January 2, 2025 • 22 mins
Can a province truly bypass judicial processes in the name of housing development? Join us as we tackle this question with Michael Mulligan of Mulligan Defence Lawyers, providing his expert insights into a legal storm brewing over a proposed 12-story housing project in Vancouver's Kitsilano neighbourhood. This episode uncovers constitutional tensions as the provincial government attempts to circumvent judicial review, sparking a broader discussion about the limits of provincial power and the essential role of superior courts as outlined in section 96 of the Constitution Act 1867. Listen closely as we dissect the court's stance on rezoning requirements and the implications for due process.
In another compelling narrative, we follow the legal fight for a young woman in foster care, spotlighting her struggle for adequate lifelong support against the backdrop of government-imposed financial caps. Delve into the province's contentious plan to offset compensation with potential aid from Community Living BC. At the same time, we introduce the novel "Peter's Promise" concept from the UK that challenges conventional compensation frameworks. Through this analysis, we emphasize the dignity and autonomy of individuals affected by legal decisions whilst navigating the uncertainties of relying on government support. Michael Mulligan's expertise brings clarity to these intricate issues, making this episode a must-listen for anyone interested in the dynamic interplay between law, community, and individual rights.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
Time for our regular segment Legally Speaking
with Michael Mulligan fromMulligan Defence Lawyers,
morning Michael.
Michael Mulligan (00:04):
How are we doing?
Hey, good morning, I'm doinggreat.
Always good to be here.
Happy New Year.
Thank you very much.
You too Hard to believe 2025.
How did that happen?
Adam Stirling (00:14):
I know I'm just looking at our agenda for today
Up.
First it says Attempt toPrevent Judicial Review by the
Province of BC Unconstitutional.
Help us understand this one.
I was trying to work my wayaround it earlier in the show.
Michael Mulligan (00:29):
I got confused so I know you can help us out.
Sure, so this is a case thatrelates to a proposed housing
development over in Vancouver,the Kitsilano neighborhood, and
it's a proposal to build a12-story development there which
would be sort of subsidized andand in some cases, for some
part supportive housing.
And the project has beenprobably not surprisingly given
(00:52):
that description controversialand there's been stiff
opposition from people who livein the neighborhood.
Issues included about thingslike whether there would be a
safe injection site located inthis property, something you
might want to have next to yourhome in Kitsilano and so the
(01:14):
project required there to bechanges to bylaws to rezone the
property, and how those aresupposed to operate are set out
in provincial legislation thatdictates how municipalities are
to conduct rezoning, and theprocess includes a requirement
(01:38):
that there be a public hearingconducted, and the legislation
as it stood at the time includeda provision that at the hearing
, all persons who deemedthemselves affected by the
proposed bylaw shall be affordedan opportunity to be heard, and
so there was a hearing.
In fact, that went on forseveral days on various
(01:58):
occasions.
However, during the course ofthat hearing, various various
concerns were deemed to be quoteoff limits for discussion,
including things like how thisfacility would operate, the
tenanting decisions about thebuilding.
There were restrictions onquestioning about, for example,
the safe injection site idea.
(02:19):
At the hearing the residentswere told no, there wouldn't be
a safe injection site.
But then BC Housing said theywould be providing quote
supervised injection services,close quote to tenants.
And how does that?
How do you parse that out froma safe injection site?
Maybe they're unsafe supervisedinjection services anyways?
There the attendees were shutdown and not permitted to ask
(02:39):
about those things, and so thecity went ahead and approved the
rezoning, but there was then ajudicial review filed, arguing
that the city hadn't followedthe rules that it has to follow
in order to make the changes tothe zoning right, because
there's a scheme for that, andso off the thing went to court.
(03:02):
The provincial government, who,who was supportive of this
development, was concerned thatthey might either lose in court
or that it might delay theirplans.
That effectively tried toprevent the judicial review by
(03:25):
deeming what took place to bepermissible, a sort of deeming
provision, and so the legalissue was whether the province
is allowed to conclusively deemsomething like this to have been
done properly, whicheffectively prevents the
(03:45):
judicial review process.
And none of this, the courtpointed out, is an assessment of
whether this is a good or badproject, or whether we need more
housing, or whether we needmore supportive housing, or
indeed whether we should havesafe injection sites.
The court reviews all of thoseconsiderations.
This has nothing whatsoever todo with that.
(04:06):
The legal issue has to do withwhether the provincial
legislature has authority toeffectively prevent a judicial
review from taking place bydeeming the outcome and the
legal analysis.
For that comes from section 96of the Constitution Act 1867.
(04:27):
And section 96, when you readit, it speaks about the
authority of the federalgovernment to appoint superior
court judges in the provinces.
And so you might say, well, howdoes that have to do with
anything?
Well, the law that's developedaround that and I should say the
reason we have section 96, inpart it protects the authority
(04:48):
of the Superior Court, becausethe authority to appoint
Superior Court judges, who canonly be removed by, like you
know, joint resolution of theSenate and House of Commons they
have considerable protection,so they have autonomy would be
pretty meaningless iflegislatures could just, you
know, say that well, those kindof judges don't do anything at
(05:09):
all, or their only thing they'regoing to deal with are going to
be missing pets or somethingright, and all other decisions
shall be made by some.
You know, star chamber ofpeople that the whatever
government of the day hasdecided to appoint.
Right, that's not permitted.
Right, and you can see why itneeds to be interpreted in that
way.
Otherwise, that theconstitutional sort of division
(05:31):
of powers there and protectionsafforded by having superior
court judges that do have thisindependence from government
would be meaningless.
Right, if you could just saywell, they can't make any
decisions at all, or we'reappointing somebody else who can
do all the same things, sowe'll just give them no money
and that'll be over.
And so it is.
In the alternative, as the Courtof Appeal pointed out in BC,
(05:54):
the government is permitted tochange legislation to have
different tests or differentthings applied, like, for
example, the requirement thatthere be public hearings or that
certain things be done before amunicipality can amend the
bylaw or do rezoning.
There's nothing constitutionalabout that.
And if the province just wantedto get rid of those
(06:15):
requirements and just say, forexample, you know, a
municipality may rezone propertyat any time, in any way they
like, and there shall never beany kind of public hearing at
all.
Well, that's likely fine.
Right, there's not aconstitutional right to a public
hearing.
But where you have a legalprocess, whatever it might be
right, it's not permissible forthe province to say, well, you
(06:40):
can't go to court and havereviewed whether it was done
legally, that's what's notallowed.
Right, you don't have to have aprovision that allows for a
public hearing.
But if you have a provisionthat allows for a public hearing
, you can't pass a law whichsays no matter what the court
says, this is deemed to havebeen done properly.
That's a very different thingfrom deciding whether you wish
(07:01):
to have public hearings or don'twish to have public hearings.
That's completely up to theprovince.
Right, we could have no zoningat all, that's permitted too.
Right, you could repeal all ofthat.
The provincial government couldjust say look, you can build
anything you like anywhere andthat's presumably fine.
It certainly wouldn't interferewith Section 96.
But what you can't do, and whatthe Court of Appeal found the
(07:24):
province tried to do here, wasto prevent a meaningful judicial
review of the legislativescheme that did exist.
They created that right and soyou can't have.
The province can't say this isthe legal requirement to do
something.
But in this particular case,because this legislation was
(07:47):
found to be unconstitutional,the language was it's
conclusively deemed to have beenvalidly done.
Right, that's not allowed.
You have a right, legal rightin Canada to go to a superior
court to judicially review anadministrative decision to make
sure that it was done inaccordance with the law.
(08:08):
Right, people have to actlawfully and you can't avoid
that by just saying we're goingto just deem it all to be lawful
.
Just think about that right.
Otherwise you could just sayyou know, superior court judges
can no longer do X and Y and, bythe way, that's not reviewable
right.
You can't just immunizeyourself from a review to
(08:28):
determine if what was done waslawful by saying you can't
review this right, that's notgoing to do it.
And so the BC Court of Appealfound that the piece of
provincial legislation thatconclusively deemed what went on
here to be valid was it isunconstitutional because it
(08:49):
prevents the people frommeaningfully going before a
superior court judge todetermine whether the process
that was followed was inaccordance with the law.
Now, if the province wants tochange the law, fine.
The court also points out youcan even change the law
retroactively.
That may not be fair, but youcould do that right
(09:12):
retroactively.
That may not be fair, but youcould do that right.
But what you can't do is avoidchanging the law and just say
we're going to deem it to befine.
So there's nothing you can do,and you can't go to court.
That's not allowed and isn'tallowed, and so that's the
latest and that's how it wasdecided.
Really, it's not an issue aboutwhether we should have, you
know, something there that's asupervised injection service, or
whether we need a 12-storybuilding of this kind or what
(09:35):
it's going to do to theneighborhood.
It's none of that.
It's just that you can'tprevent somebody from going to
court to make sure that adecision was made in accordance
with the law, whatever that lawmight be, and so the way the
province tried to do this wasimpermissible, though that is
unconstitutional, and there cannow be a proper review to
(09:58):
determine whether the processthat was applied meets the legal
requirements.
And so that's the latest fromKitsilano and what you can and
cannot do to prevent a judicialreview.
Adam Stirling (10:10):
Michael Mulligan with Mulligan Defence Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues withMichael Mulligan, with Mulligan
Defence Lawyers.
Up next on our agenda, michael.
We've talked about where theprovince can intervene in
regarding legal aspects, orperhaps be intervened upon by
the courts.
The next story, though, dealswith what can happen when an
(10:31):
intervention does not take placesoon enough, when there is a
duty of care that exists.
Help us understand this matter.
Michael Mulligan (10:39):
Well, I must say you're exactly right, and I
got to say this is probably oneof the saddest opening
paragraphs in a court case thatI've read recently.
Here's how this case begins theplaintiff, now 17, suffered a
deliberately inflicted braininjury at six weeks old.
She was born premature to a15-year-old mother in a
household marked bymulti-generational illegal drug
(11:01):
use, commercial sexualexploitation, mental illness and
physical and verbal violence.
There's the opening, and thiscase involved a claim against
the Ministry of Children andFamilies for failing to
intervene to prevent thisintentional brain injury at six
weeks of age, and the provincialgovernment conceded that that
(11:23):
was so.
They agreed that the Ministryof Children and Families fell
below the standard of care andnot intervening earlier to
protect the plaintiff.
It admits liability, and sothis case involves a very
interesting and novel legalquestion in Canada and this
concept of what's been referredto as a Peter's promise, and
here's what that's about.
(11:43):
So the plaintiff in this caseis represented by the public
guardian and trustee who willact for people who are not
capable of doing so on their own.
So that's how the case has cometo court and this poor girl,
who's now 19 years of age andsuffers just horrific impairment
(12:06):
as a result of this intentionalbrain injury.
As a result of this intentionalbrain injury, you know she
needs help cooking, cleaning,going to bed at night, social
impairment, borderline verbalfunctioning, massive problems,
she.
The issue is this the provincehas acknowledged that it's
(12:26):
responsible for not taking stepsto protect her, but the
province argues that the amountof money that she should receive
to pay for her ongoing careshould be reduced by the value
of potential future governmentwelfare services, and so that
(12:47):
makes a very big difference Inthis case, if she was to receive
the amount of money necessaryto care for her for the rest of
her life, which amounts toeffectively 24-hour care, and I
should say, on that note, she'svery fortunate.
She's described as she has afoster family.
The foster mother is describedthis way as a remarkable
(13:08):
caregiver, patient, yet firmtemperament which shone through
in her testimony.
A person who has a diploma inearly childhood education and
worked with children for 55years, and continues to live
with her foster parents as longas possible.
They live on a rural farm nearthe Alberta border and sadly,
it's described as.
The foster mother is presently76 years old and the remaining
(13:29):
time is, of course, limited, butthe conclusion is that, in
order to pay for her care forthe rest of her life, it's going
to cost between 10 to 13million dollars because she
requires, effectively, 24-hourcare and monitoring.
The province's position is sheshould receive only two million
(13:50):
dollars, and that being on'sposition is she should receive
only $2 million, and that beingon the basis that she should
have to deduct from the fullcost of her care what services
might be provided by CommunityLiving BC.
And there is this legalprinciple that prevents the
concept of double recovery.
Right, when the idea is, if youinjure somebody or you're
(14:11):
careless and they're injured,they should receive what they
need to put them back in theposition they would have been in
, but for what you did.
Right, when you think about it,that's a pretty fair principle.
Right, make it right, butyou're not entitled to profit
from it.
Right, if you're recoveringsomething in one way, you
shouldn't recover it twice.
So that you're better off.
(14:31):
You should be put back in theposition you would have been in.
Now, hard to imagine quite howwe do this with this kind of a
horrific circumstance, but wecan certainly care for somebody.
And so the province argued thatwell, we should deduct from the
tenor of $13 million what shemight be expected to receive
from Community Living BC.
She might be expected toreceive from Community Living BC
(14:54):
, arguing that it is very likelythat that would be available
for her.
And so the novel legal concept,as I mentioned, is this concept
of a Peter's promise, which is aconcept out of the UK.
It came out of a case about 15years ago where the plaintiff
was Peter's and Peter's theconcept there was and this is
accepted in the UK now can thevictim of a tort like negligence
(15:17):
, can they promise not to acceptgovernment support so as to
avoid duplicate, double recovery, a promise to take government
support?
And the reason that's important, as the court pointed out here,
is that even though there mightbe government support available
, that's far from a certaintyright, and there was evidence
(15:38):
about how Community Living BC'sfinancial pressures and what
they can provide might go down.
And you know, as we talkedabout in the last story,
legislation can change anytime.
The government likes you mightget it, you might not.
Furthermore, as the courtpointed out, if this young woman
ever, for example, moved toAlberta and said right on the
border, she would be no longerentitled to the BC community
(15:58):
living support and so, takingthe position the government
advocated for would mean,effectively, she can never leave
the province, and it would behoping that there would be
support available in that amount, which, of course, that's
hopeful.
That might be, so Might that beless?
It sure might be.
And then the other point that'smade here and this is an
(16:22):
important one, it's a veryimportant one is the idea that
people should have personalautonomy and dignity in order to
make decisions for themselvesabout things like where they are
going to live or what kind ofcare they're going to receive.
And this young lady will needhelp doing that.
But that's available throughthe public guardian and trustee.
And so, for example, she would,at age 19, age out of the
(16:45):
foster care system, and so thenshe would be over to community
living BC, whatever they mightprovide.
What if she wishes to continueto live with her foster parents
living BC, whatever they mightprovide?
What if she wishes to continue?
to live with her foster parentsright Should she be required to
do whatever the government istelling her to do?
And I must say that's also oneof the changes which has
occurred under no fault withICBC.
Prior to no fault, people wouldget a sum of money.
(17:07):
If somebody chooses to modifytheir home or do whatever
they're going to do in theirlife, they're free to make those
decisions.
Whereas we've adopted thismodel, the provincial government
has adopted this model where,effectively, if you're seriously
injured now you become a wardof the government and you have
to go cup in hand every time youwant to get a new wheelchair or
(17:27):
put a ramp in or take somephysiotherapy.
You don't have dignity andautonomy, you're just a ward of
the province.
And so that was an importantconsideration for the judge in
this particular case was thatidea of having dignity, autonomy
and security.
And so it's a very interestingread, and the judge adopted that
(17:50):
legal principle for the veryfirst time in Canada, which
evolved in the United Kingdomfrom that case called Peter's,
and it was done in a way which,in addition to there being a
promise not to you know, acceptgovernment, other government
services to get double recovery.
(18:10):
It was made a condition of theorder that the person, that she
not do that, and so that's aninteresting thing as well.
The province's argument waswell, you can't really opt out
of that, you're just entitled tothese things right as long as
they might exist and as long ascommunity living might have the
money and as long as you don'tleave the province of British
Columbia.
But that did not carry the dayand it's also, I think, an
(18:35):
interesting example for everyoneabout how the common law
evolves.
It's not a static thing.
This wasn't some legislativechange right.
This decision came out onDecember 24th and it was a
matter of the judge analyzingthose principles of law and
analyzing the reason we have thetort system and the principles
(18:56):
that underlie that, which, as Isaid at the outset, the idea is
you put the person back inposition they would have been in
and that's just sort of fairright.
If you do harm to somebody oryou fail to do something you
were required to do and theysuffer serious harm, you should
make that right and the ideathat, well, I shouldn't have to
(19:16):
make it all right now you shouldbe able to collect welfare or
you should be able to get helpfrom Humanity Living BC, because
surely those things might bearound for the next 30 years in
some acceptable form.
You hope right didn't carry theday.
And so it's a very interestingdecision and I thought in many
(19:37):
respects you know it comes froma core of total, absolute
tragedy and you read this caseabout sort of what this young
lady's life involves now and howshe manages to survive.
I must say it is quiteremarkable.
The place she lives,interestingly, in this rural
farm as described, with the verysupportive and experienced
(19:59):
stepfamily.
She's able to do things likeride horses there.
She needs supervision but shehas some autonomy doing that.
She's able to get some autonomyhelping out with farm tasks on
the farm.
She's able to help make somemeals and so on with support.
And as a result of thisdecision, she'll wind up with
(20:22):
that lump sum of money whichwill be managed by the public
guardian and trustee, and so shewill be able to, you know, make
decisions about her life thatwill provide the sort of dignity
and autonomy that is notpossible when you are having to
go, you know, cap in hand,hoping that whatever facility
(20:44):
they might deposit you in isgoing to meet your needs for the
rest of your life.
And so that's really, I thinkwhat people should think about
when we have, you know, thesediscussions in this context and
in a more common context ofpeople that are injured in
serious car accidents, aboutwhat does it really mean to
somebody when you tell them thatyou have no autonomy and no
(21:08):
ability to make decisions aboutwhere you're going to live or
how your life is going to unfold?
You're going to live or how yourlife is going to unfold and how
?
That's just an extra indignitypiled on top of, of course,
whatever it was that got you tocourt in the first place
assuming you can still get tocourt and so this decision, I
must say, in the position theprovince took in this case and
(21:29):
in the case we just talked about, in terms of deeming the zoning
to be permissible, and theprovince's position in terms of
no-fault insurance and what thatmeans to people, are all a
consistent theme of how thisprovincial government has
operated for the past number ofyears, in order, in terms of
(21:49):
just that philosophy of you knowwhat does it mean in terms of
you know somebody's dignity andautonomy?
Should you be able to go tocourt?
Should you be able to have anindependent judge decide
something?
Should you be able to makedecisions for yourself about
where you're living and whatyou're doing and how you're
going to care for yourself, andthere's just a very different
philosophy between sort of thestatus view of don't worry,
everything should be fine, we'lldecide for you, and no, we're
(22:13):
going to treat you with someautonomy and dignity.
Anyways, this was a victory forthe autonomy and dignity camp
and fortunately young lady willbe able to continue on at least
as long as possible in the verygood position that she's been in
after about the worst start inlife one could imagine that's
all the time we have for today.
That's the latest.
Adam Stirling (22:33):
Yes, thank you so much, michael Mulligan.
Thank you so much as always.
A little bit over, but afascinating and an important
story, so thank you so much asalways.
Thank you so much.
Have a great day, all right.
Time for our regular segment Legally Speaking
with Michael Mulligan fromMulligan Defence Lawyers,
morning Michael.
Michael Mulligan (00:04):
How are we doing?
Hey, good morning, I'm doinggreat.
Always good to be here.
Happy New Year.
Thank you very much.
You too Hard to believe 2025.
How did that happen?
Adam Stirling (00:14):
I know I'm just looking at our agenda for today
Up.
First it says Attempt toPrevent Judicial Review by the
Province of BC Unconstitutional.
Help us understand this one.
I was trying to work my wayaround it earlier in the show.
Michael Mulligan (00:29):
I got confused so I know you can help us out.
Sure, so this is a case thatrelates to a proposed housing
development over in Vancouver,the Kitsilano neighborhood, and
it's a proposal to build a12-story development there which
would be sort of subsidized andand in some cases, for some
part supportive housing.
And the project has beenprobably not surprisingly given
(00:52):
that description controversialand there's been stiff
opposition from people who livein the neighborhood.
Issues included about thingslike whether there would be a
safe injection site located inthis property, something you
might want to have next to yourhome in Kitsilano and so the
(01:14):
project required there to bechanges to bylaws to rezone the
property, and how those aresupposed to operate are set out
in provincial legislation thatdictates how municipalities are
to conduct rezoning, and theprocess includes a requirement
(01:38):
that there be a public hearingconducted, and the legislation
as it stood at the time includeda provision that at the hearing
, all persons who deemedthemselves affected by the
proposed bylaw shall be affordedan opportunity to be heard, and
so there was a hearing.
In fact, that went on forseveral days on various
(01:58):
occasions.
However, during the course ofthat hearing, various various
concerns were deemed to be quoteoff limits for discussion,
including things like how thisfacility would operate, the
tenanting decisions about thebuilding.
There were restrictions onquestioning about, for example,
the safe injection site idea.
(02:19):
At the hearing the residentswere told no, there wouldn't be
a safe injection site.
But then BC Housing said theywould be providing quote
supervised injection services,close quote to tenants.
And how does that?
How do you parse that out froma safe injection site?
Maybe they're unsafe supervisedinjection services anyways?
There the attendees were shutdown and not permitted to ask
(02:39):
about those things, and so thecity went ahead and approved the
rezoning, but there was then ajudicial review filed, arguing
that the city hadn't followedthe rules that it has to follow
in order to make the changes tothe zoning right, because
there's a scheme for that, andso off the thing went to court.
(03:02):
The provincial government, who,who was supportive of this
development, was concerned thatthey might either lose in court
or that it might delay theirplans.
That effectively tried toprevent the judicial review by
(03:25):
deeming what took place to bepermissible, a sort of deeming
provision, and so the legalissue was whether the province
is allowed to conclusively deemsomething like this to have been
done properly, whicheffectively prevents the
(03:45):
judicial review process.
And none of this, the courtpointed out, is an assessment of
whether this is a good or badproject, or whether we need more
housing, or whether we needmore supportive housing, or
indeed whether we should havesafe injection sites.
The court reviews all of thoseconsiderations.
This has nothing whatsoever todo with that.
(04:06):
The legal issue has to do withwhether the provincial
legislature has authority toeffectively prevent a judicial
review from taking place bydeeming the outcome and the
legal analysis.
For that comes from section 96of the Constitution Act 1867.
(04:27):
And section 96, when you readit, it speaks about the
authority of the federalgovernment to appoint superior
court judges in the provinces.
And so you might say, well, howdoes that have to do with
anything?
Well, the law that's developedaround that and I should say the
reason we have section 96, inpart it protects the authority
(04:48):
of the Superior Court, becausethe authority to appoint
Superior Court judges, who canonly be removed by, like you
know, joint resolution of theSenate and House of Commons they
have considerable protection,so they have autonomy would be
pretty meaningless iflegislatures could just, you
know, say that well, those kindof judges don't do anything at
(05:09):
all, or their only thing they'regoing to deal with are going to
be missing pets or somethingright, and all other decisions
shall be made by some.
You know, star chamber ofpeople that the whatever
government of the day hasdecided to appoint.
Right, that's not permitted.
Right, and you can see why itneeds to be interpreted in that
way.
Otherwise, that theconstitutional sort of division
(05:31):
of powers there and protectionsafforded by having superior
court judges that do have thisindependence from government
would be meaningless.
Right, if you could just saywell, they can't make any
decisions at all, or we'reappointing somebody else who can
do all the same things, sowe'll just give them no money
and that'll be over.
And so it is.
In the alternative, as the Courtof Appeal pointed out in BC,
(05:54):
the government is permitted tochange legislation to have
different tests or differentthings applied, like, for
example, the requirement thatthere be public hearings or that
certain things be done before amunicipality can amend the
bylaw or do rezoning.
There's nothing constitutionalabout that.
And if the province just wantedto get rid of those
(06:15):
requirements and just say, forexample, you know, a
municipality may rezone propertyat any time, in any way they
like, and there shall never beany kind of public hearing at
all.
Well, that's likely fine.
Right, there's not aconstitutional right to a public
hearing.
But where you have a legalprocess, whatever it might be
right, it's not permissible forthe province to say, well, you
(06:40):
can't go to court and havereviewed whether it was done
legally, that's what's notallowed.
Right, you don't have to have aprovision that allows for a
public hearing.
But if you have a provisionthat allows for a public hearing
, you can't pass a law whichsays no matter what the court
says, this is deemed to havebeen done properly.
That's a very different thingfrom deciding whether you wish
(07:01):
to have public hearings or don'twish to have public hearings.
That's completely up to theprovince.
Right, we could have no zoningat all, that's permitted too.
Right, you could repeal all ofthat.
The provincial government couldjust say look, you can build
anything you like anywhere andthat's presumably fine.
It certainly wouldn't interferewith Section 96.
But what you can't do, and whatthe Court of Appeal found the
(07:24):
province tried to do here, wasto prevent a meaningful judicial
review of the legislativescheme that did exist.
They created that right and soyou can't have.
The province can't say this isthe legal requirement to do
something.
But in this particular case,because this legislation was
(07:47):
found to be unconstitutional,the language was it's
conclusively deemed to have beenvalidly done.
Right, that's not allowed.
You have a right, legal rightin Canada to go to a superior
court to judicially review anadministrative decision to make
sure that it was done inaccordance with the law.
(08:08):
Right, people have to actlawfully and you can't avoid
that by just saying we're goingto just deem it all to be lawful
.
Just think about that right.
Otherwise you could just sayyou know, superior court judges
can no longer do X and Y and, bythe way, that's not reviewable
right.
You can't just immunizeyourself from a review to
(08:28):
determine if what was done waslawful by saying you can't
review this right, that's notgoing to do it.
And so the BC Court of Appealfound that the piece of
provincial legislation thatconclusively deemed what went on
here to be valid was it isunconstitutional because it
(08:49):
prevents the people frommeaningfully going before a
superior court judge todetermine whether the process
that was followed was inaccordance with the law.
Now, if the province wants tochange the law, fine.
The court also points out youcan even change the law
retroactively.
That may not be fair, but youcould do that right
(09:12):
retroactively.
That may not be fair, but youcould do that right.
But what you can't do is avoidchanging the law and just say
we're going to deem it to befine.
So there's nothing you can do,and you can't go to court.
That's not allowed and isn'tallowed, and so that's the
latest and that's how it wasdecided.
Really, it's not an issue aboutwhether we should have, you
know, something there that's asupervised injection service, or
whether we need a 12-storybuilding of this kind or what
(09:35):
it's going to do to theneighborhood.
It's none of that.
It's just that you can'tprevent somebody from going to
court to make sure that adecision was made in accordance
with the law, whatever that lawmight be, and so the way the
province tried to do this wasimpermissible, though that is
unconstitutional, and there cannow be a proper review to
(09:58):
determine whether the processthat was applied meets the legal
requirements.
And so that's the latest fromKitsilano and what you can and
cannot do to prevent a judicialreview.
Adam Stirling (10:10):
Michael Mulligan with Mulligan Defence Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues withMichael Mulligan, with Mulligan
Defence Lawyers.
Up next on our agenda, michael.
We've talked about where theprovince can intervene in
regarding legal aspects, orperhaps be intervened upon by
the courts.
The next story, though, dealswith what can happen when an
(10:31):
intervention does not take placesoon enough, when there is a
duty of care that exists.
Help us understand this matter.
Michael Mulligan (10:39):
Well, I must say you're exactly right, and I
got to say this is probably oneof the saddest opening
paragraphs in a court case thatI've read recently.
Here's how this case begins theplaintiff, now 17, suffered a
deliberately inflicted braininjury at six weeks old.
She was born premature to a15-year-old mother in a
household marked bymulti-generational illegal drug
(11:01):
use, commercial sexualexploitation, mental illness and
physical and verbal violence.
There's the opening, and thiscase involved a claim against
the Ministry of Children andFamilies for failing to
intervene to prevent thisintentional brain injury at six
weeks of age, and the provincialgovernment conceded that that
(11:23):
was so.
They agreed that the Ministryof Children and Families fell
below the standard of care andnot intervening earlier to
protect the plaintiff.
It admits liability, and sothis case involves a very
interesting and novel legalquestion in Canada and this
concept of what's been referredto as a Peter's promise, and
here's what that's about.
(11:43):
So the plaintiff in this caseis represented by the public
guardian and trustee who willact for people who are not
capable of doing so on their own.
So that's how the case has cometo court and this poor girl,
who's now 19 years of age andsuffers just horrific impairment
(12:06):
as a result of this intentionalbrain injury.
As a result of this intentionalbrain injury, you know she
needs help cooking, cleaning,going to bed at night, social
impairment, borderline verbalfunctioning, massive problems,
she.
The issue is this the provincehas acknowledged that it's
(12:26):
responsible for not taking stepsto protect her, but the
province argues that the amountof money that she should receive
to pay for her ongoing careshould be reduced by the value
of potential future governmentwelfare services, and so that
(12:47):
makes a very big difference Inthis case, if she was to receive
the amount of money necessaryto care for her for the rest of
her life, which amounts toeffectively 24-hour care, and I
should say, on that note, she'svery fortunate.
She's described as she has afoster family.
The foster mother is describedthis way as a remarkable
(13:08):
caregiver, patient, yet firmtemperament which shone through
in her testimony.
A person who has a diploma inearly childhood education and
worked with children for 55years, and continues to live
with her foster parents as longas possible.
They live on a rural farm nearthe Alberta border and sadly,
it's described as.
The foster mother is presently76 years old and the remaining
(13:29):
time is, of course, limited, butthe conclusion is that, in
order to pay for her care forthe rest of her life, it's going
to cost between 10 to 13million dollars because she
requires, effectively, 24-hourcare and monitoring.
The province's position is sheshould receive only two million
(13:50):
dollars, and that being on'sposition is she should receive
only $2 million, and that beingon the basis that she should
have to deduct from the fullcost of her care what services
might be provided by CommunityLiving BC.
And there is this legalprinciple that prevents the
concept of double recovery.
Right, when the idea is, if youinjure somebody or you're
(14:11):
careless and they're injured,they should receive what they
need to put them back in theposition they would have been in
, but for what you did.
Right, when you think about it,that's a pretty fair principle.
Right, make it right, butyou're not entitled to profit
from it.
Right, if you're recoveringsomething in one way, you
shouldn't recover it twice.
So that you're better off.
(14:31):
You should be put back in theposition you would have been in.
Now, hard to imagine quite howwe do this with this kind of a
horrific circumstance, but wecan certainly care for somebody.
And so the province argued thatwell, we should deduct from the
tenor of $13 million what shemight be expected to receive
from Community Living BC.
She might be expected toreceive from Community Living BC
(14:54):
, arguing that it is very likelythat that would be available
for her.
And so the novel legal concept,as I mentioned, is this concept
of a Peter's promise, which is aconcept out of the UK.
It came out of a case about 15years ago where the plaintiff
was Peter's and Peter's theconcept there was and this is
accepted in the UK now can thevictim of a tort like negligence
(15:17):
, can they promise not to acceptgovernment support so as to
avoid duplicate, double recovery, a promise to take government
support?
And the reason that's important, as the court pointed out here,
is that even though there mightbe government support available
, that's far from a certaintyright, and there was evidence
(15:38):
about how Community Living BC'sfinancial pressures and what
they can provide might go down.
And you know, as we talkedabout in the last story,
legislation can change anytime.
The government likes you mightget it, you might not.
Furthermore, as the courtpointed out, if this young woman
ever, for example, moved toAlberta and said right on the
border, she would be no longerentitled to the BC community
(15:58):
living support and so, takingthe position the government
advocated for would mean,effectively, she can never leave
the province, and it would behoping that there would be
support available in that amount, which, of course, that's
hopeful.
That might be, so Might that beless?
It sure might be.
And then the other point that'smade here and this is an
(16:22):
important one, it's a veryimportant one is the idea that
people should have personalautonomy and dignity in order to
make decisions for themselvesabout things like where they are
going to live or what kind ofcare they're going to receive.
And this young lady will needhelp doing that.
But that's available throughthe public guardian and trustee.
And so, for example, she would,at age 19, age out of the
(16:45):
foster care system, and so thenshe would be over to community
living BC, whatever they mightprovide.
What if she wishes to continueto live with her foster parents
living BC, whatever they mightprovide?
What if she wishes to continue?
to live with her foster parentsright Should she be required to
do whatever the government istelling her to do?
And I must say that's also oneof the changes which has
occurred under no fault withICBC.
Prior to no fault, people wouldget a sum of money.
(17:07):
If somebody chooses to modifytheir home or do whatever
they're going to do in theirlife, they're free to make those
decisions.
Whereas we've adopted thismodel, the provincial government
has adopted this model where,effectively, if you're seriously
injured now you become a wardof the government and you have
to go cup in hand every time youwant to get a new wheelchair or
(17:27):
put a ramp in or take somephysiotherapy.
You don't have dignity andautonomy, you're just a ward of
the province.
And so that was an importantconsideration for the judge in
this particular case was thatidea of having dignity, autonomy
and security.
And so it's a very interestingread, and the judge adopted that
(17:50):
legal principle for the veryfirst time in Canada, which
evolved in the United Kingdomfrom that case called Peter's,
and it was done in a way which,in addition to there being a
promise not to you know, acceptgovernment, other government
services to get double recovery.
(18:10):
It was made a condition of theorder that the person, that she
not do that, and so that's aninteresting thing as well.
The province's argument waswell, you can't really opt out
of that, you're just entitled tothese things right as long as
they might exist and as long ascommunity living might have the
money and as long as you don'tleave the province of British
Columbia.
But that did not carry the dayand it's also, I think, an
(18:35):
interesting example for everyoneabout how the common law
evolves.
It's not a static thing.
This wasn't some legislativechange right.
This decision came out onDecember 24th and it was a
matter of the judge analyzingthose principles of law and
analyzing the reason we have thetort system and the principles
(18:56):
that underlie that, which, as Isaid at the outset, the idea is
you put the person back inposition they would have been in
and that's just sort of fairright.
If you do harm to somebody oryou fail to do something you
were required to do and theysuffer serious harm, you should
make that right and the ideathat, well, I shouldn't have to
(19:16):
make it all right now you shouldbe able to collect welfare or
you should be able to get helpfrom Humanity Living BC, because
surely those things might bearound for the next 30 years in
some acceptable form.
You hope right didn't carry theday.
And so it's a very interestingdecision and I thought in many
(19:37):
respects you know it comes froma core of total, absolute
tragedy and you read this caseabout sort of what this young
lady's life involves now and howshe manages to survive.
I must say it is quiteremarkable.
The place she lives,interestingly, in this rural
farm as described, with the verysupportive and experienced
(19:59):
stepfamily.
She's able to do things likeride horses there.
She needs supervision but shehas some autonomy doing that.
She's able to get some autonomyhelping out with farm tasks on
the farm.
She's able to help make somemeals and so on with support.
And as a result of thisdecision, she'll wind up with
(20:22):
that lump sum of money whichwill be managed by the public
guardian and trustee, and so shewill be able to, you know, make
decisions about her life thatwill provide the sort of dignity
and autonomy that is notpossible when you are having to
go, you know, cap in hand,hoping that whatever facility
(20:44):
they might deposit you in isgoing to meet your needs for the
rest of your life.
And so that's really, I thinkwhat people should think about
when we have, you know, thesediscussions in this context and
in a more common context ofpeople that are injured in
serious car accidents, aboutwhat does it really mean to
somebody when you tell them thatyou have no autonomy and no
(21:08):
ability to make decisions aboutwhere you're going to live or
how your life is going to unfold?
You're going to live or how yourlife is going to unfold and how
?
That's just an extra indignitypiled on top of, of course,
whatever it was that got you tocourt in the first place
assuming you can still get tocourt and so this decision, I
must say, in the position theprovince took in this case and
(21:29):
in the case we just talked about, in terms of deeming the zoning
to be permissible, and theprovince's position in terms of
no-fault insurance and what thatmeans to people, are all a
consistent theme of how thisprovincial government has
operated for the past number ofyears, in order, in terms of
(21:49):
just that philosophy of you knowwhat does it mean in terms of
you know somebody's dignity andautonomy?
Should you be able to go tocourt?
Should you be able to have anindependent judge decide
something?
Should you be able to makedecisions for yourself about
where you're living and whatyou're doing and how you're
going to care for yourself, andthere's just a very different
philosophy between sort of thestatus view of don't worry,
everything should be fine, we'lldecide for you, and no, we're
(22:13):
going to treat you with someautonomy and dignity.
Anyways, this was a victory forthe autonomy and dignity camp
and fortunately young lady willbe able to continue on at least
as long as possible in the verygood position that she's been in
after about the worst start inlife one could imagine that's
all the time we have for today.
That's the latest.
Adam Stirling (22:33):
Yes, thank you so much, michael Mulligan.
Thank you so much as always.
A little bit over, but afascinating and an important
story, so thank you so much asalways.
Thank you so much.
Have a great day, all right.
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