Punitive Damages For Political Firing

A public servant gives three decades to the province, then gets fired without cause on the very day a government is about to fall. The BC Supreme Court doesn’t just disagree with how it was handled, it finds the termination was politically motivated and meant to turn a non-partisan employee into a convenient scapegoat. We talk through what that finding really means in wrongful dismissal law, why the court awards significant punitive damages, and how the decision sends a clear warning that public servants are not political props.

We also dig into the details that should make any listener who pays taxes pay attention: severance that appears to be legally owed gets withheld for months while pressure is applied to sign away the right to sue. Then we step back and ask the uncomfortable question about accountability, because the defendant isn’t a political party, it’s the Crown in right of British Columbia, meaning the costs and damages come out of the public purse. We also examine why a current government might still choose to deny improper motive and defend the case all the way through a long trial.

From there, we shift to estate law in British Columbia and a fascinating WESA section 58 “curative provision” case about wills. A couple plans mirror wills with a lawyer, but the woman dies before signing and the only pre-death draft carries the partner’s name, while a corrected version is created after death. We explain what counts as a reliable “record” of testamentary intentions, why judges can cure some defects but cannot validate a will based only on what people say happened, and what this means for anyone who has been putting off their estate planning.

If you found this useful, subscribe, share the episode with someone who needs it, and leave a review. What part worries you more: political firings funded by taxpayers or the risk of an unfinished will ending up in court?

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

Transcript

A Career Public Servant Fired

Michael Mulligan 0:21

So there's a lot going on in this case. And listeners may recall this decision, which was a Victoria case, and then the decision just came out this week. The particular case was a uh a claim for uh wrongful dismissal uh by a career public servant uh who had worked for the provincial government for some 30 years. Uh and she was uh fired uh without cause on June 29, 2027. Uh and the stampions of that date is that's also the date uh where the uh Christy Clark and the PC Liberal Party lost a uh confidence vote in the legislature, and uh that was the end of the Liberal government, the beginning of Horgan. Okay. Yes. Uh and all of this had to do with the, again, listeners may recall, very unfortunate um handling uh of uh an issue with respect to the Ministry of Health and allegations that there had been uh improper release of information that led to uh the improper firing uh of a bunch of other public servants who worked there at the time. Uh that led uh eventually to a report by the ombudsperson that came out in April of 2027 that was entitled A Misfire, uh the 2012 Ministry of Health, Employment Termination and Related Matters, finding that that had been they'd been improperly accused of doing this, uh, and that led to one of the people involved committing suicide. So a terrible, terribly handled uh background. And this particular uh case came out of uh a this claim brought by this 30-year career public servant. And it's important to remember when we use that term, sort of 30-year career public servant, most of the people that work for the government are not political appointees. They just work for the government, whoever the government might be. They just do their job, right, whatever it might be. And this woman was in that category. Uh, but what the judge found occurred um is that the um head of the public servants, who is a uh political appointment, uh decided to um fire her on this very day uh that the uh government was about to fall and be replaced with an effort the judge found uh in order to uh suggest that

Scapegoating On Government Change Day

Michael Mulligan 2:35

uh she may have been responsible for the mishandling of that firing and the suicide and all the very negative political consequences uh of that, found that the decision to fire this public servant uh in this way at that time uh was politically motivated. Uh and the the judge had very little uh patience for that uh conclusion, uh, finding that it was necessary to send a clear message to the defendant, and I'll come to a moment in terms of who the defendant is, that public servants are not to be used as pawns for political purposes, uh, and found that the defendant uh took advantage of this the power imbalance, making the uh plaintiff into a political scapegoat, firing her in a timing and in a way that uh might have uh caused people to think that she was the one who made this uh terrible decision and handling of the firing of the other employees rather than a political decision made by the then government. So that's how it was a politically motivated um firing, which had very serious consequences for this woman. She was fired from a job of 30 years that had all kinds of implications for her. Um and uh the uh judge concluded that all of that uh was uh so uh bad uh that it uh called for um punitive damages uh to be awarded uh against the defendant, uh, and it amounted to a total of $250,000. Now, there are a few things to break out about this that I think are just important to know. Other elements of it included the fact that the government had at the time uh decided to uh withhold the regular severance payment she was entitled to. When you fire somebody like that as a government public servant with no cause, they didn't allege she didn't allege they did anything wrong, they just fired her. They can do that, but there are provisions, regulations that set out how much severance a person would be entitled to based on like how long they've worked there for. And she would be there for 30 years. So she was entitled legally to the maximum amount of severance that somebody could be awarded. And it's not a matter of discretion, it's right there in the regulations. Well, if this, do the math, that's what you're entitled to. Despite that fact, the government decided to withhold the money, I think it was for some fifteen or so months, trying to get her to sign off saying she would agree not to sue uh in order to get paid. She never did sign that, and eventually after that many months,

Severance Withheld To Block A Lawsuit

Michael Mulligan 5:05

they just paid her anyways, because that's what they were legally required to do. Uh, and so one of the other things the judge criticized the government for was that uh without any legal authority for doing so or any even fig leaf of uh legal justification, tried to use this mandatory payments to get her to sign off for an agreement not to sue them, having been fired for political reasons. So very bad conduct. The judge really had no time for any of this. Now, that's the background of it. But I mentioned one of the issues here is who is the defendant? Well, the defendant is not the Liberal Party of British Columbia, nor the political actors that decided to fire her for that reason and in that way, according to the judge. Uh the defendant in the case is the uh Her Majesty or His Majesty the King and Right of British Columbia. So the entity being sued, the defendant, is the province of British Columbia. And so let there be no misunderstanding, the two hundred and fifty thousand dollar award for this high-handed conduct motivated for political purposes by the former Liberal government provincially, is being paid for by all of us, the province. Now, the other thing, and this I think it really is important because you have to really bear down what's going on here. Yeah. One of the things that judge summarizes, this is paragraph 164 of the decision, is a summary of the defendant's position. That is the defendant being the province of British Columbia, right? And so how you're defending these cases is also a political decision at the end of the day. What is the current government doing? You could, as the Attorney General, decide, we are going to settle this. This is a meritorious claim. This woman was treated atrociously, pay her. They didn't. The current government defended this claim, and their position, let's be clear, of the province of British Columbia is the defendant submits that there is no evidence of dishonesty or improper motive on its part, and goes on to set out how it denied uh that these things occurred and denied that she should be paid aggravated or punitive damages, claiming that there is no evidence of any improper purpose, hence the litigation. And so that's, I think, really important context, right? The current government, although they were, of course, as you might expect, critical of the former government for how they handled uh this firing and the suicide that resulted and and all of that, have gone on to defend this claim, denying uh that there was any evidence that anything improper occurred here and forced this matter to proceed to trial. The trial, by the way, when you're looking at it, went on for days and days and days. January, multiple days, 2026, April, 2026, February, on and on it goes, until finally we got this decision that

Why Taxpayers Pay The Damages

Michael Mulligan 7:55

came out just this week. And so listeners should ask themselves, why? Why would you do that? Right? Um bearing in mind what the background is. So if you if you hear the government now crowing about, oh hey, uh, you know, the toast terrible uh, you know, uh the former government liberals had uh done this or that and fired this one for political reasons, and you know, the explanation that they provided uh that was provided in court by uh one of the uh political uh appointments uh who uh made that decision to fire her on that day was disbelieved by the judge, not accepted by the judge, the explanation proffered, finding that it was for political reasons. If you hear criticism of that, just bear in mind that the government decided to defend all of this and deny it all and litigate it all. That's what they did. And it led to the decision. The other thing I think is notable in that context, when I read this thing, one of the other things that was issue at issue in this litigation uh was uh the legal bills this woman had forced had uh been required to run up dealing with all of these claims and issues and whether she be compensated for them and in how much she should be compensated for. As you as ever listeners may be aware, at the end of a civil case, there is uh usually the principle is that sort of the winning party costs would follow the cause. Like if you win, uh you would get some of your legal fees uh reimbursed. And if you sued somebody for no good reason and lose, they'd go the other way, right? It's to encourage people to sort things out. Uh here, and there can be issues about how much should those costs be, right? Uh and here, one of the interesting things is the case ends with this. The plaintiff is asked to speak to costs following the release of these reasons. The parties remain free to reach their own agreement, uh, resolving costs. If either party

The Province Fights It In Court

Michael Mulligan 9:40

wishes to make further submissions and costs, they may request uh to make additional written submissions by on that. One of the other interesting things to watch, just to that end, is the judge is saying, well, you two can sort this out in terms of how much of this woman's costs should be paid for uh given this decision. It'll be interesting to see whether the government perhaps, I don't know whether it's a hint by the trial judge or not, uh, in terms of what might the right thing might be to do here, given her conclusions that the uh actions of the government were described as high-handed, malicious, arbitrary, uh, and so on, uh, whether there should be full and proper compensation for those things or whether you should continue to deny and litigate that. So it is a uh a worthy read in terms of the postscript for a really bad uh series of events in British Columbia in terms of how they were handled. It is a rebuke uh of uh the uh government's uh of the day's handling of it and rejecting the explanation provided for why this woman was fired uh when she was uh right on the eve of the government uh then falling, uh, in the context of there being at the time uh political heat over the handling of this matter. Uh and uh so it uh is uh it paints an entirely unflattering picture uh of uh how uh that uh decision was uh made and why it was made uh for what the judge concludes to be uh political purposes. But again, it uh is a little bit of a head scratcher for me reading this thing why the current government would have denied all those things were problematic and uh proceeded to litigate this thing all the way to the uh decision that came out today. So that's the latest from the uh BC Supreme Court uh on the uh termination of the uh public servant uh in an effort to uh the judge found uh Turner into a scapegoat for the uh firing and suicide of someone that flowed from uh that uh flawed handling of that.

When Courts Can Fix A Will

Adam Stirling 11:53

I don't know what direct neural will be.

Michael Mulligan 11:56

Well, we we will we will know so uh so this this the this case uh is a really interesting one and it involves the powers that a judge has to give effect to the uh testamentary intentions of somebody, like what they wanted to do uh with their things upon their death. Okay? Now, traditionally the approach sort of that came from sort of uh English approach has been quite formalistic in terms of what's required for there to be a valid will. Uh like for example, uh the will has to be in writing, it has to be uh witnessed by uh two people. The the witnesses can't be beneficiaries to the will, things like this, right? Um and the law had been uh in the past that if it didn't meet the various requirements, then that's just not a will. Sorry, it has a it has a meaning. Uh but the Will's Estates and Secession Act tried to uh liberalize that somewhat uh to deal with uh circumstances where some formal requirement was like missed, right? Like uh, oh, only one person signed it, or you know, oh, it turned out that person was a beneficiary or something, right? But it was clear to everyone that, well, this is what the person wanted to do, but you know, you just didn't get it quite right. And so section 58 of that act gives the a judge authority to effectively sort of give effect to um a record of the person's um intent uh that doesn't meet all the legal requirements of a will. And doing that, a judge has to sort of sort out, you know, is this authentic? Is it a real this is real? And did it represent the actual fixed and final intentions of the person in terms of what they wanted to happen with their stuff, right? Now, here's the background of this case is a really very interesting fact pattern. The background is you had this couple, they had been legally married uh for a number of years, they then got divorced, but almost within a few months reconciled and were then uh back in a marriage-like relationship for many years. There's really no dispute about that. Uh they had no children, and the deceased, the woman, had no uh no other children, and so her possible beneficiaries were would likely be either her spouse uh or uh her siblings, right? Um and the uh in the few months before she tragically passed away, she suggested to her spouse that hey, they should get their wills in order and various other things, like uh power of attorney and representation agreement for each of them. And she took the lead in doing that uh and made an appointment with uh a lawyer, and the couple went and met with the lawyer together, uh, and the eviden the lawyer took very extensive notes and indicated that the woman had did most of the talking, and the the fellow just sort of sat

Mirror Wills And Lawyer Drafts

Michael Mulligan 14:35

back and it was sort of the secondary party to what was being discussed. But they were clear what they wanted. They wanted to create what were referred to as draft or mirror wills, like essentially saying we're each leaving our stuff to one another, right, if we pass away. We each want to appoint the other person as the executor. Okay. And there were a few minor differences, like for example, uh the woman who's deceased wanted to give a specific grift gift to uh the niece of her spouse, uh her her jewelry, right? So they they wanted to have that in there, but basically they were going to be the same with those uh you know very minor changes. And so having met with the couple, the the lawyer drafted up uh a draft will, uh draft power of attorney, and draft representation agreement. And the way the lawyer drafted these things uh was to uh use the name of the uh woman uh as the person in the draft for the power of attorney and the representation agreement, but happened to use the husband's name in the draft of the will. But it was clear that this was supposed to be uh it was going to be the same just like flipping the names around, because for example, in the draft, even though the draft used the husband's name, like this is the will of fill in husband's name, um, it had, for example, in one of the notes, bracket, woman's name, will only, clarifying that jewelry goes to the uh the niece, right? So it was clear they would tend to be the same thing. So the lawyer sends out the draft uh and uh then there's some further discussions about it. Uh the lawyer sends another draft back in the same way, uh, and then shortly after the lawyer sends out the second the the June draft with the minor corrections in it. Sadly, on July the fourth, you guessed it, the woman passes away unexpectedly. So now here's the problem. Yeah uh I I mentioned that Wesup provision that allows a court to cure a deficit in a like a record of the person's intent. The problem is that there was no like draft will for the woman. There was a kind of a draft will with the man's name in it and notes that indicated clearly it was to be the same for her, but it wasn't. After she passed away, uh the funeral home wanted a copy of the will, and so the man contacted the lawyer's office and they sent a thing I think it might have been labeled post-death draft. Kind of a well, here's what was agreed to, which what she wanted. But what they pr and they put her name in it, but

The Post Death Draft Problem

Michael Mulligan 17:05

you know, indicated this is after her death, right? Um the problem is uh that it is still a requirement, even though Wesa exists, that there be a record for a judge to like fix or give effect to. And so the this is the legal question. Uh can this post-death draft, like produced after she died, putting her name in it, uh can that be a record or document or writing that the judge can kind of fix and give effect to? Because the as the judge pointed out, the the power for a judge to kind of fix something like, hey, only one person signed this, right? It turned out the person was giving the person who signed it their hockey cart collection, so they were a beneficiary. They couldn't really be a witness, right? Those kinds of problems. It is still a requirement uh for a there to be like a uh uh will that the judge can kind of fix under that section that there be a document. It's gotta be in writing, right? Uh even if you're satisfied like that uh a person wanted something, you get a bunch of witnesses who came and say, Yes, we all listened to uh, you know, grandma at the hospital saying that she wanted Bobby to have her hockey card collection, right? Even if we yes, we said, that's not enough. A judge can't just say, Well, she said it, so therefore I'm doing it. They don't have authority to do that. You've got to find it somewhere in the law to to fix. And so the judge found that the fact that the, you know, you could have a lawyer produce this draft saying this is a post-death draft of what she had intended based on what I sent out and my notes and so on. Here it is. I I I've printed this off after she passed away, sadly. Here you are. That if that was something that the judge could just correct, it really amounts to the judge just being able to say, well, I I guess if grandma said that, we're just gonna do it, and that's not how it works, right? Uh, you know, there are good reasons why you want these things to be in writing, and and that section doesn't allow uh a judge to just decide what should happen. They they have some authority to fix things, but not that. And so what do you do with that? Everyone agreed. I mean, the the other relatives, like the spouse, like the siblings, they didn't even contest this. They were given notice. They weren't showing up to argue otherwise, right? There wasn't really wasn't a a fight about it. But what's the judge to do? And it's, I think, a smart approach to it. The judge said, Well, I'm not without a remedy here, because on the particular facts of this case, and and the issue is is there some record that could represent the fixed intention and be relied upon? The judge found that yeah, there is a record. The record is going to be in the form of that and the document is going to be in the form of the draft will that the lawyer produced while the white the woman was still alive. It had her husband's name on it. Like if you just looked at it, it would have said will of him, right? But very clear that this was what she wanted, even a note in there about the jewelry. And so the judge found that is a document, that's a

What Counts As A True Record

Michael Mulligan 20:05

record, and the judge could use that uh as something that the judge would be able to kind of correct and give force to because it is a thing, not just printed off after she died with her name on it. Um and so on that basis, uh, the judge had no problem uh finding that that was uh authentic. She clearly uh asked for those things, she'd reviewed it, she sent it back to the lawyer with the minor changes. Uh nobody was suggesting this was some made-up thing. She was the person driving all of this uh stuff and giving the instructions to the lawyer and got a copy of it. Uh and so the judge was able to find that, yeah, there's something here I can get a hold of, get my hands on. It's not just her saying something or the lawyer's notes about saying something. There was something in writing that. Uh and so the effect of that is that the judge found that you can uh modify that to put her name on it uh and do what was intended there, and so her wishes will be carried out right down to the jewelry going to the uh intended uh person. But the takeaway from all of this uh is just once again, the importance of having a proper valid will uh so that your beneficiaries don't wind up spending time in court hoping that uh some section somewhere will allow a judge to fix up what went on. And people need to know as well that just telling somebody something isn't necessarily going to make it so. A judge can't just uh do what, even if they're quite sure that that's what the person said they wanted to happen to the jewelry in their estate, that's not likely to do it. Um and so uh once again, it's a reminder to

Get A Proper Will Done

Michael Mulligan 21:35

uh get on with it. If you're putting it off, you never know what might happen to you. And if you get a will done, you'll save your beneficiaries a whole lot of uh rancor time and uh and discontent. So that's latest in BC Supreme Court, and what can and cannot be fixed is a will.

Adam Stirling 21:47

Michael Mulligan, Mulligan Fence Lawyers, legally speaking, during the second half of our second hour every Thursday. Thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break news next.