July 31, 2025 • 21 mins
Frustrated by an airline refusing compensation for your delayed flight? You might have more power than you think. Legal expert Michael Mulligan walks us through a fascinating Civil Resolution Tribunal case where passengers successfully challenged WestJet's weather-related excuses and secured $1,000 each in compensation. By gathering evidence showing other airlines operating during the supposedly problematic conditions, these passengers demonstrated how everyday Canadians can effectively navigate the Air Passenger Protection Regulations through BC's accessible online tribunal system.
The conversation shifts to judicial impartiality with a cautionary West Vancouver demolition dispute. When a judge ordered a fire-damaged house demolished, no one realized she had previously advised the municipality on that very case before her appointment to the bench. This oversight led the Court of Appeal to cancel the injunction, highlighting the critical importance of judicial independence and the challenges judges face in identifying conflicts without the robust database systems used by law firms.
Perhaps most eye-opening is the revelation about what your modern vehicle knows and remembers about your driving. Event data recorders in today's cars capture crucial information during accidents - your speed, whether you were wearing a seatbelt, and if you applied the brakes before impact. In a groundbreaking decision, a court determined that this extracted data constitutes a "thing" rather than a "document" under criminal code provisions, requiring police to obtain judicial permission to retain it when no charges have been filed. This legal distinction reinforces important protections against indefinite police retention of digital evidence.
Whether you're planning air travel, wondering about judicial ethics, or simply curious about what your car might reveal after an accident, this discussion offers valuable insights into how our legal system addresses everyday challenges in an increasingly technological world.
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):
It's time for our regular segment, joined as
always by barrister andsolicitor with Mulligan Defence
Lawyers.
It's Legally Speaking withMichael Mulligan on CFAX 1070.
Afternoon, Michael, how youdoing?
Hey, good afternoon, I'm doinggreat.
Always good to be here.
Some very interesting items onthe agenda today, including a
topic we often refer to and thatis the various findings
sometimes difficult to predict,of the Civil Resolution Tribunal
(00:23):
of British Columbia.
Michael Mulligan (00:28):
I'm noting here compensation for delayed
airplane flights Indeed, and Imust say this seems like a
pretty good forum for thatparticular problem, which will
not be an uncommon one, I wouldimagine, for listeners.
And so the background of it isthat in Canada we've got this
thing referred to as the AirPassenger Protection Regulations
, the APRC Everyone likes a lotof acronyms, appr and those
(00:53):
regulations set out a bunch ofrequirements for airlines in
terms of treatment of passengers, and the requirements there
include compensation for peoplewho have their flights delayed.
And in that regard, one of thestarting points is whether a
delay is either within oroutside of the control of the
(01:17):
airline.
And whether it's in or outsideof the carrier's control, as
specified in the regulations,will dictate whether somebody is
entitled to financialcompensation.
If you are entitled tofinancial compensation, the
amount that you're entitled tois a function of two things
First of all, how long is thedelay, and then whether you're
(01:40):
dealing with a small airline ora large airline.
If it's a large airline, thecompensation amounts large
airline.
If it's a large airline, thecompensation amounts are larger.
If it's a small one, they'resmaller, and the time periods at
issue they start at three hours.
So if you have a flight delaythat is caused by something
within the carrier's control,you can be entitled to $400.
(02:01):
If it's between six and ninehours, $700.
And if it's more than ninehours, that's a thousand bucks.
The numbers are lower for smallairlines.
Now, the first thing to be saidabout that is that you know you
could try with the airline tofile your request and maybe they
pay up, maybe they don't.
If they don't pay up, it's, Ithink, a good thing for people
(02:22):
to be aware of that.
In British Columbia, we havethis thing the Civil Resolution
Tribunal that is set up to dealwith tiny claims, relatively
speaking, of less than $5,000.
And the idea is that you canstart a claim.
It's basically like a PayPaldispute resolution system online
, and the adjudicators havediscretion to allow all kinds of
(02:45):
different hearing types.
It's not like in a courtroom.
They can have hearings that canbe just in writing or by
telephone, or using videoconferencing, zoom or Teams,
whatever email combination ofthose things, whatever works.
And the idea there is you don'thave to spend a day off work
trying to get your $400, right,because that probably is not
(03:06):
worth it.
And so this case is an exampleof a claim made by a couple of
people who bought tickets to flyfrom St John's, newfoundland
and Labrador to Vancouver,connecting through Toronto, and
they were hoping to take off andthen they got a notice 17 hours
before their departure sayingsorry, your flight has been
(03:28):
cancelled.
We've rebooked you two dayslater.
They were going to go on March6th, they just got rebooked to
March 8th.
Now clearly that's more thannine hours.
So that would be a thousandbucks.
If the issue is somethingoutside of the control of the
carrier and in that regard theregulations settled a bunch of
things that are the control ofthe carrier and in that regard,
the regulations settled a bunchof things that are outside
control of the carrier.
(03:49):
They include things like war orpolitical instability.
It's not the airline's fault, Iguess.
Right, illegal acts, sabotage.
You know directions from theair traffic controller.
Turn back things like thatsecurity threat.
If they collide with wildlife,that's not their problem.
And indeed one of them and thiswas the pointed issue in this
(04:10):
case would be meteorologicalconditions or natural disasters,
bad weather basically.
And so in this particular casethe airline said oh yes, no
doubt we were delayed, but thatwas due to weather, so nothing
for you.
Now the thing about that thepassengers in this case, the
plaintiffs in the CivilResolution Tribunal claim, were
(04:32):
pretty bright in terms of whatthey did gathering evidence, and
so it's, I think, a good lessonfor people.
What they did is they wentonline and they collected up the
information from all the otherflights that took off from the
same place, flying into Torontowithout any problem, and they
presented that as part of theirwritten material.
Right?
Everyone else took off here,canada went.
(04:53):
This was WestJet that was beingsued.
This happened, and so they said, look, obviously the weather
wasn't that bad.
Everyone else could take offand go to Toronto.
Why not us?
Off and go to Toronto, why notus?
And in that regard, the airlinefiled material that included
what are referred to as TAFsagain, everyone loves acronyms,
(05:14):
terminal Aerodrome Forecasts,which are like technical things
about what the conditions wereat the airport.
Right, and the TAFs showed thatthere was wind speed greater
than 62 kilometers per hour, andthen a bunch of other things
that the adjudicator referred toas a bunch of unexplained
acronyms, codes and numbers,which meaning was far from
(05:36):
obvious.
Also, importantly, the airlinedidn't provide any information
about, like, the capabilities ofthe airplane that was going to
be used.
Is 62 kilometers too much, toolittle, just right, who knows?
And so, even though there wasthis weather information about
wind speeds in this technicalweather briefing, the evidence
(05:58):
was, well, other planes weretaking off and there was no
information about what planeWestJet was going to be using.
And so the adjudicator foundthat that wasn't established by
the airline.
They were satisfied, based onthe evidence that other planes
were going, that there wasn't ameteorological condition beyond
the control of the airline.
Another note here I should say,on all of this, one of the other
(06:21):
objections that WestJet made isthe objective saying well,
we're not really WestJet,westjet Incorporated is not the
entity operating the flight.
Indeed, the flight was beingoperated by a WestJet Alberta
partnership, whatever that mightbe.
And so they say, well, you'vesued the wrong entity, and I
should say that's important tobear in mind.
(06:41):
Generally in civil litigation,one of the things a lawyer is
carefully checking is sue theright entity.
Right, you don't want to sueMicrosoft Incorporated if it
turns out that the entityoperating you know this is an
example was, you know, microsoftLLC 2023 Limited, bc Corp.
Right, you don't want to, as aproblem can be.
(07:03):
Even if you succeed, you couldwind up with a judgment, you
have a really hard timecollecting if that entity
doesn't exist.
So that's something to bereally careful about here.
The adjudicator, I think quitesensibly, said well, whatever is
going on there, they seem torespond with all the information
necessary about the claim.
They had this weatherinformation.
They didn't seem andfurthermore, they didn't provide
(07:25):
any information about what thispartnership was.
And given that that process,the CRT process, is designed to
be kind of informal people don'thave lawyers, basically they
brush that off.
But I would say, be carefulabout that.
You would not want to wind upwith a circumstance where you
get an order and you have a hardtime collecting it.
Also of interest, I should say,just looking through the
(07:47):
regulations that apply.
It also has some interestingbits and pieces in there you may
not know about, includingthings like where there's a
delayed boarding or a deniedboarding, like, let's say, the
oversell of flight.
Who gets priority?
Who goes first?
There's not enough seats, andit actually specifies that, like
the number one priority is thisis a good one unaccompanied
(08:10):
minors.
So you don't want to leave the12-year-old stranded in the
Toronto airport, you know, whenthey don't have enough seats,
when they've oversold the flightNumber two and the other high
priority is anyone travelingwith a service animal or an
emotional support animal alsogets priority.
So and if you recall, onlinethere were some good pictures of
(08:31):
the emotional support duck afew years ago somebody was
bringing on an airplane.
So if you have your emotionalsupport duck with you and you're
familiar with the you know theair passenger protection
regulations you may be able toyou and your duck might be able
to get some priority for theflight.
So that's covered in there too.
Have a look.
Anyways, in this case the couplesucceeded there were two of
them, so they got a thousanddollars each, plus the
(08:53):
prejudgment interest of 126.72per person, plus the $125 it
costs to file for a CRT claim.
So I thought a good case toknow about a good example of
collecting evidence andpresenting it and how.
That forum seems, to my mind,like just the right kind of
forum to sort out that kind of aproblem.
Because if you had to actuallygo to small claims court, a lot
(09:16):
of people would probably saythat's not worth it because of
the amount of money involved.
But when you're able to presentit in writing in this way and
get a resolution, that seems tome to be just the perfect level
of adjudication to sort outproblems like getting bumped off
your flight or gettingrescheduled for two days.
So bear that in mind.
If you have any travel troubleover the summer, you've got a
(09:37):
remedy.
Adam Stirling (09:38):
All right, Michael Mulligan with Mulligan
Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues onCFAX 1070, joined by Michael
Mulligan from Mulligan DefenseLawyers.
Up next, Michael, it says yourinjunctions canceled by the
Court of Appeal when it wasdiscovered that the judge who
issued them acted for thedefendant and provided legal
advice in the dispute beforebeing appointed.
(10:00):
What happened?
Michael Mulligan (10:03):
Not good.
Adam Stirling (10:04):
Not good things happened.
Michael Mulligan (10:05):
Not good, not good.
So the challenge here is thisreally Lawyers, when they're in
practice, before they wouldstart helping a client, are
going to do what's called aconflicts check and basically
that's looking throughinformation about clients of
that lawyer and clients of thelaw firm to make sure that
(10:25):
they're not on the other side ofthe file.
Basically right, because alawyer has to act with undivided
loyalty and can't be usinginformation they might have got
when acting for somebody else insome future dispute.
Seems pretty fundamental right.
Your lawyer is there to help you, and so one of the challenges
is that when somebody becomes ajudge, they don't have that
(10:46):
anymore, right, and so thejudges are left there kind of
wondering.
It's potentially wondering didI have anything to do with this
before?
Right, and for some lawyersthat is going to be more
challenging than for others.
Or lawyers become judges right,particularly where you have a
lawyer who might have acted forlike a larger institution or
(11:07):
body that would have all kindsof dealings, right, and that's
what happened here.
So the underlying disputeinvolved a house in West
Vancouver that had been damagedby fire and it would appear that
, for whatever reason, themunicipal government there
wanted to have the house torndown.
They wanted it demolished, andthe owner of the home didn't
(11:28):
want to demolish it, they wantedto fix it, and so they were in
a long-term dispute back andforth about whether they could
fix the house or the house hadto be knocked down.
That's really what it amountedto house or the house had to be
knocked down, that's really whatit amounted to, and eventually
it resulted in the municipalitygoing to court and getting an
injunction ordering the house beknocked down.
Basically, and at the hearingof that application.
(11:52):
A concern was raised that thejudge, who had been a judge, I
think for some seven years or so, had previously worked in the
law firm that was acting for themunicipality Right.
And the judge said, well, shecouldn't remember having a
recall having any involvementwith a particular file and was
obviously concerned about thatBecause during the hearing asked
(12:13):
several times is there somechance I was involved with this
file?
Is anyone aware of me havingdealt with the file?
Nobody seemed to be aware atthe time, and it's subtle
because it's not every casewhere there's some really remote
connection that's going to makesomebody biased and incapable
of dealing with the case right.
The test is the legal test iswhether an informed person who's
(12:38):
thought about it would thinkthat there is a realistic or
practical concern that the judge, either consciously or
unconsciously, would not decidethe case fairly.
And so an example of where that,even though there might be some
connection, didn't go over theline, there's a case from a
number of years ago thatinvolved a judge who acted for a
(13:00):
law firm that was involved inlitigation 30 years earlier, and
so the argument was well.
In that case the decision waswell.
That doesn't really disqualifythe person.
It was 30 years ago.
It's just not realistic thatthe judge is making a biased
decision because of representingsomebody three decades earlier,
right?
So not every connection isgoing to mean that's it.
(13:22):
The judge has got to get out.
But you know, in most cases ajudge like this particular one
is not going to want to continue.
Why would they right If thereis some reason to think it could
be a problem?
And so that's why, at thehearing, the judge was asking
those kinds of questions.
Anyone aware of any problem?
Anyone aware that I've acted onthis thing?
No, nobody knew anything.
Judge makes the decisionordering the house be demolished
(13:44):
.
Then the other side determinesthat, oh yes, not only did she
act for the municipality, sheprovided emails to the district
advising them about thedemolition of this very house.
Uh-oh.
And so that's the basis uponwhich it gets to the Court of
Appeal.
And the Court of Appeal saysyeah, that's just not on.
Right, this isn't the30-year-old remote connection.
(14:07):
The connection is reasonablynew.
It's with respect to this verycase, right, this very issue.
Even though the judge didn'tremember it.
She'd obviously had somethingto do with that particular file,
not just acted for themunicipality on some other
dispute.
Right, you know what I mean.
That probably would be fine Ifyou said, look, you've been a
judge for seven years.
Seven years ago you acted forthat municipality dealing with I
(14:30):
don't know contracts aboutplumbing or something.
You're probably not going to beviewed as biased, right?
Would a reasonable and informedperson who thought about it
think there would be.
You know, you're going to lookat what was it?
How closely connected was it?
How much time's gone by?
What's happening here?
Right, but this is too much.
And really the source of theproblem is that it's very hard
(14:50):
because the judge in this casewas saying like, oh, I've looked
through the affidavits, I don'trecognize anyone's name.
I is, I don't recognizeanyone's name.
I don't remember havinganything to do with this.
But she was just wrong, andthat's why lawyers don't depend
on their memory when they'redeciding whether to take on a
file.
It goes through a database andin a large firm that can
actually be pretty complicated.
Let's imagine you're in a firmwith 300 lawyers, that's in you
(15:12):
know or more, in differentprovinces and all over the place
.
You're going to wind up withcircumstances where it's very
likely that somebody somewherein that you know rabbit-worn law
firm might have acted forparticularly some large client
right, and so it can get trickyand there has to be a you know
judgment call about whetherthat's permissible.
(15:32):
But that's the test here.
This one's clearly over theline in one direction, but it's
a an indication of how that canbe a problem.
Judges have to be alert to itand you know, it would have been
obviously ideal had theyfigured out that she'd actually
written emails about thisparticular file before making
the decision.
But in any case the Court ofAppeals sorted it out and they
(15:53):
can.
I guess they'll have to waittheir effort to knock the house
down to go have a hearing withanother judge.
So we'll have to wait and seewhat happens with the fire
damaged house in West Vancouver.
Adam Stirling (16:03):
All right, Five minutes left.
The final issue Data RCMPseized from an event data
recorder in a car is a quotething.
The police need judicialpermission to keep longer if a
charge not approved yet.
So the data is itself a thingindependent from, perhaps like a
data unit or something yeah,that's right.
Michael Mulligan (16:25):
So there are a few elements of this I thought
were interesting for people.
One is the fact that youprobably have one of these if
your car isn't, you know, veryold, and what that is is there's
a thing called an event datarecorder, which is in most
modern cars, such that if youhave a serious accident, you
know I think sometimes it's tiedin with the airbag going off or
you know a certain amount ofdeceleration, whatever it might
(16:47):
be, they'll be triggered torecord information about what
happened there.
And this particular caseinvolved a Mercedes that crashed
into a tree and there was oneperson in the car, and the
police were wanting toinvestigate whether the person
was driving dangerously at thetime they crashed into the tree
(17:07):
or whether they might have beenimpaired.
What's going on here?
And as part of thatinvestigation, they took the car
and then they extracted datafrom the event data recorder.
So that's the first thing toknow is that your car might rat
you out, if you get into anaccident, about how fast you
were going.
This particular event dataapparently revealed that the
(17:28):
speed of the Mercedes prior tothe collision although the
decision doesn't say what thatis that the drivers did not have
their seatbelt on and that thebrakes weren't applied prior to
crashing into the tree.
Wow, probably not helpful butanyways, that's the kind of
stuff your car is recording.
It knows everything, it'sall-knowing.
Some cars have cameras.
You'd have to wonder okay, isit also taking pictures of you?
What's happening?
So here the police sees thatstuff.
(17:51):
Now the first thing to know isthat when police sees something
in an investigation, the firstthing to know is that when
police see something in aninvestigation, if the person is
promptly charged with an offense, they can generally keep that
stuff until the trial's over,right.
But an issue can arise wherethe police sees things,
potential evidence, but thenthere is no charge, at least for
(18:12):
some time, because the policeare wanting to do further
investigation or get thatanalyzed or whatever the case
might be.
And so we have a scheme in thecriminal code that provides
judicial oversight of stuff thepolice seize, which is a good
idea.
You probably don't want to livein a place where the police can
just come and take your stuffand it disappears into a black
(18:34):
hole and you never find outabout it again.
It's not good.
And so when the police seizethings, they have an obligation
to file a report saying weseized whatever it might be the
gun, the mask, the event datarecorder.
And here, uh, they seized itand they fought and they uh,
what they then did is that theyextracted the data from the
(18:54):
recorder and and no charges wereapproved yet.
So they're still doing furtherinvestigation, I guess,
analyzing that or other things.
And so the issue then becomeswhen they file that kind of a
report and there is no chargelaid, there are time limits how
long they can keep stuff for,and if they want to keep it
longer and there's no charge,they have to make an application
(19:15):
to a judge to be allowed tokeep it longer.
So they just can't take yourstuff and keep it forever.
Good idea right here the RCMPwere arguing that well, there is
an exception in that scheme forcopying of records, with the
idea being like, let's say, theywere doing a fraud
investigation and they get a boxof documents and they photocopy
(19:36):
it and then they return thedocuments.
They don't need for a copy of adocument to get judicial
permission to keep it.
I guess the theory is well, youphotocopied it, you're giving
it back off, you go right.
So the issue was is the datafrom the event data recorder a
copy of a document that was theRCMP's position or is it a thing
(19:56):
?
Because if it's a thing, thenthey have to get permission, and
so that's what the case wasabout, and the judge analyzed
how that's been dealt with inother provinces, how it's been
dealt with in BC, how differentkinds of data are dealt with,
and then one of the importantthings is surveilling.
Well, why do we have thatscheme, what's the purpose of it
, of it?
(20:20):
And ultimately, the judgeconcluded that the RCMP's
argument that this was a copy ofa document doesn't wash,
because the idea of extractingdata from an event data recorder
is not the equivalent of Iphotocopied your tax return or
something, and so the result ofthat is that the data from your
car that might have ratted youout for not having your seatbelt
on or how fast you were goingwhen you hit the tree, is in the
category of a thing, and eventhough you might not have, at
(20:43):
the end of the day, aexpectation of privacy in that
which is a separate legal issuethat can be an interesting one
the police are still required tocomply with this 490 scheme
that allows judicial supervisionover stuff the police have
taken.
When they don't charge somebody,they just got your stuff, and
so it means that that kind ofdata is a thing, not a document
(21:04):
and that means that the policeare required to get permission
from the court if they want tokeep it longer, and there's been
no charge laid.
So I thought it was reallyinteresting.
What's a document, what's athing?
And just to give people somesense of the sort of information
that your car might berecording.
If you're not driving around ina 57 Chevy, if you're driving
around in a Mercedes, you'rebeing watched.
(21:25):
So that's the latest on what isa thing and stuff from your car
.
Adam Stirling (21:29):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking after thesecond half of our second hour
every Thursday.
Michael, pleasure as always.
Thanks so much.
Always great to be here.
All right, the news is next.
It's time for our regular segment, joined as
always by barrister andsolicitor with Mulligan Defence
Lawyers.
It's Legally Speaking withMichael Mulligan on CFAX 1070.
Afternoon, Michael, how youdoing?
Hey, good afternoon, I'm doinggreat.
Always good to be here.
Some very interesting items onthe agenda today, including a
topic we often refer to and thatis the various findings
sometimes difficult to predict,of the Civil Resolution Tribunal
(00:23):
of British Columbia.
Michael Mulligan (00:28):
I'm noting here compensation for delayed
airplane flights Indeed, and Imust say this seems like a
pretty good forum for thatparticular problem, which will
not be an uncommon one, I wouldimagine, for listeners.
And so the background of it isthat in Canada we've got this
thing referred to as the AirPassenger Protection Regulations
, the APRC Everyone likes a lotof acronyms, appr and those
(00:53):
regulations set out a bunch ofrequirements for airlines in
terms of treatment of passengers, and the requirements there
include compensation for peoplewho have their flights delayed.
And in that regard, one of thestarting points is whether a
delay is either within oroutside of the control of the
(01:17):
airline.
And whether it's in or outsideof the carrier's control, as
specified in the regulations,will dictate whether somebody is
entitled to financialcompensation.
If you are entitled tofinancial compensation, the
amount that you're entitled tois a function of two things
First of all, how long is thedelay, and then whether you're
(01:40):
dealing with a small airline ora large airline.
If it's a large airline, thecompensation amounts large
airline.
If it's a large airline, thecompensation amounts are larger.
If it's a small one, they'resmaller, and the time periods at
issue they start at three hours.
So if you have a flight delaythat is caused by something
within the carrier's control,you can be entitled to $400.
(02:01):
If it's between six and ninehours, $700.
And if it's more than ninehours, that's a thousand bucks.
The numbers are lower for smallairlines.
Now, the first thing to be saidabout that is that you know you
could try with the airline tofile your request and maybe they
pay up, maybe they don't.
If they don't pay up, it's, Ithink, a good thing for people
(02:22):
to be aware of that.
In British Columbia, we havethis thing the Civil Resolution
Tribunal that is set up to dealwith tiny claims, relatively
speaking, of less than $5,000.
And the idea is that you canstart a claim.
It's basically like a PayPaldispute resolution system online
, and the adjudicators havediscretion to allow all kinds of
(02:45):
different hearing types.
It's not like in a courtroom.
They can have hearings that canbe just in writing or by
telephone, or using videoconferencing, zoom or Teams,
whatever email combination ofthose things, whatever works.
And the idea there is you don'thave to spend a day off work
trying to get your $400, right,because that probably is not
(03:06):
worth it.
And so this case is an exampleof a claim made by a couple of
people who bought tickets to flyfrom St John's, newfoundland
and Labrador to Vancouver,connecting through Toronto, and
they were hoping to take off andthen they got a notice 17 hours
before their departure sayingsorry, your flight has been
(03:28):
cancelled.
We've rebooked you two dayslater.
They were going to go on March6th, they just got rebooked to
March 8th.
Now clearly that's more thannine hours.
So that would be a thousandbucks.
If the issue is somethingoutside of the control of the
carrier and in that regard theregulations settled a bunch of
things that are the control ofthe carrier and in that regard,
the regulations settled a bunchof things that are outside
control of the carrier.
(03:49):
They include things like war orpolitical instability.
It's not the airline's fault, Iguess.
Right, illegal acts, sabotage.
You know directions from theair traffic controller.
Turn back things like thatsecurity threat.
If they collide with wildlife,that's not their problem.
And indeed one of them and thiswas the pointed issue in this
(04:10):
case would be meteorologicalconditions or natural disasters,
bad weather basically.
And so in this particular casethe airline said oh yes, no
doubt we were delayed, but thatwas due to weather, so nothing
for you.
Now the thing about that thepassengers in this case, the
plaintiffs in the CivilResolution Tribunal claim, were
(04:32):
pretty bright in terms of whatthey did gathering evidence, and
so it's, I think, a good lessonfor people.
What they did is they wentonline and they collected up the
information from all the otherflights that took off from the
same place, flying into Torontowithout any problem, and they
presented that as part of theirwritten material.
Right?
Everyone else took off here,canada went.
(04:53):
This was WestJet that was beingsued.
This happened, and so they said, look, obviously the weather
wasn't that bad.
Everyone else could take offand go to Toronto.
Why not us?
Off and go to Toronto, why notus?
And in that regard, the airlinefiled material that included
what are referred to as TAFsagain, everyone loves acronyms,
(05:14):
terminal Aerodrome Forecasts,which are like technical things
about what the conditions wereat the airport.
Right, and the TAFs showed thatthere was wind speed greater
than 62 kilometers per hour, andthen a bunch of other things
that the adjudicator referred toas a bunch of unexplained
acronyms, codes and numbers,which meaning was far from
(05:36):
obvious.
Also, importantly, the airlinedidn't provide any information
about, like, the capabilities ofthe airplane that was going to
be used.
Is 62 kilometers too much, toolittle, just right, who knows?
And so, even though there wasthis weather information about
wind speeds in this technicalweather briefing, the evidence
(05:58):
was, well, other planes weretaking off and there was no
information about what planeWestJet was going to be using.
And so the adjudicator foundthat that wasn't established by
the airline.
They were satisfied, based onthe evidence that other planes
were going, that there wasn't ameteorological condition beyond
the control of the airline.
Another note here I should say,on all of this, one of the other
(06:21):
objections that WestJet made isthe objective saying well,
we're not really WestJet,westjet Incorporated is not the
entity operating the flight.
Indeed, the flight was beingoperated by a WestJet Alberta
partnership, whatever that mightbe.
And so they say, well, you'vesued the wrong entity, and I
should say that's important tobear in mind.
(06:41):
Generally in civil litigation,one of the things a lawyer is
carefully checking is sue theright entity.
Right, you don't want to sueMicrosoft Incorporated if it
turns out that the entityoperating you know this is an
example was, you know, microsoftLLC 2023 Limited, bc Corp.
Right, you don't want to, as aproblem can be.
(07:03):
Even if you succeed, you couldwind up with a judgment, you
have a really hard timecollecting if that entity
doesn't exist.
So that's something to bereally careful about here.
The adjudicator, I think quitesensibly, said well, whatever is
going on there, they seem torespond with all the information
necessary about the claim.
They had this weatherinformation.
They didn't seem andfurthermore, they didn't provide
(07:25):
any information about what thispartnership was.
And given that that process,the CRT process, is designed to
be kind of informal people don'thave lawyers, basically they
brush that off.
But I would say, be carefulabout that.
You would not want to wind upwith a circumstance where you
get an order and you have a hardtime collecting it.
Also of interest, I should say,just looking through the
(07:47):
regulations that apply.
It also has some interestingbits and pieces in there you may
not know about, includingthings like where there's a
delayed boarding or a deniedboarding, like, let's say, the
oversell of flight.
Who gets priority?
Who goes first?
There's not enough seats, andit actually specifies that, like
the number one priority is thisis a good one unaccompanied
(08:10):
minors.
So you don't want to leave the12-year-old stranded in the
Toronto airport, you know, whenthey don't have enough seats,
when they've oversold the flightNumber two and the other high
priority is anyone travelingwith a service animal or an
emotional support animal alsogets priority.
So and if you recall, onlinethere were some good pictures of
(08:31):
the emotional support duck afew years ago somebody was
bringing on an airplane.
So if you have your emotionalsupport duck with you and you're
familiar with the you know theair passenger protection
regulations you may be able toyou and your duck might be able
to get some priority for theflight.
So that's covered in there too.
Have a look.
Anyways, in this case the couplesucceeded there were two of
them, so they got a thousanddollars each, plus the
(08:53):
prejudgment interest of 126.72per person, plus the $125 it
costs to file for a CRT claim.
So I thought a good case toknow about a good example of
collecting evidence andpresenting it and how.
That forum seems, to my mind,like just the right kind of
forum to sort out that kind of aproblem.
Because if you had to actuallygo to small claims court, a lot
(09:16):
of people would probably saythat's not worth it because of
the amount of money involved.
But when you're able to presentit in writing in this way and
get a resolution, that seems tome to be just the perfect level
of adjudication to sort outproblems like getting bumped off
your flight or gettingrescheduled for two days.
So bear that in mind.
If you have any travel troubleover the summer, you've got a
(09:37):
remedy.
Adam Stirling (09:38):
All right, Michael Mulligan with Mulligan
Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues onCFAX 1070, joined by Michael
Mulligan from Mulligan DefenseLawyers.
Up next, Michael, it says yourinjunctions canceled by the
Court of Appeal when it wasdiscovered that the judge who
issued them acted for thedefendant and provided legal
advice in the dispute beforebeing appointed.
(10:00):
What happened?
Michael Mulligan (10:03):
Not good.
Adam Stirling (10:04):
Not good things happened.
Michael Mulligan (10:05):
Not good, not good.
So the challenge here is thisreally Lawyers, when they're in
practice, before they wouldstart helping a client, are
going to do what's called aconflicts check and basically
that's looking throughinformation about clients of
that lawyer and clients of thelaw firm to make sure that
(10:25):
they're not on the other side ofthe file.
Basically right, because alawyer has to act with undivided
loyalty and can't be usinginformation they might have got
when acting for somebody else insome future dispute.
Seems pretty fundamental right.
Your lawyer is there to help you, and so one of the challenges
is that when somebody becomes ajudge, they don't have that
(10:46):
anymore, right, and so thejudges are left there kind of
wondering.
It's potentially wondering didI have anything to do with this
before?
Right, and for some lawyersthat is going to be more
challenging than for others.
Or lawyers become judges right,particularly where you have a
lawyer who might have acted forlike a larger institution or
(11:07):
body that would have all kindsof dealings, right, and that's
what happened here.
So the underlying disputeinvolved a house in West
Vancouver that had been damagedby fire and it would appear that
, for whatever reason, themunicipal government there
wanted to have the house torndown.
They wanted it demolished, andthe owner of the home didn't
(11:28):
want to demolish it, they wantedto fix it, and so they were in
a long-term dispute back andforth about whether they could
fix the house or the house hadto be knocked down.
That's really what it amountedto house or the house had to be
knocked down, that's really whatit amounted to, and eventually
it resulted in the municipalitygoing to court and getting an
injunction ordering the house beknocked down.
Basically, and at the hearingof that application.
(11:52):
A concern was raised that thejudge, who had been a judge, I
think for some seven years or so, had previously worked in the
law firm that was acting for themunicipality Right.
And the judge said, well, shecouldn't remember having a
recall having any involvementwith a particular file and was
obviously concerned about thatBecause during the hearing asked
(12:13):
several times is there somechance I was involved with this
file?
Is anyone aware of me havingdealt with the file?
Nobody seemed to be aware atthe time, and it's subtle
because it's not every casewhere there's some really remote
connection that's going to makesomebody biased and incapable
of dealing with the case right.
The test is the legal test iswhether an informed person who's
(12:38):
thought about it would thinkthat there is a realistic or
practical concern that the judge, either consciously or
unconsciously, would not decidethe case fairly.
And so an example of where that,even though there might be some
connection, didn't go over theline, there's a case from a
number of years ago thatinvolved a judge who acted for a
(13:00):
law firm that was involved inlitigation 30 years earlier, and
so the argument was well.
In that case the decision waswell.
That doesn't really disqualifythe person.
It was 30 years ago.
It's just not realistic thatthe judge is making a biased
decision because of representingsomebody three decades earlier,
right?
So not every connection isgoing to mean that's it.
(13:22):
The judge has got to get out.
But you know, in most cases ajudge like this particular one
is not going to want to continue.
Why would they right If thereis some reason to think it could
be a problem?
And so that's why, at thehearing, the judge was asking
those kinds of questions.
Anyone aware of any problem?
Anyone aware that I've acted onthis thing?
No, nobody knew anything.
Judge makes the decisionordering the house be demolished
(13:44):
.
Then the other side determinesthat, oh yes, not only did she
act for the municipality, sheprovided emails to the district
advising them about thedemolition of this very house.
Uh-oh.
And so that's the basis uponwhich it gets to the Court of
Appeal.
And the Court of Appeal saysyeah, that's just not on.
Right, this isn't the30-year-old remote connection.
(14:07):
The connection is reasonablynew.
It's with respect to this verycase, right, this very issue.
Even though the judge didn'tremember it.
She'd obviously had somethingto do with that particular file,
not just acted for themunicipality on some other
dispute.
Right, you know what I mean.
That probably would be fine Ifyou said, look, you've been a
judge for seven years.
Seven years ago you acted forthat municipality dealing with I
(14:30):
don't know contracts aboutplumbing or something.
You're probably not going to beviewed as biased, right?
Would a reasonable and informedperson who thought about it
think there would be.
You know, you're going to lookat what was it?
How closely connected was it?
How much time's gone by?
What's happening here?
Right, but this is too much.
And really the source of theproblem is that it's very hard
(14:50):
because the judge in this casewas saying like, oh, I've looked
through the affidavits, I don'trecognize anyone's name.
I is, I don't recognizeanyone's name.
I don't remember havinganything to do with this.
But she was just wrong, andthat's why lawyers don't depend
on their memory when they'redeciding whether to take on a
file.
It goes through a database andin a large firm that can
actually be pretty complicated.
Let's imagine you're in a firmwith 300 lawyers, that's in you
(15:12):
know or more, in differentprovinces and all over the place
.
You're going to wind up withcircumstances where it's very
likely that somebody somewherein that you know rabbit-worn law
firm might have acted forparticularly some large client
right, and so it can get trickyand there has to be a you know
judgment call about whetherthat's permissible.
(15:32):
But that's the test here.
This one's clearly over theline in one direction, but it's
a an indication of how that canbe a problem.
Judges have to be alert to itand you know, it would have been
obviously ideal had theyfigured out that she'd actually
written emails about thisparticular file before making
the decision.
But in any case the Court ofAppeals sorted it out and they
(15:53):
can.
I guess they'll have to waittheir effort to knock the house
down to go have a hearing withanother judge.
So we'll have to wait and seewhat happens with the fire
damaged house in West Vancouver.
Adam Stirling (16:03):
All right, Five minutes left.
The final issue Data RCMPseized from an event data
recorder in a car is a quotething.
The police need judicialpermission to keep longer if a
charge not approved yet.
So the data is itself a thingindependent from, perhaps like a
data unit or something yeah,that's right.
Michael Mulligan (16:25):
So there are a few elements of this I thought
were interesting for people.
One is the fact that youprobably have one of these if
your car isn't, you know, veryold, and what that is is there's
a thing called an event datarecorder, which is in most
modern cars, such that if youhave a serious accident, you
know I think sometimes it's tiedin with the airbag going off or
you know a certain amount ofdeceleration, whatever it might
(16:47):
be, they'll be triggered torecord information about what
happened there.
And this particular caseinvolved a Mercedes that crashed
into a tree and there was oneperson in the car, and the
police were wanting toinvestigate whether the person
was driving dangerously at thetime they crashed into the tree
(17:07):
or whether they might have beenimpaired.
What's going on here?
And as part of thatinvestigation, they took the car
and then they extracted datafrom the event data recorder.
So that's the first thing toknow is that your car might rat
you out, if you get into anaccident, about how fast you
were going.
This particular event dataapparently revealed that the
(17:28):
speed of the Mercedes prior tothe collision although the
decision doesn't say what thatis that the drivers did not have
their seatbelt on and that thebrakes weren't applied prior to
crashing into the tree.
Wow, probably not helpful butanyways, that's the kind of
stuff your car is recording.
It knows everything, it'sall-knowing.
Some cars have cameras.
You'd have to wonder okay, isit also taking pictures of you?
What's happening?
So here the police sees thatstuff.
(17:51):
Now the first thing to know isthat when police sees something
in an investigation, the firstthing to know is that when
police see something in aninvestigation, if the person is
promptly charged with an offense, they can generally keep that
stuff until the trial's over,right.
But an issue can arise wherethe police sees things,
potential evidence, but thenthere is no charge, at least for
(18:12):
some time, because the policeare wanting to do further
investigation or get thatanalyzed or whatever the case
might be.
And so we have a scheme in thecriminal code that provides
judicial oversight of stuff thepolice seize, which is a good
idea.
You probably don't want to livein a place where the police can
just come and take your stuffand it disappears into a black
(18:34):
hole and you never find outabout it again.
It's not good.
And so when the police seizethings, they have an obligation
to file a report saying weseized whatever it might be the
gun, the mask, the event datarecorder.
And here, uh, they seized itand they fought and they uh,
what they then did is that theyextracted the data from the
(18:54):
recorder and and no charges wereapproved yet.
So they're still doing furtherinvestigation, I guess,
analyzing that or other things.
And so the issue then becomeswhen they file that kind of a
report and there is no chargelaid, there are time limits how
long they can keep stuff for,and if they want to keep it
longer and there's no charge,they have to make an application
(19:15):
to a judge to be allowed tokeep it longer.
So they just can't take yourstuff and keep it forever.
Good idea right here the RCMPwere arguing that well, there is
an exception in that scheme forcopying of records, with the
idea being like, let's say, theywere doing a fraud
investigation and they get a boxof documents and they photocopy
(19:36):
it and then they return thedocuments.
They don't need for a copy of adocument to get judicial
permission to keep it.
I guess the theory is well, youphotocopied it, you're giving
it back off, you go right.
So the issue was is the datafrom the event data recorder a
copy of a document that was theRCMP's position or is it a thing
(19:56):
?
Because if it's a thing, thenthey have to get permission, and
so that's what the case wasabout, and the judge analyzed
how that's been dealt with inother provinces, how it's been
dealt with in BC, how differentkinds of data are dealt with,
and then one of the importantthings is surveilling.
Well, why do we have thatscheme, what's the purpose of it
, of it?
(20:20):
And ultimately, the judgeconcluded that the RCMP's
argument that this was a copy ofa document doesn't wash,
because the idea of extractingdata from an event data recorder
is not the equivalent of Iphotocopied your tax return or
something, and so the result ofthat is that the data from your
car that might have ratted youout for not having your seatbelt
on or how fast you were goingwhen you hit the tree, is in the
category of a thing, and eventhough you might not have, at
(20:43):
the end of the day, aexpectation of privacy in that
which is a separate legal issuethat can be an interesting one
the police are still required tocomply with this 490 scheme
that allows judicial supervisionover stuff the police have
taken.
When they don't charge somebody,they just got your stuff, and
so it means that that kind ofdata is a thing, not a document
(21:04):
and that means that the policeare required to get permission
from the court if they want tokeep it longer, and there's been
no charge laid.
So I thought it was reallyinteresting.
What's a document, what's athing?
And just to give people somesense of the sort of information
that your car might berecording.
If you're not driving around ina 57 Chevy, if you're driving
around in a Mercedes, you'rebeing watched.
(21:25):
So that's the latest on what isa thing and stuff from your car
.
Adam Stirling (21:29):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking after thesecond half of our second hour
every Thursday.
Michael, pleasure as always.
Thanks so much.
Always great to be here.
All right, the news is next.
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