June 5, 2025 • 21 mins
Navigating the legal maze of property transactions and civil judgments requires understanding nuances that aren't always obvious. Michael Mulligan, barrister and solicitor with Mulligan Defence Lawyers, unpacks two fascinating cases that illuminate these complexities.
First, Mulligan explores a cautionary tale about what constitutes a "fixture" in home purchases. When buyers discovered a beloved dresser missing after taking possession—revealing holes in the wall behind it—they sued for $7,430 in damages. The case hinged on whether the dresser qualified as a fixture that should remain with the property. The legal test? If an item is attached to the property in a way that removal would cause damage, it's likely a fixture. Those IKEA bookshelves you've secured to walls? They might legally transfer with your home unless specifically excluded in the sale contract.
The same dispute involved "conversation sets" on patios—a vague term that led to confusion when the sellers removed chairs and a large wicker sectional. Despite going to court, the buyers received just $100 for their trouble, demonstrating how ambiguous contract language and litigation costs can result in pyrrhic victories. Mulligan's advice is crystal clear: be specific in contracts about what stays and what goes when selling or buying property.
The conversation shifts to a disturbing case involving a disbarred lawyer convicted of sexually assaulting a potential client in his office. When sued civilly, he claimed any judgment would be pointless as he'd simply declare bankruptcy again. This reveals a common misconception about bankruptcy protection. While bankruptcy can discharge many debts, Section 178 of the Bankruptcy and Insolvency Act specifically excludes sexual assault damages, intentional torts, fraud, and court fines from discharge. The $270,000 judgment against him would survive bankruptcy—though collecting from someone without assets remains challenging regardless.
These cases illustrate critical principles: precise language prevents expensive disputes, bankruptcy won't erase obligations from intentional wrongdoing, and winning a judgment doesn't guarantee collection. Whether you're buying a home or seeking justice through civil courts, understanding these legal realities can save you significant time, money, and heartache.
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.
Rob Buffam (00:00):
And we're going to be talking now and hearing some
sage advice from one, mikeMulligan barrister and solicitor
, with Mulligan Defence Lawyers.
Mike, welcome to the program.
Hey, thanks so much.
It's always great to be here,yeah, and great to chat with you
.
It's been a little while sinceI've had the chance to do that.
You've got a bunch of issuesyou've been digging into to talk
to our listeners about.
(00:20):
Today, one of the things Ithink that you'd highlighted was
this idea of fixtures whattoday?
One of the things I think thatyou'd highlighted was this idea
of fixtures what are so-calledfixtures and what comes with a
house when you buy it?
This is the kind of time ofyear when people are looking at
selling or buying their house orhomes.
Rather so they might well beinterested in what comes with
the house when you look at itand you see something that
you're not sure if that actuallyis included with the purchase
(00:40):
of the house, but you reallylike it.
What can you tell us about this?
Michael Mulligan (00:49):
Sure, I think it's a good cautionary tale for
people to be aware of whenthey're doing exactly that
buying or selling.
And this was a case that woundup in court, I guess, as all my
tales of woe do.
And it was a case involving acontract to buy and sell a home
and ultimately there was a backand forth exchange of contracts
and offers and so on that werefinally agreed upon and, as is
(01:13):
commonly the case, the contractto buy and sell the house
indicated that fixtures would beincluded with the house.
So the first question is what'sa fixture?
And then the specific contractin this case specified something
.
So that's not uncommon, youknow.
If somebody goes through ahouse and says, gee, I really
love that, you know chair orsomething, you could write that
(01:33):
into the contract.
And here, in addition tospecifying that fixtures would
be included with the house, itspecified that a conversation
sets on the patios would beincluded.
Well, you can just imagine whathappened the purchasers showed
up and they took possession ofit and a few things that they
had expected to be present weregone.
(01:56):
And it wasn't controversial thatthey were taken.
The issue was whether theyshould have remained or not, and
that's how the case wound up incourt.
The first item in question waswhat was described variously as
a dresser in a bedroom, but wasalso referred to by different
people as perhaps it was acabinet or maybe a vanity,
(02:16):
somebody else called it a desk,any case a big wooden thing, and
the issue arose because it waspresent when the purchasers
walked through the house andwhen they took possession of the
house, that item the judgereferred to as the dresser was
gone and behind it there were acouple of holes in the wall.
And the significance of theholes in the wall is because
(02:40):
what the definition of a fixtureis.
And so there was nothing in thecontract that specified whether
you got this dresser or not.
But the contract did specifyyou got the fixtures.
And so there's been a longhistory of litigation over what
is a fixture, because, you know,human affairs are endlessly
variable.
But one of the starting pointsfor determining whether a
(03:02):
particular thing in a home is afixture is to determine whether
it's attached to the property insome way.
Rob Buffam (03:10):
That's one of the definitions.
Result of damage.
Michael Mulligan (03:12):
Okay, interesting that's one of the
criteria Okay yeah, so you startwith.
If the thing's attached to theproperty by something other than
its own weight, one of thefirst things to be looked at is
can you remove it withoutdamaging the property?
And that's important, becausesome things might be attached to
the property, like, let's say,your television set.
If it's just sitting on thefloor and plugged in.
(03:32):
If you could just unplug itwithout causing any damage, it
presumptively won't be a fixture, right?
But what do you do with the inthis case, where there are holes
?
And the purchaser's theory ofit was well, the dresser thing
was quite large, and so theyconcluded it must have been
affixed to the wall.
And sometimes you'll see that,right.
(03:53):
You know, if you buy a piece offurniture, there'll be
something saying well, you'llbolt this to the wall.
In case of earthquakes, Screwit in.
And if you do screw it in, youmay turn that thing into, in
fact, a fixture.
Rob Buffam (04:04):
Can I stop you there for a second?
That's what they were arguing,okay, well, that's interesting
because I'm thinking of our ownden, where we've got some Ikea
bookshelves that I think we'veprobably attached so that the
top of them doesn't extend out abit more than the bottom.
I guess it would depend onjudgment on this, but are we
(04:25):
setting ourselves up to beselling those bookshelves with
our house if we ever sell it andwe've attached them in some
even modest way to the room?
Michael Mulligan (04:33):
Yes, that's a common term, right, it's sort of
these contracts will often usethat term fixtures.
And so if you've done what IKEArecommended and screwed the top
of the bookshelf in so itdoesn't topple over on you in
the event of an earthquake,presumptively you've turned that
into a fixture.
And so if you don't want thatgoing with the house and you
sell it, you should specify thatin the contract, not including
(04:57):
the bookshelves in the den, forexample.
If you don't, the startingpoint is going to be those are a
fixture.
And that's what was claimedhere.
That, exactly that.
Now the challenge for theplaintiff buyer was that the
seller defendant also testified.
They agreed they took thedresser with them, but their
evidence was that, no, the holesin the wall weren't caused by
(05:20):
that dresser being screwed intoit, despite the fact that it was
tall.
Their evidence was that wascaused by a shelf that used to
be there and the dresser was putthere to stage the home and
hide the holes.
And the trouble is that in acase where you're suing somebody
, the person doing the suingmaking the claim, they're the
one who has the burden of proof.
Now, in a civil case, you onlyhave to prove it on the basis of
(05:43):
probability right, not like acriminal case where it's got to
be beyond a reasonable doubt.
But the judge accepted what thedefendant had to say and there
was no really contrary evidencefrom the buyers.
They hadn't looked back thereor seen the back of the dresser,
and so on that basis thedresser wasn't a fixture and so
their claim for they were tryingto get $7,430 for this thing,
(06:05):
that was dismissed.
And the judge that had to moveon to this issue of the and this
was written in specifically inthe contract written in was that
the purchasers would get theconversation sets.
And here's what happened withthose.
When they looked at the home,in the front there was a table
with four chairs around it andin the back there was a big
wicker item of some kind thatcould seat capable of seating
(06:29):
nine people was the description.
The problem for the plaintiffshere was what is a conversation
set, and so the judge wasstruggling with that and
obviously there are inquiriesmade, including looking online
by, I guess, one of the partiesabout like what is a
conversation set?
And the sellers left behind atable and two of the four chairs
(06:50):
in the front, but not the othertwo chairs.
So Is that enough for aconversation?
Two people?
What about this wicker thing?
Is that a conversation?
Rob Buffam (06:58):
An intimate conversation.
So it's not a term of art thenit's not a legal term of art a
conversation set.
This was just a phrase that hadbeen inserted into the contract
.
Michael Mulligan (07:08):
Yeah, one of the real estate agents had
written in that term,conversation sets, and so the
judge was struggling with well,what do you make of that?
And like one of the principlesthat the judge was struggling
with.
Well, what do you make of that?
And like, one of the principlesthat the judge at least
considered was this there's aconcept called contra
preferendum, and the conceptthere is if one party drafts the
contract and the contract isambiguous, it can be interpreted
(07:30):
in favor of the other party.
But that wasn't really the casehere, because if there wasn't
an unequal power relationship,there were two real estate
agents who drafted these things,and so the judge didn't use
that to try to settle it, butultimately concluded that just
that term conversation set wasvague, and the judge couldn't
determine whether this bigwicker thing in the back, which
(07:51):
was described by some people asa sectional furniture,
constituted a quote conversationset.
Was a sectional furnitureconstituted a quote conversation
set?
But the judge was prepared togo as far as to say that the
table with four chairs around itdid meet the definition of a
conversation set, which then ledto the question of well, they
got two of the chairs and thetable.
What are your damages, and theplaintiffs had tried to.
(08:15):
They found, I guess online fromHome Depot or someplace, what
was described as a luxuryfive-piece patio furniture set,
and so they were trying to get$1,117.76 for the missing two
chairs.
That didn't fly.
The judge found it's just notappropriate damages here, and so
ultimately they were awarded$100 for the two chairs from the
(08:39):
conversation set at the front.
The other thing which,interestingly, was dismissed and
this is something people shouldknow about is that the sellers
they had set a counterclaim whenthey got sued for the
conversation set and the dresser, and they had made a
counterclaim asking for thingslike 23 and a half hours of
their own time for $100 an hourand stress, not enjoying a
(09:03):
weekend away for $1,000 andlosing a day of work for another
$1,000.
Now, you can't get any of thosethings anywhere, frankly, but
you're certainly not gettingthem in small claims court, and
so all of those things weredismissed.
You can't bill for your time orfor not enjoying your weekend
as a result of being sued, andso the successful buyer, for all
of their effort in going tocourt, wound up with $100, and
(09:26):
they wound up with a smallamount of money like the filing
fees you pay when you go to asmall claims court and so at the
end of the day, no doubt iftheir time was worth anything,
this entire exercise inlitigation was not worthwhile.
But what is worthwhile ifeither you're buying or selling
a home and you're particularlykeen on the big wicker thing in
the backyard or you want to makesure you get what might be a
(09:47):
dresser it might be a vanity orcould be a desk in the other
room?
Carefully describe it in thecontract and you will avoid
spending a day or more inprovincial court trying to
litigate whether something is aconversation set, whether you
get the wicker and whether thebookshelf was screwed into the
wall.
So I guess the takeaway is beclear.
But the starting point ofwhether something's a fixture
(10:10):
and usually fixtures are goingto go with the house the
starting point is going to be isit attached in some way that
you're going to cause damagegetting it out, as opposed to
just like unplugging the toasterand taking that away, even
though I guess in sometheoretical way the toaster is
attached to the wall.
It's just attached in a way youcould unplug it without doing
any damage.
So that's what a fixture is andthat's why you should be
(10:31):
careful and specific so youdon't wind up spending your time
in provincial court for $100.
Rob Buffam (10:36):
Interesting and this group that are a family that
purchased the house ended upwith a hole in the wall as well.
They didn't anticipate.
I wonder, if you can, justbefore we go to commercial I
mean, I guess it would depend oneach case, but you you know.
Should you be vigilant aboutasking what's behind that dress?
Or is there a hole?
Michael Mulligan (10:53):
Well, that's interesting too.
What's often done and thiscontract did this is often
contracts for purchase and salewill specify that the property
would be in the condition thatit was viewed when the person
went in and viewed it.
Right about, you know, it'sgoing to be in the condition.
(11:17):
I saw it when I came throughthe open house or came and
viewed it with my real estateagent and somebody the seller
punches a hole in the wall, youknow, while getting their
bookcase out of the house orsomething.
That's something that theseller is going to be
responsible for.
But here there's nodisagreement.
There definitely was a hole inthe wall, but the evidence from
the seller was that, yeah, thatwas there already and the
plaintiff, I guess, didn't lookby or didn't look behind the
(11:39):
bookcase.
So no compensation for the hole.
Rob Buffam (11:42):
Interesting.
But just before I let you go Iwonder is there a reasonableness
threshold there that you know?
You reasonably ought to haveknown there was a hole in the
wall, or is that?
Are we getting too far into?
You know a negligence standard.
You know a negligence standard.
I mean, it does seem.
In some sense it seems a littlebit unfair to have somebody
assume that there is a hole inthe wall behind a bookcase or
(12:02):
something like that.
Michael Mulligan (12:04):
Sure, yeah, there, probably there would be a
reasonable consideration.
And this wasn't some gapinghole in the wall that you can
see through the next room.
What it sounded like from thejudgment was a couple of screw
holes, like somebody had screwedsomething into the wall.
In this case it was ascrewed-in shelf on the evidence
of the seller, rather than theearthquake-preventing strap from
the then-missing dresser.
(12:24):
And so, yeah, there is going tobe always an element of
reasonableness.
And the other thing about thatis that sometimes, of course, in
a contract to buy and sell ahouse, you'll have a clause
which would involve a homeinspection.
Those are interesting things intheir own right, because
usually the home inspectorsusually say their only liability
(12:46):
are for things that they couldreasonably see walking through
it, and so the really toughcases get into things.
Like you know, should you havenoticed the hole behind the
wallpaper or the, you know, themirror that was left hanging in
the hallway, that sort of thing?
But here it wasn't a gapingchasm, it sounds like it was a
couple of screw holes that theyassumed was used to hold the
(13:08):
missing dresser up.
Rob Buffam (13:09):
Interesting.
We've got to take a quick break.
We're speaking with MichaelMulligan from Mulligan
Defenselers.
When we come back, we're goingto hear about a case involving
sexual assault, damages andbankruptcy.
We will be right back.
Welcome back to the program.
I'm Rob Buffum filling in todayfor Adam Sterling.
Our guest at the moment isMichael Mulligan from Mulligan
Defense Lawyers.
Welcome back, Mike.
Hey, always good to be back.
(13:32):
Sorry I interrupted you, butthere's a case coming up that
sounds like it's quiteinteresting that you were going
to tell our listeners about.
Michael Mulligan (13:42):
Yes, it's a case that troublingly involves a
former lawyer, now disbarred,who was charged criminally and
in fact convicted, of sexuallyassaulting a woman in his office
when she came to hire him.
And obviously there's somethingseriously wrong with this
person.
He apparently was wearing socksand disheveled and came around
(14:07):
his desk, sat by the woman andput his head on her chest and
then rubbed her leg that was thenature of the sexual assault
while she was in a vulnerablestate trying to hire him.
He was convicted and disbarredover that but then most recently
sued for damages resulting fromthat.
That experience had a long-termnegative effect on the person
(14:30):
who he did that to and one ofthe interesting elements to it
is that the civil case got tothe point of discussing what the
damages should be for thatactivity and the the plaintiff
made counsel for.
The plaintiff, made submissionsabout various heads of damages
(14:51):
and suggested an amount of$270,000.
And the former lawyer indicatedthat he had already gone
bankrupt, that he was dealingwith health issues, including a
cancer diagnosis, and that hehad no submissions to make in
terms of the amount because theplaintiff would not even get a
dollar because another $270,000award would make no difference
(15:15):
since he would just declarebankruptcy again.
Now here's.
The judge quite properly saidwell, you're not really making
any submissions about how muchthe award should be, so I guess
it's going to be $270,000 andawarded that.
And first of all going to be$270,000 and awarded that, and
(15:35):
first of all, that's appropriate.
The ability to pay a judgment isnot a consideration in
determining what the judgmentshould be right.
If you sue somebodysuccessfully and the judge
determines what the appropriateaward would be to put you back
in the position you would havebeen in, but for what happened,
ability to pay is not aconsideration, but you do that,
have to go about getting themoney.
And so what's to be made aboutthis fellow's claim that he
(15:57):
would just declare bankruptcyagain?
Well, what people should knowabout is that you can, of course
you can declare bankruptcy.
It's not like Michael from theOffice where you just stand up
and yell and I declarebankruptcy before that's
required, but you could in factdeclare bankruptcy more than
once.
(16:21):
The trouble, and the reason whythat submission that he made
demonstrates a lack ofunderstanding about how the
Bankruptcy and Insolvency Actworks is that, while you can
declare bankruptcy, variouskinds of debts are not what's
called discharged as a result ofbankruptcy, and there's a whole
list of things.
You can look them up in Section178 of the Bankruptcy and
Insolvency Act for those playingat home, and there's a whole
(16:42):
list of things including thingslike fines and penalties imposed
by a court.
That kind of makes sense, right?
Otherwise you could just befined for something and declare
bankruptcy and not have to payit, right?
Otherwise you could just befined for something and declare
bankruptcy and not have to payit.
But other things listed includeawards made for intentional
torts or things like sexualassault.
Also things like alimonypayments, debts as a result of
(17:03):
fraud or embezzlement variousthings of that are excluded from
discharge, and so even if yougo through the bankruptcy
process, you still owe thatmoney.
And so if if you go through thebankruptcy process, you still
owe that money, and so if youthink you could avoid paying the
sexual assault judgment or thedebt for your fine, or the money
you got by embezzling it fromsomebody.
You're going to be very unhappyat the end of your bankruptcy
(17:26):
process when you're told thatyou no longer have to pay your
Canadian Tire credit card debtbut you're still on the hook for
the $270,000.
Thanks, so much Now, with thatbeing said, and so that was just
completely mistaken.
This is a lawyer himself whomade that error in understanding
and even more ironically, onthe criminal trial for the same
(17:49):
conduct.
He was convicted and then heappealed it on the basis that he
had inadequate, poorrepresentation by his lawyer at
the first trial.
That went absolutely nowhere.
Pointing out in part he was alawyer, but I suppose that has
some additional resonance givenhis misleading or misinformed
submission to the judge aboutthe damages award here.
Now, all that being said, it'snot smooth sailing for the
(18:12):
successful plaintiff here.
Bankruptcy won't help at all.
But the fact that this personhas already gone bankrupt
virtually by definition means hewon't have any assets.
And if he's got cancer and noassets, whether a second
bankruptcy would do anythingabout the $270,000 judgment may
be neither here nor there,because when you're a judgment
(18:35):
creditor you can do variousthings to try to collect on that
, but that's up to you.
You could do things likegetting an application of the
person's property sold or havetheir car sold or garnish money
from their bank account.
But if they have no car, nohome and no money and no job his
fellow's been disbarred.
You're probably going to have apretty tough time collecting
(18:57):
your $270,000.
Rob Buffam (18:59):
Interesting.
If somebody is considering theimpact of somebody not having
much financial means, I guessthat would be a factor to weigh
in and something you might getadvice on if you're
contemplating bringing a courtaction or a lawsuit against
somebody who may declarebankruptcy.
But it would not be a factorinvolved in the judgment of what
any damages would be if yousucceed in your lawsuit.
Michael Mulligan (19:23):
That's absolutely the case.
When somebody's making adecision about whether you want
to pursue litigation, that canbe expensive and time-consuming.
One of the things to rememberis that in a civil case, really
at the end of the day, the onlything you may walk away with
that from if you succeed is anorder that the person pay you
money, and if they have no money, there's going to be nothing to
(19:44):
collect from.
Now, the other side of it, Iguess in that consideration and
people should know this too iswhen you have, like in this case
, a criminal conviction for whatamounts to the same conduct,
that you're suing somebody for,that part is not going to be
controversial, right, because inthe criminal context, the
sexual assault he he wasconvicted, that was upheld on
(20:06):
appeal and for that it would berequired to be proven beyond all
reasonable doubt and that wasestablished at the criminal
trial.
And when that happens, ifthere's then a civil claim made
for what amounts to the sameconduct and sexual assault is
one of those things that hasboth a criminal and civil
element to it you're not goingto have any issue at all proving
(20:29):
that that occurred.
You're going to basically moveright on to.
Well, okay, what are theappropriate damages for that,
and that's what happened hereand that's the context in which
that exchange occurred.
Now also remember, of course andpeople will remember this from
OJ Simpson, you know, even ifyou're acquitted criminally of
(20:51):
something, you could besuccessfully sued for the very
same conduct.
Right, because there's a lowerstandard of proof in the
criminal in the civil case.
Right, the fact that the glovedoesn't fit doesn't mean that
you couldn't persuade a judge ora jury that you probably
committed the murder or probablycommitted the sexual assault.
And so this is the opposite ofthat, where, if there's a
(21:12):
criminal conviction, at leastthere isn't going to be any
issue of proof that the tortoccurred.
It's just going to be on towhat are the appropriate damages
for that?
And now I suppose for thisperson, whether she will be able
to collect the $270,000 fromthe now disbarred, convicted and
bankrupt former lawyerInteresting.
Rob Buffam (21:27):
Well, there's different standards of proof.
Well, thank you very much,Michael.
We've been speaking withMichael Mulligan from Mulligan
Defense Lawyers.
Thank you so much.
Michael Mulligan (21:35):
It's always great to be here.
And we're going to be talking now and hearing some
sage advice from one, mikeMulligan barrister and solicitor
, with Mulligan Defence Lawyers.
Mike, welcome to the program.
Hey, thanks so much.
It's always great to be here,yeah, and great to chat with you
.
It's been a little while sinceI've had the chance to do that.
You've got a bunch of issuesyou've been digging into to talk
to our listeners about.
(00:20):
Today, one of the things Ithink that you'd highlighted was
this idea of fixtures whattoday?
One of the things I think thatyou'd highlighted was this idea
of fixtures what are so-calledfixtures and what comes with a
house when you buy it?
This is the kind of time ofyear when people are looking at
selling or buying their house orhomes.
Rather so they might well beinterested in what comes with
the house when you look at itand you see something that
you're not sure if that actuallyis included with the purchase
(00:40):
of the house, but you reallylike it.
What can you tell us about this?
Michael Mulligan (00:49):
Sure, I think it's a good cautionary tale for
people to be aware of whenthey're doing exactly that
buying or selling.
And this was a case that woundup in court, I guess, as all my
tales of woe do.
And it was a case involving acontract to buy and sell a home
and ultimately there was a backand forth exchange of contracts
and offers and so on that werefinally agreed upon and, as is
(01:13):
commonly the case, the contractto buy and sell the house
indicated that fixtures would beincluded with the house.
So the first question is what'sa fixture?
And then the specific contractin this case specified something
.
So that's not uncommon, youknow.
If somebody goes through ahouse and says, gee, I really
love that, you know chair orsomething, you could write that
(01:33):
into the contract.
And here, in addition tospecifying that fixtures would
be included with the house, itspecified that a conversation
sets on the patios would beincluded.
Well, you can just imagine whathappened the purchasers showed
up and they took possession ofit and a few things that they
had expected to be present weregone.
(01:56):
And it wasn't controversial thatthey were taken.
The issue was whether theyshould have remained or not, and
that's how the case wound up incourt.
The first item in question waswhat was described variously as
a dresser in a bedroom, but wasalso referred to by different
people as perhaps it was acabinet or maybe a vanity,
(02:16):
somebody else called it a desk,any case a big wooden thing, and
the issue arose because it waspresent when the purchasers
walked through the house andwhen they took possession of the
house, that item the judgereferred to as the dresser was
gone and behind it there were acouple of holes in the wall.
And the significance of theholes in the wall is because
(02:40):
what the definition of a fixtureis.
And so there was nothing in thecontract that specified whether
you got this dresser or not.
But the contract did specifyyou got the fixtures.
And so there's been a longhistory of litigation over what
is a fixture, because, you know,human affairs are endlessly
variable.
But one of the starting pointsfor determining whether a
(03:02):
particular thing in a home is afixture is to determine whether
it's attached to the property insome way.
Rob Buffam (03:10):
That's one of the definitions.
Result of damage.
Michael Mulligan (03:12):
Okay, interesting that's one of the
criteria Okay yeah, so you startwith.
If the thing's attached to theproperty by something other than
its own weight, one of thefirst things to be looked at is
can you remove it withoutdamaging the property?
And that's important, becausesome things might be attached to
the property, like, let's say,your television set.
If it's just sitting on thefloor and plugged in.
(03:32):
If you could just unplug itwithout causing any damage, it
presumptively won't be a fixture, right?
But what do you do with the inthis case, where there are holes
?
And the purchaser's theory ofit was well, the dresser thing
was quite large, and so theyconcluded it must have been
affixed to the wall.
And sometimes you'll see that,right.
(03:53):
You know, if you buy a piece offurniture, there'll be
something saying well, you'llbolt this to the wall.
In case of earthquakes, Screwit in.
And if you do screw it in, youmay turn that thing into, in
fact, a fixture.
Rob Buffam (04:04):
Can I stop you there for a second?
That's what they were arguing,okay, well, that's interesting
because I'm thinking of our ownden, where we've got some Ikea
bookshelves that I think we'veprobably attached so that the
top of them doesn't extend out abit more than the bottom.
I guess it would depend onjudgment on this, but are we
(04:25):
setting ourselves up to beselling those bookshelves with
our house if we ever sell it andwe've attached them in some
even modest way to the room?
Michael Mulligan (04:33):
Yes, that's a common term, right, it's sort of
these contracts will often usethat term fixtures.
And so if you've done what IKEArecommended and screwed the top
of the bookshelf in so itdoesn't topple over on you in
the event of an earthquake,presumptively you've turned that
into a fixture.
And so if you don't want thatgoing with the house and you
sell it, you should specify thatin the contract, not including
(04:57):
the bookshelves in the den, forexample.
If you don't, the startingpoint is going to be those are a
fixture.
And that's what was claimedhere.
That, exactly that.
Now the challenge for theplaintiff buyer was that the
seller defendant also testified.
They agreed they took thedresser with them, but their
evidence was that, no, the holesin the wall weren't caused by
(05:20):
that dresser being screwed intoit, despite the fact that it was
tall.
Their evidence was that wascaused by a shelf that used to
be there and the dresser was putthere to stage the home and
hide the holes.
And the trouble is that in acase where you're suing somebody
, the person doing the suingmaking the claim, they're the
one who has the burden of proof.
Now, in a civil case, you onlyhave to prove it on the basis of
(05:43):
probability right, not like acriminal case where it's got to
be beyond a reasonable doubt.
But the judge accepted what thedefendant had to say and there
was no really contrary evidencefrom the buyers.
They hadn't looked back thereor seen the back of the dresser,
and so on that basis thedresser wasn't a fixture and so
their claim for they were tryingto get $7,430 for this thing,
(06:05):
that was dismissed.
And the judge that had to moveon to this issue of the and this
was written in specifically inthe contract written in was that
the purchasers would get theconversation sets.
And here's what happened withthose.
When they looked at the home,in the front there was a table
with four chairs around it andin the back there was a big
wicker item of some kind thatcould seat capable of seating
(06:29):
nine people was the description.
The problem for the plaintiffshere was what is a conversation
set, and so the judge wasstruggling with that and
obviously there are inquiriesmade, including looking online
by, I guess, one of the partiesabout like what is a
conversation set?
And the sellers left behind atable and two of the four chairs
(06:50):
in the front, but not the othertwo chairs.
So Is that enough for aconversation?
Two people?
What about this wicker thing?
Is that a conversation?
Rob Buffam (06:58):
An intimate conversation.
So it's not a term of art thenit's not a legal term of art a
conversation set.
This was just a phrase that hadbeen inserted into the contract
.
Michael Mulligan (07:08):
Yeah, one of the real estate agents had
written in that term,conversation sets, and so the
judge was struggling with well,what do you make of that?
And like one of the principlesthat the judge was struggling
with.
Well, what do you make of that?
And like, one of the principlesthat the judge at least
considered was this there's aconcept called contra
preferendum, and the conceptthere is if one party drafts the
contract and the contract isambiguous, it can be interpreted
(07:30):
in favor of the other party.
But that wasn't really the casehere, because if there wasn't
an unequal power relationship,there were two real estate
agents who drafted these things,and so the judge didn't use
that to try to settle it, butultimately concluded that just
that term conversation set wasvague, and the judge couldn't
determine whether this bigwicker thing in the back, which
(07:51):
was described by some people asa sectional furniture,
constituted a quote conversationset.
Was a sectional furnitureconstituted a quote conversation
set?
But the judge was prepared togo as far as to say that the
table with four chairs around itdid meet the definition of a
conversation set, which then ledto the question of well, they
got two of the chairs and thetable.
What are your damages, and theplaintiffs had tried to.
(08:15):
They found, I guess online fromHome Depot or someplace, what
was described as a luxuryfive-piece patio furniture set,
and so they were trying to get$1,117.76 for the missing two
chairs.
That didn't fly.
The judge found it's just notappropriate damages here, and so
ultimately they were awarded$100 for the two chairs from the
(08:39):
conversation set at the front.
The other thing which,interestingly, was dismissed and
this is something people shouldknow about is that the sellers
they had set a counterclaim whenthey got sued for the
conversation set and the dresser, and they had made a
counterclaim asking for thingslike 23 and a half hours of
their own time for $100 an hourand stress, not enjoying a
(09:03):
weekend away for $1,000 andlosing a day of work for another
$1,000.
Now, you can't get any of thosethings anywhere, frankly, but
you're certainly not gettingthem in small claims court, and
so all of those things weredismissed.
You can't bill for your time orfor not enjoying your weekend
as a result of being sued, andso the successful buyer, for all
of their effort in going tocourt, wound up with $100, and
(09:26):
they wound up with a smallamount of money like the filing
fees you pay when you go to asmall claims court and so at the
end of the day, no doubt iftheir time was worth anything,
this entire exercise inlitigation was not worthwhile.
But what is worthwhile ifeither you're buying or selling
a home and you're particularlykeen on the big wicker thing in
the backyard or you want to makesure you get what might be a
(09:47):
dresser it might be a vanity orcould be a desk in the other
room?
Carefully describe it in thecontract and you will avoid
spending a day or more inprovincial court trying to
litigate whether something is aconversation set, whether you
get the wicker and whether thebookshelf was screwed into the
wall.
So I guess the takeaway is beclear.
But the starting point ofwhether something's a fixture
(10:10):
and usually fixtures are goingto go with the house the
starting point is going to be isit attached in some way that
you're going to cause damagegetting it out, as opposed to
just like unplugging the toasterand taking that away, even
though I guess in sometheoretical way the toaster is
attached to the wall.
It's just attached in a way youcould unplug it without doing
any damage.
So that's what a fixture is andthat's why you should be
(10:31):
careful and specific so youdon't wind up spending your time
in provincial court for $100.
Rob Buffam (10:36):
Interesting and this group that are a family that
purchased the house ended upwith a hole in the wall as well.
They didn't anticipate.
I wonder, if you can, justbefore we go to commercial I
mean, I guess it would depend oneach case, but you you know.
Should you be vigilant aboutasking what's behind that dress?
Or is there a hole?
Michael Mulligan (10:53):
Well, that's interesting too.
What's often done and thiscontract did this is often
contracts for purchase and salewill specify that the property
would be in the condition thatit was viewed when the person
went in and viewed it.
Right about, you know, it'sgoing to be in the condition.
(11:17):
I saw it when I came throughthe open house or came and
viewed it with my real estateagent and somebody the seller
punches a hole in the wall, youknow, while getting their
bookcase out of the house orsomething.
That's something that theseller is going to be
responsible for.
But here there's nodisagreement.
There definitely was a hole inthe wall, but the evidence from
the seller was that, yeah, thatwas there already and the
plaintiff, I guess, didn't lookby or didn't look behind the
(11:39):
bookcase.
So no compensation for the hole.
Rob Buffam (11:42):
Interesting.
But just before I let you go Iwonder is there a reasonableness
threshold there that you know?
You reasonably ought to haveknown there was a hole in the
wall, or is that?
Are we getting too far into?
You know a negligence standard.
You know a negligence standard.
I mean, it does seem.
In some sense it seems a littlebit unfair to have somebody
assume that there is a hole inthe wall behind a bookcase or
(12:02):
something like that.
Michael Mulligan (12:04):
Sure, yeah, there, probably there would be a
reasonable consideration.
And this wasn't some gapinghole in the wall that you can
see through the next room.
What it sounded like from thejudgment was a couple of screw
holes, like somebody had screwedsomething into the wall.
In this case it was ascrewed-in shelf on the evidence
of the seller, rather than theearthquake-preventing strap from
the then-missing dresser.
(12:24):
And so, yeah, there is going tobe always an element of
reasonableness.
And the other thing about thatis that sometimes, of course, in
a contract to buy and sell ahouse, you'll have a clause
which would involve a homeinspection.
Those are interesting things intheir own right, because
usually the home inspectorsusually say their only liability
(12:46):
are for things that they couldreasonably see walking through
it, and so the really toughcases get into things.
Like you know, should you havenoticed the hole behind the
wallpaper or the, you know, themirror that was left hanging in
the hallway, that sort of thing?
But here it wasn't a gapingchasm, it sounds like it was a
couple of screw holes that theyassumed was used to hold the
(13:08):
missing dresser up.
Rob Buffam (13:09):
Interesting.
We've got to take a quick break.
We're speaking with MichaelMulligan from Mulligan
Defenselers.
When we come back, we're goingto hear about a case involving
sexual assault, damages andbankruptcy.
We will be right back.
Welcome back to the program.
I'm Rob Buffum filling in todayfor Adam Sterling.
Our guest at the moment isMichael Mulligan from Mulligan
Defense Lawyers.
Welcome back, Mike.
Hey, always good to be back.
(13:32):
Sorry I interrupted you, butthere's a case coming up that
sounds like it's quiteinteresting that you were going
to tell our listeners about.
Michael Mulligan (13:42):
Yes, it's a case that troublingly involves a
former lawyer, now disbarred,who was charged criminally and
in fact convicted, of sexuallyassaulting a woman in his office
when she came to hire him.
And obviously there's somethingseriously wrong with this
person.
He apparently was wearing socksand disheveled and came around
(14:07):
his desk, sat by the woman andput his head on her chest and
then rubbed her leg that was thenature of the sexual assault
while she was in a vulnerablestate trying to hire him.
He was convicted and disbarredover that but then most recently
sued for damages resulting fromthat.
That experience had a long-termnegative effect on the person
(14:30):
who he did that to and one ofthe interesting elements to it
is that the civil case got tothe point of discussing what the
damages should be for thatactivity and the the plaintiff
made counsel for.
The plaintiff, made submissionsabout various heads of damages
(14:51):
and suggested an amount of$270,000.
And the former lawyer indicatedthat he had already gone
bankrupt, that he was dealingwith health issues, including a
cancer diagnosis, and that hehad no submissions to make in
terms of the amount because theplaintiff would not even get a
dollar because another $270,000award would make no difference
(15:15):
since he would just declarebankruptcy again.
Now here's.
The judge quite properly saidwell, you're not really making
any submissions about how muchthe award should be, so I guess
it's going to be $270,000 andawarded that.
And first of all going to be$270,000 and awarded that, and
(15:35):
first of all, that's appropriate.
The ability to pay a judgment isnot a consideration in
determining what the judgmentshould be right.
If you sue somebodysuccessfully and the judge
determines what the appropriateaward would be to put you back
in the position you would havebeen in, but for what happened,
ability to pay is not aconsideration, but you do that,
have to go about getting themoney.
And so what's to be made aboutthis fellow's claim that he
(15:57):
would just declare bankruptcyagain?
Well, what people should knowabout is that you can, of course
you can declare bankruptcy.
It's not like Michael from theOffice where you just stand up
and yell and I declarebankruptcy before that's
required, but you could in factdeclare bankruptcy more than
once.
(16:21):
The trouble, and the reason whythat submission that he made
demonstrates a lack ofunderstanding about how the
Bankruptcy and Insolvency Actworks is that, while you can
declare bankruptcy, variouskinds of debts are not what's
called discharged as a result ofbankruptcy, and there's a whole
list of things.
You can look them up in Section178 of the Bankruptcy and
Insolvency Act for those playingat home, and there's a whole
(16:42):
list of things including thingslike fines and penalties imposed
by a court.
That kind of makes sense, right?
Otherwise you could just befined for something and declare
bankruptcy and not have to payit, right?
Otherwise you could just befined for something and declare
bankruptcy and not have to payit.
But other things listed includeawards made for intentional
torts or things like sexualassault.
Also things like alimonypayments, debts as a result of
(17:03):
fraud or embezzlement variousthings of that are excluded from
discharge, and so even if yougo through the bankruptcy
process, you still owe thatmoney.
And so if if you go through thebankruptcy process, you still
owe that money, and so if youthink you could avoid paying the
sexual assault judgment or thedebt for your fine, or the money
you got by embezzling it fromsomebody.
You're going to be very unhappyat the end of your bankruptcy
(17:26):
process when you're told thatyou no longer have to pay your
Canadian Tire credit card debtbut you're still on the hook for
the $270,000.
Thanks, so much Now, with thatbeing said, and so that was just
completely mistaken.
This is a lawyer himself whomade that error in understanding
and even more ironically, onthe criminal trial for the same
(17:49):
conduct.
He was convicted and then heappealed it on the basis that he
had inadequate, poorrepresentation by his lawyer at
the first trial.
That went absolutely nowhere.
Pointing out in part he was alawyer, but I suppose that has
some additional resonance givenhis misleading or misinformed
submission to the judge aboutthe damages award here.
Now, all that being said, it'snot smooth sailing for the
(18:12):
successful plaintiff here.
Bankruptcy won't help at all.
But the fact that this personhas already gone bankrupt
virtually by definition means hewon't have any assets.
And if he's got cancer and noassets, whether a second
bankruptcy would do anythingabout the $270,000 judgment may
be neither here nor there,because when you're a judgment
(18:35):
creditor you can do variousthings to try to collect on that
, but that's up to you.
You could do things likegetting an application of the
person's property sold or havetheir car sold or garnish money
from their bank account.
But if they have no car, nohome and no money and no job his
fellow's been disbarred.
You're probably going to have apretty tough time collecting
(18:57):
your $270,000.
Rob Buffam (18:59):
Interesting.
If somebody is considering theimpact of somebody not having
much financial means, I guessthat would be a factor to weigh
in and something you might getadvice on if you're
contemplating bringing a courtaction or a lawsuit against
somebody who may declarebankruptcy.
But it would not be a factorinvolved in the judgment of what
any damages would be if yousucceed in your lawsuit.
Michael Mulligan (19:23):
That's absolutely the case.
When somebody's making adecision about whether you want
to pursue litigation, that canbe expensive and time-consuming.
One of the things to rememberis that in a civil case, really
at the end of the day, the onlything you may walk away with
that from if you succeed is anorder that the person pay you
money, and if they have no money, there's going to be nothing to
(19:44):
collect from.
Now, the other side of it, Iguess in that consideration and
people should know this too iswhen you have, like in this case
, a criminal conviction for whatamounts to the same conduct,
that you're suing somebody for,that part is not going to be
controversial, right, because inthe criminal context, the
sexual assault he he wasconvicted, that was upheld on
(20:06):
appeal and for that it would berequired to be proven beyond all
reasonable doubt and that wasestablished at the criminal
trial.
And when that happens, ifthere's then a civil claim made
for what amounts to the sameconduct and sexual assault is
one of those things that hasboth a criminal and civil
element to it you're not goingto have any issue at all proving
(20:29):
that that occurred.
You're going to basically moveright on to.
Well, okay, what are theappropriate damages for that,
and that's what happened hereand that's the context in which
that exchange occurred.
Now also remember, of course andpeople will remember this from
OJ Simpson, you know, even ifyou're acquitted criminally of
(20:51):
something, you could besuccessfully sued for the very
same conduct.
Right, because there's a lowerstandard of proof in the
criminal in the civil case.
Right, the fact that the glovedoesn't fit doesn't mean that
you couldn't persuade a judge ora jury that you probably
committed the murder or probablycommitted the sexual assault.
And so this is the opposite ofthat, where, if there's a
(21:12):
criminal conviction, at leastthere isn't going to be any
issue of proof that the tortoccurred.
It's just going to be on towhat are the appropriate damages
for that?
And now I suppose for thisperson, whether she will be able
to collect the $270,000 fromthe now disbarred, convicted and
bankrupt former lawyerInteresting.
Rob Buffam (21:27):
Well, there's different standards of proof.
Well, thank you very much,Michael.
We've been speaking withMichael Mulligan from Mulligan
Defense Lawyers.
Thank you so much.
Michael Mulligan (21:35):
It's always great to be here.
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