July 10, 2025 • 21 mins
Ever wondered what happens when one party drops 4 million documents on their opponent in a lawsuit? Michael Mulligan explains the fascinating legal concept of an "impermissible document dump" through the lens of a billion-dollar dispute over the North Shore Wastewater Treatment Plant. The case reveals how modern litigation handles vast electronic records and when providing mountains of documents crosses from thorough disclosure to litigation obstruction.
The contrast couldn't be greater when we shift to a dispute over sofa cushions that need "fluffing." When purchasers discovered their $4,400 sofa required constant maintenance despite requesting one that was "solid and not floppy," they sought a full refund seven months later. The judge's decision offers a perfect example of how consumer protection laws balance remedies against practical realities. While the customers couldn't return a seven-month-used sofa for a full refund, they did receive $500 for the "inconvenience and distress" of cushion maintenance – a small but meaningful victory.
Perhaps most illuminating is our examination of what constitutes a "marriage-like relationship" under BC law. When a woman claimed two separate periods of cohabitation (18 months and 22.5 months) should qualify her as a spouse entitled to property division and support, the court had to determine if discontinuous periods could be combined. The judge's 39-page decision dissecting the intimate details of their relationship highlights the challenge of applying family law to complex human connections. The ruling that periods must be continuous serves as a critical warning about the unexpected legal implications of your living arrangements. This case demonstrates why clarity in relationship status matters and raises questions about whether our current approach to defining common-law relationships serves those it aims to protect.
Follow this link for a transcript of the show and links to the cases discussed.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for a regular segment, joined as
always by Michael Mulligan,barrister and solicitor, with
Mulligan Defence Lawyers.
It's Legally Speaking on CFAX1070.
Afternoon, Michael, how are wedoing?
Michael Mulligan (00:10):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Some interesting things on the agenda today.
I see a question posed to us atthe outset.
Is providing 4 milliondocuments in a civil case a
quote?
Impermissible document dump.
Michael Mulligan (00:26):
Well, I tell you, you sure don't want to be
on the receiving end of fourmillion documents.
But the background is thisright, unlike in criminal law,
where a party has a right toremain silent.
Right, the crown has to providedisclosure, but the accused
doesn't.
In civil cases, when you'resuing over money, the watchword
is that both parties have toprovide disclosure, but the
(00:46):
accused doesn't.
In civil cases, when you'resuing over money, the watchword
is that both parties have toprovide disclosure to the other
of all the relevant documentsthey've got that has anything to
do with the case.
And the reason for that is toallow for cases to settle.
Right, you don't want one side,you know, keeping close to
their chest something that'sgoing to completely determine
how the case is going to goright.
So the idea is both partiesexchange all their stuff,
(01:09):
lawyers can look at it and thenmost cases settle because most
people are reasonable, rationalactors, right?
So that's the background.
Now it gets complicated incomplicated cases like this one,
and the case that poses thisquestion about the 4 million
documents is civil litigationthat's ongoing right now over
the North Shore WastewaterTreatment Plant, and what
(01:32):
happened there is that thedistrict contracted with the
company that's involved withthis litigation, and some others
to design, construct andpartially finance the wastewater
treatment plant.
Now, the problem with any largeproject like that is they are
generally one-offs, right, youknow, there hasn't been another
exactly the same wastewatertreatment plant somewhere, and
(01:55):
so almost inevitably and we'veseen this in Victoria and the
area with projects here thingshappen Like you sort of go along
and say, oh well, you know thepilings for the bridge can't go
there, there's a big rock, oryou know the pipe doesn't fit,
or whatever it is right, and sothings get changed and the
person doing the you know hiringhas the right to change them.
(02:16):
Right, you know?
Just like if somebody iscontracting to have their
kitchen rebuilt or somethingredone, you could come along and
say, well, hold on, stop, I'vedecided to move the island one
foot to the west or somethingright, okay, fine, says the
contractor.
And here eventually thingscompletely broke down and the
(02:37):
company that was doing thebuilding and design and so on
claimed that the district hadmade it impossible to construct
the project in accordance withwhat had been contracted for
without huge changes.
And on the flip side, thedistrict alleged that the
company had failed or delayed toperform the obligations under
the contract.
So things broke down andeventually the district that did
(02:59):
the hiring terminated thecontract well into the
construction of it.
Hiring terminated the contractwell into the construction of it
, resulting in claims back andforth of, on one hand, $250
million and the other direction,potentially $1 billion.
All terrible, right?
You know, cancelling one ofthese things and you're that far
into it is sort of like havinga mechanic disassemble your
engine and then deciding to towyour car to another mechanic.
(03:21):
Right, that's not going to gowell.
So parties are suing each otherover what happened here.
Was it one party failing to dowhat was required, or is the
other person changing things somuch that you couldn't do it?
And so that's the nature of thelitigation.
Now, in large, complicated caseslike this, there are so many
documents involved that it isbeyond the scope and scale of
(03:43):
what most even large law firmscould handle individually,
unless you wanted to havelawyers spending, you know,
months and years of their lifetrying to collect all these
things.
And so there are companiescalled e-discovery services, and
those companies specialize incollecting up electronic
documents, because, after all,most things these days are
(04:04):
electronic emails, messages,posts, whatever.
And so both parties hiredwell-respected e-discovery
companies and then they came upwith a protocol for search terms
, right?
So imagine now you've gotlawyers on both sides, sort of
like giving search terms forGoogle, and they each came up
(04:25):
with what amounted to a total of500 search terms, which were
applied to all of the documentsthat were collected.
And to give you an idea of thescope and scale, the company
doing the building had collectedup 29 million documents that
had been held by 200 differentbodies or custodians I guess it
had been held by 200 differentbodies or custodians, I guess
subcontractors or whatever 29million and they applied the 500
(04:48):
search terms to it, whichproduced 4 million documents.
And then they did some automated.
The e-discovery companies didsome automated work on the 4
million documents that came up,trying to filter out things like
duplicates and emails andthings.
Because, if you're familiarwith this, you send email back
(05:10):
and forth to 10 different peoplewith a person responding thanks
for that, and suddenly you'vegot 20 copies of what amounts to
really the same thing, rightBack and forth, and that's just
one little email.
And so that's how you can very,very quickly wind up with 29
million emails over theconstruction of a wastewater
treatment plant.
And so the effort was made bythe e-discovery service
(05:33):
providers to sort of filter outstuff that were exact duplicates
and email chains so that eachemail didn't turn into you know
a thousand copies of it when youknow they were forwarded to
various people.
People hit reply, all and so on, but still 4 million documents.
And so the district was claiminghey, you've engaged in what's
been referred to as in thequestion posed.
(05:54):
Is that an impermissibledocument dump?
And the idea there is thatthere could be a strategy not a
good one, I should say inlitigation for a party to just
say well, you want disclosure,I'll show you disclosure.
Right, and you know, you canimagine the old days, sort of
backing up you know a thousandboxes of paper or something.
(06:16):
Oh, there you are, I've givenyou everything.
Good luck with that Right Tomake it so expensive, so time
consuming, or the alternative,or, in the alternative,
impossible to find somethingmeaningful that the litigation
just comes to its knees.
And so in this case, thedistrict was claiming that they
were the victim of a documentdump and so it required the
(06:37):
judge managing this to call youknow clear evidence about what
these things were and how theywere sorted out.
And what about the 500 searchterms?
And how did they come up withthese things?
And you know it wasn'tpractical.
You know the district wanted anorder.
The order they were asking forwas in order to remove any and
all documents that areirrelevant, and I just feel
that's just entirely impractical, right?
(07:00):
And you think about that.
If I say, do you hear 29million possible documents?
Remove anything that's possiblyirrelevant, what kind of a task
is that?
Right, it would be animpossible thing to comply with.
And so here the judge pointedto the fact that, look, both
parties worked on these searchterms for months.
They agreed upon the 500 termsand the company did what was
(07:20):
agreed upon and they said, well,look, yes, appreciate that you
may get like.
The district was complaining youknow, some of these emails are
very similar, only small changes, things like that.
But here the judge said, no,they've done what was agreed to.
It wasn't some effort toobscure things by providing too
many.
After all, this was 4 millionof whatever it was.
29 million things to begin with, like you know, 20 million
(07:43):
emails and 5 million documentsfrom an internal share drive and
2 million documents from athing called ThinkProject,
platform Boy.
You really don't want to be ina project with 2 million
ThinkProject platform documents.
And so the judge found that thiswasn't impermissible.
The company had done what wasagreed upon and the district is
(08:04):
going to, and the GreaterVancouver Sewage and Greenage
District is just but boy.
It's a cautionary tale withthese big projects and you can
(08:27):
just imagine how these things gooff track and it's frequent
that they unfortunately wind upin litigation.
They're just naturallydisputable.
Okay, well, you told me to move.
I hit a rock when I was tryingto put in that piling.
You specified go right, exactlyhere.
You told me to move it over twofeet.
I moved it over two feet.
Now here's the bill, right, andyou can just imagine how that
(08:50):
almost inevitably leads tolitigation.
And that's what's going on overthe wastewater treatment plant
in North Vancouver and, havingfired the company, as they've
towed their disassembled car on,and so I guess, well, we can
see whether there's ever asewage treatment plant in North
Vancouver and at what cost.
But that's litigation andthat's what an impermissible
(09:10):
document dump is.
Adam Stirling (09:11):
All right, We'll take a quick break.
Legally Speaking will continueright after this.
Back on the air here at CFAX1070.
Legally Speaking joined usalways with Michael Mulligan
from Mulligan Defence Lawyers,Up next on the agenda.
I read a question Can you getyour money back after seven
months when your couch requiresquote fluffing?
I don't know, Can we?
Michael Mulligan (09:31):
Well, I tell you this was a piece of
litigation at the other end ofthe continuum from the North
Shore Wastewater Treatment Plant.
But it's a little piece ofjustice, I think, and it's a
small claims case involvingexactly that issue.
And the factual background isthat a company showed up at a
large furniture store and theyadvised the salesperson that
(09:52):
they were seeking a sofa whichwas solid and not floppy.
And in response to that request, the salesperson showed the
customers five or six differentsofas and they said that they
wanted one that would hold itsshape and form.
Ultimately the purchaserssettled on a particular sofa, a
(10:14):
pretty nice one, from the price.
They wound up purchasing afloor model of this sofa, which
was regularly $5,600 for $4,400.
On the and they also bought thestain package, it would seem.
On the receipt it said salefinal, no returns, but that's
not necessarily determinative ofthis issue.
(10:34):
They got the sofa, gotdelivered to them eventually and
they discovered to their horrorthat after sitting on the sofa
for an hour or two the cushionswould deflate and angle towards
the floor.
Otherwise they agreed the sofawas of good quality, but the
cushions flattened over time.
They got distracted thepurchasers, that is, with some,
I think medical issues orsomething and then decided,
(10:55):
seven months plus after thepurchase, to go back to the
store to complain about thecushions that needed fluffing
and wanted a refund for themoney.
The store manager went over totheir home and inspected the
sofa and showed them how tomaintain the cushions and
explained that they weren'tdefective.
They were.
(11:15):
It turned out feather cushionswhich required some fluffing and
the purchasers weredissatisfied with that
assistance.
The store then suggested thatthey could, at their own cost,
replace the feathers with foam.
That would cost $1,200.
They decided that that wasn'tsatisfactory either, and so off
the case went to small claimscourt.
(11:37):
The judge at the trial founduseful some warranty information
that came from the manufacturerof the sofa, which includes
specific notice about what arereferred to as feather soft
insert cushions, indicating thatthey needed more maintenance,
including fluffing, and rotationwould be frequently required.
Now there was no evidence.
(12:00):
The salesperson was aware ofthe warranty information about
fluffing and rotation, butnonetheless the judge ultimately
found that there was amisrepresentation by the
salesperson in terms of the sofaor the sofas being shown
whether they were solid and notfloppy.
So the judge concluded yes,there had been a
misrepresentation by thesalesperson.
(12:20):
But then what is the remedy forthat?
And when you're asking for yourmoney back, that legal concept
is actually referred to theconcept of recession.
And the idea with recession isit's canceling a contract,
treating it like it neverhappened.
So, sofa back, you get the cashright Like you never agreed to
buy the sofa.
But, as the judge pointed outin this decision, that concept,
(12:44):
that legal concept of rescission, is only available if it's
possible to restore both partiesto their original position,
which you know.
Let's say, for example, theyhave the same fact pattern, and
the day the sofa arrived at thepeople's home, they went back to
the store and said oh mygoodness, it's floppy, I have to
fluff it, I want my money back.
(13:04):
You might, in that circumstance, get that remedy of recession
if a judge was satisfied that,yeah, this was misrepresented to
you and we can put everyoneright back in the position they
would have been in.
Just take the sofa right back.
Right, the problem here was thatthe people kept and used the
sofa for seven months, and soreturning a seven-month-old used
(13:25):
sofa doesn't put the store backin the position they would have
been in if recession, if thatwas ordered.
And so the judge said that'snot available.
And so the judge had to thenfigure out well, what is the
appropriate remedy here fordamages?
And the judge concluded thatwell, what's really due here are
damages for, as the judge putit, the inconvenience and
distress of having to maintainthe sofa.
(13:47):
And the judge said look, youknow, this certainly is an
inconvenience they don't havethe quote peace of mind of not
having to maintain the sofa.
But the sofa is not defective,it hasn't lost its value and
everyone agrees it's otherwise agood sofa.
And so the judge ultimatelyawarded damages of $500, the
$500 to compensate for theinconvenience and distress of
(14:07):
having to fluff the cushions up.
The judge then went on to dealwith the issue of costs and
expenses.
Now, generally in small claimscourt you don't get costs like
you do in Supreme Court, theidea being that parties are
unrepresented and the amountsinvolved are relatively small.
But here the amount of moneyreceived was very small and in
(14:28):
fact small in the sense of beingwithin the jurisdiction of the
civil resolution tribunal.
We've talked about that before.
It's like the PayPal disputemechanism for civil claims of
less than $3,000.
For rescission and having themoney completely refunded for
the seven-month-old used sofahad no real prospect of success
(14:52):
or little prospect of success.
And so the judge denied eventhe costs associated with filing
a claim in small claims courts,which is a little more
expensive, and there's someadditional things about having
properly serving notice and soon.
That's a little simpler in theCivil Resolution Tribunal, and
(15:16):
so ordered that the successfulcouch fluffing unhappy
purchasers would only get $75for their expenses.
So after all of that, theunhappy fluffy feather couch
owners were awarded a sum of$500 for their distress and
inconvenience of having tocontinually fluff their cushions
every couple of hours, alongwith $75.
So they got $575.
And so I guess really the othertakeaway I guess the answer to
the question posed is no, youcan't get all of your money back
(15:39):
.
But the other takeaway fromsome of these cases even though
I think at the end of the daythat's probably just about
exactly what justice requiredhere you have to think about how
much time you spent litigatingin small claims court your claim
over feather cushions.
But we have a legal answer andthe answer is 500 bucks.
So that's what you can get backif you got a misrepresentation
(15:59):
about whether your intended sofais solid and not floppy, as
this one apparently was,although otherwise quite
lecherous and All right, fourminutes remaining and an age-old
question.
Adam Stirling (16:11):
Well, maybe not really age-old.
Is living together twice for 18and then 22 and a half months
considered a marriage-likerelationship?
Michael Mulligan (16:20):
Okay.
So here's why this reallymatters in British Columbia.
In BC, we've got the Family LawAct and for policy reasons,
we've decided that if peoplelive in a marriage-like
relationship for at least twoyears, they can be spouses, and
so it can very much matterwhether you're in a
marriage-like relationship.
(16:40):
I should pause to say thatthat's just a policy decision,
right, and I'm not sure it'salways the best one.
It results in cases like thisthat goes on for 39 pages, with
a judge having to sort out like,was that really a marriage-like
relationship when you wereliving on your brother's couch
for that period of time, andwhat did you intend?
And picking through everyone'slife to try to figure that out.
You know, after all, theconcept of marriage is pretty
(17:03):
clear.
People have kind of agreed tothis right, and so you could
have a different policy approachwhere you, for example, require
people to, you know, affirmthat they want to be in a
marriage-like relationship forthe purpose of, as in this case,
what really happened is, whenthe marriage broke down, one of
the ex-partners filed a claimfor spousal support and division
of marital assets, which isreally what gets triggered if
(17:25):
you wind up in a marriage-likerelationship for that period of
time.
And so the judge here wound uphaving to, like, pick through
all of these sort ofembarrassing elements of these
people's lives, looking atthings like, well, when one of
them went into, you know,alcohol treatment for two months
, did that end the period oftime they were together?
You know, after all, you know,marriages aren't ending when
(17:47):
somebody goes away for some.
You know temporary period oftime, things like that.
And poking through their emails, messages to each other how are
you behaving with the childrenback and forth, and were you
acting like a parent?
And all of this, and so thatcreates a pretty substantial
amount of legal uncertainty andcertainly not a good
(18:08):
circumstance for people to be in.
This relationship eventuallycame to an end certainly not a
good circumstance for people tobe in.
This relationship eventuallycame to an end.
The parties, or the woman inthe relationship, claimed that
she was assaulted after a socialgathering and that's why she
left the house.
The man was actually chargedwith that, but acquitted he
claimed that in fact he kickedher out after her behavior at
(18:28):
the social event.
So we'll never know quite whythe thing ultimately ended.
But they've had another airingof those grievances in the
course of this litigation.
But here's the important legalpoint at the end of the very
long analysis of the minutia oftheir lives is that the judge
concluded that there were twoperiods of time when these
(18:50):
parties were in a marriage-likerelationship.
There was an 18-month stretchwhen they were, and there's
another stretch which was 22 anda half months.
The problem, though, for theperson wanting spousal support
and to divide up all of theirassets was that, in order to fit
within the wording of theFamily Law Act in British
(19:11):
Columbia fit within the wordingof the Family Law Act in British
Columbia it has to be acontinuous period of time.
It can't be broken up, which,on one level, makes sense.
You wouldn't want to have acircumstance where, let's say,
people spent the weekendtogether every once a month and
you wouldn't want to say, well,let's just add all that up and
eventually it totals two years,and so, ha-ha, you get half the
house or whatever.
(19:31):
That would not be what'sintended, and so the answer here
is that yes, if you add all thetime up and you take into
account all the minutia, and whointended what and who was
planning to move back in, andwhat about the treatment and
what about you know, when yousaid this is done, you end up.
You do all the math, it's overtwo years, but it hit a gap and
(19:54):
because there's a gap, the netresult is not a marriage-like
relationship within the meaningof 3.1b of the Family Law Act,
and so that result is that inthis case, it was the woman in
the relationship wasunsuccessful in her allegation
that they were spouses withinthat definition.
And the result of that not onlyis that will she not succeed in
getting the property divided,she will not get maintenance and
(20:18):
, furthermore, she's subject nowto a order for costs because,
just like other litigation inSupreme Court, if you sue
someone and you sue themunsuccessfully, you wind up on
the hook for the portion of thelegal expenses of the other side
, which here would not beinsignificant.
This was a trial that went on inOctober, november, may, for,
(20:41):
like you add it all up, it'slike they spent more than a week
in trial.
So that's going to be a bigbill.
And it's the result of thisdefinition that causes people to
be spouses if they're in amarriage-like relationship and
that has to have some legalmeaning.
That requires every event to bepicked apart and excruciating
(21:02):
in public detail this sort oflitigation and allow people to
order their lives would be tohave people make some sort of an
affirmative choice rather thancoming along after the fact and
trying to figure out whetherpeople amounted to spouses when
there was no sort of clearindication that that's what
(21:24):
either of them wanted at thetime.
So that's the latest on what itmeans to be a marriage-like
relationship and a spouse underthe Family Law Act in British
Columbia.
Adam Stirling (21:32):
Michael Mulligan, from Mulligan Defence Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
It's always great to be here.
All right, quick break Back ina moment.
It's time for a regular segment, joined as
always by Michael Mulligan,barrister and solicitor, with
Mulligan Defence Lawyers.
It's Legally Speaking on CFAX1070.
Afternoon, Michael, how are wedoing?
Michael Mulligan (00:10):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Some interesting things on the agenda today.
I see a question posed to us atthe outset.
Is providing 4 milliondocuments in a civil case a
quote?
Impermissible document dump.
Michael Mulligan (00:26):
Well, I tell you, you sure don't want to be
on the receiving end of fourmillion documents.
But the background is thisright, unlike in criminal law,
where a party has a right toremain silent.
Right, the crown has to providedisclosure, but the accused
doesn't.
In civil cases, when you'resuing over money, the watchword
is that both parties have toprovide disclosure, but the
(00:46):
accused doesn't.
In civil cases, when you'resuing over money, the watchword
is that both parties have toprovide disclosure to the other
of all the relevant documentsthey've got that has anything to
do with the case.
And the reason for that is toallow for cases to settle.
Right, you don't want one side,you know, keeping close to
their chest something that'sgoing to completely determine
how the case is going to goright.
So the idea is both partiesexchange all their stuff,
(01:09):
lawyers can look at it and thenmost cases settle because most
people are reasonable, rationalactors, right?
So that's the background.
Now it gets complicated incomplicated cases like this one,
and the case that poses thisquestion about the 4 million
documents is civil litigationthat's ongoing right now over
the North Shore WastewaterTreatment Plant, and what
(01:32):
happened there is that thedistrict contracted with the
company that's involved withthis litigation, and some others
to design, construct andpartially finance the wastewater
treatment plant.
Now, the problem with any largeproject like that is they are
generally one-offs, right, youknow, there hasn't been another
exactly the same wastewatertreatment plant somewhere, and
(01:55):
so almost inevitably and we'veseen this in Victoria and the
area with projects here thingshappen Like you sort of go along
and say, oh well, you know thepilings for the bridge can't go
there, there's a big rock, oryou know the pipe doesn't fit,
or whatever it is right, and sothings get changed and the
person doing the you know hiringhas the right to change them.
(02:16):
Right, you know?
Just like if somebody iscontracting to have their
kitchen rebuilt or somethingredone, you could come along and
say, well, hold on, stop, I'vedecided to move the island one
foot to the west or somethingright, okay, fine, says the
contractor.
And here eventually thingscompletely broke down and the
(02:37):
company that was doing thebuilding and design and so on
claimed that the district hadmade it impossible to construct
the project in accordance withwhat had been contracted for
without huge changes.
And on the flip side, thedistrict alleged that the
company had failed or delayed toperform the obligations under
the contract.
So things broke down andeventually the district that did
(02:59):
the hiring terminated thecontract well into the
construction of it.
Hiring terminated the contractwell into the construction of it
, resulting in claims back andforth of, on one hand, $250
million and the other direction,potentially $1 billion.
All terrible, right?
You know, cancelling one ofthese things and you're that far
into it is sort of like havinga mechanic disassemble your
engine and then deciding to towyour car to another mechanic.
(03:21):
Right, that's not going to gowell.
So parties are suing each otherover what happened here.
Was it one party failing to dowhat was required, or is the
other person changing things somuch that you couldn't do it?
And so that's the nature of thelitigation.
Now, in large, complicated caseslike this, there are so many
documents involved that it isbeyond the scope and scale of
(03:43):
what most even large law firmscould handle individually,
unless you wanted to havelawyers spending, you know,
months and years of their lifetrying to collect all these
things.
And so there are companiescalled e-discovery services, and
those companies specialize incollecting up electronic
documents, because, after all,most things these days are
(04:04):
electronic emails, messages,posts, whatever.
And so both parties hiredwell-respected e-discovery
companies and then they came upwith a protocol for search terms
, right?
So imagine now you've gotlawyers on both sides, sort of
like giving search terms forGoogle, and they each came up
(04:25):
with what amounted to a total of500 search terms, which were
applied to all of the documentsthat were collected.
And to give you an idea of thescope and scale, the company
doing the building had collectedup 29 million documents that
had been held by 200 differentbodies or custodians I guess it
had been held by 200 differentbodies or custodians, I guess
subcontractors or whatever 29million and they applied the 500
(04:48):
search terms to it, whichproduced 4 million documents.
And then they did some automated.
The e-discovery companies didsome automated work on the 4
million documents that came up,trying to filter out things like
duplicates and emails andthings.
Because, if you're familiarwith this, you send email back
(05:10):
and forth to 10 different peoplewith a person responding thanks
for that, and suddenly you'vegot 20 copies of what amounts to
really the same thing, rightBack and forth, and that's just
one little email.
And so that's how you can very,very quickly wind up with 29
million emails over theconstruction of a wastewater
treatment plant.
And so the effort was made bythe e-discovery service
(05:33):
providers to sort of filter outstuff that were exact duplicates
and email chains so that eachemail didn't turn into you know
a thousand copies of it when youknow they were forwarded to
various people.
People hit reply, all and so on, but still 4 million documents.
And so the district was claiminghey, you've engaged in what's
been referred to as in thequestion posed.
(05:54):
Is that an impermissibledocument dump?
And the idea there is thatthere could be a strategy not a
good one, I should say inlitigation for a party to just
say well, you want disclosure,I'll show you disclosure.
Right, and you know, you canimagine the old days, sort of
backing up you know a thousandboxes of paper or something.
(06:16):
Oh, there you are, I've givenyou everything.
Good luck with that Right Tomake it so expensive, so time
consuming, or the alternative,or, in the alternative,
impossible to find somethingmeaningful that the litigation
just comes to its knees.
And so in this case, thedistrict was claiming that they
were the victim of a documentdump and so it required the
(06:37):
judge managing this to call youknow clear evidence about what
these things were and how theywere sorted out.
And what about the 500 searchterms?
And how did they come up withthese things?
And you know it wasn'tpractical.
You know the district wanted anorder.
The order they were asking forwas in order to remove any and
all documents that areirrelevant, and I just feel
that's just entirely impractical, right?
(07:00):
And you think about that.
If I say, do you hear 29million possible documents?
Remove anything that's possiblyirrelevant, what kind of a task
is that?
Right, it would be animpossible thing to comply with.
And so here the judge pointedto the fact that, look, both
parties worked on these searchterms for months.
They agreed upon the 500 termsand the company did what was
(07:20):
agreed upon and they said, well,look, yes, appreciate that you
may get like.
The district was complaining youknow, some of these emails are
very similar, only small changes, things like that.
But here the judge said, no,they've done what was agreed to.
It wasn't some effort toobscure things by providing too
many.
After all, this was 4 millionof whatever it was.
29 million things to begin with, like you know, 20 million
(07:43):
emails and 5 million documentsfrom an internal share drive and
2 million documents from athing called ThinkProject,
platform Boy.
You really don't want to be ina project with 2 million
ThinkProject platform documents.
And so the judge found that thiswasn't impermissible.
The company had done what wasagreed upon and the district is
(08:04):
going to, and the GreaterVancouver Sewage and Greenage
District is just but boy.
It's a cautionary tale withthese big projects and you can
(08:27):
just imagine how these things gooff track and it's frequent
that they unfortunately wind upin litigation.
They're just naturallydisputable.
Okay, well, you told me to move.
I hit a rock when I was tryingto put in that piling.
You specified go right, exactlyhere.
You told me to move it over twofeet.
I moved it over two feet.
Now here's the bill, right, andyou can just imagine how that
(08:50):
almost inevitably leads tolitigation.
And that's what's going on overthe wastewater treatment plant
in North Vancouver and, havingfired the company, as they've
towed their disassembled car on,and so I guess, well, we can
see whether there's ever asewage treatment plant in North
Vancouver and at what cost.
But that's litigation andthat's what an impermissible
(09:10):
document dump is.
Adam Stirling (09:11):
All right, We'll take a quick break.
Legally Speaking will continueright after this.
Back on the air here at CFAX1070.
Legally Speaking joined usalways with Michael Mulligan
from Mulligan Defence Lawyers,Up next on the agenda.
I read a question Can you getyour money back after seven
months when your couch requiresquote fluffing?
I don't know, Can we?
Michael Mulligan (09:31):
Well, I tell you this was a piece of
litigation at the other end ofthe continuum from the North
Shore Wastewater Treatment Plant.
But it's a little piece ofjustice, I think, and it's a
small claims case involvingexactly that issue.
And the factual background isthat a company showed up at a
large furniture store and theyadvised the salesperson that
(09:52):
they were seeking a sofa whichwas solid and not floppy.
And in response to that request, the salesperson showed the
customers five or six differentsofas and they said that they
wanted one that would hold itsshape and form.
Ultimately the purchaserssettled on a particular sofa, a
(10:14):
pretty nice one, from the price.
They wound up purchasing afloor model of this sofa, which
was regularly $5,600 for $4,400.
On the and they also bought thestain package, it would seem.
On the receipt it said salefinal, no returns, but that's
not necessarily determinative ofthis issue.
(10:34):
They got the sofa, gotdelivered to them eventually and
they discovered to their horrorthat after sitting on the sofa
for an hour or two the cushionswould deflate and angle towards
the floor.
Otherwise they agreed the sofawas of good quality, but the
cushions flattened over time.
They got distracted thepurchasers, that is, with some,
I think medical issues orsomething and then decided,
(10:55):
seven months plus after thepurchase, to go back to the
store to complain about thecushions that needed fluffing
and wanted a refund for themoney.
The store manager went over totheir home and inspected the
sofa and showed them how tomaintain the cushions and
explained that they weren'tdefective.
They were.
(11:15):
It turned out feather cushionswhich required some fluffing and
the purchasers weredissatisfied with that
assistance.
The store then suggested thatthey could, at their own cost,
replace the feathers with foam.
That would cost $1,200.
They decided that that wasn'tsatisfactory either, and so off
the case went to small claimscourt.
(11:37):
The judge at the trial founduseful some warranty information
that came from the manufacturerof the sofa, which includes
specific notice about what arereferred to as feather soft
insert cushions, indicating thatthey needed more maintenance,
including fluffing, and rotationwould be frequently required.
Now there was no evidence.
(12:00):
The salesperson was aware ofthe warranty information about
fluffing and rotation, butnonetheless the judge ultimately
found that there was amisrepresentation by the
salesperson in terms of the sofaor the sofas being shown
whether they were solid and notfloppy.
So the judge concluded yes,there had been a
misrepresentation by thesalesperson.
(12:20):
But then what is the remedy forthat?
And when you're asking for yourmoney back, that legal concept
is actually referred to theconcept of recession.
And the idea with recession isit's canceling a contract,
treating it like it neverhappened.
So, sofa back, you get the cashright Like you never agreed to
buy the sofa.
But, as the judge pointed outin this decision, that concept,
(12:44):
that legal concept of rescission, is only available if it's
possible to restore both partiesto their original position,
which you know.
Let's say, for example, theyhave the same fact pattern, and
the day the sofa arrived at thepeople's home, they went back to
the store and said oh mygoodness, it's floppy, I have to
fluff it, I want my money back.
(13:04):
You might, in that circumstance, get that remedy of recession
if a judge was satisfied that,yeah, this was misrepresented to
you and we can put everyoneright back in the position they
would have been in.
Just take the sofa right back.
Right, the problem here was thatthe people kept and used the
sofa for seven months, and soreturning a seven-month-old used
(13:25):
sofa doesn't put the store backin the position they would have
been in if recession, if thatwas ordered.
And so the judge said that'snot available.
And so the judge had to thenfigure out well, what is the
appropriate remedy here fordamages?
And the judge concluded thatwell, what's really due here are
damages for, as the judge putit, the inconvenience and
distress of having to maintainthe sofa.
(13:47):
And the judge said look, youknow, this certainly is an
inconvenience they don't havethe quote peace of mind of not
having to maintain the sofa.
But the sofa is not defective,it hasn't lost its value and
everyone agrees it's otherwise agood sofa.
And so the judge ultimatelyawarded damages of $500, the
$500 to compensate for theinconvenience and distress of
(14:07):
having to fluff the cushions up.
The judge then went on to dealwith the issue of costs and
expenses.
Now, generally in small claimscourt you don't get costs like
you do in Supreme Court, theidea being that parties are
unrepresented and the amountsinvolved are relatively small.
But here the amount of moneyreceived was very small and in
(14:28):
fact small in the sense of beingwithin the jurisdiction of the
civil resolution tribunal.
We've talked about that before.
It's like the PayPal disputemechanism for civil claims of
less than $3,000.
For rescission and having themoney completely refunded for
the seven-month-old used sofahad no real prospect of success
(14:52):
or little prospect of success.
And so the judge denied eventhe costs associated with filing
a claim in small claims courts,which is a little more
expensive, and there's someadditional things about having
properly serving notice and soon.
That's a little simpler in theCivil Resolution Tribunal, and
(15:16):
so ordered that the successfulcouch fluffing unhappy
purchasers would only get $75for their expenses.
So after all of that, theunhappy fluffy feather couch
owners were awarded a sum of$500 for their distress and
inconvenience of having tocontinually fluff their cushions
every couple of hours, alongwith $75.
So they got $575.
And so I guess really the othertakeaway I guess the answer to
the question posed is no, youcan't get all of your money back
(15:39):
.
But the other takeaway fromsome of these cases even though
I think at the end of the daythat's probably just about
exactly what justice requiredhere you have to think about how
much time you spent litigatingin small claims court your claim
over feather cushions.
But we have a legal answer andthe answer is 500 bucks.
So that's what you can get backif you got a misrepresentation
(15:59):
about whether your intended sofais solid and not floppy, as
this one apparently was,although otherwise quite
lecherous and All right, fourminutes remaining and an age-old
question.
Adam Stirling (16:11):
Well, maybe not really age-old.
Is living together twice for 18and then 22 and a half months
considered a marriage-likerelationship?
Michael Mulligan (16:20):
Okay.
So here's why this reallymatters in British Columbia.
In BC, we've got the Family LawAct and for policy reasons,
we've decided that if peoplelive in a marriage-like
relationship for at least twoyears, they can be spouses, and
so it can very much matterwhether you're in a
marriage-like relationship.
(16:40):
I should pause to say thatthat's just a policy decision,
right, and I'm not sure it'salways the best one.
It results in cases like thisthat goes on for 39 pages, with
a judge having to sort out like,was that really a marriage-like
relationship when you wereliving on your brother's couch
for that period of time, andwhat did you intend?
And picking through everyone'slife to try to figure that out.
You know, after all, theconcept of marriage is pretty
(17:03):
clear.
People have kind of agreed tothis right, and so you could
have a different policy approachwhere you, for example, require
people to, you know, affirmthat they want to be in a
marriage-like relationship forthe purpose of, as in this case,
what really happened is, whenthe marriage broke down, one of
the ex-partners filed a claimfor spousal support and division
of marital assets, which isreally what gets triggered if
(17:25):
you wind up in a marriage-likerelationship for that period of
time.
And so the judge here wound uphaving to, like, pick through
all of these sort ofembarrassing elements of these
people's lives, looking atthings like, well, when one of
them went into, you know,alcohol treatment for two months
, did that end the period oftime they were together?
You know, after all, you know,marriages aren't ending when
(17:47):
somebody goes away for some.
You know temporary period oftime, things like that.
And poking through their emails, messages to each other how are
you behaving with the childrenback and forth, and were you
acting like a parent?
And all of this, and so thatcreates a pretty substantial
amount of legal uncertainty andcertainly not a good
(18:08):
circumstance for people to be in.
This relationship eventuallycame to an end certainly not a
good circumstance for people tobe in.
This relationship eventuallycame to an end.
The parties, or the woman inthe relationship, claimed that
she was assaulted after a socialgathering and that's why she
left the house.
The man was actually chargedwith that, but acquitted he
claimed that in fact he kickedher out after her behavior at
(18:28):
the social event.
So we'll never know quite whythe thing ultimately ended.
But they've had another airingof those grievances in the
course of this litigation.
But here's the important legalpoint at the end of the very
long analysis of the minutia oftheir lives is that the judge
concluded that there were twoperiods of time when these
(18:50):
parties were in a marriage-likerelationship.
There was an 18-month stretchwhen they were, and there's
another stretch which was 22 anda half months.
The problem, though, for theperson wanting spousal support
and to divide up all of theirassets was that, in order to fit
within the wording of theFamily Law Act in British
(19:11):
Columbia fit within the wordingof the Family Law Act in British
Columbia it has to be acontinuous period of time.
It can't be broken up, which,on one level, makes sense.
You wouldn't want to have acircumstance where, let's say,
people spent the weekendtogether every once a month and
you wouldn't want to say, well,let's just add all that up and
eventually it totals two years,and so, ha-ha, you get half the
house or whatever.
(19:31):
That would not be what'sintended, and so the answer here
is that yes, if you add all thetime up and you take into
account all the minutia, and whointended what and who was
planning to move back in, andwhat about the treatment and
what about you know, when yousaid this is done, you end up.
You do all the math, it's overtwo years, but it hit a gap and
(19:54):
because there's a gap, the netresult is not a marriage-like
relationship within the meaningof 3.1b of the Family Law Act,
and so that result is that inthis case, it was the woman in
the relationship wasunsuccessful in her allegation
that they were spouses withinthat definition.
And the result of that not onlyis that will she not succeed in
getting the property divided,she will not get maintenance and
(20:18):
, furthermore, she's subject nowto a order for costs because,
just like other litigation inSupreme Court, if you sue
someone and you sue themunsuccessfully, you wind up on
the hook for the portion of thelegal expenses of the other side
, which here would not beinsignificant.
This was a trial that went on inOctober, november, may, for,
(20:41):
like you add it all up, it'slike they spent more than a week
in trial.
So that's going to be a bigbill.
And it's the result of thisdefinition that causes people to
be spouses if they're in amarriage-like relationship and
that has to have some legalmeaning.
That requires every event to bepicked apart and excruciating
(21:02):
in public detail this sort oflitigation and allow people to
order their lives would be tohave people make some sort of an
affirmative choice rather thancoming along after the fact and
trying to figure out whetherpeople amounted to spouses when
there was no sort of clearindication that that's what
(21:24):
either of them wanted at thetime.
So that's the latest on what itmeans to be a marriage-like
relationship and a spouse underthe Family Law Act in British
Columbia.
Adam Stirling (21:32):
Michael Mulligan, from Mulligan Defence Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
It's always great to be here.
All right, quick break Back ina moment.
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