what you can put in there. You can't just include anything you feel like in the pleadings, right? It's just to set out succinctly what the issues are basically. Um and this case, I think, is currently set to be a jury trial. And so these would be things that ultimately a jury would be provided to sort of frame what is this about, and what do they have to decide in the case? And so there are rules about that. And one of the rules permits an application to strike pleadings, which are in the hitting there is scandalous, vexatious, or frivolous. Um, and so the idea is you can't have scandalous, frivolous, or vexatious things um in your pleadings, right? Uh and so there was a this was also held in Victoria. I actually went up and watched a little uh bit of it, uh, a a hearing about uh whether these pleadings, the law society's pleadings, was in violation of that uh uh requirement. Uh and one of the things I can say about the hearing is it was extremely acrimonious in a way that is surprising to somebody who spends quite a bit of time in court. Clearly, there's lots of acrimony there between the counsel acting on the uh case. Um, and uh, at least by you're sitting there, it was uh so acrimonious it was uh grating. I couldn't listen to it for more than I think uh 45 minutes or so before having to uh leave. So really strong feelings uh there. Um and the the application that the lawyer had brought was to strike out, I think, all or a large portion of the um uh statement filed by the law society. And the judge who's responsible for the case uh did not do, didn't go that far. Um she didn't strike out all of the uh pleadings, uh, but she did in fact order that the law society delete um, I think at least three references where they called things that the lawyer said offensive, um, in the pleasing that that language used in the law society's pleading. So the law society has itself been ordered to uh delete uh those references in the pleadings that they filed in response to being sued by the lawyer in this defamation case. Now, the other thing which is fascinating about all of this is that there's a further background to it uh in the form of um changes that the uh BCNDP are uh trying to make to the how the law society works in British Columbia. And we've spoken about that before. Um the there's a piece of legislation used to be called the Legal Profession Act, the new version that the law uh BCNDP have passed, but is not yet all in force, right? So we've now got these two different things. The new one is called the Legal Professions, you add an S on the N, but it changes a whole bunch of things, including giving the government more power to control how the law society is um managed. Uh that's a concern, uh, because of course the law society, and of course, but the law society needs to ensure that the legal profession is independent of government, because very often lawyers are called upon to challenge things the government are doing. But the the other really significant change that they've made, uh, in addition to trying to generally exercise control of what the law society is doing, is that they've amended what the purpose of the law society is. And the it used to say, if you look at the original, the original version of the Legal Profession Act, the Law Society's duty was to, the goal number one was to uphold and protect the legal rights and freedoms of all persons in British Columbia. It seems pretty uncontroversial, and sort of what you hope the law society might do. They've replaced that um with a series of things which are important sort of goals of the current government. Um, and so they include um, a the first one is facilitating access to legal services. That seems pretty positive and uncontroversial. Yeah. B, though, is supporting reconciliation with indigenous peoples and implementation of the United Nations Declaration on the Rights of Indigenous Peoples. So that is now uh one of the key uh obligations of the BC Law Society, once this comes into force, uh, which is both very interesting in terms of how this particular case is proceeding and how the law society is uh um defending uh against this. I mean, of course, uh another appropriate another approach to it might have been uh an apology and some you know contribution to the charity or something, but they haven't taken that approach. They've decided to to litigate this. Uh but that may be now viewed as uh completely in accord with what they're being legally ordered to do in this legislation. Um and that, of course, has taken on some significant resonance now, uh, given the uh political controversy flowing from the uh BC uh Declaration on the Rights of Indigenous People and the Couching Case and the impact that's having on um real estate values and uh uncertainty in that regard, uh, which has become a significant political issue for the David Eve and the BCNDP. One of the interesting things about what they've done to the Legal Professions Act, their version of it, um, is that the goal of the Law Society will be to implement the UN United Nations Declaration on the Rights of Indigenous People, even if they make changes to the BC Um Declaration on the Race of Indigenous People, what the what they've inserted in the Legal Professions Act is an obligation to implement the United Nations Declaration on the Rights of Indigenous People, which would be unchanged by some modification to the BC uh derivation of that. Um, and so it's just really fascinating to see how this thing is played out, that change. And the final piece of all this, which is interesting, is that um there was a judge in British Columbia that used language akin to what the lawyer had asked that this course be changed to in the course of a sentencing case involving an indigenous person and a Glad Do report, if I recall correctly, where the lawyer where the judge reused the language potential grave sites, uh, and she was accused of being racist. Yes. Um and that was there was an appeal to the BC Court of Appeal. And the DC Court of Appeal, in a judgment written by the Chief Justice, who is himself indigenous, uh concluded that that was not uh racist, that the language potential uh gravesites was appropriate and in accordance with the evidentiary basis uh for that uh decision. And so that's the other thing which has overlaid all of this, is since the lawyer brought this um application or brought this resolution to change the language to potential from we found 215 unmarked race of children, but the language that wasn't there, um that language of potential has been judicially considered by the DC Court of Appeal and found not to indicate uh racism or anything of the sort, but it instead to be an accurate reflection of uh the current uh reality of the matter. Uh and so that's the other thing which just overlays this entire piece of litigation. Um and so we'll have to wait and see how the thing plays out, as I understand it. It's uh because the uh application to spray all of the pleadings didn't succeed just in order to get rid of this word offense that the law society had used. Uh the matter is set to carry on ultimately to a trial which would be heard in Victoria. Um and so, you know, that's a little ways down the road, and hopefully before then some cooler heads will prevail, but perhaps not uh in the uh world in which we live, where you now have the uh government of the day inserting that uh priority into the legislation that uh directs what the law society, uh law society's purpose is. So that's latest on the residential school case defamation, the BC Law Society, uh uh and uh how the government is uh changing that legislation to uh further uh their uh view of what should be happening with respect to that UN declaration.

Marina Lien After Owner Dies

Adam Stirling 12:23

Michael Mulligan is Michael Marina Marina for more power after died on board. What happened?

Fees Claimed And Auction Process

Redacted Legal Bill And Judge Sets Costs

Final Takeaways And Sign Off

SPEAKER_01 12:46

Well, I must say, when you read some of these decisions, it it makes you realize that uh there are just so many variables in human affairs that perhaps nobody thought about when they were trying to come up with some of this legislation. And so the the background of this is that you had a circumstance where there was a vessel which was moored at a uh uh uh marina located in Victoria. Um, and the vessel itself was owned by, I think, what you might refer to as a one-man numbered corporation, right? Sometimes people might have that for liability or other uh reasons. Um and so the this vessel owned by a numbered corporation had uh one who had which had one director, lived on the vessel, and he sadly passed away on the ship. Uh now the ship remained where it was moored, I guess, with nobody being there to move it. Um and it stayed there for a number of months. By my count, it was something like 10 months. And then eventually the marina uh made uh an application to uh, first of all, have the uh a lien placed on the boat under the warehouse lien act, and that's now been actually updated to the Commercial Liens Act, a bit broader. Um and the way that legislation works, you can imagine it easily in the context of uh uh an actual warehouse. If somebody either deposits goods in your warehouse but then doesn't pay, um the legislation uh eventually makes provision whereby the warehouse owner uh would be able to uh give notice and they make applic then apply to um sell the goods to recover their cost of storing them. Now uh to further that, uh they can put the a lien on the goods so that the owner couldn't just, for example, leave a bunch of boxes in your warehouse for a year and then come along and take them right before you get a chance to sell them. And so here the marina placed a lien on the ship, uh, and they claimed that they were owed some forty-four thousand dollars in change for a combination of uh morage, shore power, and then various other things that they claimed were necessitated by what had happened, that is to say the vessel staying there after the death of the owner or the uh one man over of the corporation that owned the vessel, um, including legal fees of some$7,500 in change, uh, and the cost of having a survey done uh to assess the value of the vessel. Um, and so in order to get the vessel released, whoever, I guess, inherited uh it uh had to pay into court the$44,000 some odd thousand dollars. And so the application that was just heard uh in Victoria uh was an application first by the marina to say, hey, we want the$44,000 given to us, right? So the way that would work is that the on behalf of the corporation, the money's paid into the court registry. The vessel then gets released, right? Otherwise, they could just keep it there forever and the fees would run up endlessly, right? That's why it would make sense to do that. And on the other hand, on behalf of the company, it was an application to, hey, either this wasn't put there in storage as contemplated by the legislation, or alternatively, this is too much money. Um, and those acts, both the old one and the new version of it, uh, provide that uh the people having the dispute are able to go before a judge, and the judge can determine, first of all, is that a valid lien? And uh if so, is that the appropriate amount of money? And so one of those first issues, because it was not plain and obvious that the, you know, this vessel was stored there in the way that if I drive up to your warehouse with my truck and ask if I could deposit all of my crates in there, you know, this is something tied up to a dock and attached to shore power. And so the uh judge, to their credit, it sounds like actually ferreted out a previous case that considered that and considered that, yeah, indeed, uh that can amount to that kind of storage, which implements the act. Uh, but the next issue then became well, is that the right amount of money that's being claimed? Uh and one of the interesting issues there was with respect to the bill from the lawyer. Uh and the marina said, well, this is sort of our uh costs uh incurred to sort of get the thing uh ready to be auctioned off and sold. Because that's what happens under the act, is that eventually the warehouse or the other commercial party that might have a lead would be required to give notice to the uh other party, the owner of the goods that were stored. Uh, and then there would be a process to give public notice so people could come and bid on the goods. Um, those of you that might listen to or watch uh cable from time to time might recall a uh show that used to be on about um people going to those mini storage lockers and bidding on them to buy what's in them. That would be the equivalent, uh that's the equivalent thing here in the case of the ship, right? People would be able to send in their bid and might wind up with the ship. I think it was going to be a 12-day auction. So, you know, you might get a great boat or you might get something less of that, but that's what would be contemplated. Uh and so the marina was arguing that look, uh the shore power, some$385, and the lawyer uh and the survey were all necessary in order to allow that process to take place. Now, the with respect to the power, the judge didn't have too much trouble with that uh part of the claim because there was evidence that it was necessary to keep the boat plugged in and powered so that essential systems on it would keep running, like the bilge pump and you know the fire system and so on. Otherwise, you know, water would leak in, the thing would then be at the bottom of the marina. So the judge didn't have much trouble with that. The legal see, the legal bill was a bit more controversial because the marina didn't want to let the judge see what was on the bill, nor did they want to let the representatives of the company know what was on the bill. So they produced this kind of react redacted version with what the lawyer had done blacked out, uh, but saying, yes, this is what that was for. The judge concluded, look, how am I supposed to make that determination? How do I know this bill was only for preparing the sale of the vehicle the vessel? Maybe you asked other questions, got other legal advice. I can't tell. And moreover, the other problem that would arise is that when you succeed in a civil case, you would ordinarily get costs paid out to you. And if you got both the legal bill and the costs, you'd have been paid twice for what could amount to the same thing. And so the, I think a good approach to that the judge took was look, I can't read the bill, um, and you're not going to recover twice. So what the judge did was use authority there is for a judge to set the amount of cost somebody's gonna get. In this case, she picked$5,000. And so the net result uh is that the uh uh owner the company, you know, I guess the uh beneficiaries of the uh guys' state get the boat. Uh$30 some odd thousand dollars will get paid to the marina to cover the cost of the mortgage and the electricity and that amount of legal expenses, and the other$10,000 or so will go back to the company and on to the uh the beneficiaries. So that's uh that's what happens when uh you uh your boat's tied up and you uh unfortunately pass away on it. Um, you know, the marina doesn't get stuck with it forever. Uh but on the other hand, uh judge is able to review it to determine what would be the fair amount for the cost of storing the boat uh until uh somebody takes care of that, picks it up, and pays the bill.

Adam Stirling 20:02

Legally speaking, on C Facts 10 with Michael Mulligan. Thanks so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break. News is next.