March 20, 2025 • 20 mins
Democracy stands at a crossroads in British Columbia as Michael Mulligan delivers a powerful analysis of the NDP's proposed Tariff Response Act (Bill C-7). Drawing on historical parallels that send shivers down the spine, Mulligan unpacks how this legislation bears troubling similarities to Nazi Germany's 1933 Enabling Act—legislation that effectively rendered their legislature irrelevant and set the stage for catastrophe.
The bill's provisions would allow the government to make retroactive amendments to laws, shield officials from judicial review for procurement decisions, and potentially criminalize non-compliance with up to two years imprisonment. Most alarming is how the exclusion of the Offense Act creates a backdoor to criminal prosecution under Section 127 of the Criminal Code—potentially criminalizing actions that weren't illegal when performed. "The response to right-wing populism and erratic behaviour ought not to be a populist, left-wing, arbitrary response," Mulligan warns, as he urges Green Party MLAs who hold the balance of power to consider the weight of history before supporting such a transfer of power.
In the second segment, Mulligan discusses a recent Victoria case with significant implications for homeowners and contractors. The court ruled that consumers can cancel construction contracts lacking specific completion dates within 12 months under the BC Business Practices and Consumer Protection Act. When a sunroom company demanded an additional $17,310 and dumped materials "the size of a small car" in a homeowner's driveway after cancellation, the judge ordered a full refund plus damages for trespass. Take note whether you're planning renovations or providing services—completion dates aren't just good business practice; they're legally required. Have you checked your contracts lately?
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for Legally Speaking, joined as
always by Michael Mulligan,barrister and solicitor, with
Mulligan Defence Lawyers.
Morning, michael, how are wedoing?
Hey, good morning.
I'm doing great.
Always good to be here.
Some very interesting items onthe agenda, including something
we briefly touched upon lastweek because the legislation had
just been introduced in theLegislative Assembly, but I know
you've had more time to reviewit Bill C-7, what many know now
(00:22):
as the NDP's so-called EmergencyPowers Act.
Michael Mulligan (00:25):
Your thoughts Well, there are some elements of
it that are very troubling.
Having read it now morecarefully, and I should say
there's a long and sort ofhistoric background to why this
kind of legislation is viewed soskeptically and why it can lead
(00:46):
to disaster.
And one of the early examplesof it and I should pause here to
say that the BCNDP is not theNazi party in 1933 Germany, but
there's a piece of legislationfrom 1933 in Germany.
It's called the Enabling Actand it was an act there which
was introduced by Hitler and theNazi Party in 1933 in response
(01:10):
to their legislature beingburned down.
They believed it was burneddown by the communists At least
that's who was blamed for doingit and so the Nazi Party
responded with the purportedneed for emergency legislation
to transfer power to theexecutive sounds familiar in
order to immediately respond tothat and threats from then the
(01:32):
communist party, without theneed to go back to the
legislature to pass laws, and sothey introduced the Enabling
Act.
At the time the Nazi party had aplurality, but not even a
majority of the seats in theirlegislature.
They had 288 of 647.
But they proposed that bill,the Enabling Act, in order to
(01:56):
allow effectively the Nazi Party, hitler to pass laws and amend
laws without having to have themgo through their legislature,
and it passed.
And that legislation passedwith the support of most of the
other parties.
The Social Democratic Partythere, which is in government
for a long period of time inGermany I think they may have
(02:17):
been just reelected they votedagainst it, the Communist Party
abstained or they weren'tpresent, and then a whole list
of other kind of more moderateparties voted in favor of it the
Centre Party, the NationalPeople's Party, the Bavarian
Party, and on and on it went,and so they wound up with the
vote was 444 to 94, and itpassed and the effect of that
(02:42):
was to make their legislatureeffectively irrelevant became a
rubber stamp.
And World War II and history isa result of exactly that
sitting with potentially thebalance of power in terms of
whether this piece oflegislation will be passed, I
(03:16):
would imagine is feeling theweight of history, in terms of
just how badly the idea thatsome emergency justifies giving
up the legislative process andallowing the executive to
summarily pass changes to lawsor whatever they think on the
quick are appropriate.
Because that's really what'sbeing asked for here.
And with that historicbackground, reading some of the
provisions in the particular BCbill are troubling.
For example, one of theprovisions in there which I
(03:40):
don't think has got much atleast public attention I don't
think it's gotten much at leastpublic attention With respect to
the various sections of thebill that would give various
extraordinary powers to thegovernment to do things without
them having to pass through thelegislature.
And one of the sections theredeals with procurement
government buying things andcontracting for things and so on
(04:02):
government buying things andcontracting for things and so on
and it would allow there to bedecisions made arbitrarily in
that regard and without anylegislative review.
And one of the troublingprovisions there purports to
prevent court proceedingsseeking damages for that
happening.
And so there is a ProtectionAgainst Legal Proceedings which
(04:29):
is a bit of an ominous title.
We should assume courts aregoing to act in a partial way.
We don't need protection fromcourt proceedings.
But with respect to that partof the bill it purports to say
that no legal proceedings fordamages lies or may be commenced
or maintained against aprotected person, which is
defined very broadly to includethe government and any
(04:50):
government procurement agenciesor government ministers or
anyone else because of anythingdone or admitted to be done
under that part, and so itpurports to stop courts from
reviewing that to determinewhether damages would flow from
it.
Now you've seen in the UScontext, with various arbitrary
decisions made by Trump, one ofthe pushbacks there are the
(05:15):
courts, and so this would be aneffort to, at least with respect
to some parts of Bill 7,prevent the courts from
reviewing those for the purposeof awarding damages for what's
been done.
And you know, we may hope thateveryone acts in a good and
sensible way.
I'm sure that was the thoughtof 1933 in Germany, but history
(05:35):
tells us that's not always so,and so you know you could have,
you know, government decidingthat well, we want to have
whatever group or person awardedgovernment contracts and the
effect of that would be thatothers would be unable to review
them in court and determinewhether damages should flow from
it and protect the governmentfrom the courts, in my view, is
(06:11):
very troubling.
Other provisions here andthere's some really broad,
really really broad ones lateron in this bill that would allow
sort of amendments tolegislation, including
retroactive amendments to thingswhich you also have to think
carefully about, right.
It would allow Governor Generaland Council effectively the
(06:31):
Premier, to retroactively amendlaws that were otherwise passed.
That is profoundly troubling.
There's another section herewhich I don't think many people
would appreciate what the importof it is, but one of the
sections here it providessection 27,.
(06:53):
Section 5, general.
It provides that the offenseact does not apply to this act,
regulations or the directives.
And so at first blush you mightsay, well, what does that
really mean?
The offense act doesn't apply,that seems to mean that somehow
it would be less serious.
But it means the exact opposite, and the reason for that is
that there's this act called theoffense act.
(07:15):
It's a provincial act thatprovides for, makes it a
provincial offense for somebodywho doesn't comply with a
general provincial law right,like if there's no other
specific penalty provision in abill and you don't comply with
something that's required by aprovincial statute, the Offense
Act would allow a provincialoffense prosecution for doing so
(07:38):
.
But this Act does not include aspecific penalty provision.
It includes this provisionsaying the Offense Act doesn't
apply, and here's what thatmeans.
What that means, at leastpotentially, is that Section 127
of the Criminal Code may thenbe operable.
Section 127 of the Criminal Codesays that everyone who, without
(07:59):
lawful excuse, disobeys alawful order made by a court of
justice and this is theimportant part or by a person or
body of persons authorized byany act to make or give the
order other than an order forthe payment of money, is, unless
the punishment or other mode ofproceeding is expressly
provided for by law, is guiltyof A an indictable offense and
(08:24):
liable to imprisonment.
The effect of that sleeperprovision the most people aren't
(08:46):
going to be sure.
What does that mean could be aprosecution under section a
criminal code, prosecution undersection 127 of the criminal
code, the effect of which couldbe a two-year prison sentence.
And so this legislation, ifpassed in this form, could allow
there to be modifications toprovincial legislation.
(09:10):
Orders for people to do things.
They could even be retroactive.
They could effectively criminal.
Retroactive, they couldeffectively criminalize past
conduct, past conduct, wow,right, because you could have a
retroactive provision there,right, wow?
And so you might find yourselfin breach of something that
occurred before you even did it.
Adam Stirling (09:29):
I didn't think we could have criminal prosecution
for past conduct.
That wasn't a crime at the time.
Haven't we discussed that, oram I misremembering?
Michael Mulligan (09:35):
Well, there are sections dealing with
penalties and changes topenalties, and no doubt all of
these things would be subject toeventually some hopefully some
judicial scrutiny.
But don't hang your hat on that.
Adam Stirling (09:48):
No.
Michael Mulligan (09:48):
Right.
What you have here is a pieceof legislation that would allow
the government to, in a summaryway, modify provincial laws and
then, if there's a failure tocomply with one of those orders,
a criminal code, prosecutionand a two-year jail sentence.
And so you need to ask yourselfis that sensible?
(10:12):
So you need to ask yourself isthat sensible?
And you know, we are seeingevery day the operation of
erratic decision-making in theUnited States and the effect
that has on the world, includingCanada.
And in my judgment, when youlook at the historical examples
(10:34):
of how that sort of power worksout, as we're watching right now
in real time, an appropriateresponse to that kind of
arbitrary, unrevieweddecision-making ought not to be
to engage in a scheme whichwould remove the procedural
(10:56):
protections we have in placethat require, you know, debate
and consideration and publicscrutiny of changes to laws, and
to replace that with what wouldamount to at least potentially
arbitrary, poorly thought out,on the quick decisions by a
(11:16):
government in some cases thatwould try to shield themselves
from judicial review of theconsequences of those things,
and to draft that legislation ina way that would criminalize a
failure to comply with evenretroactive changes to the law.
(11:39):
And so I would very much hopethat there be really, really
careful reconsideration of thisidea and, in the historical
(12:19):
context that I've spoken about,I would hope that, in particular
, the Green Party MLAs thinkcarefully about whether they
wish to be the minority membersof the legislature that
countenance this on the theorythat, well, this is an emergency
and we just need to hand overall powers and make ourselves,
that is to say, the legislature,irrelevant to allow the
government to do this kind ofthing, with the hope and promise
that the decisions won't bearbitrary and capricious and
harmful in the way that we'recurrently seeing them in the
United States.
And so, you know, you could wellappreciate if you're David Eby
or the NDP.
Well, I'm a doer of good.
Everything I do will be great.
You know why should I have tobe fettered by the need for
(12:41):
things to be debated or reviewedin public?
Surely I should be able to justsign documents and look tough.
And, you know, maybe they wantto get themselves a big stack of
folders or whatever to try topretend to be some miniature
Donald Trump.
But, in my judgment, when youlook carefully at this
legislation and you look at thearc of history and how things
(13:02):
like this have worked out in thepast.
This would be a serious mistakeand ought to be rethought.
The response to right-wingpopulism and erratic behavior
ought not to be a populist,left-wing, arbitrary response.
And some of these provisions,when you look carefully at them,
(13:23):
are just extremely troublingand so and I don't think, have
been well understood by people,because, of course, when you
read something that says theoffense act doesn't apply, most
people would shrug and go.
What does that mean?
But that's what that means, andso hopefully cooler heads will
prevail and we don't go downthis road, because you can well
(13:45):
see from what I've describedjust how badly that could turn
out.
Adam Stirling (13:49):
Michael Mulligan with Mulligan Defense Lawyers.
Thank you for your thoughts onthat and the debate will
continue when the legislatureresumes sitting within the next
couple of weeks.
We'll take a quick break,legally speaking.
We'll continue right after this.
All right, we're back on theair here at CFAX 1070 doing
Legally Speaking with MichaelMulligan with Mulligan Defense
Lawyers.
Michael, let's bring it back upon the air here.
(14:11):
Hi Michael, we've got about sixminutes left.
Where should we go next on this?
Michael Mulligan (14:15):
Sure.
So another case to talk aboutthat I think would have some
implications for quite a fewpeople is a Victoria case and a
decision that was just recentlyreleased.
This is a case which involves acontract to do construction
work contract to do constructionwork and in particular it was
(14:38):
somebody in Victoria who hired acompany that builds sunrooms to
build them a sunroom.
That's the basics of it.
That sunroom company, by theway, has been frequently in the
news over litigation.
The same company was justrecently reported on having been
successful in a review of acase involving whether they had
lawfully in a review of a caseinvolving whether they had
lawfully reduced the salary of aforeign worker who had
(14:58):
misrepresented theirqualifications when they got
hired.
But that's just a side note.
The particular issue in thecase that was just decided
revolved around the operation ofan act called the British
Columbia Business Practices andConsumer Protection Act.
It's sort of an act called theBritish Columbia Business
Practices and ConsumerProtection Act.
It's sort of an act that isintended to do kind of what the
title would suggest protectconsumers and a provision of
(15:23):
that act deals with thenecessity of providing a
completion date for contracts todo things in the future, and
the issue in this case waswhether that act applied to
construction contracts.
The fact pattern was that thehomeowner had entered into a
contract in 2021 to build asunroom a rather expensive one
(15:47):
it was $100,000-something andthe contract didn't include it
at any date when the work shouldbe done.
There was a discussion aboutthat, a verbal discussion about
it, and the representation wasthat the building permits would
be obtained.
The construction would start inJuly of 2022.
Well, we all know what wasgoing on back in 2021 and 2022,
(16:10):
nothing good, and so nothing gotstarted in July.
Furthermore, various things tookhold inflation and supply chain
issues, and this and that andthe company communicated with
the homeowner saying that well,costs have gone up, shipping
costs have gone up, parts havegone up, aluminum's gone up,
(16:31):
everything's gone up and so saidthey're going to require
another $17,310 plus tax tocomplete the project and the
project is going to be delayed.
The homeowner responded to thateventually with I'm not
proceeding.
No, I'm not paying the extramoney, I want my money back.
(16:52):
The homeowner had paid adeposit of some $10,000.
And so he was asking for hismoney back.
The company refused and said no, we're not giving the money
back, we've already spent awhole bunch of money on your
project.
They said $23,000, some odddollars, with a bunch of getting
, I guess custom aluminumwindows and stuff made things
(17:13):
you might need to build asunroom.
And they said, no, we're notgiving the money back.
And eventually, after much backand forth, the company drove
over to the homeowner's houseand deposited all of that stuff
in his driveway the size of asmall car, and there it sat
until then litigation commencedand so the court wound up in.
(17:35):
So the case wound up in court,the homeowner claiming I want my
money back.
The company's saying that's notfair.
We've spent $23,000, whicheveryone agreed they did spend
on the stuff, and furthermore,the homeowner was making a claim
for trespass on the basis thatthey came onto the property
despite the homeowner saying no,don't put that there and dump
(17:57):
this giant pile of aluminumstuff in the homeowner's
driveway where it remains.
And so that was a fact patternthat eventually went to court,
and the issue for the judge wasto determine in the context of a
construction contract, doesthat act that Consumer
Protection Act?
Does that apply?
Is that person a consumer?
(18:18):
Is the other person a supplier?
And both those things aredefined in the act.
And so the judge went throughthe process of reviewing those
things what do those terms mean?
And ultimately concluded that,indeed, the act does apply to
construction contracts where theperson's a consumer.
You know they're not doing thisfor some commercial purpose.
He's putting in a sunroom,right, he's not building a
(18:40):
factory or something.
And so found that the Act didapply.
And because the Act, becausethe contract didn't include a
completion date.
What that Act says is that theconsumer has the right to cancel
a contract within 12 months,and when that happens, the
consumer is entitled to theirmoney back.
(19:02):
And so the result of the caseis that the homeowner won,
effectively saying, yep, theywere a consumer, this act does
apply.
And even though the Sunroomcompany had spent that money on
all that stuff that they dumpedin the driveway, nonetheless the
contract didn't meet therequirements of the Act, and so
(19:23):
the consumer was entitled to arefund.
And so the judge ordered thatthe consumer be not only
provided with a refund, but alsobe paid $500 for the trespass,
for dumping what was describedas large boxes the size of a
small car in the person'sdriveway with the stuff that the
company had already produced.
And so the judge pointed outthat, look, you know the act
(19:45):
doesn't require when the date be, and there could be
negotiations about changing thedate, but there has to be a
completion date and there wasn'tone here and it allowed the
consumer to cancel the contract.
And so it's going to be, Ithink, impactful, because there
are going to be all kinds ofpeople who have contracts out
(20:05):
there to renovate their basementor, you know, change their
windows or do whatever they'redoing, and so it's important
people be aware of this, bothconsumers and contractors, so
they make sure that theircontracts have a completion date
.
Otherwise they might find outthat they're not enforceable or
they may be enforceable.
The consumer might be able toget their money back if they
don't do what's required underthe Act.
(20:26):
So put a date in there.
Leaving it blank and talkingabout it on the phone won't do
it.
So that's the latest decisionon consumer protection in BC.
Adam Stirling (20:35):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking, during thesecond half of our second hour
every Thursday.
Michael, thank you, pleasure asalways.
Thanks so much.
Always great to be here.
It's time for Legally Speaking, joined as
always by Michael Mulligan,barrister and solicitor, with
Mulligan Defence Lawyers.
Morning, michael, how are wedoing?
Hey, good morning.
I'm doing great.
Always good to be here.
Some very interesting items onthe agenda, including something
we briefly touched upon lastweek because the legislation had
just been introduced in theLegislative Assembly, but I know
you've had more time to reviewit Bill C-7, what many know now
(00:22):
as the NDP's so-called EmergencyPowers Act.
Michael Mulligan (00:25):
Your thoughts Well, there are some elements of
it that are very troubling.
Having read it now morecarefully, and I should say
there's a long and sort ofhistoric background to why this
kind of legislation is viewed soskeptically and why it can lead
(00:46):
to disaster.
And one of the early examplesof it and I should pause here to
say that the BCNDP is not theNazi party in 1933 Germany, but
there's a piece of legislationfrom 1933 in Germany.
It's called the Enabling Actand it was an act there which
was introduced by Hitler and theNazi Party in 1933 in response
(01:10):
to their legislature beingburned down.
They believed it was burneddown by the communists At least
that's who was blamed for doingit and so the Nazi Party
responded with the purportedneed for emergency legislation
to transfer power to theexecutive sounds familiar in
order to immediately respond tothat and threats from then the
(01:32):
communist party, without theneed to go back to the
legislature to pass laws, and sothey introduced the Enabling
Act.
At the time the Nazi party had aplurality, but not even a
majority of the seats in theirlegislature.
They had 288 of 647.
But they proposed that bill,the Enabling Act, in order to
(01:56):
allow effectively the Nazi Party, hitler to pass laws and amend
laws without having to have themgo through their legislature,
and it passed.
And that legislation passedwith the support of most of the
other parties.
The Social Democratic Partythere, which is in government
for a long period of time inGermany I think they may have
(02:17):
been just reelected they votedagainst it, the Communist Party
abstained or they weren'tpresent, and then a whole list
of other kind of more moderateparties voted in favor of it the
Centre Party, the NationalPeople's Party, the Bavarian
Party, and on and on it went,and so they wound up with the
vote was 444 to 94, and itpassed and the effect of that
(02:42):
was to make their legislatureeffectively irrelevant became a
rubber stamp.
And World War II and history isa result of exactly that
sitting with potentially thebalance of power in terms of
whether this piece oflegislation will be passed, I
(03:16):
would imagine is feeling theweight of history, in terms of
just how badly the idea thatsome emergency justifies giving
up the legislative process andallowing the executive to
summarily pass changes to lawsor whatever they think on the
quick are appropriate.
Because that's really what'sbeing asked for here.
And with that historicbackground, reading some of the
provisions in the particular BCbill are troubling.
For example, one of theprovisions in there which I
(03:40):
don't think has got much atleast public attention I don't
think it's gotten much at leastpublic attention With respect to
the various sections of thebill that would give various
extraordinary powers to thegovernment to do things without
them having to pass through thelegislature.
And one of the sections theredeals with procurement
government buying things andcontracting for things and so on
(04:02):
government buying things andcontracting for things and so on
and it would allow there to bedecisions made arbitrarily in
that regard and without anylegislative review.
And one of the troublingprovisions there purports to
prevent court proceedingsseeking damages for that
happening.
And so there is a ProtectionAgainst Legal Proceedings which
(04:29):
is a bit of an ominous title.
We should assume courts aregoing to act in a partial way.
We don't need protection fromcourt proceedings.
But with respect to that partof the bill it purports to say
that no legal proceedings fordamages lies or may be commenced
or maintained against aprotected person, which is
defined very broadly to includethe government and any
(04:50):
government procurement agenciesor government ministers or
anyone else because of anythingdone or admitted to be done
under that part, and so itpurports to stop courts from
reviewing that to determinewhether damages would flow from
it.
Now you've seen in the UScontext, with various arbitrary
decisions made by Trump, one ofthe pushbacks there are the
(05:15):
courts, and so this would be aneffort to, at least with respect
to some parts of Bill 7,prevent the courts from
reviewing those for the purposeof awarding damages for what's
been done.
And you know, we may hope thateveryone acts in a good and
sensible way.
I'm sure that was the thoughtof 1933 in Germany, but history
(05:35):
tells us that's not always so,and so you know you could have,
you know, government decidingthat well, we want to have
whatever group or person awardedgovernment contracts and the
effect of that would be thatothers would be unable to review
them in court and determinewhether damages should flow from
it and protect the governmentfrom the courts, in my view, is
(06:11):
very troubling.
Other provisions here andthere's some really broad,
really really broad ones lateron in this bill that would allow
sort of amendments tolegislation, including
retroactive amendments to thingswhich you also have to think
carefully about, right.
It would allow Governor Generaland Council effectively the
(06:31):
Premier, to retroactively amendlaws that were otherwise passed.
That is profoundly troubling.
There's another section herewhich I don't think many people
would appreciate what the importof it is, but one of the
sections here it providessection 27,.
(06:53):
Section 5, general.
It provides that the offenseact does not apply to this act,
regulations or the directives.
And so at first blush you mightsay, well, what does that
really mean?
The offense act doesn't apply,that seems to mean that somehow
it would be less serious.
But it means the exact opposite, and the reason for that is
that there's this act called theoffense act.
(07:15):
It's a provincial act thatprovides for, makes it a
provincial offense for somebodywho doesn't comply with a
general provincial law right,like if there's no other
specific penalty provision in abill and you don't comply with
something that's required by aprovincial statute, the Offense
Act would allow a provincialoffense prosecution for doing so
(07:38):
.
But this Act does not include aspecific penalty provision.
It includes this provisionsaying the Offense Act doesn't
apply, and here's what thatmeans.
What that means, at leastpotentially, is that Section 127
of the Criminal Code may thenbe operable.
Section 127 of the Criminal Codesays that everyone who, without
(07:59):
lawful excuse, disobeys alawful order made by a court of
justice and this is theimportant part or by a person or
body of persons authorized byany act to make or give the
order other than an order forthe payment of money, is, unless
the punishment or other mode ofproceeding is expressly
provided for by law, is guiltyof A an indictable offense and
(08:24):
liable to imprisonment.
The effect of that sleeperprovision the most people aren't
(08:46):
going to be sure.
What does that mean could be aprosecution under section a
criminal code, prosecution undersection 127 of the criminal
code, the effect of which couldbe a two-year prison sentence.
And so this legislation, ifpassed in this form, could allow
there to be modifications toprovincial legislation.
(09:10):
Orders for people to do things.
They could even be retroactive.
They could effectively criminal.
Retroactive, they couldeffectively criminalize past
conduct, past conduct, wow,right, because you could have a
retroactive provision there,right, wow?
And so you might find yourselfin breach of something that
occurred before you even did it.
Adam Stirling (09:29):
I didn't think we could have criminal prosecution
for past conduct.
That wasn't a crime at the time.
Haven't we discussed that, oram I misremembering?
Michael Mulligan (09:35):
Well, there are sections dealing with
penalties and changes topenalties, and no doubt all of
these things would be subject toeventually some hopefully some
judicial scrutiny.
But don't hang your hat on that.
Adam Stirling (09:48):
No.
Michael Mulligan (09:48):
Right.
What you have here is a pieceof legislation that would allow
the government to, in a summaryway, modify provincial laws and
then, if there's a failure tocomply with one of those orders,
a criminal code, prosecutionand a two-year jail sentence.
And so you need to ask yourselfis that sensible?
(10:12):
So you need to ask yourself isthat sensible?
And you know, we are seeingevery day the operation of
erratic decision-making in theUnited States and the effect
that has on the world, includingCanada.
And in my judgment, when youlook at the historical examples
(10:34):
of how that sort of power worksout, as we're watching right now
in real time, an appropriateresponse to that kind of
arbitrary, unrevieweddecision-making ought not to be
to engage in a scheme whichwould remove the procedural
(10:56):
protections we have in placethat require, you know, debate
and consideration and publicscrutiny of changes to laws, and
to replace that with what wouldamount to at least potentially
arbitrary, poorly thought out,on the quick decisions by a
(11:16):
government in some cases thatwould try to shield themselves
from judicial review of theconsequences of those things,
and to draft that legislation ina way that would criminalize a
failure to comply with evenretroactive changes to the law.
(11:39):
And so I would very much hopethat there be really, really
careful reconsideration of thisidea and, in the historical
(12:19):
context that I've spoken about,I would hope that, in particular
, the Green Party MLAs thinkcarefully about whether they
wish to be the minority membersof the legislature that
countenance this on the theorythat, well, this is an emergency
and we just need to hand overall powers and make ourselves,
that is to say, the legislature,irrelevant to allow the
government to do this kind ofthing, with the hope and promise
that the decisions won't bearbitrary and capricious and
harmful in the way that we'recurrently seeing them in the
United States.
And so, you know, you could wellappreciate if you're David Eby
or the NDP.
Well, I'm a doer of good.
Everything I do will be great.
You know why should I have tobe fettered by the need for
(12:41):
things to be debated or reviewedin public?
Surely I should be able to justsign documents and look tough.
And, you know, maybe they wantto get themselves a big stack of
folders or whatever to try topretend to be some miniature
Donald Trump.
But, in my judgment, when youlook carefully at this
legislation and you look at thearc of history and how things
(13:02):
like this have worked out in thepast.
This would be a serious mistakeand ought to be rethought.
The response to right-wingpopulism and erratic behavior
ought not to be a populist,left-wing, arbitrary response.
And some of these provisions,when you look carefully at them,
(13:23):
are just extremely troublingand so and I don't think, have
been well understood by people,because, of course, when you
read something that says theoffense act doesn't apply, most
people would shrug and go.
What does that mean?
But that's what that means, andso hopefully cooler heads will
prevail and we don't go downthis road, because you can well
(13:45):
see from what I've describedjust how badly that could turn
out.
Adam Stirling (13:49):
Michael Mulligan with Mulligan Defense Lawyers.
Thank you for your thoughts onthat and the debate will
continue when the legislatureresumes sitting within the next
couple of weeks.
We'll take a quick break,legally speaking.
We'll continue right after this.
All right, we're back on theair here at CFAX 1070 doing
Legally Speaking with MichaelMulligan with Mulligan Defense
Lawyers.
Michael, let's bring it back upon the air here.
(14:11):
Hi Michael, we've got about sixminutes left.
Where should we go next on this?
Michael Mulligan (14:15):
Sure.
So another case to talk aboutthat I think would have some
implications for quite a fewpeople is a Victoria case and a
decision that was just recentlyreleased.
This is a case which involves acontract to do construction
work contract to do constructionwork and in particular it was
(14:38):
somebody in Victoria who hired acompany that builds sunrooms to
build them a sunroom.
That's the basics of it.
That sunroom company, by theway, has been frequently in the
news over litigation.
The same company was justrecently reported on having been
successful in a review of acase involving whether they had
lawfully in a review of a caseinvolving whether they had
lawfully reduced the salary of aforeign worker who had
(14:58):
misrepresented theirqualifications when they got
hired.
But that's just a side note.
The particular issue in thecase that was just decided
revolved around the operation ofan act called the British
Columbia Business Practices andConsumer Protection Act.
It's sort of an act called theBritish Columbia Business
Practices and ConsumerProtection Act.
It's sort of an act that isintended to do kind of what the
title would suggest protectconsumers and a provision of
(15:23):
that act deals with thenecessity of providing a
completion date for contracts todo things in the future, and
the issue in this case waswhether that act applied to
construction contracts.
The fact pattern was that thehomeowner had entered into a
contract in 2021 to build asunroom a rather expensive one
(15:47):
it was $100,000-something andthe contract didn't include it
at any date when the work shouldbe done.
There was a discussion aboutthat, a verbal discussion about
it, and the representation wasthat the building permits would
be obtained.
The construction would start inJuly of 2022.
Well, we all know what wasgoing on back in 2021 and 2022,
(16:10):
nothing good, and so nothing gotstarted in July.
Furthermore, various things tookhold inflation and supply chain
issues, and this and that andthe company communicated with
the homeowner saying that well,costs have gone up, shipping
costs have gone up, parts havegone up, aluminum's gone up,
(16:31):
everything's gone up and so saidthey're going to require
another $17,310 plus tax tocomplete the project and the
project is going to be delayed.
The homeowner responded to thateventually with I'm not
proceeding.
No, I'm not paying the extramoney, I want my money back.
(16:52):
The homeowner had paid adeposit of some $10,000.
And so he was asking for hismoney back.
The company refused and said no, we're not giving the money
back, we've already spent awhole bunch of money on your
project.
They said $23,000, some odddollars, with a bunch of getting
, I guess custom aluminumwindows and stuff made things
(17:13):
you might need to build asunroom.
And they said, no, we're notgiving the money back.
And eventually, after much backand forth, the company drove
over to the homeowner's houseand deposited all of that stuff
in his driveway the size of asmall car, and there it sat
until then litigation commencedand so the court wound up in.
(17:35):
So the case wound up in court,the homeowner claiming I want my
money back.
The company's saying that's notfair.
We've spent $23,000, whicheveryone agreed they did spend
on the stuff, and furthermore,the homeowner was making a claim
for trespass on the basis thatthey came onto the property
despite the homeowner saying no,don't put that there and dump
(17:57):
this giant pile of aluminumstuff in the homeowner's
driveway where it remains.
And so that was a fact patternthat eventually went to court,
and the issue for the judge wasto determine in the context of a
construction contract, doesthat act that Consumer
Protection Act?
Does that apply?
Is that person a consumer?
(18:18):
Is the other person a supplier?
And both those things aredefined in the act.
And so the judge went throughthe process of reviewing those
things what do those terms mean?
And ultimately concluded that,indeed, the act does apply to
construction contracts where theperson's a consumer.
You know they're not doing thisfor some commercial purpose.
He's putting in a sunroom,right, he's not building a
(18:40):
factory or something.
And so found that the Act didapply.
And because the Act, becausethe contract didn't include a
completion date.
What that Act says is that theconsumer has the right to cancel
a contract within 12 months,and when that happens, the
consumer is entitled to theirmoney back.
(19:02):
And so the result of the caseis that the homeowner won,
effectively saying, yep, theywere a consumer, this act does
apply.
And even though the Sunroomcompany had spent that money on
all that stuff that they dumpedin the driveway, nonetheless the
contract didn't meet therequirements of the Act, and so
(19:23):
the consumer was entitled to arefund.
And so the judge ordered thatthe consumer be not only
provided with a refund, but alsobe paid $500 for the trespass,
for dumping what was describedas large boxes the size of a
small car in the person'sdriveway with the stuff that the
company had already produced.
And so the judge pointed outthat, look, you know the act
(19:45):
doesn't require when the date be, and there could be
negotiations about changing thedate, but there has to be a
completion date and there wasn'tone here and it allowed the
consumer to cancel the contract.
And so it's going to be, Ithink, impactful, because there
are going to be all kinds ofpeople who have contracts out
(20:05):
there to renovate their basementor, you know, change their
windows or do whatever they'redoing, and so it's important
people be aware of this, bothconsumers and contractors, so
they make sure that theircontracts have a completion date
.
Otherwise they might find outthat they're not enforceable or
they may be enforceable.
The consumer might be able toget their money back if they
don't do what's required underthe Act.
(20:26):
So put a date in there.
Leaving it blank and talkingabout it on the phone won't do
it.
So that's the latest decisionon consumer protection in BC.
Adam Stirling (20:35):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking, during thesecond half of our second hour
every Thursday.
Michael, thank you, pleasure asalways.
Thanks so much.
Always great to be here.
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