February 20, 2025 • 22 mins
What legal responsibilities do towns have when a simple stroll through a park turns tragic? Join us as we sit down with Michael Mulligan to uncover the layers of liability and negligence that come into play when public spaces fail to safeguard their visitors. Through the lens of a heart-wrenching case involving a young boy in Gibsons who became tetraplegic after a dead tree fell on him, we explore the critical question of whether the town fulfilled its duty of care under the Occupiers Liability Act. Michael helps us dissect the legal obligations and expectations placed on municipalities to ensure safety, including how standards like the Wildlife Danger Tree Assessors course influence these responsibilities.
Pivoting to the realm of marine life, we navigate the murky waters of marine mammal regulations with a keen eye on a legal case that raises questions about the fairness of prosecution. When a woman was accused of disturbing killer whales while paddleboarding, it highlighted the labyrinth of modern legal statutes that can ensnare even the most well-meaning individuals. Michael guides us through this legal conundrum, addressing the principle that ignorance is no defence and the peculiar world of licensing fees for hunting marine mammals. We spotlight the legal processes, from evidence handling to upholding an individual's right to a fair trial, ensuring that justice remains not just a concept but a reality.
Follow this link for a transcript of the show and links to the cases discussed.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for our conversation with Barrister and
Solicitor with Mulligan DefenceLawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan.
Morning, Michael, how are wedoing?
Hey, good morning.
I'm doing great.
Always good to be here.
Some interesting items on theagenda this week.
I'm just reading here it saysclaim against the city for a
tree falling on a boy in a park,pursuant to the occupier's
(00:22):
liability.
What happened?
Michael Mulligan (00:25):
Well, it certainly was a tragedy.
I'll tell you about the factualbackground and then the
operation of that piece oflegislation mentioned there, the
Occupier's Liability Act, whichI think is a worthwhile thing
for people to know about.
The particular fact patterninvolved a maybe boy would be a
bit too strong, he was 17,.
Involved a maybe boy would be abit too strong, he was 17,.
So a teenager and three friendswent into a wooded park area in
(00:52):
a park that's owned by the townof Gibson, and they went into
the park.
They went there for this partof the park which is kind of off
the beaten path, basically inorder to drink alcohol and not
be noticed.
They started throwing rocks atdead trees and then started to
try to knock them over bypushing them.
I guess that's what teenagerswho are drinking in the park
(01:14):
might do, and sadly well, theparticular 17-year-old that
forms the subject matter of thecase was pushing one of the dead
trees.
Part of it broke off, fell down, struck him in the neck and
back, severing his spine, and hebecame a tetraplegic as a
result of that.
And so just a tragiccircumstance, from his
perspective, life-changing eventhe wound up suing a number of
(01:38):
people.
He sued the town of Gibsons.
He also sued the friends thathe was with, claiming they were
5% responsible for what happened, and alleged that the city, the
town, was 70% responsible forthis occurring.
And the issue at trial and thenon the appeal that was just
(01:58):
decided, turned on the issue ofwhether and what the duty of
care was owned by the city ortown to him.
And the reason that's importantis that to successfully sue
somebody you need to.
For negligence like this, youwould need to establish that,
(02:19):
first of all, that they owed youa duty of care that they
breached, whatever theappropriate standard of care was
, and as a result of that breach, you wound up getting injured
or suffering a loss.
And so what the trial judge hadto decide and I must say it was
quite a trial apparently wentfor 60 days over a period of 13
months, and now we've had anappeal from it, no doubt all of
(02:49):
that legal effort being put intothis because of the devastating
nature of the injury and Iguess how much money would be on
the line in terms of thelifetime of care for this young
man.
And so the issue turned onthrough the operation of that
act.
We mentioned the OccupiersLiability Act and that's
something people should knowabout.
And so in BC we have that actOccupiers Liability Act and what
it does is it creates aspecifies a duty of care owed by
(03:10):
someone who is the occupier ofa premises.
So that can include land, it caninclude other things like ships
or trailers or structures orthings like that, and what it
says is that the occupier of apremises so that might be the
owner could be somebody who'sphysically in possession of it,
the renter, whatever it might be.
They owe a duty of care toensure that they take reasonable
(03:31):
care to see that a person orpersons on the property will be
reasonably safe in using thepremises.
Okay, so let's just think aboutthat.
That can be the basis forthings like you know, you hear
of claims somebody might bemaking, let's say, you don't
shovel off your step and themailman falls down and hurts
himself.
That's something you could beliable for on the basis that,
(03:54):
hey, you didn't make reasonableefforts to ensure the premises
were safe by, like, clearing thesnow or getting rid of the ice,
that kind of thing.
The Act does specifycircumstances in which you don't
have liability, or at leastreduced liability, an
interesting one that was addedafter the Act was originally put
in place was that it providesthat somebody who trespasses on
(04:16):
your property while committing,or with the intention to commit,
a criminal act is deemed tohave willfully assumed all risks
.
The occupier of those premisesis subject to some specific,
intentionally dangerous things.
So they are things like if youset out to, if you create a
(04:36):
danger with the intent to harmsomebody, for example, you could
be liable for that, even if theperson is on your property for
the purpose of committing acriminal act.
Like if you create a I don'tknow a pit with spikes on it in
front of your house to protectit from burglars, or something
which could also, by the way, bea separate criminal offense
relating to man traps, you couldstill be liable for it.
(05:00):
But in the context of the treecircumstance here, the way it's
analyzed first of all is doesthe city have a duty to these
teenagers who are pushing overtrees when one of the pieces
fell off?
And so the starting point wouldbe well, is the city or town an
occupier of the premises?
And the answer to that questionwould be yes, it's pretty broad
(05:22):
.
Right, they own the park.
Right, they are in control ofit?
And the answer to that questionwould be yes, it's pretty broad
.
Right, they own the park, right, they were in control of it.
But the next question then isdid they take reasonable steps
to ensure safety there?
And what does that mean in thecontext of something like a dead
tree part falling off andhitting somebody in the back?
And at the trial there wasevidence led with respect to a
(05:43):
thing which many people may alsonot know about.
I'd never heard of it before.
There is apparently a thingcalled the WDTAC standard, which
comes out of the WildlifeDanger Tree Assessors course, so
there's actually some authorityfor the issue of like well,
what should you do to make sureyour trees are safe?
(06:04):
And there was expert evidenceled about that.
I guess that's the sort ofthing that an arborist would
reference when they weredeciding whether a tree is
unsafe, determining should thisthing be cut down.
And particular emphasis was puton a harsh portion of the
workbook from this particularthing that defines what a
(06:24):
dangerous tree is.
And at trial, the experts thattestified at the trial specified
this in reference thisparticular part of this tree
assessment workbook.
And here's what it says Onecannot have a dangerous tree
unless there is a target Forpurposes of parks and
recreational sites.
Targets are those establishedtrails, campsites, roads and
(06:47):
facilities that are provided tothe visiting public to help them
safely enjoy the park orrecreational site.
And so the idea there is thatif you have a tree, dead or not,
which has a target on one, youknow it could fall over and hit
one of those sort of thingsplaces where you'd expect people
to be, like campsites, roads,facilities and so on then you
(07:09):
need to, according to this uhcode of uh tree risk assessment,
you need to assess whether thetree is dangerous, and so the
argument made at trial was well,that should have been done.
The contrary argument was well,look, these teenagers weren't on
the trail, they intentionallywent off to some sort of hidden
place in the park where youwouldn't generally expect people
(07:29):
so they could drink and not beseen.
And that particular code usedto assess dangerous trees
essentially says where humanactivity is in a forested area,
it's a very low risk, noassessments required, like, you
don't need to hunt throughrandom forest land looking for
dead trees and cut them down,right, you only need to do that
(07:50):
kind of an assessment if thetree is kind of has a target,
which would be a place whereyou'd expect people to be, which
sort of makes sense, right,yeah, and so on that basis, the
trial judge found that, uh, thetownship had not breached, um,
its of care.
It was an occupier, right, soin some circumstances has a duty
of care, but they hadn'tbreached that obligation to make
(08:13):
sure that people werereasonably safe using, in this
case, the park.
They didn't have to go andassess dead trees in some part
of the park where you wouldn'texpect people to be going.
And so after 60 days of trial,the claim was dismissed and so
they appealed.
(08:34):
And on the appeal they arguedthat, hey, maybe that code is
too strict, maybe there shouldbe a lower standard applied or a
different standard.
That was rejected by the Courtof Appeal on the basis that you
can't make a new argument forthe first time on an appeal.
Right, and that kind of makessense, because the idea is look
at a trial, you can callevidence, the other side can
(08:54):
call evidence, respond to it.
Right, and an appeal isn't likea do-over.
Let me try something differentto see if that works right.
The idea is that on an appeal,you could look for mistakes and
errors and what test and so on,applied, and so the Court of
Appeal said no, you can't, forthe very first time on an appeal
, argue that a differentapproach or standard should be
(09:15):
applied.
Everyone, including theplaintiff, agreed at trial the
proper standard was one fromthat WDTAC standard about when
you have to assess a tree and onwhat basis, and so the Court of
Appeal upheld the trial judge'sdecision, the net result of
which is no compensation for the17 year old.
And you can see why there wassuch effort put into this thing
(09:38):
obviously because the you knowthe potential award would have
been enormous, the, it lookslike.
Also, they abandoned that is tosay the plaintiffs abandoned the
5% claim against the teenagefriends that was originally pled
, and so there was not even anyfinding on that point at the
trial, and the Court of Appealdidn't have much time dismissing
(10:00):
that as any kind of a problem,given that nobody even suggested
at the end of the trial thatthe other teenagers were to any
extent responsible for the factthat the teenager who was
shaking the tree or trying topush it over had the branch fall
on him.
The friends weren't on the hookfor that, and so the result of
it, on that analysis is nocompensation, which is certainly
(10:21):
going to be a harsh reality forthe 17-year-old young adult,
but in this case the townshipjust wasn't negligent, despite
the provisions of the OccupiersLiability Act.
So that's what that act is andthat's what your obligation is
when you are responsible for apremises, you've got to make
sure you take reasonable stepsto ensure that it's safe for
(10:45):
people that are going to bethere.
So that's the latest from theBoard of Appeal.
Adam Stirling (10:48):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking.
We'll continue right after thiscommercial break, back on the
air here at CFAX 1070 as wecontinue with Legally Speaking
with Michael Mulligan fromMulligan Defense Lawyers.
Michael up next it says aconviction for disturbing killer
whales on a paddleboard.
I mean motorboats.
I think all of us get but apaddle board.
Michael Mulligan (11:11):
What happened here?
Well, this is an event.
It came out of Uculet from afew years ago and the judge's
description indicates that therewas a lively pod of orcas also
known as killer whales that cameinto the harbor.
I must say on that just as aslight aside, some listeners may
be old enough to remember whenon BC Ferries, when they would
see orcas, they would used todescribe them as killer whales,
(11:35):
and so I recall announcements onBC Ferries where they would say
things like off the port sideof the ship we've spotted a pod
of killer whales, and you wouldsee like a bunch of people run
over to that side of the ship totry to see them, and then other
people with a look of fear,wondering whether they should be
running to the opposite side ofthe ship, having been told
there's a pod of killer whalesoff one side of the boat.
Anyway, they moved on to orcas.
(11:56):
So this involved this pod oforcas that was in the harbor
there in Uculet and there wereapparently hundreds of people
all lined up around the harborwatching the judge in, I think,
a really eloquent judgmentdescribed as a spectacular sight
of whales splashing around, andthe judge noted that he never
thought, as a judge, he would bewatching a video of beautiful
(12:18):
whales saying hello to acommunity and trying to decide
whether an offense had beencommitted.
And so that's the scene thesewhales in the harbor, hundreds
of people around and a woman whowas the accused here hopped on
her paddleboard and startedpaddling towards the whales.
Now, interestingly, there wasalso somebody in a boat who was
(12:39):
out by the whales too.
The Crown chose to charge onlythe woman on the paddleboard and
not the person in the boat, andthe judge commented on that
that that gets completely withinthe prerogative of the Crown.
They can choose to chargesomebody or not charge somebody.
And they chose to charge thewoman on the paddleboard and not
charge, I think, the man on theboat motorboat.
(12:59):
And in fact the Crown calledthe man on the motorboat as a
witness at the trial to try toestablish how close the woman
was on her paddleboard.
But again, judge pointed outthat's completely within the
prerogative of the Crown.
The woman wound up beingcharged under the Fisheries Act
with unlawfully disturbingkiller whales by approaching the
killer whales at a distance ofless than 200 meters while on a
(13:23):
paddleboard.
And you might wonder what doesit mean to disturb a killer
whale.
Well, we've answered that, orthere's a legal answer to that,
and it comes in the form of themarine mammal regulations.
And the judge also, I think,astutely pointed out that even
if you've never heard of themarine mammal regulations, you
(13:45):
still must abide by them.
And that's an interesting thingtoo, of course.
Right, I think most people haveheard of that concept.
That sort of ignorance of thelaw is no defense.
But I should say, in thatregard, the modern reality is
that we have so many laws andpursuant to many of those laws,
there's even more regulationsunder those laws that create
various rules and things youmust do.
(14:06):
That concept of the ignoranceof the law is no defense, makes
more sense, you know, whenyou're dealing with something
which would be almostuniversally considered, at least
morally wrong.
Right, like you know, somebodysays I didn't realize that
assaulting somebody was a crime.
Right, I think most people saywell, that can't be relevant
here.
But that same principle applieseven to the obscure and in the
(14:29):
form of, in this case, themarine mammal regulations, which
takes the time to define whatit means to disturb a marine
mammal, and there's a long listof things that can, apparently,
according to at least theregulations disturb a marine
mammal, including things likefeeding it, swimming with it,
interacting with it, moving itor enticing it to move,
(14:49):
separating it from members,tagging or marking it, et cetera
, et cetera.
And then there is a provisionthat says you have to list
various things in a column andlook up another table, and then
a requirement that you remain200 meters away.
That, by the way, doesn't applyto vessels that are in transit.
There's another complicatingfactor, and I must say say in
(15:09):
defense of this woman and inresponse to that general comment
, which is accurate as a matterof law, right, I'm a lawyer, I
do this all the time.
I've just been trying to readthrough these regulations,
trying to compute what exactlyare you allowed to do and what
cannot you, what you, what can'tyou do?
Yeah, and it's far from clear.
And so I do think there is animportant question about policy
(15:31):
question for people to ask youknow, should we have, you know,
prosecutions for things wherethe rules are so opaque that
almost no one would know exactlywhat's going on, right?
Even somebody who's sittinghere reading them carefully is
going to be left with a bit of ahead scratch.
You know whether that justaccords with principles of
(15:52):
fairness.
By the way, those same thatjust accords with principles of
fairness.
By the way, those same marinemammal regulations interestingly
set out a table of licensingfees.
You can get a permit,apparently from the minister, to
go and hunt various marinemammals and they have various
different fees to do that.
So, oddly, for example, if youwish to hunt a seal for personal
use, the fee is $5.
(16:12):
If you wish to hunt a narwhalwhale, that's free.
If you wish to hunt a bonewhale, bonehead whale, no charge
for that either.
And they've oddly defined apersonal use seal, that's $5, a
commercial use seal, also $5,and the oddly unnecessary
definition of a nuisance seal isalso $5.
(16:33):
We could probably at least geta little bit of streamlining
here by combining all of theseals so that at least when
you're the seal that gets huntedfor the $5 fee, you don't have
the additional indignity ofhaving been labeled a nuisance
seal on the license issued forthe purpose of hunting you.
By the way, walruses are also$5.
So we have all of theseregulations and in this case, as
(16:55):
the judge pointed out, whethershe knows about them or not,
she's still subject toprosecution.
You know some of thosequestions like does a
paddleboard count?
Right, yeah.
And so here the judge concludedyes, paddleboards are captured.
The judge had evidence frompeople, including the guy in the
boat motorboat who was alsowithin 200 meters, who was
(17:17):
called by the Crown as a witnessin this case, rather than
having him prosecuted.
When that guy testified, hisopening line, when he was asked
why are you here?
His opening line was because Igot too close to the orcas.
So that guy's testimony was hethought the woman on the
paddleboard was 50 meters awayfrom the orcas.
(17:38):
And so the judge relied on theevidence from the boat guy who
was too close to the orcas, whoalleged that the woman on the
paddleboard was too close to theorcas, in part of his reason
for convicting her.
The judge then had to go on todeal with the issue of
sentencing, and there are a fewinteresting comments on the case
that people should be aware of.
First of all, as the judgequite properly pointed out, um,
(18:01):
the uh, you know some peoplewere complaining oh, should this
woman have had a trial for this?
Look at all the time it's takento call evidence about these
things.
And the judge quite properlypointed out she's in charge of
the defense, she's perfectlyentitled to be presumed innocent
and and it's not at allunreasonable to make the Crown
prove all the elements of theoffense.
And so that's an importantthing to know about.
There is no punishment inCanada for having a trial right.
(18:24):
If a judge ever said, well, youhad a trial, you didn't plead
guilty, I'm going to punish youmore severely.
That would be an immediateerror and almost certainly
overturned on an appeal.
And so the judge pointed outthere's nothing improper about
the woman having a trial.
And I must say, having read atleast some of the marine
regulations and all the variousthings like the definition of
what constitutes to disturbsomething and is a vessel in
(18:46):
transit, and is it one of therequired vessels or specified
types of vessels?
And you know it's not crazythat somebody would say types of
vessels, and you know it's notcrazy that somebody would say,
well, perhaps we should have atrial to determine whether all
of these various elements havebeen made out.
So he convicted her, foundthere was no additional penalty
for the fact that she had atrial.
That's not how we do thingshere.
(19:06):
And then this was alsointeresting.
The judge pointed out she hadno previous criminal record, no
history of breaching anyfisheries regulations, when
deciding what sentence to impose.
But and I should say this someof the fisheries sentences are
pretty serious, right, so bevery careful.
(19:26):
If you're going around in aboat or planning to do any of
these things, you might want toat least try to your very best
to figure out what all you'recompelled to do under all the
various regulations.
Some of the fines and penaltiesare really serious.
Here, interestingly, the judgepoints out that, despite having
no criminal record and nohistory of breaching fishing
regulations, he did take intoaccount what he describes as
(19:48):
potentially concerning commentsshe made when she was
interviewed by a reporter aboutthe paddleboard incident.
And she said to the reporter Idon't get scared of them.
Ever, even times, every time Isee whales it doesn't matter if
they are, if it is an orca,humpback greys I always cry when
I get close to them.
And so the judge is a littleworried about oh my God, is she
(20:10):
getting close to?
What about the humpbacks greywhales?
I don't even know if we havethose things here, but that was
a little problematic from thejudge's perspective, suggesting
she might have gotten a littleclose to a few other marine
mammals over the years whetherit was 200 metres and whether
the thing that she was on waslisted in the requisite schedule
(20:31):
and whether it constituteddisturbing them and you know,
whether it's a porpoise or amarine mammal or various other
things.
All would be legitimatequestions but that caused the
judge a little bit of concern.
But ultimately, with that entirefact pattern, the judge
concluded that the appropriatepenalty to impose for this
particular woman was a fine of$2,500.
(20:52):
And you know, on one levelthere are certainly fines under
the Fisheries Act which could behigher than that.
This particular judge, by theway, he's well-named and this is
a really well-written judgmentI thought pleasure to read His
name is Judge Wolf, a good namefor a judge dealing with
fisheries or other wildlifematters.
He pointed out he was the samejudge and you may recall this
(21:14):
who sentenced a man to prisonfor killing a bear.
Remember there was a bear andbear cub in a backyard.
It was a conviction forshooting one of them, I think,
with an arrow and he sentencedthat man to prison and he made
some passing reference to thatoh yeah, offense of killing two
bears and said that in that casehe said sometimes fines are not
enough and sent the man to jailfor killing these two bears.
(21:37):
I think it was like a motherand cub.
But here the fine was $2,500.
So certainly less than a lot ofwildlife or fisheries or related
sentences, but nonetheless a$2,500 fine for paddleboarding
by the whales is prettysignificant, probably more than
the paddleboard cost.
And so there it is.
People should be aware of that.
(21:58):
I guess as best you can, asbest you can say, is give a very
wide berth to marine mammals.
Don't swim with it, whateverthat means.
Don't interact with it,whatever that means.
Perhaps you're in danger ifyou're waving at them from the
shore, but give the whales a lotof space and, if you can, maybe
(22:19):
orcas rather than killer whaleswould be a good start in terms
of how we refer to them.
Legally speaking.
So that's the latest from you.
Adam Stirling (22:21):
Kulit.
All right, legally speaking,during the second half of our
second hour every Thursday,Michael out of time.
But thank you so much as always.
Thanks so much, Always apleasure.
All right, bye now.
It's time for our conversation with Barrister and
Solicitor with Mulligan DefenceLawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan.
Morning, Michael, how are wedoing?
Hey, good morning.
I'm doing great.
Always good to be here.
Some interesting items on theagenda this week.
I'm just reading here it saysclaim against the city for a
tree falling on a boy in a park,pursuant to the occupier's
(00:22):
liability.
What happened?
Michael Mulligan (00:25):
Well, it certainly was a tragedy.
I'll tell you about the factualbackground and then the
operation of that piece oflegislation mentioned there, the
Occupier's Liability Act, whichI think is a worthwhile thing
for people to know about.
The particular fact patterninvolved a maybe boy would be a
bit too strong, he was 17,.
Involved a maybe boy would be abit too strong, he was 17,.
So a teenager and three friendswent into a wooded park area in
(00:52):
a park that's owned by the townof Gibson, and they went into
the park.
They went there for this partof the park which is kind of off
the beaten path, basically inorder to drink alcohol and not
be noticed.
They started throwing rocks atdead trees and then started to
try to knock them over bypushing them.
I guess that's what teenagerswho are drinking in the park
(01:14):
might do, and sadly well, theparticular 17-year-old that
forms the subject matter of thecase was pushing one of the dead
trees.
Part of it broke off, fell down, struck him in the neck and
back, severing his spine, and hebecame a tetraplegic as a
result of that.
And so just a tragiccircumstance, from his
perspective, life-changing eventhe wound up suing a number of
(01:38):
people.
He sued the town of Gibsons.
He also sued the friends thathe was with, claiming they were
5% responsible for what happened, and alleged that the city, the
town, was 70% responsible forthis occurring.
And the issue at trial and thenon the appeal that was just
(01:58):
decided, turned on the issue ofwhether and what the duty of
care was owned by the city ortown to him.
And the reason that's importantis that to successfully sue
somebody you need to.
For negligence like this, youwould need to establish that,
(02:19):
first of all, that they owed youa duty of care that they
breached, whatever theappropriate standard of care was
, and as a result of that breach, you wound up getting injured
or suffering a loss.
And so what the trial judge hadto decide and I must say it was
quite a trial apparently wentfor 60 days over a period of 13
months, and now we've had anappeal from it, no doubt all of
(02:49):
that legal effort being put intothis because of the devastating
nature of the injury and Iguess how much money would be on
the line in terms of thelifetime of care for this young
man.
And so the issue turned onthrough the operation of that
act.
We mentioned the OccupiersLiability Act and that's
something people should knowabout.
And so in BC we have that actOccupiers Liability Act and what
it does is it creates aspecifies a duty of care owed by
(03:10):
someone who is the occupier ofa premises.
So that can include land, it caninclude other things like ships
or trailers or structures orthings like that, and what it
says is that the occupier of apremises so that might be the
owner could be somebody who'sphysically in possession of it,
the renter, whatever it might be.
They owe a duty of care toensure that they take reasonable
(03:31):
care to see that a person orpersons on the property will be
reasonably safe in using thepremises.
Okay, so let's just think aboutthat.
That can be the basis forthings like you know, you hear
of claims somebody might bemaking, let's say, you don't
shovel off your step and themailman falls down and hurts
himself.
That's something you could beliable for on the basis that,
(03:54):
hey, you didn't make reasonableefforts to ensure the premises
were safe by, like, clearing thesnow or getting rid of the ice,
that kind of thing.
The Act does specifycircumstances in which you don't
have liability, or at leastreduced liability, an
interesting one that was addedafter the Act was originally put
in place was that it providesthat somebody who trespasses on
(04:16):
your property while committing,or with the intention to commit,
a criminal act is deemed tohave willfully assumed all risks
.
The occupier of those premisesis subject to some specific,
intentionally dangerous things.
So they are things like if youset out to, if you create a
(04:36):
danger with the intent to harmsomebody, for example, you could
be liable for that, even if theperson is on your property for
the purpose of committing acriminal act.
Like if you create a I don'tknow a pit with spikes on it in
front of your house to protectit from burglars, or something
which could also, by the way, bea separate criminal offense
relating to man traps, you couldstill be liable for it.
(05:00):
But in the context of the treecircumstance here, the way it's
analyzed first of all is doesthe city have a duty to these
teenagers who are pushing overtrees when one of the pieces
fell off?
And so the starting point wouldbe well, is the city or town an
occupier of the premises?
And the answer to that questionwould be yes, it's pretty broad
(05:22):
.
Right, they own the park.
Right, they are in control ofit?
And the answer to that questionwould be yes, it's pretty broad
.
Right, they own the park, right, they were in control of it.
But the next question then isdid they take reasonable steps
to ensure safety there?
And what does that mean in thecontext of something like a dead
tree part falling off andhitting somebody in the back?
And at the trial there wasevidence led with respect to a
(05:43):
thing which many people may alsonot know about.
I'd never heard of it before.
There is apparently a thingcalled the WDTAC standard, which
comes out of the WildlifeDanger Tree Assessors course, so
there's actually some authorityfor the issue of like well,
what should you do to make sureyour trees are safe?
(06:04):
And there was expert evidenceled about that.
I guess that's the sort ofthing that an arborist would
reference when they weredeciding whether a tree is
unsafe, determining should thisthing be cut down.
And particular emphasis was puton a harsh portion of the
workbook from this particularthing that defines what a
(06:24):
dangerous tree is.
And at trial, the experts thattestified at the trial specified
this in reference thisparticular part of this tree
assessment workbook.
And here's what it says Onecannot have a dangerous tree
unless there is a target Forpurposes of parks and
recreational sites.
Targets are those establishedtrails, campsites, roads and
(06:47):
facilities that are provided tothe visiting public to help them
safely enjoy the park orrecreational site.
And so the idea there is thatif you have a tree, dead or not,
which has a target on one, youknow it could fall over and hit
one of those sort of thingsplaces where you'd expect people
to be, like campsites, roads,facilities and so on then you
(07:09):
need to, according to this uhcode of uh tree risk assessment,
you need to assess whether thetree is dangerous, and so the
argument made at trial was well,that should have been done.
The contrary argument was well,look, these teenagers weren't on
the trail, they intentionallywent off to some sort of hidden
place in the park where youwouldn't generally expect people
(07:29):
so they could drink and not beseen.
And that particular code usedto assess dangerous trees
essentially says where humanactivity is in a forested area,
it's a very low risk, noassessments required, like, you
don't need to hunt throughrandom forest land looking for
dead trees and cut them down,right, you only need to do that
(07:50):
kind of an assessment if thetree is kind of has a target,
which would be a place whereyou'd expect people to be, which
sort of makes sense, right,yeah, and so on that basis, the
trial judge found that, uh, thetownship had not breached, um,
its of care.
It was an occupier, right, soin some circumstances has a duty
of care, but they hadn'tbreached that obligation to make
(08:13):
sure that people werereasonably safe using, in this
case, the park.
They didn't have to go andassess dead trees in some part
of the park where you wouldn'texpect people to be going.
And so after 60 days of trial,the claim was dismissed and so
they appealed.
(08:34):
And on the appeal they arguedthat, hey, maybe that code is
too strict, maybe there shouldbe a lower standard applied or a
different standard.
That was rejected by the Courtof Appeal on the basis that you
can't make a new argument forthe first time on an appeal.
Right, and that kind of makessense, because the idea is look
at a trial, you can callevidence, the other side can
(08:54):
call evidence, respond to it.
Right, and an appeal isn't likea do-over.
Let me try something differentto see if that works right.
The idea is that on an appeal,you could look for mistakes and
errors and what test and so on,applied, and so the Court of
Appeal said no, you can't, forthe very first time on an appeal
, argue that a differentapproach or standard should be
(09:15):
applied.
Everyone, including theplaintiff, agreed at trial the
proper standard was one fromthat WDTAC standard about when
you have to assess a tree and onwhat basis, and so the Court of
Appeal upheld the trial judge'sdecision, the net result of
which is no compensation for the17 year old.
And you can see why there wassuch effort put into this thing
(09:38):
obviously because the you knowthe potential award would have
been enormous, the, it lookslike.
Also, they abandoned that is tosay the plaintiffs abandoned the
5% claim against the teenagefriends that was originally pled
, and so there was not even anyfinding on that point at the
trial, and the Court of Appealdidn't have much time dismissing
(10:00):
that as any kind of a problem,given that nobody even suggested
at the end of the trial thatthe other teenagers were to any
extent responsible for the factthat the teenager who was
shaking the tree or trying topush it over had the branch fall
on him.
The friends weren't on the hookfor that, and so the result of
it, on that analysis is nocompensation, which is certainly
(10:21):
going to be a harsh reality forthe 17-year-old young adult,
but in this case the townshipjust wasn't negligent, despite
the provisions of the OccupiersLiability Act.
So that's what that act is andthat's what your obligation is
when you are responsible for apremises, you've got to make
sure you take reasonable stepsto ensure that it's safe for
(10:45):
people that are going to bethere.
So that's the latest from theBoard of Appeal.
Adam Stirling (10:48):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking.
We'll continue right after thiscommercial break, back on the
air here at CFAX 1070 as wecontinue with Legally Speaking
with Michael Mulligan fromMulligan Defense Lawyers.
Michael up next it says aconviction for disturbing killer
whales on a paddleboard.
I mean motorboats.
I think all of us get but apaddle board.
Michael Mulligan (11:11):
What happened here?
Well, this is an event.
It came out of Uculet from afew years ago and the judge's
description indicates that therewas a lively pod of orcas also
known as killer whales that cameinto the harbor.
I must say on that just as aslight aside, some listeners may
be old enough to remember whenon BC Ferries, when they would
see orcas, they would used todescribe them as killer whales,
(11:35):
and so I recall announcements onBC Ferries where they would say
things like off the port sideof the ship we've spotted a pod
of killer whales, and you wouldsee like a bunch of people run
over to that side of the ship totry to see them, and then other
people with a look of fear,wondering whether they should be
running to the opposite side ofthe ship, having been told
there's a pod of killer whalesoff one side of the boat.
Anyway, they moved on to orcas.
(11:56):
So this involved this pod oforcas that was in the harbor
there in Uculet and there wereapparently hundreds of people
all lined up around the harborwatching the judge in, I think,
a really eloquent judgmentdescribed as a spectacular sight
of whales splashing around, andthe judge noted that he never
thought, as a judge, he would bewatching a video of beautiful
(12:18):
whales saying hello to acommunity and trying to decide
whether an offense had beencommitted.
And so that's the scene thesewhales in the harbor, hundreds
of people around and a woman whowas the accused here hopped on
her paddleboard and startedpaddling towards the whales.
Now, interestingly, there wasalso somebody in a boat who was
(12:39):
out by the whales too.
The Crown chose to charge onlythe woman on the paddleboard and
not the person in the boat, andthe judge commented on that
that that gets completely withinthe prerogative of the Crown.
They can choose to chargesomebody or not charge somebody.
And they chose to charge thewoman on the paddleboard and not
charge, I think, the man on theboat motorboat.
(12:59):
And in fact the Crown calledthe man on the motorboat as a
witness at the trial to try toestablish how close the woman
was on her paddleboard.
But again, judge pointed outthat's completely within the
prerogative of the Crown.
The woman wound up beingcharged under the Fisheries Act
with unlawfully disturbingkiller whales by approaching the
killer whales at a distance ofless than 200 meters while on a
(13:23):
paddleboard.
And you might wonder what doesit mean to disturb a killer
whale.
Well, we've answered that, orthere's a legal answer to that,
and it comes in the form of themarine mammal regulations.
And the judge also, I think,astutely pointed out that even
if you've never heard of themarine mammal regulations, you
(13:45):
still must abide by them.
And that's an interesting thingtoo, of course.
Right, I think most people haveheard of that concept.
That sort of ignorance of thelaw is no defense.
But I should say, in thatregard, the modern reality is
that we have so many laws andpursuant to many of those laws,
there's even more regulationsunder those laws that create
various rules and things youmust do.
(14:06):
That concept of the ignoranceof the law is no defense, makes
more sense, you know, whenyou're dealing with something
which would be almostuniversally considered, at least
morally wrong.
Right, like you know, somebodysays I didn't realize that
assaulting somebody was a crime.
Right, I think most people saywell, that can't be relevant
here.
But that same principle applieseven to the obscure and in the
(14:29):
form of, in this case, themarine mammal regulations, which
takes the time to define whatit means to disturb a marine
mammal, and there's a long listof things that can, apparently,
according to at least theregulations disturb a marine
mammal, including things likefeeding it, swimming with it,
interacting with it, moving itor enticing it to move,
(14:49):
separating it from members,tagging or marking it, et cetera
, et cetera.
And then there is a provisionthat says you have to list
various things in a column andlook up another table, and then
a requirement that you remain200 meters away.
That, by the way, doesn't applyto vessels that are in transit.
There's another complicatingfactor, and I must say say in
(15:09):
defense of this woman and inresponse to that general comment
, which is accurate as a matterof law, right, I'm a lawyer, I
do this all the time.
I've just been trying to readthrough these regulations,
trying to compute what exactlyare you allowed to do and what
cannot you, what you, what can'tyou do?
Yeah, and it's far from clear.
And so I do think there is animportant question about policy
(15:31):
question for people to ask youknow, should we have, you know,
prosecutions for things wherethe rules are so opaque that
almost no one would know exactlywhat's going on, right?
Even somebody who's sittinghere reading them carefully is
going to be left with a bit of ahead scratch.
You know whether that justaccords with principles of
(15:52):
fairness.
By the way, those same thatjust accords with principles of
fairness.
By the way, those same marinemammal regulations interestingly
set out a table of licensingfees.
You can get a permit,apparently from the minister, to
go and hunt various marinemammals and they have various
different fees to do that.
So, oddly, for example, if youwish to hunt a seal for personal
use, the fee is $5.
(16:12):
If you wish to hunt a narwhalwhale, that's free.
If you wish to hunt a bonewhale, bonehead whale, no charge
for that either.
And they've oddly defined apersonal use seal, that's $5, a
commercial use seal, also $5,and the oddly unnecessary
definition of a nuisance seal isalso $5.
(16:33):
We could probably at least geta little bit of streamlining
here by combining all of theseals so that at least when
you're the seal that gets huntedfor the $5 fee, you don't have
the additional indignity ofhaving been labeled a nuisance
seal on the license issued forthe purpose of hunting you.
By the way, walruses are also$5.
So we have all of theseregulations and in this case, as
(16:55):
the judge pointed out, whethershe knows about them or not,
she's still subject toprosecution.
You know some of thosequestions like does a
paddleboard count?
Right, yeah.
And so here the judge concludedyes, paddleboards are captured.
The judge had evidence frompeople, including the guy in the
boat motorboat who was alsowithin 200 meters, who was
(17:17):
called by the Crown as a witnessin this case, rather than
having him prosecuted.
When that guy testified, hisopening line, when he was asked
why are you here?
His opening line was because Igot too close to the orcas.
So that guy's testimony was hethought the woman on the
paddleboard was 50 meters awayfrom the orcas.
(17:38):
And so the judge relied on theevidence from the boat guy who
was too close to the orcas, whoalleged that the woman on the
paddleboard was too close to theorcas, in part of his reason
for convicting her.
The judge then had to go on todeal with the issue of
sentencing, and there are a fewinteresting comments on the case
that people should be aware of.
First of all, as the judgequite properly pointed out, um,
(18:01):
the uh, you know some peoplewere complaining oh, should this
woman have had a trial for this?
Look at all the time it's takento call evidence about these
things.
And the judge quite properlypointed out she's in charge of
the defense, she's perfectlyentitled to be presumed innocent
and and it's not at allunreasonable to make the Crown
prove all the elements of theoffense.
And so that's an importantthing to know about.
There is no punishment inCanada for having a trial right.
(18:24):
If a judge ever said, well, youhad a trial, you didn't plead
guilty, I'm going to punish youmore severely.
That would be an immediateerror and almost certainly
overturned on an appeal.
And so the judge pointed outthere's nothing improper about
the woman having a trial.
And I must say, having read atleast some of the marine
regulations and all the variousthings like the definition of
what constitutes to disturbsomething and is a vessel in
(18:46):
transit, and is it one of therequired vessels or specified
types of vessels?
And you know it's not crazythat somebody would say types of
vessels, and you know it's notcrazy that somebody would say,
well, perhaps we should have atrial to determine whether all
of these various elements havebeen made out.
So he convicted her, foundthere was no additional penalty
for the fact that she had atrial.
That's not how we do thingshere.
(19:06):
And then this was alsointeresting.
The judge pointed out she hadno previous criminal record, no
history of breaching anyfisheries regulations, when
deciding what sentence to impose.
But and I should say this someof the fisheries sentences are
pretty serious, right, so bevery careful.
(19:26):
If you're going around in aboat or planning to do any of
these things, you might want toat least try to your very best
to figure out what all you'recompelled to do under all the
various regulations.
Some of the fines and penaltiesare really serious.
Here, interestingly, the judgepoints out that, despite having
no criminal record and nohistory of breaching fishing
regulations, he did take intoaccount what he describes as
(19:48):
potentially concerning commentsshe made when she was
interviewed by a reporter aboutthe paddleboard incident.
And she said to the reporter Idon't get scared of them.
Ever, even times, every time Isee whales it doesn't matter if
they are, if it is an orca,humpback greys I always cry when
I get close to them.
And so the judge is a littleworried about oh my God, is she
(20:10):
getting close to?
What about the humpbacks greywhales?
I don't even know if we havethose things here, but that was
a little problematic from thejudge's perspective, suggesting
she might have gotten a littleclose to a few other marine
mammals over the years whetherit was 200 metres and whether
the thing that she was on waslisted in the requisite schedule
(20:31):
and whether it constituteddisturbing them and you know,
whether it's a porpoise or amarine mammal or various other
things.
All would be legitimatequestions but that caused the
judge a little bit of concern.
But ultimately, with that entirefact pattern, the judge
concluded that the appropriatepenalty to impose for this
particular woman was a fine of$2,500.
(20:52):
And you know, on one levelthere are certainly fines under
the Fisheries Act which could behigher than that.
This particular judge, by theway, he's well-named and this is
a really well-written judgmentI thought pleasure to read His
name is Judge Wolf, a good namefor a judge dealing with
fisheries or other wildlifematters.
He pointed out he was the samejudge and you may recall this
(21:14):
who sentenced a man to prisonfor killing a bear.
Remember there was a bear andbear cub in a backyard.
It was a conviction forshooting one of them, I think,
with an arrow and he sentencedthat man to prison and he made
some passing reference to thatoh yeah, offense of killing two
bears and said that in that casehe said sometimes fines are not
enough and sent the man to jailfor killing these two bears.
(21:37):
I think it was like a motherand cub.
But here the fine was $2,500.
So certainly less than a lot ofwildlife or fisheries or related
sentences, but nonetheless a$2,500 fine for paddleboarding
by the whales is prettysignificant, probably more than
the paddleboard cost.
And so there it is.
People should be aware of that.
(21:58):
I guess as best you can, asbest you can say, is give a very
wide berth to marine mammals.
Don't swim with it, whateverthat means.
Don't interact with it,whatever that means.
Perhaps you're in danger ifyou're waving at them from the
shore, but give the whales a lotof space and, if you can, maybe
(22:19):
orcas rather than killer whaleswould be a good start in terms
of how we refer to them.
Legally speaking.
So that's the latest from you.
Adam Stirling (22:21):
Kulit.
All right, legally speaking,during the second half of our
second hour every Thursday,Michael out of time.
But thank you so much as always.
Thanks so much, Always apleasure.
All right, bye now.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!