Defamation And The Law Society

One word can change everything when it comes from a legal regulator. We dig into the BC Law Society’s mandatory Indigenous education course, the controversy over how it described the Kamloops Residential School site, and why some lawyers pushed to add a qualifier like “potential” when claims have not been independently confirmed. When that request was publicly framed as racist and then amplified through the Law Society’s own channels, the dispute escalated into a defamation lawsuit and ended with a settlement that included revised course wording, removed material, and a carefully worded public statement.

From there, we zoom out to the bigger Canadian legal questions sitting behind the headlines: how professional regulators should communicate, how accusations of racism should be made responsibly, and what it would mean if governments moved toward criminalizing “residential school denialism” as hate speech. It’s a conversation about truth claims, harm, and the risks of turning contested facts into mandatory orthodoxy.

We also break down a BC Adoption Act decision that shows how consent really works when a step-parent adoption is opposed by a biological parent. A nine-year-old’s views, a father’s substance-use struggles, and the court’s “best interests of the child” analysis collide in a ruling that legally severs one relationship while still urging space for connection when it’s safe, and the child wants it. If you care about Canadian law, family law, defamation, and freedom of expression, subscribe, share the episode, and leave a review with your take on where the line should be.

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

Transcript

Agenda And Quick Context

Adam Stirling 0:07

So that's the items on the attended this week, including a matter involving the Law Society of British Columbia and a title claim relating to defamation. What happened?

Mandatory Course And Kamloops Claim

Michael Mulligan 0:17

So the the background of this relates to a uh course that the BC Law Society made mandatory for lawyers back in 2024. Uh the Law Society, of course, is the organization that regulates lawyers in the province. Um and one of the uh things that it did was to make mandatory uh and indigenous uh uh uh course uh intended to uh I think I's uh improve uh relations or information about um indigenous uh justice and other issues in the province. Um and when the course came in, it was uh uh controversial in the six uh for one reason because it was mandatory. It's like a six-hour uh course. Uh but uh one of the the uh actual the the connection that uh produced this uh uh lawsuit that just settled uh related to a specific part of this mandatory course which uh read at the time, quote, discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds, which confirmed what survivors have been saying all along. That was the one of the passages in this mandatory course. Um and the background of that, uh, as I understand it, is that there was some uh investigation done with uh radar devices, a ground penetrating radar that found some anomalies uh at that site. Um and um since that occurred, at least as I understand it, there hasn't been anything else done to uh confirm what the anomalies are, but that's how it was presented in this course. Um and it led to a uh a couple of lawyers, including one who's a uh senior criminal defense lawyer in Victoria here, Jim Heller, bringing a resolution uh proposing that that uh language be uh amended uh in order to add the word potential to this on the basis that there hadn't been a confirmation of what the anomalies were. Uh that uh uh request, I think, as a request to the Law Society that it be amended. They didn't do that, and it led to this resolution uh that the uh lawyers brought uh to uh direct the benchers to change uh the wording of this mandatory course.

Resolution Fight And Racism Allegation

Michael Mulligan 2:37

Um that produced uh a uh press release uh by the BC First Nations Justice Council that referred to the resolution as being a racist resolution proposed by Law Society members. And the Law Society chose to, I think, link that on their website and make other uh comments about that, uh, which the uh lawyers asked be removed on the basis that it was defamatory, referring to them as being racist for asking that that uh word potential be added to the description in the course. Uh the law society refused to remove the uh link to this uh post uh and uh also refused to uh amend the course. Uh the other interesting background is that a judge uh in British Columbia was uh accused of being racist uh when they referred to uh these grave sites as potential uh grave sites. Uh that uh decision wound up being appealed to the court appeal, alleging the judge was racist for having referred to the uh anomalies in that way uh at the school residential school, um, uh went to the Court of Appeal that uh concluded that the judge wasn't racist and that the uh description of these being potential grave sites was factually correct and of interest, the uh it was the uh chief justice who uh rendered that decision, who himself is indigenous. Uh so that occurred, but nonetheless, the the law society had refused to remove their comments or the links to this uh allegation that the uh request there be a change to the course was uh itself racist. Uh and that led to this litigation with the lawyer suing the Law Society for defamation. Uh and the law society stuck at it and litigated that uh for some period of time until recently they finally settled the claim.

Defamation Lawsuit And Quiet Settlement

Michael Mulligan 4:28

Uh the Law Society uh first of all amended uh the course uh to uh change the language used in it uh from that original language uh of affirmatively claiming that 215 children were located on the site, uh, and they used uh language that uh uh is to the effect of likely burial sites or words to that effect. Uh the resolution itself, interestingly, went to a law society meeting uh which and it was only uh narrowly defeated. The vote on it was uh 1,683 members opposed to it, 1,499 in favor, and 590 sus uh abstaining. So it was uh that was an interesting piece of water under the bridge. Uh and so recently the law society uh amended the course to uh indicate uh use language that was less uh definitive. Um and uh in addition, uh they uh posted uh on their website uh what amount is kind of an oddly worded, um I'm not quite sure you'd call it an apology, uh, but the uh law society posted on uh their website uh uh a message saying to the degree it was understood by some to have defamed Mr. Heller, the Law Society wishes to confirm that was not its intention. Uh so they've uh removed what they'd posted, posted that in its place, and amended the course, uh, and then settled uh the claim uh that was brought uh by Mr. Heller against the Law Society. We don't know the uh terms of the settlement. Uh the settlement agreement uh apparently one of the terms of it was confidentiality, and so we don't have information about uh whether money was paid or what else was uh agreed to in order to settle the case, uh, but uh uh the uh case has indeed been settled and those changes have been made. Um of interest, the I just had a look at it, the BC Justice Council seems to have maintained on their website uh their uh statement about uh the resolution and how they described it, which is uh an interesting state of affairs.

Criminalizing Denialism And Regulatory Power

Michael Mulligan 6:32

Uh and then the other thing which uh think listeners may be uh interested in recently, this is another uh recent uh event, um, is just earlier this month there was an Assembly of First Nations resolution uh which called upon the government to quote criminalize the public condoning denial, justification, or minimization of Indian residential school denialism as a form of hate speech against First Nations. And so the Assembly of First Nations, at least, is looking to uh criminalize uh uh comments that uh would fit in that category. They describe it as publicly condoning denial or justification or minimization of Indian residential school denialism. Uh and so it's a really interesting time in which we live. Um this particular event, of course, and the background is of course very sensitive for many people. There's to be no doubt about that. Um uh but uh this uh particular issue about uh the uh discovery at the Kamloops uh Indian Residential School and what exactly is there and what's happened since seems to have taken on uh a uh uh significance which uh is perhaps uh detached from whatever the physical reality there may be. Uh right, uh there is uh you know uh now uh sort of fighting and uh claims over whether words like potential uh are racist and uh whether uh you should uh be criminalizing um speech, uh which could be viewed as a quote denialism uh of uh the uh harms that occurred uh at residential schools. And so it's a very interesting time. Um uh but uh at least in terms of this chapter of it, we can say that the Law Society has posted that uh response on their website, removed what they had there previously, settled the litigation and amended the uh course. Um all of that, of course, is also very interesting in the context of what the BC government is uh currently uh trying to do and what's currently being litigated, as we've talked about before. The uh NDP and BC have uh uh uh uh amended uh the Legal Professions Profession Act, adding an S on the end of it uh and changing its uh uh uh key objectives. It used to be uh things including upholding and protecting the legal rights and freedoms of all people, and uh deleting that and instead re uh replacing it with things such as implementing the UN declarations on the rights of indigenous people. Uh and so uh it uh seems clear and to my uh in my view at least uh undesirable that the this uh the law society, the regulator of lawyers, is turning into a uh a battleground uh over um some of these uh issues uh which uh clearly have strongly held uh uh views in uh in different directions. So that's the latest from the uh BC Law Society uh and the claim that they settled uh for defamation uh based on uh what they had uh posted uh about this uh resolution to amend the mandatory course to add the term potential.

Step-Parent Adoption Dispute Begins

Adam Stirling 10:12

What happened?

Michael Mulligan 10:14

Well, uh I must say it's an interesting case in that uh first of all the outcome, but also uh the description of just how that process works and who has to agree uh to an adoption. Uh and at a basic level, the NBC, uh under the Adoption Act, well-named act, uh in order for a uh child uh to be adopted, uh you need to have uh the uh agreement of each of the uh parents of the child. Um and interestingly, if the child is 12 years or older, the child must also consent to it. So you can't uh you know have adopted off your uh 30-year-old child to stop having to have them over for uh Christmas or something if you're not getting on. If you've got to agree. So the uh act requires uh those things. The fact pattern here uh was as you mentioned, it was a nine-year-old uh child, um, and the uh mother and biological father of the child uh were together but only for a reasonably short time until four and a half months after the child was born. Uh the father, the biological father, uh described by the judge as candidly acknowledging that his struggles with has struggled with substance abuse for a long period of time, uh, and acknowledged that uh he would have periods of sobriety punctuated by relapses. Um and it's in that context that the uh biological father uh had had only reasonably limited uh uh uh time uh with uh his daughter. Um the uh the judgment uh goes on to take it to actually uh you know sort of account for the number of times they would have visits and how much time they would spend together. And it was done over a period of time, but it wasn't consistent and it wasn't a lot of time. Um and so the uh mother of the child uh wound up in a new relationship uh uh and uh uh in that course of that relationship has uh one child, another on the way, they have a home, and the uh her new partner has acted for a number of years as effectively the um stepfather of the uh of this little girl. Uh and they had brought uh this application for uh the stepfather, the new partner, to adopt the girl, uh, and in that uh process also do things, including changing her last name to the last name of the new partner, uh, in part, I think, to make it consistent with the uh last name of the uh what will be the two other um siblings. Uh now the father didn't agree to that. He had counsel and uh uh opposed the uh adoption and indicated he wished to continue to have the relationship with the child and opposed uh that uh the uh adoption go through without his uh consent. And the j as the judge pointed out, uh an adoption is significant. There's a line the judge quoted there that um a adoption legally severs the quote natural blood ties between a parent and child, and the adoptive parents assume for all time and for all purposes and the uh place of the natural parents towards the child. And so it does have uh significant uh uh implications, legal implications. Um and that brought then the judge to, well, what do you do in this particular circumstance? It sounds like uh the uncontested evidence was that the uh stepfather, the partner of the mother,

Child Views And Independent Interview

Michael Mulligan 13:37

um, had a good relationship with the uh daughter and she viewed him as her dad, although she'd also uh spent time with her biological father uh when he was sober and able to do that. Now, with a child who's uh under the age of twelve, as I mentioned, if you're more than twelve, the child must also consent to the adoption. Uh but the act uh deals with uh children that are uh at least seven years old but under twelve, and for children in that age range, uh the way it works is that there's a requirement that an independent uh person speak to them uh about uh their wishes and their understanding uh of the proposed adoption to get their views on it. Um and as you might imagine, you know, some children are gonna have, you know, the child who's eleven and a half years of age uh may have uh strong views about that, and uh younger children may not be able to express as much or understand all of the implications of it. With this particular uh child, she expressed in the course of that uh that she already viewed the uh her stepdad, I refer to them that way, uh, as her dad, um and uh had a good relationship with him and wanted uh to have the same name uh as him and uh her uh younger uh sibling and the sibling to be. And so she wanted the adoption. That was her view, and that was taken into account by the judge. Now, the adoption act, where there uh a judge has authority to dispense uh with the consent of either or both of the parents in order to uh approve an adoption.

Best Interests Test Overrides Consent

Michael Mulligan 15:12

Uh and interestingly, the way that's drafted, and it's in section 17 of the adoption act, it speaks about the fact that the court may dispense with uh the consent required under the uh under the act, if the court is satisfied that it is in the child's best interest to do so, or that, and then it lists a bunch of things, like for example, uh a parent is not capable of consenting, or there have been unsuccessful efforts to locate uh the person whose descent uh consent would be uh dispensed with. Uh or things like uh if a parent has abandoned the child or has not made reasonable efforts to meet their parental obligations to the child. Now, that's an interesting one because one of the things talked about here was uh that the father had only provided very limited uh financial support, a couple of payments of some $700 and not for some time. But the judge was careful to point out that you know financial support is not the only form of support that a parent might uh be providing. Um, you know, it sounds like this fellow has some pretty serious uh challenges with uh substance use. Uh and so that's it's not simply a matter of well, you haven't paid the uh adequate child support, and therefore um the uh consent to an adoption can be dispensed with. But that is the language in there. Importantly, the judge found that that word or that I mentioned, it comes after the child's best interest, or then a list of various other things like can't locate the person or they can't uh not capable of consenting. That allows a judge to dispense with the uh consent of either of the either of both, I guess, of the parents, either if it's in the child's best interest, or if the judge finds that any of those listed things exist. And so you don't need to have both. It doesn't need to be both in the child's best interest and, for example, uh, you know, a finding that the uh parent has abandoned or deserted the child or that they're not capable of consenting. One or the other is enough. And so here the judge focused on that first part, the child's best interest, and looked at things like the quality of the relationship between the uh stepfather and the daughter, uh and uh the capacity uh of the uh biological father uh to uh care for the child given uh the challenges that he uh had or has. Uh and despite the fact that the uh biological father apparently has taken steps, like he's uh gone into residential treatment and uh they had uh reports and so on uh from that, um, found that uh on that first part of it, the that is to say, the best interest of the child, uh given the good relationship with the stepfather and how things were going there, found that it was in the child's best interest, taking that into account and uh the child's wishes. Uh and so the judge exercised uh their authority uh to dispense with the uh father's uh uh consent to the uh adoption uh and directed that it uh occur despite the fact that he's opposed to it and wants to maintain a relationship uh with the child.

Keeping A Biological Parent Connected

Michael Mulligan 18:20

Doing that, interestingly, and this isn't uh a legal uh uh component, but uh it's uh clearly some sensitivity on the part of the judge, uh despite granting the adoption, uh, and so it has that legal effect, the child's name will change, and the uh uh, as I said, it has that significant legal impact in terms of severing the legal uh uh connection with the biological father. The judge did take the uh the step of in court indicating that it was the court's expectation uh that uh the mother of the child and the now father of the child, thanks to the adoption, uh, will continue to make efforts to allow the biological father to be part of the child's life to the extent the child wishes, uh, which isn't uh a legal obligation, but perhaps a moral one. Uh and the uh the record of the uh the reasons for judgment indicate that after the judge made clear that that was their expectation, uh the lawyer confirmed that the uh the parents were nodding their head uh in uh acknowledgement uh of their obligation and responsibility in that regard. Uh and so hopefully that will be carried out and hopefully the uh the biological father will be successful in his continued efforts to get help with his uh substance uh uh abuse difficulties, which he acknowledges, and this was, I think, telling as well. Um he acknowledged that uh when he's not clean and sober, it would not be appropriate for him to be around the child, uh, and acknowledged as well it's gonna be a lifetime journey for him maintaining his sobriety. Uh but that's how the scheme works. That's how the judge sorted it out in terms of what was in that child's best interest. Uh, and I think also uh interesting as well uh that uh the judge made that effort to encourage the uh parents, even though it may not be a legal requirement, uh, to uh uh include the biological father to the extent the child wishes that, uh, and I suppose uh in keeping with his uh sobriety and and capacity to do that responsibly. So that's how the Adoption Act works, and that's how uh consent uh is either required or can be dispensed with based on what's in the child's best interest.

Final Takeaways And Sign-Off

Adam Stirling 20:26

All right, that's all the time we have for today, legally speaking, during the second half of our second hour every Thursday. Michael Mulligan, Mulligan Sandler, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break. New