Aboriginal Title And The Future Of Private Land

A court ruling can change more than a headline, it can change how safe you feel about the basics: owning property and trusting the people who handle your money. We walk through a remarkable British Columbia Aboriginal title dispute connected to lands in Richmond and the Cowichan Tribes, where a private property owner tried to jump back into years of litigation after the trial decision raised alarms about fee simple ownership. When a judgment hints that Aboriginal title could affect private land, the stakes are not abstract. Think mortgages, resale value, and whether ownership still means you can sell without someone else’s consent.

From there, we step back and ask a bigger question about the role of courts in Canada. When legal interpretations create sweeping policy consequences, what does judicial modesty or judicial restraint look like in practice? We talk about why public confidence matters and why sudden shifts can create uncertainty that spreads far beyond a single case.

Then we pivot to employment law and personal finance with a wrongful dismissal fight involving an Investors Group advisor. We break down the difference between an employee, an independent contractor, and a dependent contractor, and why that classification decides whether notice is owed. We also unpack after acquired cause and how misconduct discovered after a firing can still justify termination. Along the way, we connect the case to a hard truth about financial advice in Canada: if you are not paying directly, commissions on mutual funds and investment products may be shaping the recommendation.

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

Transcript

Why This Case Matters

Adam Stirling 0:06

Michael, how are we doing? Hey, I'm doing great. And speaking of reconciliation and how it is treated by the law, what are we seeing in a country private matter?

Michael Mulligan 0:17

I I must say this is a just a fascinating, of course, not of course, but uh almost never-ending piece of litigation. Um and the most recent part of this uh case was an application brought uh by one of the landowners over in Richmond uh whose uh private ownership of land could be impacted by the uh trial judge's decision in that case. Um and the particular application uh that was just decided was an application by the landowner to reopen uh the litigation to permit them to make submissions and participate in it. And the background of that, it goes back to 2017 uh

Private Landowners Seek A Voice

Michael Mulligan 1:00

when the litigation was getting rolling. Uh, and at that point, uh there was an application brought by the province and others to give notice to private property owners of the litigation so they could decide whether they wished to apply to participate in it. Uh, and back in 2017, uh the Couch and Tribes uh position uh for the judge hearing that application uh amounted to saying that this litigation, this that litigation, the particular litigation, wouldn't affect fee simple ownership. They weren't seeking in that litigation uh to affect private property owners. And on the basis of representations including that one, the judge hearing the application for notice to private property owners uh declined to order uh that notice be provided to them. Flash forward to uh the litigation itself, uh, and uh I think it in fairness, the position taken by Cowichan tribes was a very nuanced one. Uh and in the course of the main part of the litigation of I can call it that, a trial which went on for some 513 days, the position taken, uh, according to the uh judge by Cowichan Tribes was that they weren't seeking to um uh take fee simple private property land in that litigation. However, and it's a very important however, because the term in that litigation does a lot of heavy lifting because the plaintiffs, Cowichan Tribe, indicated uh that it would be for another day to interpret uh the decision about uh how aboriginal title could affect uh private property owners. Uh and then the decision came uh in the the main part of the case, uh indicate and the judge uh found that the Aboriginal title could affect fee simple ownership and sort of musing about uh whether fee simple ownership could survive at all. Uh then uh there were comments made uh in uh the media by counsel for Calichan tribes suggesting that the decision might mean that Calichan tribes might need to consent uh to any sale of property in that area. Uh it's true that you can imagine what impact that would have on whether you in fact own the property or what it's worth, and could you get a mortgage for it? And that rationale, of course, could affect not just property in Richmond, but potentially property all over the province. So a very big potential impact. The private property owner uh brought in at one of the private property owners, then brought this application to reopen the proceedings so that they could participate in it, saying, holy smokes, this might undermine uh what we in fact own here. And the uh the decision on that is what just came out. Um and the judge has effectively denied uh the application by the uh private property owner to reopen the litigation uh with a variety of uh, and I should say interestingly, none of the other parties involved objected to it. Provincial government, federal government, um Richmond, uh all the other parties that were part of it, the only one objecting was the Cowichan tribes uh to reopening the litigation. But ultimately that's what the uh judge uh decided to go with, which was to say no to the private property owner's application to participate. Um and the judge gave a variety of reasons for that, um, including how long the litigation had already taken, that 500 and something days, um, uh, and uh as well uh looking back on that history of sort of what was said and when uh and so on, uh, and concluded that uh it would not be appropriate to uh allow participation uh at this point. All of which uh I suppose in retrospect uh casts some doubt on uh whether the original decision not to notify the private property owners was uh the correct one. Uh essentially, the the judge has decided that uh if there's going to be some argument about that, it will need to be made on uh appeal. Um and so uh that's currently where we're left, uh which means that um

Judge Refuses To Reopen Trial

Michael Mulligan 5:35

I suppose in terms of the certainty of the particular trial decision, which is what the judge was focused on, there's some certainty in terms of what that is, not allowing uh it to go on beyond the 513 days already spent uh on it. Uh, but it it does leave uh real uncertainty about uh how Aboriginal title could impact uh private private property owners, not just in Richmond, but much more broadly. Um and uh I must say as well, it's interesting just watching these things uh progress uh because there are these are really very big uh policy uh decisions, which when you look at some of the wording in the uh Constitution, you would never, I suspect, think that there could be these sort of consequences to uh what's set out there in terms of recognizing uh Aboriginal rights and title. Uh and uh the uh potential impacts of this could be um very large, and I suggest there there should be real caution uh in terms of and I think this language I think is used in the context of some of what's been going on with the U.S. uh Supreme Court uh making uh radical changes to previous

Judicial Modesty And Policy Shockwaves

Michael Mulligan 6:55

uh decisions. Sometimes that's been referred to recently as a lack of judicial modesty, um sort of making big radical shifts of policy rather than you know implementing and interpreting language and so on, suggesting that that maybe uh uh may not be an appropriate approach. And that's been uh used as criticism in the U.S. by some of the liberal minority there, opposing things like reversing Roe vs. Wade or reversing decisions on campaign finance uh limitations and things of that sort, sort of changes made by the right wing of the court. Um and I I must say, uh listening to some of those uh reports, uh it uh that concept of sort of judicial modesty or sometimes might be referred to as judicial restraint, uh, in terms of uh how uh courts should approach some of these things, which really amount to very big issues of public policy. And when you have courts sort of quote, discovering close quote um rights, which may be in uh a pretty uh hard turn in one direction or the other uh from principles that people have taken for granted, like private property rights, there should be real caution, I think, exercised because ultimately court decisions require there to be broad um sort of public support for the uh policy consequences of them. Uh and I would worry that if you had a ultimately a court decision which in some general way undermined private property ownership uh in the province, um, you would need to wonder whether that sort of a decision would be broadly accepted and what that would mean for the authority of courts. And so I think that's what that concept of judicial modesty is in reference to, and in the U.S. context, uh sort of decisions which amount to a very hard right turn in terms of some of the positions the court is taking. Uh, there may be cause for similar concern in terms of some of the decisions which might be viewed as fairly radical left-turn decisions in Canada, uh, particularly uh this one in terms of how it might uh impact on private property ownership. So that's the latest from the couch and tribes case. And the uh upshot is that uh private property owner won't be allowed to participate, uh, and it will be left for an appeal of that decision or a future uh decision in terms of what does that borigent title mean in terms of what do you actually own if you own a piece of property privately in this place?

Break And Shift To Employment Law

Adam Stirling 9:29

Michael Mulgan with Mulligan Temple. Legally speaking, we'll continue right after that. Legally speaking, Michael Morgan for Mulgan Temple. Michael Effect. Or break of contract.

Michael Mulligan 9:49

Well

Fired Advisor And Worker Status

Michael Mulligan 9:50

perhaps it's uh after a couple of contracts is a little bit uh convoluted, but the principles in the case, I think a couple of them are very important, as well as some context that I think people should be aware of because it may impact how you make decisions, including about uh investment and savings. And the fact pattern of the case that originated, or part of it at least originated in Victoria, and involves somebody who was a uh financial advisor uh for um a uh investment uh company, investor investors group. And the uh judge begins the decision uh referencing what happened back in 2018 when the investment advisor who'd worked uh with this group for some 27 years walked into a breakfast meeting at the uh uh uh Fermont Empress, thinking there'd be some accolades for good work, and instead received notice of termination, was fired. Um, and that's what precipitated uh uh part of this litigation. And it amounted to, on behalf of the investment advisor, a claim for wrongful dismissal, and a counterclaim from investors group alleging there was a breach of some non-competition clauses uh in a contract with the investment uh consultant. And the first thing in the case that arose was an issue about whether this person was indeed an employee or a contractor, what were they uh in relation to investors group? And the reason that matters in a wrongful dismissal case is that if you're a contractor, like let's say you're somebody who does, I don't know, let's say plumbing work for you from time to time at your house, right? If you decide not to continue to have the plumber come and do work at your house, well, that's sort of your prerogative, right? You don't you can't say, well, you stopped hiring me to unclog your toilets or fix your sinks or something. Conversely, uh, if you're somebody who's an employee, uh there can be obligations to provide notice or pay in lieu of notice if you are dismissing somebody without cause. And so the first thing the court had just figured out is does this person work as an employee? And or what are they? And it was somewhat complicated. This was a fairly senior person who had authority to do things like hire other assistants to uh help him in his work. Uh, and uh he would be responsible for paying for his own equipment and paying rent in the office space, all sorts of things which might suggest you're just sort of a contractor, not really uh an employee. And so the judge had to first of all do an assessment as to what side of the line did you fall on, um, because that determines whether you've got any claim at all. Now, another thing to be aware of is that there's a third category that somebody can be, other than an independent contractor and an employee. And that is what's referred to as a dependent contractor, somebody who uh might not be an employee, you're a contractor, because you've got things like you're supplying your own equipment, like buying your own computers, you're hiring your own staff, you're paying rent, all things that might indicate, hey, you're just kind of a contractor here, you don't really work for this company. But you're completely controlled by that company. You don't work for anyone else, you don't really get, you don't have a full range of decision. You're a plumber only for you, not other people, for example. Yeah. And that's ultimately where the judge came down, finding the person was a dependent contractor. And on that basis, found that there wasn't a clear contracting out of the requirement for notice. That required the judge to then go on and figure out was there cause to fire this person? Uh and the uh things alleged by the investment company um included several things, uh, all of which, or some of which you should be aware of when you're making decisions yourself about how you're investing investing your retirement savings, for example. Um, and one of the allegations that the company made or reasons uh was that uh this person had been named in the will of somebody that uh uh he'd acted as an investment advisor for, uh, who passed away and left him a substantial amount of money in the will, in contradiction of one of the terms of employment where they were supposed to do that. It was $180,000, something in that realm. Uh and in addition, the fellow hadn't told the investment company about that and tried to sort of get away with keeping it, it appeared on the judge's finding. That the judge found on its own wasn't enough to constitute its problem, but not enough uh to dismiss

Commissions And Conflicts In Investing

Michael Mulligan 14:18

him. Another issue which people should be aware of when they're making investment decisions is that if you're not paying directly the person giving you financial advice, like if you're not paying them by the hour and some other basis to give you advice, they're not doing it for free, right? Uh and the way many, quote, sort of investment advisors are getting paid is they're getting commissions for the sale of various investment products like mutual funds to you. And different mutual funds can pay different amounts to the investment advisor. Clearly, as the person making the investment, you wish to pay as little in terms of um, you know, commission uh as you can because it can erode your savings. If you're the person selling it, you've got absolutely the opposite incentive. Um and the investment advisor in this case, uh, the judge found, had for a whole bunch of clients changed the type of mutual fund the person was invested in to a kind of mutual fund that would pay more commission uh to the investment advisor. Same underlying things you're being invested in, just how the commission was structured would mean more money uh for the investment advisor, particularly a type of fund which would pay out uh a larger amount if the person sold the investment within, I think it was seven years. And for some of these people, like the woman who also left the fellow in the will, she was 95. And so putting the person into something which you would have to pay out uh a greater uh amount of commission effectively if you the asset is sold within seven years may not be the appropriate thing for the 95-year-old. Yes, you might live another seven years, but that's not likely. Uh and so you should be aware, and this is just an important principle, when you're investing with somebody and they're selling you a product and you're not paying them to give you the advice as sort of a as a fiduciary. Like a lawyer is a fiduciary, they're required to give you advice that's in your interests, on the interest of the lawyer. And some financial advisors would be exactly the same thing. They would just say, look, here's my hourly rate. My job is to help you. I'm not getting paid from the for the products I'm selling you. I'm just here to give you advice. That's not the case with many people. And it's also evident here in terms of what the company was claiming they lost by virtue of uh losing clients down the road here, which was some $1.3 million, that's revenue, uh, from some $35 million in assets being managed. So the amount of money is large. Now, the other uh thing which was interesting here um is that after uh those things I mentioned so far, like uh transferring people into things that pay more commission, getting the um being named in the will, the judge found those weren't enough to fire uh the person, weren't enough. There were problems, but not enough to constitute cause.

After Acquired Cause And Non Compete Claim

Michael Mulligan 17:18

But an interesting thing arose here, which is this concept of uh cause which is uh determined after a firing takes place. Because in this case, they fired the person, then the company went through the person's office and found in there a bunch of what referred to as pre-signed blank forms, uh, where he'd gotten various investors to sign forms authorizing things to be done that weren't filled out. And that was contrary to the policies of the investment company for pretty obvious reasons. Yeah. Um, and ultimately the judge found that pre-signed forms were that was the cherry on top, and enough cumulatively to justify the firing. And so even though he was entitled to notice that you don't get notice if there's cause for firing, and a company or employer can take into account after acquired cause, things you found out about later to avoid having to pay compensation uh for dismissing somebody without notice. And so that's another important concept that after acquired cause, and that applied here. The other side of this case was that um after he was fired, he went and worked for another company, and it would appear solicited a bunch of former clients to move their um investments to that company. And so the company, uh the investors' groups countersued, saying that uh they should be compensated for that because it breached an agreement not to do such a thing. That part of the claim um also failed. Uh ultimately, uh the judge found that um in order to succeed in that, uh the investors group would have had to have established cause. That is to say, that any contact or solicitation made by the fired investment advisor would have had to have shown that that was the reason uh why these people left, potentially depriving them of the $1.3 million in revenue, revenue read fees for mutual funds, right? Um, and the investors group didn't call any of the uh former clients to testify about why did they leave. And the evidence was that about 7% of investments left the company each year. And so on that part of the claim as well, the judge found it had not been made out. So both the um termination and the alleged breach of the non-competition clauses, neither of them succeeded. But the real takeaway, I think, for listeners, in addition to some of those concepts like after acquired cause for firing, is just you should very carefully consider what are the interests of the person who is selling you an investment product.

Choosing Advice You Can Trust

Michael Mulligan 20:03

Are they making that, are they recommending it because that's genuinely in your interest? That's probably the case if you're paying them by the hour to give you advice. On the other hand, if they're getting paid by a commission, you should ask yourself, why are they recommending this one as opposed to that one? And is that really in my interest? And potentially the amount of money involved can be very large. Uh, and so people should think carefully about that when they're deciding how to invest uh their life savings uh to make sure that you're getting really good advice that's made just for you.

Adam Stirling 20:34

Michael Mulligan with Mulligan Affairs Legally Speaking, second half of our second hour every Thursday. Thank you so much. Pleasure as always. Thanks so much. It's always great to be here. All right, quick break.