Camp Thunderbird Gate Fight And A 15-Year Lawsuit Over A Supposed Public Road

A locked gate at a kids’ camp sounds like a small-town nuisance until you trace it back to 1935 and forward to a trial date in 2027. We dig into a Greater Victoria dispute where companies say a historic public road, sometimes labelled Settlers Road or Glints Lake Road, should let them pass through Camp Thunderbird to reach adjacent land for a cell phone antenna. The twist is procedural: the lawsuit has dragged on since 2010, and the YMCA tries to have it tossed for want of prosecution after roughly 15 years of delay. We break down how BC Supreme Court judges weigh “inordinate delay”, excuses, presumed prejudice, and the interests of justice when time itself starts changing the evidence. 

Then we pivot to a criminal law problem that hits even harder. Police recorded an interview where a key witness allegedly recanted, the investigation was closed, and years later the allegation returned with charges. The recording that could test credibility is gone. We unpack Charter section 7 disclosure rights, the duty to preserve evidence, and the line between an abusive process and “unacceptable negligence”, plus why the remedy often depends on how the rest of the trial unfolds. 

We close with a Law Society discipline case involving client identification rules, anti money laundering safeguards, and a pro bono lawyer caught in the system. The fine gets overturned on judicial review, but the Court of Appeal blocks special costs against the Law Society, raising tough questions about accountability when a tribunal gets it wrong. If you value smart legal analysis grounded in real BC cases, subscribe, share this with a friend, and leave a review. What part of these rulings sits wrong with you?

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

Transcript

Welcome And Today’s Docket

Adam Stirling 0:00

It's time for our regular segment joined by character and collector with Mulligan Defense Lawyer. In fact, Michael Muller. Good afternoon, Michael. How are we doing? Hey, good afternoon. I'm doing great. Always good to be here. What's on our agenda for today?

Camp Thunderbird Road Access Dispute

Michael Mulligan 0:15

Uh the first case on the agenda is a local one, uh, and it's a case that uh involves a dispute between the YMCA, YWCA, uh in Greater Victoria, uh, and uh two companies that uh own some property they want to install a what sounds like a cell phone antenna on. Uh and this dispute uh involves uh property, a number of different parcels of property uh that uh are where Camp Thunderbird is located, right? That that's where the uh Y's uh property is. It's the Y's out the Y Outdoor Center in Camp Thunderbird. Uh and the company that owns this other parcel of land um is sort of adjacent, and it sounds like further in from where the road is out there. Um and the uh Camp Thunderbird, the Y, uh has installed a gate uh some time ago uh that uh controls access to the property. Um and they uh require you know somebody to identify themselves and so on before they can just drive into Camp Thunderbird uh and I guess in some way or other drive into this other piece of property owned by this company. Now, the reason this is a dispute is all of these things go back a very long time. Uh the YMCA has been operating that camp since about 1935. Uh and so this is long and historic, and the uh company that owns this other piece of property that's adjacent uh to it, and they want to pass through uh the wise land to get to it, what they're alleging in their claim is that they're claiming that there was a public road at one point that went through there and that they should be able to go through there, I guess, to put up their cell phone tower. Um and they claim that this road was referred to uh either by two possible names, either Settlers Road, gives you an idea of maybe the age of it, or the Glints Lake Road. Uh and they have an old map that seems to show a road there. But uh there's gonna be much more to it in terms of is that a public road, what was the nature of it, where did that go to? There are all kinds of questions. Now, the immediate thing being dealt with in this case, dealt with two things. First of all, this has been going on, not only the road issue, but the case for a very long time. Uh and in fact, these companies started this claim against the Y back in December of 2010, if you can believe it. Wow. Uh more than 15 years ago. And so they started this action suing the Y, and the Y responded to the civil claim in 2011. Didn't take that long. Uh, and then there's this long history of things happening like originally it was scheduled for trial, I think originally sometime at like 2014 or 2013. First trial date, 2012, and then the companies added the chosen in SUK as defendant, so the trial got adjourned. Uh, and then they dropped those two people as defendants, so the trial got adjourned again. Uh, and uh then uh the CRD got involved, it got adjourned again, and sort of on and on. The thing's just been repeated, just gone on for a really long time. Uh the the Y alleged that part of the delay was caused by intentionally these companies kind of holding off on proceeding, hoping they could get access by clean getting mineral mining rights and then getting some road access that way, and then that they uh that didn't work out, so they were kind of back on to scheduling trial dates. We're now on to, I think, the fifth trial date is scheduled for 2027, if you can believe it, more than 15 years later.

Fifteen Years Of Delay In Court

Michael Mulligan 3:40

And so this the Y brought an application to have this claim dismissed for what's called want of prosecution. Um and there's a bunch of law about that. Uh, and the first thing to know is that um the the rules of court, this is in the BC Supreme Court involving land, um, and the the rules of the Supreme Court include principles uh that, for example, the rules are in place to secure a just, speedy, and inexpensive determination of every proceed every proceeding on its merits. And as they point out, there's tension between speedy and on its merits, right? And that's always what sort of comes up in a case where you the thing isn't really moving along. And then the other point to remember is that the obligation to, you know, get on with it in a civil case is borne by the plaintiff, the person who's asking for something, rather than the person who's defending the claim. Kind of makes sense, right? You're trying to get the court to do something, it's kind of your job to keep that thing moving. Um and where there is a long delay, the courts have established sort of a uh intellectual framework to determine whether the delay is so long that it should not be allowed to continue. Uh and it involves, first of all, whether the uh defendant, this case the why, could establish that the plaintiff's delay was inordinate, as language used, or is much too long. And then if so, the plaintiff would have to show that the delay was uh whether the delay was excusable, and then finally, um whether it's in the interest of justice to allow the thing to continue. Pretty broad test. Now, the first of all, that first part of it, whether this delay was inordinate, uh, the judge didn't have too much trouble with that given that the total delay was fifteen years. Uh and said, well, this, you know, there's some complexity to all of this, uh, but uh, you know, that just is clearly in that category of inordinate in terms of how long the delay is, just too long. Uh and then the uh companies that were suing then had to go on and say, okay, well, is that is the delay inexcusable? Uh and say made various arguments to kind of excuse the delay, including, well, they changed lawyers at some point a couple of times, although that really wasn't blamed on it. They threw in COVID as one of the reasons for delay, that's always a good one, right? Uh, but the judge said, look, there was no specific evidence relating to how COVID had anything to do with anything, although yes, I guess it did occur in the last 15 years. Uh, and so they found that uh they hadn't uh man the plaintiffs hadn't managed to sort of overcome it on the basis of some explanation for the delay, like the courthouse burning down or you know, something like that. Uh, and that when they get that far in the intellectual framework, it then creates a rebuttable presumption of prejudice. Uh, and but then that brings on to that final test of whether it's like in the interest of justice to say that's it. It's just too long, you can't continue here. Um, and in that regard, there were some compelling potential uh reasons to suggest that, including, for example, uh the the Y had planned to call some witnesses uh that had like some firsthand experience with was there actually a road there? Uh and they had managed to find somebody who I guess was like uh uh attended Camp Thunderbird back in the 1940s, um, who apparently was going to provide evidence that uh while there were hiking trails in and around there, there was no road capable of supporting vehicular traffic. That fellow, unfortunately, went there in the 1940s, passed away in 2022. And so that was an example of, hey, you know, we're prejudiced our ability to defend this thing. The other side, the cell phone companies or wannabe cell phone uh installers, argued that, well, this is really going to amount to uh reviewing historical documents and maps to try to figure out whether this was a public road or or not. Uh but ultimately it sounds like one of the things that the that has to be considered, there's law for this, is that another consideration is like, you know, how far along is the claim? Is it just getting started or is it like almost ready to go to trial? Now, appreciating that there have been a number of efforts to get this thing to trial, but there is a trial date set in 2027. And the other thing that was significant for the judge, even though he found this just completely too long, um, is that um there's no limit there's no limitation period that prevents this claim from just being like filed again now. And so if the judge struck this out on the basis that uh for want of prosecution, there'd be nothing stopping the cell phone company from just starting over again. And so the judge goes to well, look, the thing's now set for trial in 2027. You've taken way too long, but if I strike this thing out, y you could just start it again, and probably it would delay it further, right? And it's not gonna, you know, so on that basis the judge denied the uh application by the Y to have this thing struck out for want of

Mandatory Injunction To Remove Gate

Michael Mulligan 8:23

prosecution. But that wasn't the end of it because the cell phone uh comp cell phone tower installation companies um were also asking for a an injunction to get have the Y remove the gate in the interim, like until they have a hearing, they wanted it out, like an in-term injunction. Uh and there's a test for that. Uh I think we've talked about that before, in terms of whether there's irreparable harm, like harm you couldn't remedy with money, um, and a balance of convenience. And on that regard, the Y produced like financial documents saying, hey, if you order a order us to pay something, we can pay it, right? If there's some financial loss not having the cell phone tower up earlier. But the final thing that the and this is another twist on that uh irreparable harm balance of convenience test, and it it has to do with cases where you're seeking a mandatory injunction which isn't to just stop doing something, but instead order you to positively go and do something. Like in this case, go remove your gate, as opposed to just, you know, get off the road or you know, whatever, stop your behavior. Uh and where you're order where you're at seeking in order that a party go and do something, uh there is a obligation now as well to show that you have a strong prima facie case. And the judge wasn't satisfied that that was so, because even though there was some indication there was a road there, and uh even though for some portion of it the Y agreed that there was a road in some place, what they had agreed to would not even get the cell phone company where they want to go. Like one of the other interesting issues here is if there was a public road, where did that road go to? Uh and it might well not go to, even if there was a road, it might not get the cell phone company where they want to go. Like maybe it leads to, you know, the the back of the Camp Thunderbird or something that doesn't get them where they're wanting to go. And so, you know, yeah, you you got something to go on there, but it's not a case where, hey, look, this is you know, we're just gonna succeed, stop ragging the puck. Uh, and then the other thing, which was I think a consideration for the judge, is that the fact there's a gate there is relatively meaningful, I guess, in terms of how Camp Thunderbird operates, so you don't have like everyone just driving into Camp Thunderbird. You know, they want to be able to control that, I guess, for the safety of the kids and people coming in there, coming and going, right? You don't want it to be uh um uh on uh uncontrolled access to the camp. So the judge dismissed both the application by the uh the Y to just get rid of this thing because it was too long, too, uh they'd taken too long, and dismissed the application for the mandatory uh injunction ordering them to remove the gate. Uh and so all of that means that now, I guess after 16 or 17 years, assuming nobody else gets added or subtracted from the pleadings and nobody puts anything off again, in 2027, uh we'll have a I think now a 15-day trial is scheduled, uh at the end of which uh I guess we'll have a determination as to whether the uh whatever was there uh amounted to a public road, uh settlers road, and if so, where does that road go? Uh and I guess it would be uh really ironic if after 17 years the cell phone companies succeed in determining that there is a road, but it doesn't get them anywhere near where they want to go. So that's what's going on between the cell phone company and the uh the YMCA.

Adam Stirling 11:40

Michael Mulkin's Michael Mulkin's Michael is evidence.

Michael Mulligan 12:00

So

Lost RCMP Interview And Disclosure

Michael Mulligan 12:01

uh so uh uh uh first of all, I think most listeners would be familiar with the general concept that in a criminal case the police and crown would have an o have an obligation to provide what's called disclosure to the accused person of the evidence they've collected. Um and that's a constitutional requirement, the principle of fundamental justice, the court has found under section seven. And that idea makes, yeah, I think, intuitive sense. The idea a person should know what evidence is against them when they're being charged with a crime. Now, one of the corollaries of the that obligation to provide disclosure of the evidence against somebody in a criminal case is to preserve the evidence so that you can give it to them, right? It's a pretty hollow uh requirement if there's no obligation to keep the stuff. It's kind of like Seinfeld and the uh, you know, uh rental car reservation. Anyone can just take the reservation, it's the keeping the reservation that counts. Uh and so here the fact pattern was that back in 2015, uh the RCMP had a report made by a friend of one of these uh eventual complainants uh indicating uh that uh they had received a text message from the complainant alleging that they'd been uh that person and her sister had been touched inappropriately. Uh and it caused the police to investigate that, as you would expect. And in fact, the police had the uh person who wrote the text in for uh an interview in 2015. Uh and they video recorded the interview, an audio recorded the interview, and likely recorded a a third way with uh like a portable recorder. Uh and at that point, the uh person who uh wrote the email acknowledged that she had written it, but uh during the interview the notes indicated that she uh had uh told the police that uh it was false, that she'd lied in the uh message to her friend, uh, that she was depressed and wanted attention, the person had never touched her in any inappropriate way, didn't make her feel unsafe in any way, and it just didn't happen. Uh and so as a result of that, not surprisingly, I think the police concluded, okay, well, there's nothing here to arrest the person for, and so they concluded their investigation. But and when you record the reclude the investigation, the RCMP have detailed policies. It's not just a free-for-all over there. Uh, right, they've got procedures whereby the police would take recordings of uh interviews of witnesses or complainants, and they uh with their digital, they record it in a computer system and it's reviewed by a supervisor to make sure that's all done. There's a whole process for it. Uh and uh for whatever reason in this case that simply didn't occur. Um and what then happened is in 2021, uh that original complainant, the person who wrote the or the original person who wrote the text message came forward and said, No, I was abused uh back then. Um and provided another interview saying that it had happened. And so the person was charged on the basis of what was being said now, uh, but that then naturally led to, okay, well, let's have a look at what the person said previously, because they're compare the two things. Uh and it turned out that they were lost. And then the law, there's a bunch of law around how that works.

Unacceptable Negligence And Remedies

Michael Mulligan 15:05

Uh, and really it's a the analysis has three components to it. The first part of that analysis uh is the judge looking at uh whether uh the crown, when once you show that something like that's lost, like relevant evidence, the interview with a person saying it didn't happen and they lied about it previously, um then the crown would have an obligation to prove that the evidence had not been lost due to what's referred to as unacceptable negligence. You have to pause for a moment to ask yourself what is acceptable negligence look like. Um or two, uh, did the police uh engage in an abusive process? Now, that second part, that abusive process, would be a more serious thing. That would be like, let's say, for example, the police know, like, hey, I found this evidence that is really unhelpful for our murder investigation. You know, the witness identified somebody else in the police lineup, and somebody were to say, well, let's just put that in the shredder, and we won't have to worry about that at trial. That'll just smooth things out a whole lot. So that that abusive process could be things like that, like intentionally destroying something, or even if it's not that blatant, you might have a case where let's say they had a policy to destroy relevant evidence after some in some way, knowing that uh it would be maybe exculpatory. Uh but that issue of whether something is lost due to unacceptable negligence uh really amounts to can the crown show that there was some, you know, something let's say beyond the you know, police made reasonable efforts and something beyond their control caused it to be lost. Like I don't know, the uh they made three copies of it, but the police station burned down and the server got destroyed. Okay, well, you know, you might say, well, they took reasonable steps, but it uh it uh just didn't make it. Here, um, as you might expect, once you go back that long, like for example, they managed to find some of the police that were involved with that original interview back in 2015, I think one of whom was retired, and it amounted their evidence amounted to I just have no memory and no idea what happened, right? I said, Yeah, there's a policy we should have preserved this, maybe it got saved in the wrong place, just no one could really answer what happened to it. It's just gone. Um, and the judge on that basis found look, you know, that's not really that's not acceptable, right? That is not that is unacceptable negligence, right? That's important evidence. They knew it was important, they had a policy to preserve it and keep it, and by apparently multiple human failures, it just hadn't been kept, and it could potentially be important evidence. And so the judge found on that basis it was a breach of the accused person's uh right to uh receive the evidence and if the evidence preserved so it could be provided. That was breached, but that's not the end of the matter, because the law is in cases like this where evidence is lost, the judge can find that to be a breach, which the judge has done, but then the the way it works is that you would run the rest of the trial to then determine, well, how important was that? Right? The thing that was lost, was that really critical, or did it not really matter at the end of the day because, you know, we found detailed notes of the what was said, or the complainant uh acknowledged that she had lied and it was dealt with adequately in that respect, for example. Uh, and so here that is found to be a breach, not uh the abuse of process, sort of you did it intentionally, but uh it was uh that category of unacceptable negligence, uh, and we'll have to wait until the end of the trial for the judge to determine uh what the remedy for that uh will be. Uh so that's uh oops. Are you still able to hear me okay? Yeah, yeah. Okay, sorry. We have two minutes left. That's how two minutes left. Okay, final one is a two-minute summary.

Law Society Fine And Appeal Fallout

Michael Mulligan 18:38

Uh the final case is over the court of appeal, and it involves a uh person who was uh a lawyer, who was a pro bono lawyer who does work for free or virtually for free, who had been uh ordered by the law society to pay a five thousand dollar fine uh for failing to take all of the necessary steps to get identification from a client. And the background of that is that if you're a lawyer's engaged in financial transactions, there's an obligation to identify who the person is so that lawyers aren't used for laundering drug money, is basically it. Uh and the law society alleged that this promoter lawyer hadn't done this with respect to money they were transferring to a woman who had fled to the United States to get away from an abusive husband, and they were helping her get money from a family home that went into foreclosure. That was a fact pattern. Uh and they had uh found her to be in breach of this rule, claiming that they hadn't she got ID from her and verified it in person, because the lawyer had only verified it over video uh with her and then done various other things to identify her, but hadn't done it in person as was uh required. The challenge was that the law society hadn't read its own rules, which actually said that that was unnecessary, where the money being passed along was from another lawyer's trust account. And the idea there is that you would have some certainty that this isn't drug money when the lawyer who originally received it would have done the the verification requirements on it. And so the uh uh fine was overturned on a judicial review, uh, but at that judicial review stage, the judge hearing it found that the law society's conduct, including not reading its own rules and pursuing this nonetheless when its case fairly had little merit, uh, was worthy of rebuke and ordered the law society to pay what are referred to as special costs to this pro bono lawyer to compensate them for the cost of defending this whole thing. They got that order. Uh order was made by the judge to that effect, but the law society appealed it to the Court of Appeal, who just concluded that the judge didn't have authority to do that uh because the law society amounts to a a uh like a tribunal which you don't ordinarily order costs against, uh, even when uh a decision might not have uh merit and is overturned on appeal. And so I thought the case was worth mentioning just uh for one point to if lest anyone have any concern that the law society is not diligently ensuring that uh everyone is following uh uh the rules that are imposed, you could have uh great assurance that they are extremely diligent in doing that. Uh and also I thought notable uh because as the Court of Appeal pointed out, this was hardly the Law Society's finest moment, having failed to read its own rules uh in finding this person. So the net result is no fine uh but no cost for the uh pro bono uh lawyer uh because of the uh the nature of the decision.

Final Takeaways And Sign Off

Adam Stirling 21:28

Michael Mulligan with Mulligan Defense Lawyers legally speaking during the second half or second hour of the Thursday. Thank you so much. Pleasure as always. Thanks so much. Always great to be here.