August 15, 2025 • 16 mins
The foundation of property ownership in British Columbia faces a potential earthquake with the landmark Cowichan Tribes decision. After what may be Canada's longest trial—spanning over 500 days—the judge delivered an 800-page ruling that could fundamentally alter who truly owns land throughout the province.
Michael Mulligan breaks down this complex legal battle by explaining the collision between two powerful forces: BC's Torrens property system and Aboriginal title claims under Section 35 of the Constitution. The Torrens system provides what legal experts call "indefeasible title"—conclusive proof of ownership registered with the government that enables secure property transactions and mortgage lending. But the judge has ruled that Aboriginal title is "a prior and senior right to land" that can exist simultaneously with registered property ownership, potentially superseding private property rights despite the Torrens system's guarantees.
The implications are profound. If Aboriginal title claims—which cover virtually the entire province, often with overlapping claims from multiple Indigenous groups—can override registered property ownership, what happens to homeowners who've worked their entire lives to pay for their properties? The economic consequences could be equally severe, as mortgage lending depends on the certainty of ownership. As Mulligan observes, the legal system ultimately depends on public acceptance: "If I tell you that the house you worked for and paid for is no longer yours, I don't know that that's generally going to be accepted." With BC already announcing its intention to appeal, this case will likely progress through higher courts, where judges must balance constitutional obligations to Indigenous peoples with maintaining a functional property system. Listen now to understand what's at stake for every property owner in British Columbia.
Follow this link for a transcript of the show and links to the cases discsused.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for Legally Speaking.
(00:01):
Hey Michael, are you with us?
Michael Mulligan (00:03):
I certainly am .
I'm direct from Pompeii, italy,and it looks like we've managed
to get a good connection goingthrough the miracle of the cell
phone network.
Adam Stirling (00:11):
That's a solid connection.
Anyway, interesting story onour agenda today because I know
that you and I have talked inthe past about various
complicated, lengthy legalissues involving Indigenous
rights and title, and theCowichan Tribes issue is in the
news, as you well know, theprovince is already announcing
they're going to appeal.
Can you help us understandexactly what's happening here?
Michael Mulligan (00:35):
and how it relates to the idea of private
property.
Sure Well, first of all it's ahuge decision.
I mean I think the case mayhave set a Canadian record for
the longest trial it was some500 plus days of trial and this
enormous 800 page decision thatcame out of that.
And the case involved a claimfor a whole bunch of property
(00:57):
over in Richmond andinterestingly, as with many of
these things, there's a conflictin part between different
Indigenous groups claiming thesame territory.
So that's a broad background toit.
But part of what's in this casehas caused some very serious
concern about what implicationsit could have more broadly in
(01:19):
terms of property ownership inBritish Columbia.
And to appreciate all that, ithas to start with an explanation
for why it is you own propertyin British Columbia, right?
Why do you own your house, ifyou own a house?
And the answer to that in BCand most Canadian provinces not
all but most is that we have aversion of what's called the
(01:41):
Torrens system, and the Torrenssystem is a government registry
which lists who owns realproperty.
And the core concept with theTorrens system is it grants
what's referred to asindefeasible title to property.
It's conclusive ownership ofthe property, and what's
(02:01):
different about that is that inplaces where you don't have that
sort of a system, your claim toownership of property would
depend on the claim of ownershipthe last person had and the
person before them and theperson before them right.
And so you would need to goback and look and say, look, can
I purchase this property fromyou?
(02:22):
You would need to be assuredthat that person has legal title
to it.
And how did they get that?
And so you'd have to go backthrough the chain to try and
figure it out.
The touring system does awaywith that completely, and it
says that if you're listed asthe owner of property in British
Columbia or other places thathave that, that is conclusive
(02:43):
proof.
You own the property.
Now that matters both in termsof the complications of
transferring property, but italso has real implications for
things like let's imagine youwant to get a mortgage to
purchase property or build ahome or do something.
The person lending money on thestrength of the mortgage needs
to be assured that you in factown the property, so that they
(03:05):
could, if you didn't pay themback, collect right.
And if that's uncertain, you'realso not only would you have
trouble potentially sellingsomething, but you may have
trouble borrowing against it, oryour cost of borrowing will be
higher because the lender willbe uncertain about whether you
know.
Can you really be sure you ownthis thing?
And so that's the Turing system.
And so this is how itinterferes with this Cowichan
(03:31):
decision.
We have in Canada since 1982,provision section 35 of the
Constitution Act, and it saysthis the existing Aboriginal and
treaty rights of the Aboriginalpeoples of Canada are hereby
recognized and affirmed.
There's some more detail belowthat, but that's really what it
says.
What does that mean?
(03:52):
Right?
Adam Stirling (03:53):
Yeah.
Michael Mulligan (03:54):
It's really very ambiguous.
And so since 1982, courts havebeen going on and trying to
interpret well, what all doesthat mean?
On in trying to interpret, well, what all does that mean?
And I should say, as somebodywho works in the sausage factory
, at the courthouse, that sortof thing goes on all the time in
terms of judges trying to, youknow, specify what the law is.
(04:16):
And there are some areas, forexample in civil law, where much
of the law is that it's sort ofthe common law built up over
hundreds of years with thingslike well, what do you need to
have a contract and what do youdo in this particular
circumstance?
Or what are the elements of thecourt?
All these things have beendeveloped slowly over time and
that's how the common law works.
(04:36):
And one of the, I should say,sort of beauties of the law is
that generally, the law conformswith what most reasonable
people who would think carefullyabout an issue would think yeah
, that's probably how thatshould work out.
Right, that seems like a fairthing, right, it's sort of how
contract law works.
Or, you know, tort law, interms of putting somebody right
(04:58):
if you cause them some harm ordamage.
It all sort of generallyconforms with.
Yeah, that seems like a fairoutcome and how people expect
their lives to be ordered.
Now this particular case hasraised real concerns.
Now that you know thatbackground, the Torrance system,
why you own your property andthat provision, and here's the
heart of it, the judge in thiscase says I agree that
(05:20):
Aboriginal title is a prior andsenior right to land.
It is not an estate granted bythe crown but rooted in prior
occupation.
And then it goes on reversed.
The proper question is whatremains a fee?
Simple title after aboriginaltitle is recognized in the same
(05:47):
lands.
And then it goes on andessentially what the judge finds
is the fact that the person, aperson, may be a registered
owner of land and the fact thatthe touring system says that's
conclusive proof you own it.
You can't go behind that.
The judge found that noAboriginal title can still exist
for that same land.
(06:08):
Now one of the greatuncertainties about that is what
is Aboriginal title?
That hasn't been clearlydefined.
Many of the concepts here havejust been judicially invented
since 1982, because theprovision we're dealing with
says the existing Aboriginaltreaty rights of the Aboriginal
(06:30):
peoples of Canada are herebyrecognized and affirmed.
So all of the law that'sdeveloped since then.
All this concept of Aboriginaltitle, concepts of the honour of
the crown, all these thingswhich have been found in the law
since then, are alljudge-created, all of it.
(06:50):
And one of the worries here isthat this outcome and each judge
when they get one of thesecases, is looking at the prior
decisions and trying to come upwith a rational decision that
fits within the previousdecisions.
And it's all fine as far as allthat goes.
That's what they're, of course,trying to do.
But the challenge here is thatthe outcome of that accretion of
(07:12):
sort of principles and ideasand things that have been built
up since 1982, if this caseremains the law, what that may
effectively mean is you don'town your house anymore because
you've got Aboriginal claimsthat virtually cover the entire
province several times over.
And either Aboriginal titlemeans nothing right.
(07:33):
If it means nothing, theAboriginal groups couldn't use
the land or do anything with it.
Probably that's not what'sintended.
Eventually it means nothingness.
So if it means something andyou've got this conclusion that
it takes priority over thesimple ownership of land, it
doesn't matter that you boughtit for value, that the chain of
(07:56):
people that have owned it for avery long time it could simply
be rendered meaningless, andthat's the natural conclusion of
this decision.
And while the grievance of thisparticular case we're careful
not to try to actually give thisarea claim includes things like
(08:18):
farms and houses and so on.
And so they were.
Because the conclusion of thatwould be, I think, probably
completely contrary to what mostpeople would think of as a sort
of the expected outcome of thissort of dispute.
Right and unlike you know manyareas where you say, yeah,
(08:38):
that's the answer to how acontract worked, that's sort of
what accord with how you thinkthat would work if you were
buying yourself a car or doingsomething.
Right.
If the outcome of all of this,the judicial interpretation of
that terminology or that generalphraseology in Section 35,
results in a conclusion thatthat house you worked your whole
life to pay for is not yours,somebody else is free to come in
(09:04):
and set up in the backyard ormove into your living room.
If that's the outcome and thatseems to be what the judge has
found here by putting togetherthese sort of principles and
these other cases since 1982.
That is a very problematicoutcome, because not only would
it undermine sort of theeconomic functioning of the
(09:27):
province as a whole, because,first of all, people wouldn't be
able to reliably own property,people that have worked and paid
for things would no longer getthe benefit of them.
And furthermore, going forward,if you are a lender, are you
going to lend somebody money onthe strength of title, which
could be meaningless, becausethree or four or more Indigenous
(09:47):
groups are claiming that theyhave title to that land?
Whatever that means, probablynot.
And so it is potentially verybroad-reaching implications,
potentially seriouslydestabilizing implications, and
it is exactly that.
It's just sort of the nextaccretion of sort of the well,
(10:08):
these are the principles thatBud Springford attended this
case.
You put those together.
It must mean this, it can'tmean that, it can't mean that,
and then you wind up with thisresult which, unfortunately, in
my view, is not one of thoseresults that would generally
accord with what people wouldthink.
Yeah, that's about how thatshould work.
(10:35):
It's a result, again, workingin a sausage factory is that the
justice system works becausepeople generally, you know,
agree with the outcomes.
Right, in a broad sense.
Right, you might not agree witha particular case, but you know
, okay, fair enough, that's howthat works.
This is the sort of decisionwhich, if it was not reversed on
appeal and it was carried toits logical conclusion would not
(10:59):
be that, and that's verytroublesome from the perspective
of the rule of law and respectfor judicial decisions, because
I would imagine that this wouldnot be something that's likely
to be generally accepted by thepopulation.
If I tell you that that houseyou worked for and paid for is
no longer yours, I don't knowthat that's generally going to
(11:19):
be accepted, and so that'sreally the heart of it.
That's what the torrent systemis, and the judge in this case
has found that, despite the factthat that legislation says
that's yours and no lookingbehind that, has found that, oh,
there's a way to look behindthat.
Has found that, oh, there's away to look behind that.
And we'll have to wait and see,of course, what happens with
(11:44):
the appeal to the Court ofAppeal and eventually probably
to the Supreme Court of Canada.
But everyone involved there, Ithink, should also just be aware
that you know, even ifsomething might make logical
sense or fit together with otherprevious decisions of the court
, if the eventual result is aresult that would not be broadly
accepted by the public, it'snot going to work Because at the
(12:05):
end of the day, we're justpeople up there in robes and
ties and stuff.
It's not going to work unlessyou have a decision which is
going to be broadly accepted.
I don't know that this outcomeis likely to be that, so that's
why there's been concern aboutit.
That's what's happened in thiscase, and we'll have to wait and
see what happens, of course,with the one or two levels of
(12:28):
appeal, whether this getsreversed in some fashion or
whether they, of course, decideto proceed in this way.
So that's what's going on inthat decision.
Adam Stirling (12:39):
All right.
Couch and Tribes decision underappeal according to the
province of British Columbia.
Quick break.
Legally Speaking continues.
After this, Legally Speakingcontinues.
Michael Mulligan from MulliganDefense Lawyers.
We've got just over fourminutes left in today's segment,
Michael.
How shall we spend them?
Michael Mulligan (12:55):
Sure, I think there's another case.
People may have some interestin rising out of a door dasher
and how that fits in witharbitration, and the case
involved a fellow who was adasher not dashing, but a dasher
which you can sign up for on anapp and then you do deliveries
and get paid for that work.
(13:16):
And this fellow had signed upin 2022 to do that and had done
it for a couple of years andthen, for reasons unknown, or at
least not specified in hisdecision, doordash decided to
cancel his account, so he couldno longer be a DoorDasher, and
that prompted the fellow to sueDoorDash for a variety of things
(13:37):
, including, for some reason, hewas asking for 12,960 hours of
work at $50 an hour, for hewanted $648,000, along with plus
wear and tear in his car,various other things Wow.
And he specified that he wassuing for as a result of
breaches of the charter rulesagainst discrimination, hate and
(13:58):
defamation.
So, anyways, that's what he wassuing for as a result of
breaches of the charter rulesagainst discrimination, hate and
defamation.
So, anyways, that's what he wassuing for.
But the particular decisiondealt with the applicability of
an arbitration provision and theway that worked.
In this case, as in many caseswhere you'd agree to use
software, an app or something,you have to scroll through and
say I agree, I agree, I agree toa bunch of things if you wish
to be able to continue to signup to do anything.
(14:20):
And this particular agreementhad in it an arbitration clause
which said that both partiesagreed to, if they had any
disputes, settle it by way ofarbitration rather than going to
court.
One of the interesting thingshere in that clause and it
probably has to do with DoorDashbeing sensitive to their
position that people who do thatwork are not employees.
(14:42):
They're independent contractorsand free to negotiate things.
They actually say in here youcan opt out of the arbitration
provision.
There's a way you can do thatif you want to write in.
As he wished to opt out of it.
This fellow hadn't done that,and so DoorDash applied to have
the court claim struck out onthe basis of how the Arbitration
(15:03):
Act works.
And that act essentially saysthat if you establish some basic
things, like there was anarbitration agreement, one of
the parties has started anaction, the other party hasn't
taken steps in the action, likeyou can't get into day five of
the trial, realize it's notgoing well and then say you't
taken steps in the action, likeyou can't get into day five of
the trial, realize it's notgoing well and then say you wish
to go to arbitration.
Right, you haven't doneanything, you can apply for the
(15:27):
court action to be stayed anddiscontinued.
So the matter would be sent toarbitration.
And that's exactly whathappened here.
The digital treasury, yeah,appears to be an arbitration
agreement.
It wasn't opted and opted outof it.
They both appear to be partiesto it.
Doordash hasn't taken any stepsin the litigation and so
they're applying to have itstruck out.
(15:48):
That is to say, the court claimand that was the outcome.
And so people should be aware ofthis when they're scrolling
through those contractprovisions, clicking yes, yes,
yes.
In some cases you may actuallyhave a remedy at the time to say
I wish to be out of this, butif you don't, you may wind up
(16:10):
agreeing to all sorts of thingsthat could have implications for
you later.
Remember Seinfeld used to jokethat people scrolled.
You could insert the entiretext of Mein Kampf into the
agreement.
The person would start tappingI agree, I agree, I agree, and
that's probably not too far fromthe truth.
So that's something to be awareof how that arbitration act
works in British Columbia.
(16:31):
Be careful about what you'reclicking and signing on, because
the result could be you won'tbe able to advance your charter
claim for 12,000 hours of workfor DoorDash.
If you've clicked, I accept.
Adam Stirling (16:44):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking, second half ofour second hour every Thursday.
Thank you so much.
Pleasure as always.
Thanks so much.
It's always great to be here.
It's time for Legally Speaking.
(00:01):
Hey Michael, are you with us?
Michael Mulligan (00:03):
I certainly am .
I'm direct from Pompeii, italy,and it looks like we've managed
to get a good connection goingthrough the miracle of the cell
phone network.
Adam Stirling (00:11):
That's a solid connection.
Anyway, interesting story onour agenda today because I know
that you and I have talked inthe past about various
complicated, lengthy legalissues involving Indigenous
rights and title, and theCowichan Tribes issue is in the
news, as you well know, theprovince is already announcing
they're going to appeal.
Can you help us understandexactly what's happening here?
Michael Mulligan (00:35):
and how it relates to the idea of private
property.
Sure Well, first of all it's ahuge decision.
I mean I think the case mayhave set a Canadian record for
the longest trial it was some500 plus days of trial and this
enormous 800 page decision thatcame out of that.
And the case involved a claimfor a whole bunch of property
(00:57):
over in Richmond andinterestingly, as with many of
these things, there's a conflictin part between different
Indigenous groups claiming thesame territory.
So that's a broad background toit.
But part of what's in this casehas caused some very serious
concern about what implicationsit could have more broadly in
(01:19):
terms of property ownership inBritish Columbia.
And to appreciate all that, ithas to start with an explanation
for why it is you own propertyin British Columbia, right?
Why do you own your house, ifyou own a house?
And the answer to that in BCand most Canadian provinces not
all but most is that we have aversion of what's called the
(01:41):
Torrens system, and the Torrenssystem is a government registry
which lists who owns realproperty.
And the core concept with theTorrens system is it grants
what's referred to asindefeasible title to property.
It's conclusive ownership ofthe property, and what's
(02:01):
different about that is that inplaces where you don't have that
sort of a system, your claim toownership of property would
depend on the claim of ownershipthe last person had and the
person before them and theperson before them right.
And so you would need to goback and look and say, look, can
I purchase this property fromyou?
(02:22):
You would need to be assuredthat that person has legal title
to it.
And how did they get that?
And so you'd have to go backthrough the chain to try and
figure it out.
The touring system does awaywith that completely, and it
says that if you're listed asthe owner of property in British
Columbia or other places thathave that, that is conclusive
(02:43):
proof.
You own the property.
Now that matters both in termsof the complications of
transferring property, but italso has real implications for
things like let's imagine youwant to get a mortgage to
purchase property or build ahome or do something.
The person lending money on thestrength of the mortgage needs
to be assured that you in factown the property, so that they
(03:05):
could, if you didn't pay themback, collect right.
And if that's uncertain, you'realso not only would you have
trouble potentially sellingsomething, but you may have
trouble borrowing against it, oryour cost of borrowing will be
higher because the lender willbe uncertain about whether you
know.
Can you really be sure you ownthis thing?
And so that's the Turing system.
And so this is how itinterferes with this Cowichan
(03:31):
decision.
We have in Canada since 1982,provision section 35 of the
Constitution Act, and it saysthis the existing Aboriginal and
treaty rights of the Aboriginalpeoples of Canada are hereby
recognized and affirmed.
There's some more detail belowthat, but that's really what it
says.
What does that mean?
(03:52):
Right?
Adam Stirling (03:53):
Yeah.
Michael Mulligan (03:54):
It's really very ambiguous.
And so since 1982, courts havebeen going on and trying to
interpret well, what all doesthat mean?
On in trying to interpret, well, what all does that mean?
And I should say, as somebodywho works in the sausage factory
, at the courthouse, that sortof thing goes on all the time in
terms of judges trying to, youknow, specify what the law is.
(04:16):
And there are some areas, forexample in civil law, where much
of the law is that it's sort ofthe common law built up over
hundreds of years with thingslike well, what do you need to
have a contract and what do youdo in this particular
circumstance?
Or what are the elements of thecourt?
All these things have beendeveloped slowly over time and
that's how the common law works.
(04:36):
And one of the, I should say,sort of beauties of the law is
that generally, the law conformswith what most reasonable
people who would think carefullyabout an issue would think yeah
, that's probably how thatshould work out.
Right, that seems like a fairthing, right, it's sort of how
contract law works.
Or, you know, tort law, interms of putting somebody right
(04:58):
if you cause them some harm ordamage.
It all sort of generallyconforms with.
Yeah, that seems like a fairoutcome and how people expect
their lives to be ordered.
Now this particular case hasraised real concerns.
Now that you know thatbackground, the Torrance system,
why you own your property andthat provision, and here's the
heart of it, the judge in thiscase says I agree that
(05:20):
Aboriginal title is a prior andsenior right to land.
It is not an estate granted bythe crown but rooted in prior
occupation.
And then it goes on reversed.
The proper question is whatremains a fee?
Simple title after aboriginaltitle is recognized in the same
(05:47):
lands.
And then it goes on andessentially what the judge finds
is the fact that the person, aperson, may be a registered
owner of land and the fact thatthe touring system says that's
conclusive proof you own it.
You can't go behind that.
The judge found that noAboriginal title can still exist
for that same land.
(06:08):
Now one of the greatuncertainties about that is what
is Aboriginal title?
That hasn't been clearlydefined.
Many of the concepts here havejust been judicially invented
since 1982, because theprovision we're dealing with
says the existing Aboriginaltreaty rights of the Aboriginal
(06:30):
peoples of Canada are herebyrecognized and affirmed.
So all of the law that'sdeveloped since then.
All this concept of Aboriginaltitle, concepts of the honour of
the crown, all these thingswhich have been found in the law
since then, are alljudge-created, all of it.
(06:50):
And one of the worries here isthat this outcome and each judge
when they get one of thesecases, is looking at the prior
decisions and trying to come upwith a rational decision that
fits within the previousdecisions.
And it's all fine as far as allthat goes.
That's what they're, of course,trying to do.
But the challenge here is thatthe outcome of that accretion of
(07:12):
sort of principles and ideasand things that have been built
up since 1982, if this caseremains the law, what that may
effectively mean is you don'town your house anymore because
you've got Aboriginal claimsthat virtually cover the entire
province several times over.
And either Aboriginal titlemeans nothing right.
(07:33):
If it means nothing, theAboriginal groups couldn't use
the land or do anything with it.
Probably that's not what'sintended.
Eventually it means nothingness.
So if it means something andyou've got this conclusion that
it takes priority over thesimple ownership of land, it
doesn't matter that you boughtit for value, that the chain of
(07:56):
people that have owned it for avery long time it could simply
be rendered meaningless, andthat's the natural conclusion of
this decision.
And while the grievance of thisparticular case we're careful
not to try to actually give thisarea claim includes things like
(08:18):
farms and houses and so on.
And so they were.
Because the conclusion of thatwould be, I think, probably
completely contrary to what mostpeople would think of as a sort
of the expected outcome of thissort of dispute.
Right and unlike you know manyareas where you say, yeah,
(08:38):
that's the answer to how acontract worked, that's sort of
what accord with how you thinkthat would work if you were
buying yourself a car or doingsomething.
Right.
If the outcome of all of this,the judicial interpretation of
that terminology or that generalphraseology in Section 35,
results in a conclusion thatthat house you worked your whole
life to pay for is not yours,somebody else is free to come in
(09:04):
and set up in the backyard ormove into your living room.
If that's the outcome and thatseems to be what the judge has
found here by putting togetherthese sort of principles and
these other cases since 1982.
That is a very problematicoutcome, because not only would
it undermine sort of theeconomic functioning of the
(09:27):
province as a whole, because,first of all, people wouldn't be
able to reliably own property,people that have worked and paid
for things would no longer getthe benefit of them.
And furthermore, going forward,if you are a lender, are you
going to lend somebody money onthe strength of title, which
could be meaningless, becausethree or four or more Indigenous
(09:47):
groups are claiming that theyhave title to that land?
Whatever that means, probablynot.
And so it is potentially verybroad-reaching implications,
potentially seriouslydestabilizing implications, and
it is exactly that.
It's just sort of the nextaccretion of sort of the well,
(10:08):
these are the principles thatBud Springford attended this
case.
You put those together.
It must mean this, it can'tmean that, it can't mean that,
and then you wind up with thisresult which, unfortunately, in
my view, is not one of thoseresults that would generally
accord with what people wouldthink.
Yeah, that's about how thatshould work.
(10:35):
It's a result, again, workingin a sausage factory is that the
justice system works becausepeople generally, you know,
agree with the outcomes.
Right, in a broad sense.
Right, you might not agree witha particular case, but you know
, okay, fair enough, that's howthat works.
This is the sort of decisionwhich, if it was not reversed on
appeal and it was carried toits logical conclusion would not
(10:59):
be that, and that's verytroublesome from the perspective
of the rule of law and respectfor judicial decisions, because
I would imagine that this wouldnot be something that's likely
to be generally accepted by thepopulation.
If I tell you that that houseyou worked for and paid for is
no longer yours, I don't knowthat that's generally going to
(11:19):
be accepted, and so that'sreally the heart of it.
That's what the torrent systemis, and the judge in this case
has found that, despite the factthat that legislation says
that's yours and no lookingbehind that, has found that, oh,
there's a way to look behindthat.
Has found that, oh, there's away to look behind that.
And we'll have to wait and see,of course, what happens with
(11:44):
the appeal to the Court ofAppeal and eventually probably
to the Supreme Court of Canada.
But everyone involved there, Ithink, should also just be aware
that you know, even ifsomething might make logical
sense or fit together with otherprevious decisions of the court
, if the eventual result is aresult that would not be broadly
accepted by the public, it'snot going to work Because at the
(12:05):
end of the day, we're justpeople up there in robes and
ties and stuff.
It's not going to work unlessyou have a decision which is
going to be broadly accepted.
I don't know that this outcomeis likely to be that, so that's
why there's been concern aboutit.
That's what's happened in thiscase, and we'll have to wait and
see what happens, of course,with the one or two levels of
(12:28):
appeal, whether this getsreversed in some fashion or
whether they, of course, decideto proceed in this way.
So that's what's going on inthat decision.
Adam Stirling (12:39):
All right.
Couch and Tribes decision underappeal according to the
province of British Columbia.
Quick break.
Legally Speaking continues.
After this, Legally Speakingcontinues.
Michael Mulligan from MulliganDefense Lawyers.
We've got just over fourminutes left in today's segment,
Michael.
How shall we spend them?
Michael Mulligan (12:55):
Sure, I think there's another case.
People may have some interestin rising out of a door dasher
and how that fits in witharbitration, and the case
involved a fellow who was adasher not dashing, but a dasher
which you can sign up for on anapp and then you do deliveries
and get paid for that work.
(13:16):
And this fellow had signed upin 2022 to do that and had done
it for a couple of years andthen, for reasons unknown, or at
least not specified in hisdecision, doordash decided to
cancel his account, so he couldno longer be a DoorDasher, and
that prompted the fellow to sueDoorDash for a variety of things
(13:37):
, including, for some reason, hewas asking for 12,960 hours of
work at $50 an hour, for hewanted $648,000, along with plus
wear and tear in his car,various other things Wow.
And he specified that he wassuing for as a result of
breaches of the charter rulesagainst discrimination, hate and
(13:58):
defamation.
So, anyways, that's what he wassuing for as a result of
breaches of the charter rulesagainst discrimination, hate and
defamation.
So, anyways, that's what he wassuing for.
But the particular decisiondealt with the applicability of
an arbitration provision and theway that worked.
In this case, as in many caseswhere you'd agree to use
software, an app or something,you have to scroll through and
say I agree, I agree, I agree toa bunch of things if you wish
to be able to continue to signup to do anything.
(14:20):
And this particular agreementhad in it an arbitration clause
which said that both partiesagreed to, if they had any
disputes, settle it by way ofarbitration rather than going to
court.
One of the interesting thingshere in that clause and it
probably has to do with DoorDashbeing sensitive to their
position that people who do thatwork are not employees.
(14:42):
They're independent contractorsand free to negotiate things.
They actually say in here youcan opt out of the arbitration
provision.
There's a way you can do thatif you want to write in.
As he wished to opt out of it.
This fellow hadn't done that,and so DoorDash applied to have
the court claim struck out onthe basis of how the Arbitration
(15:03):
Act works.
And that act essentially saysthat if you establish some basic
things, like there was anarbitration agreement, one of
the parties has started anaction, the other party hasn't
taken steps in the action, likeyou can't get into day five of
the trial, realize it's notgoing well and then say you't
taken steps in the action, likeyou can't get into day five of
the trial, realize it's notgoing well and then say you wish
to go to arbitration.
Right, you haven't doneanything, you can apply for the
(15:27):
court action to be stayed anddiscontinued.
So the matter would be sent toarbitration.
And that's exactly whathappened here.
The digital treasury, yeah,appears to be an arbitration
agreement.
It wasn't opted and opted outof it.
They both appear to be partiesto it.
Doordash hasn't taken any stepsin the litigation and so
they're applying to have itstruck out.
(15:48):
That is to say, the court claimand that was the outcome.
And so people should be aware ofthis when they're scrolling
through those contractprovisions, clicking yes, yes,
yes.
In some cases you may actuallyhave a remedy at the time to say
I wish to be out of this, butif you don't, you may wind up
(16:10):
agreeing to all sorts of thingsthat could have implications for
you later.
Remember Seinfeld used to jokethat people scrolled.
You could insert the entiretext of Mein Kampf into the
agreement.
The person would start tappingI agree, I agree, I agree, and
that's probably not too far fromthe truth.
So that's something to be awareof how that arbitration act
works in British Columbia.
(16:31):
Be careful about what you'reclicking and signing on, because
the result could be you won'tbe able to advance your charter
claim for 12,000 hours of workfor DoorDash.
If you've clicked, I accept.
Adam Stirling (16:44):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking, second half ofour second hour every Thursday.
Thank you so much.
Pleasure as always.
Thanks so much.
It's always great to be here.
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