October 9, 2025 • 21 mins
A notorious criminal case and a sweeping policy change collide in one packed hour, and the throughline is unmistakable: how law balances dignity, proof, and practical consequences. We start by unpacking the latest development in the Robert Picton matter: with the RCMP ending their investigation and holding thousands of seized items—some believed to be human remains—families sought a court order to keep everything preserved for a civil occupiers’ liability claim against Picton’s estate and his brother. We walk you through why the judge refused. The key: meticulous police documentation, DNA profiles, and forensic records made the physical remains unnecessary to the civil issues, while the coroner is legally mandated to identify, notify families, and ensure respectful disposition. It’s a difficult ruling with a humane core—moving evidence out of limbo and toward answers.
From there, we pivot to construction law’s next big shake-up: Bill 20, the Construction Prompt Payment Act. If you build, supply, wire, pour, or manage, this matters. We break down the “proper invoice” requirements, the 28-day payment clock (plus seven days per tier), and the new adjudication system designed to unstick payment disputes before they snowball. We map real-world risk: multi-layered chains, scope changes, and deficiency claims colliding with statutory deadlines. And we examine oversight, including how judicial review is framed, why documentation will be your best defence, and how to align contracts, invoicing, and site practice so cash keeps moving.
By the end, you’ll understand why the court’s decision may bring families closer to closure—and why construction businesses need to prepare now for compliance, adjudication, and potential work stoppages if payments fail. If this conversation helps you think differently about evidence, dignity, and getting people paid, follow the show, share it with your team, and leave a review to help more listeners find it.
Follow this link and 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.
Michael Mulligan (00:37):
So no doubt a very grim fact matter.
Most most people I think willbe familiar generally with the
case, right?
It uh goes back uh to uh theearly 2002 uh 2005 date range.
Uh and originally Robert Pictonuh was charged with 27 counts
of first degree murder.
He was ultimately convicted ofsix counts of second degree
(00:58):
murder, which is itself aninteresting outcome.
A number of the charges werelater stayed, uh, but uh it's uh
uh interesting that the jurywas not persuaded that it was a
first-degree murder case,because first degree murder
involves usually the uh getsthere by planning and
deliberation, and it is to someextent difficult to comprehend
(01:18):
how you could have sixnon-planned and deliberate
murders.
There was some suggestion atthe time that perhaps they
thought he was involved withthem, but maybe not the person
who planned them.
Hard to know, of course.
Juries don't give uh reasonsfor their decision.
Nonetheless, that's a broadbackground.
The other uh important uh thingis that uh, as many listeners
(01:39):
will will know, uh Robert Pictonwas himself uh murdered in jail
uh relatively recently, andthere's another uh inmate
charged with that.
I don't know whether thatperson's pled guilty or there's
a trial coming up, but um that'swhat happened to him.
Now, in that context, what thiscase is about um is that
several of the family members uhof uh people who were uh
(02:02):
believed to have been killed onthe farm, um uh Robert Picton's
farm uh are suing both Picton,now his estate, and also his
brother.
Uh and the theory of suing thebrother is an interesting one.
It's framed as an occupier'sliability claim.
Uh and the theory of it,according to the judge, is a uh
(02:23):
on the basis that the brotherwas a co-owner of the pig farm.
Uh the theory of it is that hewould have had a duty to warn
the women uh before coming ontothe farm about what they would
argue would be information hewould have had about what his
brother was doing.
That's the theory of the case,so interesting uh uh allegation
in a grim fact pattern.
(02:43):
Uh but what's happened is as aresult of the fact that Robert
Picton hit was himself murdered,uh that's the the police have
ended their investigation.
Uh and the police had seizedthousands of exhibits from the
farm, uh, including all mannerof things, including things
(03:04):
which were believed to be humanremains, some of which were
identified, some of which werenot.
Um and so the um uh position ofthe RCMP uh was during the
period of time before uh theinvestigation ended, what the
way those things would have beendealt with are under provisions
of the criminal code, it's asection 490 regime, that deals
(03:28):
with the seizure uh of uhexhibits in a criminal
investigation where there hasbeen no charge laid, right?
Uh because these could be otherpotential victims.
There could, in theory, beother charges, I guess, if new
evidence had come to light, um,and it was deemed in the public
interest to prosecute uh themgiven he was already serving a
life sentence.
Uh but uh at the end of thatinvestigation, and the
(03:51):
investigation, policeinvestigation is now done, the
question first of all becomes,well, what happens to all that
stuff, right?
Speaker 1 (03:57):
Yeah.
Michael Mulligan (03:58):
And the starting point under 490 is
either the stuff would be thething seized, the exhibits would
either be, yeah, criminal casesstarted, and they could wind up
as like exhibits in the trial,for example.
Speaker 1 (04:08):
Right?
Michael Mulligan (04:09):
Or where there is no trial, uh, no charges are
laid, then the presumptionwould be, well, they're returned
to the person from whom they'reseized, right?
Like if the police come in andseize a bunch of tools from your
house or investigating you fordoing something, no charge is
ever laid, investigationfinishes, presumptively you get
the tools back, right?
Speaker 1 (04:26):
Yeah.
Michael Mulligan (04:26):
Now, that cannot happen with human remains
or suspected human remains.
They don't belong to anyone,and they certainly could not be
returned to the uh, you know, uhsuspect uncharged uh in the
murder investigation.
That's not going to happen.
And so the there's uh that iscontemplated, and the the way
the what would happen in theordinary course of things is
(04:48):
that that material would go tothe coroner.
And I'll come back to that in amoment.
So we'll go to the coroner, andthere's a scheme for dealing
with that.
The confounding factor here,and what this decision is about,
um, is that some of the familymembers, the ones that are
pursuing this claim framed as anoccupier's liability claim
against the brother and theestate, um, who are applied to a
(05:10):
judge to preserve all of theseitems, to not have the police
release them to the coroner, um,wanting an order that all of
that be kept, these thousands ofexhibits, some of which may be
human remains from peopleidentified or not identified.
Um and there's a legal test forthat.
It's under Rule 76 sub-4.
(05:31):
Uh and there's a four-part testthat a judge needs to apply
when effectively it's anapplication to preserve
evidence.
Like the argument was, hey, wemay need this stuff in our
occupier's liability uh case,keep it, don't destroy it, or
don't give it to the coroner.
Speaker 1 (05:47):
Yeah.
Michael Mulligan (05:47):
Um, and the judge has to analyze look, is
this material uh relevant to anissue in the proceedings?
Is there a serious issue to betried?
And then a balancing ofconvenience, and sort of there's
this test the judge has toapply in terms of whether to
order the material preserved.
Because what happens otherwiseis that when the police turn
over this sort of material tothe coroner, the coroner has a
(06:10):
number of duties that are setout in the coroner's
legislation.
Um, and the coroner would betasked with doing things like uh
you know, trying to identifythe uh uh identity of a deceased
or how and when they werekilled and how that happened.
Um and uh, you know, they're prthey are authorized and
required to do things like takepossession of uh human remains
(06:32):
to try to make those inquiries,right?
That's one of the tasks thecoroner has.
And and in a non-criminal way,right?
And so it it's entirelypossible that you know the
coroner will be able to examineuh these things that were seized
and would be able to make somedeterminations that may not have
happened in a criminal context,right?
You can well imagine that, forexample, the crown might say,
(06:55):
well, we can't prove beyond areasonable doubt that this
person was um murdered.
We don't have evidence of that,but the coroner may be able to,
you know, do DNA analysis orother analysis of these things
in a different way and to adifferent standard, and they may
be able to make those kinds ofdeterminations, which of course
are important for family membersand others to know what
happened here, and then thecoroner has an obligation to,
(07:19):
once they're done that, theyhave an obligation to quote,
dispose of, close quote, thehuman remains, but that's to be
done in accordance with thecremation, internment, and
funeral act.
So there's a scheme for that.
And so the coroner would berequired to take these things,
do their investigation as bestthey can to try to determine it,
determine who are these peopleand try to notify family members
(07:42):
and uh you know determine whathappened and who you know who
these um remains belong to.
Uh and then once that's done,they would be required to uh to
deal with the remains inaccordance with um that uh
funeral legislation in arespectful way.
Uh and so the position of thecoroner and the RCMP, the RCMP's
(08:03):
position was, look, we're donewith these things.
We can't return them under youknow the 490 scheme.
They need to go to the coroner.
And the coroner's view is look,we're required to do these
things, it should come to us sowe can make these inquiries.
The other important thing thatthe uh judge relied on in this
decision is the fact that youknow the police haven't been
just sort of keeping thesethings randomly.
(08:24):
Uh the uh evidence uh beforethe judge was that the uh police
have carefully uh photographed,documented, done DNA profiling,
uploaded all the informationand evidence they've gathered to
a database.
They've like, you know,carefully recorded what they had
here, right?
And so in that context, inapplying the tests that the
judge has to apply in terms of,you know, what do you do with
(08:47):
these things?
Is it necessary or desirable topreserve these things as
evidence, right?
Uh potential evidence.
The ultimately the judgeconcluded that uh it would not
be appropriate to order thatthese actual physical human
remains or suspected humanremains be kept indefinitely for
the purpose of being potentialevidence in the occupiers
(09:09):
liability claim.
Uh and uh an important part ofthat is the judge found there's
just no uh foreseeable way inwhich the actual physical human
remain could somehow form uh uhuh evident have evidentary
significance in the context ofthat kind of uh claim.
Uh and so because you knowthese things are carefully
(09:29):
documented, we have DNA samples,we have photographs of them,
they're careful records of wherethey were found.
Um it uh ultimately the uh testis that on a balance of
convenience favor retainingthese human remains versus
having them transferred to thecoroner so the coroner could do
their investigation, try todetermine who these people might
be if they are human remains,and then you know, respectfully
(09:52):
return them to families orarrange for their uh burial or
whatever they has to be doneunder the respect under the
various legislation that dealswith that.
The judge concluded that it'sjust not um uh there's just no
basis to believe that theseactual physical things are
relevant to the civil proceedingwhich is contemplated.
There is the there is noserious issue to be tried with
(10:14):
regard to the actual remains.
There may be legal issuesthere, maybe this uh maybe the
uh claim under the Occupy'sLiability Act succeeds, maybe it
doesn't, but we don't need tohave all of these all of these
things kept in that way.
And so ultimately the uh judgeuh denied the application by the
uh family members and acceptedthe submissions by the RCMP and
(10:35):
the coroner, and so the netresult is exactly that.
All these things now, thepolice investigation is done,
they're gonna be turned over tothe coroner, coroner will do
their uh review and examinationas they are required to do.
Maybe that will provide someclosure for some family members,
right?
They may be able to be able tomake some determinations that
would be helpful there, uh, andthen uh return remains for
(10:57):
burial or whatever the familychooses.
Uh and if that is not possible,uh then they will be resort to
that cremation, internment, andfuneral services act to
determine how they should berespectfully uh buried and dealt
with.
And so they won't remain in thepossession of the RCMP at a
warehouse somewhere that's goingto be moved on to the corner.
So that's the uh latest chapterof the uh Robert Picton uh case
(11:19):
with some uh rather uniqueissues in terms of not only that
sort of claim framed under theOccupier's Liability Act, uh,
but that's the framework thathas to be applied when
determining what do we do uhwith these remains in these very
grim circumstances.
So hope hopefully the outcomeis some c at least some closure
for some of the family membersthat may be wondering what
happened to their loved onesmany years ago.
Adam Stirling (11:40):
All right, we'll take our first break here.
We'll continue right afterthis.
Michael Legislature beingintroduced and debate in the
altar legislature.
Bill 20, the constructionprompt payment act.
Michael Mulligan (12:05):
Well, who can be against prompt payments?
Uh so the uh the it's aninteresting piece of
legislation.
It's Bill 20, um, probablyunder a lot of people's radar,
but I think worth knowing about.
It would affect a whole lot ofpeople if it's uh passed and
implemented.
And the the government pressrelease that accompanied this
legislation says that thelegislation will ensure that
(12:27):
contractors, subcontractors, andworkers are paid fairly and on
time.
That's a big promise.
Uh so maybe a little bit ofskepticism is required, but uh
certainly the the issue is uh aworthwhile one.
The underlying problem, Ithink, that can arise,
particularly with largerconstruction projects, is you
often would have multiple layersof people, like you'd have
somebody who's contracted tobuild something, you'd have a
(12:50):
contractor, subcontractors,people who are
sub-subcontractors, right?
Speaker 1 (12:54):
Yeah.
Michael Mulligan (12:54):
And you can have circumstances where you
know people, you know, up anddown that chain, if the first
person doesn't get paid, well,that's bad news for person two,
three, four, and five, and so ondown the payment chain.
Right.
Speaker 1 (13:06):
Indeed, yes.
Michael Mulligan (13:07):
And so you you can wind up with like some
small person, tradesperson who'sor small company doing some
work in a big project, it couldwind up waiting a long time to
get paid for the work they'vedone.
So trying to achieve a solutionto that, that's a wordy goal.
Um this is an interestingapproach.
Uh and so the the approachcontemplated here, and I should
(13:28):
say it will also be important ifthis is passed and is put into
force, it will become importantuh for all of those various
people uh up and down the chainto be familiar with what's
required uh of them under thislegislation.
Uh the concept here, first ofall, it the core the start of it
is that this uh legislationwould re requires, first of all,
(13:52):
what are referred to as andit's defined proper regular
invoicing and then there's arequirement for regular
invoicing, also capitalized anddefined.
And so there'll be a bunch ofstatutory requirements and other
regulatory requirements interms of what must be in a
proper invoice, quote unquote.
And so if this comes intoforce, some b everyone involved
(14:15):
in the construction industry isgoing to need to become familiar
with what is a proper invoiceum so that they make sure that
all of the requirements are inthere, and then also there's a
requirement that all of thesequote proper invoices are to be
going out monthly unless thecontract says otherwise.
And so there'll be anobligation to create these
(14:36):
proper invoices and to um makesure that they are delivered on
that schedule.
And then the idea is that ifyou do manage to get out a
proper invoice, uh uh then theuh there have to there should be
payment within 28 days, andthen adding to that seven days
for each other layer in thatchain that we talked about,
(14:56):
right?
Uh so there's a lot going onthere, right?
And you can easily imagine, youknow, some small company is
trying to, you know, put in thewiring or something now is going
to need to be concerned with isthat invoice proper?
Does that meet all therequirements?
Are they out on the crateschedule and so forth?
Um, lest they run afoul ofthose requirements.
Uh and then if that happens, ifyou do what is required of you
(15:20):
there, um and you don't get yourpayment, then what's
contemplated is that there willbe a scheme of adjudicators who
are uh by the legislation sortof contemplated to be kind of
roving adjudication people uhwho would do things like uh you
know drive around and go to worksites and so on trying to uh
(15:41):
resolve uh payment disputes,right?
So and these things getcomplicated very quickly, as you
might imagine, right?
If you've got a chain of youknow, seven or eight layers of
contractors and subcontractorsand subsubcontractors, right?
You can very easily imaginejust how complicated sometimes
these construction issues aregoing to become, right?
You know, person two doesn't dosuch and such, so person three
(16:03):
can't do their work, and youknow then what about person four
didn't have a proper invoice?
What happens to person fivedown the chain, right?
And so the scheme here would beyou would create this group of
adjudicators who would then tryto uh enforce and make
determinations about uh what'sgoing on and was that a proper
invoice, was it properly served,and uh and so forth, to try to
(16:27):
then make determinations aboutwhat should happen.
And one of the uh concepts inthis uh legislation is this
concept that you know if youhave a determination by one of
these roving adjudicators uhthat uh a payment wasn't made,
one of the remedies would bepeople down the chain that
aren't getting paid can stopworking.
So okay, yeah, what's thatgonna do to a construction
(16:52):
project, you know, when whateverthe person that hired the
person doesn't pay thecontractor, so the subcontractor
isn't paid within 28 days plusseven days after filing their
proper invoice in the prescribedform, and they then get a
determination on they stop work,and so do the other people down
the chain and on it goes,right?
Speaker 1 (17:10):
Yeah.
Michael Mulligan (17:11):
Uh because of course the other thing that
happens to these projects, youwind up with disputes about
things, right?
You know, the uh person who'shaving the work done says, Well,
hold on, you you haven'tproperly put in that wall, or
you haven't done whatever weasked you to.
I'm not paying you.
Yeah, and then down it goes,and so you know, they are very,
very complicated.
Big projects, and we've seenthem in the like municipal and
(17:32):
other contexts here, often windup in court at the end of the
day, and often those cases go onfor a very long time.
Yes.
Um, and one of the other thingsthat causes that, uh of course,
but it's just human reality, isthat things change, right?
Like you have a you know, someplan to build your bridge, uh,
and then you go along and itturns out, oh no, there's a big
(17:55):
rock in place there.
We thought we could put thatpiling there.
We can't, we have to move itover here.
Now, if we're doing that, doyou want that the whole lane's
got to be a foot wider?
Is that okay by you?
Yeah, let's do that.
Now, now think about that,right?
Suddenly you've got the metalschange, the contractor, the
concrete, everything gotdelayed, and now everyone's
standing there with their bigfist full of you know regular
(18:16):
invoice, proper invoices, andthen person nine down the chain
says, Well, that's it, I'mcrossing my arms, I've got I'm
not going to waterproof thebottom of the concrete pole, and
the whole thing stops, right?
Uh, and so it's very, veryhard, and that's why many of
those big projects just do windup in very complicated
(18:36):
litigation at the end of theday.
So, with that background, Iguess I would say about this,
it's an interesting approach.
Um, the one of the other thingsabout it is that, and this is
maybe a little bit of relief foruh those people in this
industry thinking, oh mygoodness, do my invoices comply
with this legislation?
The uh what's contemplated hereis that the act won't apply to
(18:59):
contracts entered into beforethe date of the sec before the
section comes into force, whichis important because you can
imagine what chaos that wouldcause if suddenly there's been
some change of requirement.
Um the other thing is thisrequires a whole bunch of like
regulations and like creatingthis new body of adjudicators
and setting out even more detailwhat has to be in these
(19:19):
detailed monthly invoices.
Um and so how exactly thisworks and what exactly everyone
needs to be trained to do is notyet completely clear.
Another thing, if anyone'slistening, by the way, this is
the first reading bill, uh theuh current bill contemplates
judicial review and sets outcircumstances in which there can
(19:40):
be a judicial review, but itlimits it to things like uh
where there is a uh disputeabout the subject matter of the
adjudication or jurisdiction.
Procedural fairness is listedthere, but it doesn't list the
traditional one of look thingslike unreasonable decisions.
Speaker 1 (19:55):
Yeah.
Michael Mulligan (19:56):
Um there may be some further consideration
required for what's contemplatedhere by way of judicial review.
You can easily imagine, youknow, how you know complicated
those cases are.
Now you've got this rovingperson driving around in a
pickup truck trying to go out tosites and figure out what's
going on with the waterproofingof the concrete pylons or
whatever has gone off the railsand who hasn't paid whom.
(20:16):
And you can easily imaginethere being a case where there
does need to be some review ofit, particularly because the
amount of money involved can behuge.
So, anyways, that's the uhlatest on the construction the
construction prompt payment act,Bill 20.
Uh maybe not setting everyone'shair on fire, but certainly if
you're in the constructionindustry, be aware of this, keep
an eye on it.
Uh, and if this comes intoforce in some form, you're gonna
(20:39):
need to make sure you complywith it, uh, lest you be caught
out by the form or service ofyour invoices or when you've
done something, and it mayaffect what you need to be
putting into agreements if youwant to modify what would
otherwise become statutoryrequirements under this uh piece
of legislation.
So that's the latest on theConstruction Prompt Payment Act,
and we shall see if it ensurescontractors and subcontractors
(21:01):
are paid fully and on time.
So that's the latest piece oflegislation.
Adam Stirling (21:04):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking, during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thank you so much.
Always great to be here.
All right.
Quick break for the news.
So no doubt a very grim fact matter.
Most most people I think willbe familiar generally with the
case, right?
It uh goes back uh to uh theearly 2002 uh 2005 date range.
Uh and originally Robert Pictonuh was charged with 27 counts
of first degree murder.
He was ultimately convicted ofsix counts of second degree
(00:58):
murder, which is itself aninteresting outcome.
A number of the charges werelater stayed, uh, but uh it's uh
uh interesting that the jurywas not persuaded that it was a
first-degree murder case,because first degree murder
involves usually the uh getsthere by planning and
deliberation, and it is to someextent difficult to comprehend
(01:18):
how you could have sixnon-planned and deliberate
murders.
There was some suggestion atthe time that perhaps they
thought he was involved withthem, but maybe not the person
who planned them.
Hard to know, of course.
Juries don't give uh reasonsfor their decision.
Nonetheless, that's a broadbackground.
The other uh important uh thingis that uh, as many listeners
(01:39):
will will know, uh Robert Pictonwas himself uh murdered in jail
uh relatively recently, andthere's another uh inmate
charged with that.
I don't know whether thatperson's pled guilty or there's
a trial coming up, but um that'swhat happened to him.
Now, in that context, what thiscase is about um is that
several of the family members uhof uh people who were uh
(02:02):
believed to have been killed onthe farm, um uh Robert Picton's
farm uh are suing both Picton,now his estate, and also his
brother.
Uh and the theory of suing thebrother is an interesting one.
It's framed as an occupier'sliability claim.
Uh and the theory of it,according to the judge, is a uh
(02:23):
on the basis that the brotherwas a co-owner of the pig farm.
Uh the theory of it is that hewould have had a duty to warn
the women uh before coming ontothe farm about what they would
argue would be information hewould have had about what his
brother was doing.
That's the theory of the case,so interesting uh uh allegation
in a grim fact pattern.
(02:43):
Uh but what's happened is as aresult of the fact that Robert
Picton hit was himself murdered,uh that's the the police have
ended their investigation.
Uh and the police had seizedthousands of exhibits from the
farm, uh, including all mannerof things, including things
(03:04):
which were believed to be humanremains, some of which were
identified, some of which werenot.
Um and so the um uh position ofthe RCMP uh was during the
period of time before uh theinvestigation ended, what the
way those things would have beendealt with are under provisions
of the criminal code, it's asection 490 regime, that deals
(03:28):
with the seizure uh of uhexhibits in a criminal
investigation where there hasbeen no charge laid, right?
Uh because these could be otherpotential victims.
There could, in theory, beother charges, I guess, if new
evidence had come to light, um,and it was deemed in the public
interest to prosecute uh themgiven he was already serving a
life sentence.
Uh but uh at the end of thatinvestigation, and the
(03:51):
investigation, policeinvestigation is now done, the
question first of all becomes,well, what happens to all that
stuff, right?
Speaker 1 (03:57):
Yeah.
Michael Mulligan (03:58):
And the starting point under 490 is
either the stuff would be thething seized, the exhibits would
either be, yeah, criminal casesstarted, and they could wind up
as like exhibits in the trial,for example.
Speaker 1 (04:08):
Right?
Michael Mulligan (04:09):
Or where there is no trial, uh, no charges are
laid, then the presumptionwould be, well, they're returned
to the person from whom they'reseized, right?
Like if the police come in andseize a bunch of tools from your
house or investigating you fordoing something, no charge is
ever laid, investigationfinishes, presumptively you get
the tools back, right?
Speaker 1 (04:26):
Yeah.
Michael Mulligan (04:26):
Now, that cannot happen with human remains
or suspected human remains.
They don't belong to anyone,and they certainly could not be
returned to the uh, you know, uhsuspect uncharged uh in the
murder investigation.
That's not going to happen.
And so the there's uh that iscontemplated, and the the way
the what would happen in theordinary course of things is
(04:48):
that that material would go tothe coroner.
And I'll come back to that in amoment.
So we'll go to the coroner, andthere's a scheme for dealing
with that.
The confounding factor here,and what this decision is about,
um, is that some of the familymembers, the ones that are
pursuing this claim framed as anoccupier's liability claim
against the brother and theestate, um, who are applied to a
(05:10):
judge to preserve all of theseitems, to not have the police
release them to the coroner, um,wanting an order that all of
that be kept, these thousands ofexhibits, some of which may be
human remains from peopleidentified or not identified.
Um and there's a legal test forthat.
It's under Rule 76 sub-4.
(05:31):
Uh and there's a four-part testthat a judge needs to apply
when effectively it's anapplication to preserve
evidence.
Like the argument was, hey, wemay need this stuff in our
occupier's liability uh case,keep it, don't destroy it, or
don't give it to the coroner.
Speaker 1 (05:47):
Yeah.
Michael Mulligan (05:47):
Um, and the judge has to analyze look, is
this material uh relevant to anissue in the proceedings?
Is there a serious issue to betried?
And then a balancing ofconvenience, and sort of there's
this test the judge has toapply in terms of whether to
order the material preserved.
Because what happens otherwiseis that when the police turn
over this sort of material tothe coroner, the coroner has a
(06:10):
number of duties that are setout in the coroner's
legislation.
Um, and the coroner would betasked with doing things like uh
you know, trying to identifythe uh uh identity of a deceased
or how and when they werekilled and how that happened.
Um and uh, you know, they're prthey are authorized and
required to do things like takepossession of uh human remains
(06:32):
to try to make those inquiries,right?
That's one of the tasks thecoroner has.
And and in a non-criminal way,right?
And so it it's entirelypossible that you know the
coroner will be able to examineuh these things that were seized
and would be able to make somedeterminations that may not have
happened in a criminal context,right?
You can well imagine that, forexample, the crown might say,
(06:55):
well, we can't prove beyond areasonable doubt that this
person was um murdered.
We don't have evidence of that,but the coroner may be able to,
you know, do DNA analysis orother analysis of these things
in a different way and to adifferent standard, and they may
be able to make those kinds ofdeterminations, which of course
are important for family membersand others to know what
happened here, and then thecoroner has an obligation to,
(07:19):
once they're done that, theyhave an obligation to quote,
dispose of, close quote, thehuman remains, but that's to be
done in accordance with thecremation, internment, and
funeral act.
So there's a scheme for that.
And so the coroner would berequired to take these things,
do their investigation as bestthey can to try to determine it,
determine who are these peopleand try to notify family members
(07:42):
and uh you know determine whathappened and who you know who
these um remains belong to.
Uh and then once that's done,they would be required to uh to
deal with the remains inaccordance with um that uh
funeral legislation in arespectful way.
Uh and so the position of thecoroner and the RCMP, the RCMP's
(08:03):
position was, look, we're donewith these things.
We can't return them under youknow the 490 scheme.
They need to go to the coroner.
And the coroner's view is look,we're required to do these
things, it should come to us sowe can make these inquiries.
The other important thing thatthe uh judge relied on in this
decision is the fact that youknow the police haven't been
just sort of keeping thesethings randomly.
(08:24):
Uh the uh evidence uh beforethe judge was that the uh police
have carefully uh photographed,documented, done DNA profiling,
uploaded all the informationand evidence they've gathered to
a database.
They've like, you know,carefully recorded what they had
here, right?
And so in that context, inapplying the tests that the
judge has to apply in terms of,you know, what do you do with
(08:47):
these things?
Is it necessary or desirable topreserve these things as
evidence, right?
Uh potential evidence.
The ultimately the judgeconcluded that uh it would not
be appropriate to order thatthese actual physical human
remains or suspected humanremains be kept indefinitely for
the purpose of being potentialevidence in the occupiers
(09:09):
liability claim.
Uh and uh an important part ofthat is the judge found there's
just no uh foreseeable way inwhich the actual physical human
remain could somehow form uh uhuh evident have evidentary
significance in the context ofthat kind of uh claim.
Uh and so because you knowthese things are carefully
(09:29):
documented, we have DNA samples,we have photographs of them,
they're careful records of wherethey were found.
Um it uh ultimately the uh testis that on a balance of
convenience favor retainingthese human remains versus
having them transferred to thecoroner so the coroner could do
their investigation, try todetermine who these people might
be if they are human remains,and then you know, respectfully
(09:52):
return them to families orarrange for their uh burial or
whatever they has to be doneunder the respect under the
various legislation that dealswith that.
The judge concluded that it'sjust not um uh there's just no
basis to believe that theseactual physical things are
relevant to the civil proceedingwhich is contemplated.
There is the there is noserious issue to be tried with
(10:14):
regard to the actual remains.
There may be legal issuesthere, maybe this uh maybe the
uh claim under the Occupy'sLiability Act succeeds, maybe it
doesn't, but we don't need tohave all of these all of these
things kept in that way.
And so ultimately the uh judgeuh denied the application by the
uh family members and acceptedthe submissions by the RCMP and
(10:35):
the coroner, and so the netresult is exactly that.
All these things now, thepolice investigation is done,
they're gonna be turned over tothe coroner, coroner will do
their uh review and examinationas they are required to do.
Maybe that will provide someclosure for some family members,
right?
They may be able to be able tomake some determinations that
would be helpful there, uh, andthen uh return remains for
(10:57):
burial or whatever the familychooses.
Uh and if that is not possible,uh then they will be resort to
that cremation, internment, andfuneral services act to
determine how they should berespectfully uh buried and dealt
with.
And so they won't remain in thepossession of the RCMP at a
warehouse somewhere that's goingto be moved on to the corner.
So that's the uh latest chapterof the uh Robert Picton uh case
(11:19):
with some uh rather uniqueissues in terms of not only that
sort of claim framed under theOccupier's Liability Act, uh,
but that's the framework thathas to be applied when
determining what do we do uhwith these remains in these very
grim circumstances.
So hope hopefully the outcomeis some c at least some closure
for some of the family membersthat may be wondering what
happened to their loved onesmany years ago.
Adam Stirling (11:40):
All right, we'll take our first break here.
We'll continue right afterthis.
Michael Legislature beingintroduced and debate in the
altar legislature.
Bill 20, the constructionprompt payment act.
Michael Mulligan (12:05):
Well, who can be against prompt payments?
Uh so the uh the it's aninteresting piece of
legislation.
It's Bill 20, um, probablyunder a lot of people's radar,
but I think worth knowing about.
It would affect a whole lot ofpeople if it's uh passed and
implemented.
And the the government pressrelease that accompanied this
legislation says that thelegislation will ensure that
(12:27):
contractors, subcontractors, andworkers are paid fairly and on
time.
That's a big promise.
Uh so maybe a little bit ofskepticism is required, but uh
certainly the the issue is uh aworthwhile one.
The underlying problem, Ithink, that can arise,
particularly with largerconstruction projects, is you
often would have multiple layersof people, like you'd have
somebody who's contracted tobuild something, you'd have a
(12:50):
contractor, subcontractors,people who are
sub-subcontractors, right?
Speaker 1 (12:54):
Yeah.
Michael Mulligan (12:54):
And you can have circumstances where you
know people, you know, up anddown that chain, if the first
person doesn't get paid, well,that's bad news for person two,
three, four, and five, and so ondown the payment chain.
Right.
Speaker 1 (13:06):
Indeed, yes.
Michael Mulligan (13:07):
And so you you can wind up with like some
small person, tradesperson who'sor small company doing some
work in a big project, it couldwind up waiting a long time to
get paid for the work they'vedone.
So trying to achieve a solutionto that, that's a wordy goal.
Um this is an interestingapproach.
Uh and so the the approachcontemplated here, and I should
(13:28):
say it will also be important ifthis is passed and is put into
force, it will become importantuh for all of those various
people uh up and down the chainto be familiar with what's
required uh of them under thislegislation.
Uh the concept here, first ofall, it the core the start of it
is that this uh legislationwould re requires, first of all,
(13:52):
what are referred to as andit's defined proper regular
invoicing and then there's arequirement for regular
invoicing, also capitalized anddefined.
And so there'll be a bunch ofstatutory requirements and other
regulatory requirements interms of what must be in a
proper invoice, quote unquote.
And so if this comes intoforce, some b everyone involved
(14:15):
in the construction industry isgoing to need to become familiar
with what is a proper invoiceum so that they make sure that
all of the requirements are inthere, and then also there's a
requirement that all of thesequote proper invoices are to be
going out monthly unless thecontract says otherwise.
And so there'll be anobligation to create these
(14:36):
proper invoices and to um makesure that they are delivered on
that schedule.
And then the idea is that ifyou do manage to get out a
proper invoice, uh uh then theuh there have to there should be
payment within 28 days, andthen adding to that seven days
for each other layer in thatchain that we talked about,
(14:56):
right?
Uh so there's a lot going onthere, right?
And you can easily imagine, youknow, some small company is
trying to, you know, put in thewiring or something now is going
to need to be concerned with isthat invoice proper?
Does that meet all therequirements?
Are they out on the crateschedule and so forth?
Um, lest they run afoul ofthose requirements.
Uh and then if that happens, ifyou do what is required of you
(15:20):
there, um and you don't get yourpayment, then what's
contemplated is that there willbe a scheme of adjudicators who
are uh by the legislation sortof contemplated to be kind of
roving adjudication people uhwho would do things like uh you
know drive around and go to worksites and so on trying to uh
(15:41):
resolve uh payment disputes,right?
So and these things getcomplicated very quickly, as you
might imagine, right?
If you've got a chain of youknow, seven or eight layers of
contractors and subcontractorsand subsubcontractors, right?
You can very easily imaginejust how complicated sometimes
these construction issues aregoing to become, right?
You know, person two doesn't dosuch and such, so person three
(16:03):
can't do their work, and youknow then what about person four
didn't have a proper invoice?
What happens to person fivedown the chain, right?
And so the scheme here would beyou would create this group of
adjudicators who would then tryto uh enforce and make
determinations about uh what'sgoing on and was that a proper
invoice, was it properly served,and uh and so forth, to try to
(16:27):
then make determinations aboutwhat should happen.
And one of the uh concepts inthis uh legislation is this
concept that you know if youhave a determination by one of
these roving adjudicators uhthat uh a payment wasn't made,
one of the remedies would bepeople down the chain that
aren't getting paid can stopworking.
So okay, yeah, what's thatgonna do to a construction
(16:52):
project, you know, when whateverthe person that hired the
person doesn't pay thecontractor, so the subcontractor
isn't paid within 28 days plusseven days after filing their
proper invoice in the prescribedform, and they then get a
determination on they stop work,and so do the other people down
the chain and on it goes,right?
Speaker 1 (17:10):
Yeah.
Michael Mulligan (17:11):
Uh because of course the other thing that
happens to these projects, youwind up with disputes about
things, right?
You know, the uh person who'shaving the work done says, Well,
hold on, you you haven'tproperly put in that wall, or
you haven't done whatever weasked you to.
I'm not paying you.
Yeah, and then down it goes,and so you know, they are very,
very complicated.
Big projects, and we've seenthem in the like municipal and
(17:32):
other contexts here, often windup in court at the end of the
day, and often those cases go onfor a very long time.
Yes.
Um, and one of the other thingsthat causes that, uh of course,
but it's just human reality, isthat things change, right?
Like you have a you know, someplan to build your bridge, uh,
and then you go along and itturns out, oh no, there's a big
(17:55):
rock in place there.
We thought we could put thatpiling there.
We can't, we have to move itover here.
Now, if we're doing that, doyou want that the whole lane's
got to be a foot wider?
Is that okay by you?
Yeah, let's do that.
Now, now think about that,right?
Suddenly you've got the metalschange, the contractor, the
concrete, everything gotdelayed, and now everyone's
standing there with their bigfist full of you know regular
(18:16):
invoice, proper invoices, andthen person nine down the chain
says, Well, that's it, I'mcrossing my arms, I've got I'm
not going to waterproof thebottom of the concrete pole, and
the whole thing stops, right?
Uh, and so it's very, veryhard, and that's why many of
those big projects just do windup in very complicated
(18:36):
litigation at the end of theday.
So, with that background, Iguess I would say about this,
it's an interesting approach.
Um, the one of the other thingsabout it is that, and this is
maybe a little bit of relief foruh those people in this
industry thinking, oh mygoodness, do my invoices comply
with this legislation?
The uh what's contemplated hereis that the act won't apply to
(18:59):
contracts entered into beforethe date of the sec before the
section comes into force, whichis important because you can
imagine what chaos that wouldcause if suddenly there's been
some change of requirement.
Um the other thing is thisrequires a whole bunch of like
regulations and like creatingthis new body of adjudicators
and setting out even more detailwhat has to be in these
(19:19):
detailed monthly invoices.
Um and so how exactly thisworks and what exactly everyone
needs to be trained to do is notyet completely clear.
Another thing, if anyone'slistening, by the way, this is
the first reading bill, uh theuh current bill contemplates
judicial review and sets outcircumstances in which there can
(19:40):
be a judicial review, but itlimits it to things like uh
where there is a uh disputeabout the subject matter of the
adjudication or jurisdiction.
Procedural fairness is listedthere, but it doesn't list the
traditional one of look thingslike unreasonable decisions.
Speaker 1 (19:55):
Yeah.
Michael Mulligan (19:56):
Um there may be some further consideration
required for what's contemplatedhere by way of judicial review.
You can easily imagine, youknow, how you know complicated
those cases are.
Now you've got this rovingperson driving around in a
pickup truck trying to go out tosites and figure out what's
going on with the waterproofingof the concrete pylons or
whatever has gone off the railsand who hasn't paid whom.
(20:16):
And you can easily imaginethere being a case where there
does need to be some review ofit, particularly because the
amount of money involved can behuge.
So, anyways, that's the uhlatest on the construction the
construction prompt payment act,Bill 20.
Uh maybe not setting everyone'shair on fire, but certainly if
you're in the constructionindustry, be aware of this, keep
an eye on it.
Uh, and if this comes intoforce in some form, you're gonna
(20:39):
need to make sure you complywith it, uh, lest you be caught
out by the form or service ofyour invoices or when you've
done something, and it mayaffect what you need to be
putting into agreements if youwant to modify what would
otherwise become statutoryrequirements under this uh piece
of legislation.
So that's the latest on theConstruction Prompt Payment Act,
and we shall see if it ensurescontractors and subcontractors
(21:01):
are paid fully and on time.
So that's the latest piece oflegislation.
Adam Stirling (21:04):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking, during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thank you so much.
Always great to be here.
All right.
Quick break for the news.
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