July 24, 2025 • 20 mins
What happens when legal formulas, charge approval standards, and competing legitimate needs collide with real human lives? Today's deep dive examines three significant cases that reveal the profound human impact of our justice systems.
The Hockey Canada sexual assault trial verdict brings crucial lessons about the presumption of innocence and the value of detailed judicial reasoning. Unlike jury trials that provide no explanation, this judge-alone trial delivered a comprehensive analysis of why all the accused were acquitted. The judge methodically explained finding the complainant neither credible nor reliable, citing multiple conflicting statements and video evidence contradicting later allegations. This case powerfully demonstrates why we cannot start from assumptions of guilt when allegations are made, regardless of how emotionally charged the circumstances might be.
Meanwhile, a shocking Civil Resolution Tribunal decision exposes the harsh reality of ICBC's no-fault insurance system. A driver suffering permanent vision impairment after being rear-ended received zero compensation because his "floating pink blob" injury—though permanent and debilitating—didn't fit neatly into the mandatory mathematical formula. This case starkly illustrates how dehumanizing rigid regulatory systems can be when they fail to account for individual circumstances. Those ICBC rebates come at a steep cost: significantly diminished rights for accident victims.
Finally, a Songhees Nation land dispute reveals painful competing needs. Elderly mobile home residents face eviction and potential homelessness as the Nation reclaims land to address severe housing shortages for its members. Despite decades of paying property taxes, the court found these residents have no special protections since provincial mobile home regulations don't apply on reserve lands. Both sides have legitimate needs, yet our legal framework offers no elegant solution.
These cases remind us that behind every legal decision are real people facing life-altering consequences. How do we balance competing rights? When should human judgment override mathematical formulas? What protections should our justice systems provide? Listen now to explore these essential questions about justice in our communities.
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 our regular segment, joined as
always by Barrister andSolicitor with Mulligan Defence
Lawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan
Afternoon.
Michael, how are we doing?
Michael Mulligan (00:11):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:13):
Now, while I've been covering other topics on
the show, I am aware thatthere's a rather lengthy verdict
that has been being read out inregards to a rather
well-covered legal issue thatwe've talked about in the past.
It's been covered elsewhere inthe past.
I know that we're still in thevery preliminary stages of this
information being made public,but is there anything you'd like
to mention about it?
Michael Mulligan (00:36):
I think, yes, it is worth commenting on, in
part because of just how muchattention the case has received.
It's, of course, the verdict inthe sexual assault trial in
Ontario for the Hockey Canadaplayers and the first thing to
be said about that and therehave been detailed accounts of
all of the judges' reasons sofar the judge has acquitted all
(01:01):
of the accused, found all ofthem not guilty and I must say,
in just reading the detailedreports of the judge's reasons,
the first thing to be said aboutit is that I think it's a
circumstance where we, thepublic, are fortunate that the
case ultimately turned into ajudge-alone trial, in the sense
(01:23):
that when you have a juryverdict, of course you get no
reasons.
A jury just comes in and makesa decision right, which then
leaves people speculating abouthow they might come to that
conclusion.
Here, as is required in casesthat proceed with a judge alone,
the judge doesn't simply comein and give a thumbs up or
(01:43):
thumbs down.
They need to provide verydetailed reasons for how it is
they came to their conclusion,and so in a case like this,
which of course raises all sortsof issues and concerns and so
on, it's very helpful that weknow exactly how it is.
The judge came to her decisionand the essence of it is that
(02:06):
the judge found the complainantin the case to be neither
credible or reliable.
And in reaching that conclusionthat the complainant was
neither credible nor reliable,again, the judge doesn't just
come in and say that they andshe, as in this case explained
in very significant detail whyit was that she found her to be
(02:30):
not credible and not reliable.
And so the judge took the timeto go through what she described
as this long history involvingseveral layers of investigation,
which led to what the judgedescribed as multiple, often
conflicting, statements from thecomplainant and other witnesses
(02:51):
.
And the judge, in detailingthat and I should say those
multiple statements came in theform of, of course, the
investigation that the HockeyCanada conducted and there was a
civil claim, of course, thatgot much coverage and was
controversial.
She sued civilly and wound upsettling it for what appears to
(03:14):
be a very substantial amount ofmoney.
She was paid and so, in thecourse of those things, she gave
various different accountsabout what happened.
The course of those things, shegave various different accounts
about what happened and thejudge concluded and laid out
carefully how it was thosedifferent accounts changed and
were not consistent with oneanother and that's one of the
(03:35):
things that the judge placedsignificant weight on is that
the complainant just changed herversion of events over the
years in the various tellingsAlso interestingly,
interestingly in this case andthis is, I guess, a sign of the
times, as listeners may recallone of the interesting elements
(03:55):
in this case was that thecomplainant was video recorded,
apparently in two differentoccasions, asking her whether
she was okay with the sexualactivity that was going on, and
she was asked are you okay withthis?
And replied yeah, I'm okay withthis.
And then there's a second video, described as a 12-second clip,
(04:16):
where the judge reported shesaid okay, good, it was all
consensual.
You are so paranoid.
Holy, I enjoyed it, it was fine, it was all consensual.
I am so sober.
That's why I can't do thisright now and in considering
that the other significantfinding that the judge made that
(04:38):
contradicted the complainant'sclaims, or at least as the
claims progressed, the judgefound that she observed no signs
of intoxication in thoserecordings and that the
complainant was speaking clearlyand no slurring was involved
recordings and that thecomplainant was speaking clearly
and no slurring was involved,and so that formed as well part
of the judge's reasons for herdecision, and quite properly.
(05:10):
And this sort of casedemonstrates that the judge
expressly said some of the sortof slogans that are used in
cases like this, saying ohbelieve the victim play no part
in a criminal case.
And it is a very good reminderthat when you start, when
sometimes there's reporting orthat somebody is a victim or
that they should be believed,necessarily when there's a
(05:30):
complaint made, having this sortof a detailed analysis of what
exactly the evidence was is avery good reminder to all of us
why we should and cannot startfrom the proposition that
somebody who makes a complaintis necessarily a victim.
And if we knew them to be avictim there would be no need
for a trial at all.
Right, we would move on to thesentencing stage.
(05:52):
A trial at all, right, we wouldmove on to the sentencing stage
and the case and these reasonsand the judge's careful
assessment of it and ultimatelythe conclusion that the
complainant was neither crediblenor reliable.
And of course, the result hereshould also resonate with people
, and I know there's beencurrent discussions with the
premiers and others talkingabout how somehow the solution
(06:14):
to concerns about crime andsafety is bail reform, which is
sort of a euphemism for keeppeople in jail before they have
a trial, and this case should bea reminder to everyone when you
hear that sort of language.
You are dealing with, incriminal cases, not a person who
has committed a crime.
You are dealing with somebodywho is alleged to have committed
(06:35):
a crime, and it may well bethat at the end of that and it
can take some time theconclusion is they simply didn't
do it, and so that is why wehave a bail system that starts
from the proposition that ourcriminal justice system starts
with, which is that people arepresumed to be innocent, and it
is incredibly important toremember that, particularly in
(06:57):
the context of allegations likesexual assault that are often
emotional and, of course,naturally engender sympathy from
people, where you have somebodywho is, in fact, the victim of
that sort of a very seriousoffense, victim of that sort of
a very serious offense.
But we cannot start from theproposition that the making of
(07:19):
an allegation equals truth, andhere we are fortunate to have a
very careful, very detailedanalysis from the trial judge
about why she concluded thatthese allegations were not
credible and not reliable, andit's there for everyone to read
and review, and so, once again,I think the case demonstrates
(07:43):
why, at the end of the day, it'sfortunate that it turned into a
judge-alone trial.
So we have the reasons.
Another general thing to commenton that people may be
interested in is that Ontariohas a different and lower charge
approval standard than inBritish Columbia.
In Ontario, the thresholdthat's applied is whether there
is a reasonable possibility of aconviction.
(08:06):
In British Columbia it'swhether there's a substantial
likelihood of a conviction, andso a reasonable possibility is
closer to.
Well, nobody would be terribly,nobody would be surprised if
this happened to turn into aconviction, which is something
less than perhaps the slightlyhigher, perhaps more appropriate
substantial likelihood, right,rather than just.
Well, you know, anything couldhappen.
(08:28):
You never know what a jurymight do, and so we had this
case eventually approved on thatstandard and after a very long
legal process.
This is the result.
The other interesting thing tonote is that, while the accused
here were all received a greatdeal of publicity, the
(08:50):
complainant, who the judge hasfound to be not credible or
reliable, continues to have heridentity protected by a
mandatory ban on publication,and she has also been, of course
, in this context, in thisjudicial finding been the
recipient of a payment made insettlement of a civil claim
(09:12):
advanced on the basis of thisvery same allegation.
And so again, hopefully thatcauses people to reflect upon
these things.
That of course generated allsorts of political controversy
at the time and I suppose withthis outcome you know, of course
in the civil world there arerational decisions made about
(09:33):
settling claims and risks anduncertainty and so on, but it
does cause you to wonder whatthe outcome of that would have
been had the matter not beensettled and instead been
required to go to trial.
So that's the latest fromOntario on that high-profile
case.
Adam Stirling (09:47):
Michael Mulligan from Mulligan Defence Lawyers on
the latest breaking news thismorning will continue legally
speaking right after this.
Legally Speaking continues onCFAX 1070, joined by Michael
Mulligan from Mulligan DefenseLawyers.
Thank you very much, michael,for those thoughts on the
breaking news this morninginvolving the highly publicized
sexual assault case involving anumber of hockey players out of
(10:08):
Ontario.
We also have some other issueshappening closer to home.
I'm reading here and we'vediscussed this in the past the
implications of the reformsbrought by the government of
British Columbia.
It says here the civilresolution tribunal required to
award zero dollars incompensation for permanent
vision impairment due to aregulatory formula.
(10:29):
What happened here and how doesit relate to ICBC?
Michael Mulligan (10:33):
Sure well, what happened here started with
an accident that was in Nanaimothat occurred on the 29th of
November 2021.
The significance of that dateis that we got ICBC mandatory
no-fault insurance in May of2021.
And the fact pattern involved adriver who was stopped at a red
light and another vehiclerear-ended him and it caused
(11:00):
some damage to one of his eyes.
I guess the impact did, andthere was medical evidence from
two different doctors which wasaccepted by everyone concerned,
was accepted by everyoneconcerned that the result of
this resulted in a permanentimpairment in the form of a
floating pink blob floating inthe vision of one of this poor
(11:22):
person's eyes, and theconclusion was that would never
improve, it was just a permanentthing in his vision.
And in the no-fault scheme,there are regulations that set
out how there can becompensation for what's referred
to as a, pursuant to a quote,permanent impairment rating, and
(11:44):
the way that works in theregulations for vision is that
there are actually two formulasset out in the regulations, and
the formula involves variousvalues, one being a visual
acuity value, one being a visualfield value and the other one
being an ocular motility valuewhatever on earth that is.
(12:07):
And the idea is you take thosethree factors, you multiply them
together, so D times E times Fproduces the letter G, and then
you put that into anotherformula and it's multiplied
against the amount of money,which only government can, I'm
sure, explain how this cameabout $167,465.
(12:32):
$167,465.
So I guess if the DE and Fequals 100%, you're completely
blind.
For example, as a result of acar accident, you'd get $167,465
.
Now this particular case is anexample of just how dehumanizing
and inflexible the no-faultsystem is and how there is no
(12:57):
remedy for that.
This was a decision of theCivil Resolution Tribunal, which
is where somebody can go ifthey wish to take issue with
what ICBC is doing to them in ano-fault case.
Icbc's position was yes, weaccept that.
He's got this problem a pinkblob floating in his vision and
for this man that was asignificant matter, given that
(13:20):
he works in the film industry asan illustrator and scene artist
and he needs to use colorcoordination to do that, and in
addition he's a painter, amilitary signal operator and a
Canadian ranger where he has tobe able to fire a rifle, and
that he now has a dead spot inhis dominant eye which causes
(13:41):
him difficulty shooting to dothat work.
So everyone accepted.
That's what's going on.
The problem with the formula,which is mandatory, is that the
various things there are definedlike, for example, the field,
the visual field, one of theletters there, the field, the
(14:02):
visual field, one of the lettersthere E involves a test done
whether you have a reduction inyour degree of visual field lost
and retained.
And the pink blob floats around, it's always there but moves,
and so that value is zero.
And so when you multiplysomething by zero, what do you
get?
Yeah, zero.
And then you multiply zero by167, 465, and what do you get?
(14:25):
Zero.
That's awful.
And so the case goes to theCivil Resolution Tribunal.
The adjudicator at theirtribunals says well, look, you
know, this is troubling.
You have a permanent impairment, but I'm required to.
I must.
He says, however, I must applythe law in British Columbia.
(14:47):
That's what they're required todo.
And the law in British Columbiano fault is a regulation with a
math formula.
And so the result for this manis zero.
And it is just a stark reminderof just how dehumanizing that
scheme is.
And it should be a reminder foreveryone.
When the government sends outtheir yearly rebate for your
(15:08):
ICBC payment and you're payingless for your insurance.
You need to know you're gettingless, so you know you're really
in trouble.
If somebody piles into you frombehind and your particular
injury, while permanent andaccepted by everyone involved,
doesn't fit into some formula,you're out of luck, and it's not
as if you can go to thefairness officer, the Civil
(15:30):
Revolution tribunal or anyoneelse and you can't sue the
person who hit you.
They're off the hook completely, and so you're left with
nothing, and so it's just areally stark reminder of just
how problematic that is and howit can be just dehumanizing, and
the result for this man isnothing, because the accident
occurred in November and not May.
(15:50):
So that's the latest from theCivil Resolution Tribunal.
Adam Stirling (15:54):
All right, we've got four minutes left.
Certainly time for one more.
Shall we do the Songhees Nationone.
Michael Mulligan (15:59):
Sure, I guess, a good local and interesting
case.
So this is a case arising outof the Songhees Nation here in
our community and it's a caseinvolving a mobile home park and
the history of the mobile homepark.
It was set up in the 1970s by acouple of members of the
Songhees Nation.
They had an ownership interestin the land and they set up a
(16:23):
mobile home park and peoplebuilt mobile homes on it, not
surprisingly.
Now the challenge of mobilehomes is that mobile homes at a
mobile home park is a bit of amisnomer, right, they're not
usually the camper trailer youcan pick up and tow somewhere
else.
The practical reality is theycan't go anywhere.
Right, If you have a home thatwas constructed in the 1970s,
(16:44):
it's long since going to be pastthe point where you can wheel
it away somewhere else.
And for mobile home parks thatare not on reserve land, we
actually have in BritishColumbia some regulations and
law that tries to provide someprotection for people in the
event that they're being evictedhere.
The Songhees Nation decided thatthey needed the land for
(17:07):
housing for their members.
The Songhees Nation this isinteresting has 650 members.
350 of them live on reserve andthe evidence here is that that
means that there are 4.5 peopleon average in each residential
unit and there are apparentlysignificant problems with some
of the housing that's availablethere and overcrowding, and so,
(17:30):
not unreasonably the nationwants to try to improve that
circumstance.
But to do that, they gavenotice to the people in the
mobile home park that they hadto leave and, as the judge
described here, the court saidlook, the court has great
sympathy for the plaintiffs anddescribed the plaintiffs in this
case as vulnerable due to age,disability, illness and tenuous
(17:53):
financial circumstances, and theeffect of being evicted will
mean for some of them imminenthomelessness.
And so that's the unfortunatecircumstance that gave rise to
this litigation, and the basisfor resisting the notice to get
(18:15):
out of this mobile home parkincluded concepts of, first of
all, promissory estoppel, whichis an equitable concept.
The idea is, if somebody's madea representation with respect to
your right in property or tostay there, it can be unfair or
unjust to then try to go back onthat promise.
(18:35):
To then try to go back on thatpromise, and the lawyer for the
residents of these mobile homeswas making that argument and
relying in part on tax notices,because the First Nation has
taxing authority and so thesepeople had received and had been
paying taxes on their mobilehomes.
(18:56):
And you don't ordinarily, ofcourse, pay taxes.
If you're renting, like in anapartment, they'd be paid for by
the landlord right.
And so there's reliance heresaying, well, hold on.
You know that may constitutethe sort of promissory estoppel.
You were sending out taxnotices.
People have been paying thosefor years and so they had a.
You should be prevented fromnow trying to enforce your right
(19:19):
to evict the people from wherethey were living.
That did not succeed.
The judge said it's notreasonable to rely upon those
things and the result of thatwhen you're not a tenant within
the meaning of the ResidentialTenancy Act and you're not
subject to any of thoseprovincial restrictions that try
to prevent or protect tenantsin mobile homes.
(19:42):
You're just subject to acontractual relationship.
And here the First Nation waswithin its rights, found the
judge to require them to leave,leave, and so that's the order
and the net result is that,barring an appeal or something
(20:02):
to overturn this, the peopledescribed as vulnerable and
elderly and ill are going to berequired to get out so that the
Songhees Nation can develop theproperty for its members.
So a very unfortunate case andcompeting rights of people who I
think everyone involved havelegitimate needs.
But that's the latest from thecourts of the Songhees Nation
(20:27):
and the soon-to-be-finishedmobile home park.
Adam Stirling (20:31):
Second half of our second hour every Thursday
on CFAX 1070, Legally Speakingwith Michael Mulligan from
Mulligan Defence Lawyers.
Thank you, Michael Pleasure asalways.
Thanks so much.
It's time for our regular segment, joined as
always by Barrister andSolicitor with Mulligan Defence
Lawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan
Afternoon.
Michael, how are we doing?
Michael Mulligan (00:11):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:13):
Now, while I've been covering other topics on
the show, I am aware thatthere's a rather lengthy verdict
that has been being read out inregards to a rather
well-covered legal issue thatwe've talked about in the past.
It's been covered elsewhere inthe past.
I know that we're still in thevery preliminary stages of this
information being made public,but is there anything you'd like
to mention about it?
Michael Mulligan (00:36):
I think, yes, it is worth commenting on, in
part because of just how muchattention the case has received.
It's, of course, the verdict inthe sexual assault trial in
Ontario for the Hockey Canadaplayers and the first thing to
be said about that and therehave been detailed accounts of
all of the judges' reasons sofar the judge has acquitted all
(01:01):
of the accused, found all ofthem not guilty and I must say,
in just reading the detailedreports of the judge's reasons,
the first thing to be said aboutit is that I think it's a
circumstance where we, thepublic, are fortunate that the
case ultimately turned into ajudge-alone trial, in the sense
(01:23):
that when you have a juryverdict, of course you get no
reasons.
A jury just comes in and makesa decision right, which then
leaves people speculating abouthow they might come to that
conclusion.
Here, as is required in casesthat proceed with a judge alone,
the judge doesn't simply comein and give a thumbs up or
(01:43):
thumbs down.
They need to provide verydetailed reasons for how it is
they came to their conclusion,and so in a case like this,
which of course raises all sortsof issues and concerns and so
on, it's very helpful that weknow exactly how it is.
The judge came to her decisionand the essence of it is that
(02:06):
the judge found the complainantin the case to be neither
credible or reliable.
And in reaching that conclusionthat the complainant was
neither credible nor reliable,again, the judge doesn't just
come in and say that they andshe, as in this case explained
in very significant detail whyit was that she found her to be
(02:30):
not credible and not reliable.
And so the judge took the timeto go through what she described
as this long history involvingseveral layers of investigation,
which led to what the judgedescribed as multiple, often
conflicting, statements from thecomplainant and other witnesses
(02:51):
.
And the judge, in detailingthat and I should say those
multiple statements came in theform of, of course, the
investigation that the HockeyCanada conducted and there was a
civil claim, of course, thatgot much coverage and was
controversial.
She sued civilly and wound upsettling it for what appears to
(03:14):
be a very substantial amount ofmoney.
She was paid and so, in thecourse of those things, she gave
various different accountsabout what happened.
The course of those things, shegave various different accounts
about what happened and thejudge concluded and laid out
carefully how it was thosedifferent accounts changed and
were not consistent with oneanother and that's one of the
(03:35):
things that the judge placedsignificant weight on is that
the complainant just changed herversion of events over the
years in the various tellingsAlso interestingly,
interestingly in this case andthis is, I guess, a sign of the
times, as listeners may recallone of the interesting elements
(03:55):
in this case was that thecomplainant was video recorded,
apparently in two differentoccasions, asking her whether
she was okay with the sexualactivity that was going on, and
she was asked are you okay withthis?
And replied yeah, I'm okay withthis.
And then there's a second video, described as a 12-second clip,
(04:16):
where the judge reported shesaid okay, good, it was all
consensual.
You are so paranoid.
Holy, I enjoyed it, it was fine, it was all consensual.
I am so sober.
That's why I can't do thisright now and in considering
that the other significantfinding that the judge made that
(04:38):
contradicted the complainant'sclaims, or at least as the
claims progressed, the judgefound that she observed no signs
of intoxication in thoserecordings and that the
complainant was speaking clearlyand no slurring was involved
recordings and that thecomplainant was speaking clearly
and no slurring was involved,and so that formed as well part
of the judge's reasons for herdecision, and quite properly.
(05:10):
And this sort of casedemonstrates that the judge
expressly said some of the sortof slogans that are used in
cases like this, saying ohbelieve the victim play no part
in a criminal case.
And it is a very good reminderthat when you start, when
sometimes there's reporting orthat somebody is a victim or
that they should be believed,necessarily when there's a
(05:30):
complaint made, having this sortof a detailed analysis of what
exactly the evidence was is avery good reminder to all of us
why we should and cannot startfrom the proposition that
somebody who makes a complaintis necessarily a victim.
And if we knew them to be avictim there would be no need
for a trial at all.
Right, we would move on to thesentencing stage.
(05:52):
A trial at all, right, we wouldmove on to the sentencing stage
and the case and these reasonsand the judge's careful
assessment of it and ultimatelythe conclusion that the
complainant was neither crediblenor reliable.
And of course, the result hereshould also resonate with people
, and I know there's beencurrent discussions with the
premiers and others talkingabout how somehow the solution
(06:14):
to concerns about crime andsafety is bail reform, which is
sort of a euphemism for keeppeople in jail before they have
a trial, and this case should bea reminder to everyone when you
hear that sort of language.
You are dealing with, incriminal cases, not a person who
has committed a crime.
You are dealing with somebodywho is alleged to have committed
(06:35):
a crime, and it may well bethat at the end of that and it
can take some time theconclusion is they simply didn't
do it, and so that is why wehave a bail system that starts
from the proposition that ourcriminal justice system starts
with, which is that people arepresumed to be innocent, and it
is incredibly important toremember that, particularly in
(06:57):
the context of allegations likesexual assault that are often
emotional and, of course,naturally engender sympathy from
people, where you have somebodywho is, in fact, the victim of
that sort of a very seriousoffense, victim of that sort of
a very serious offense.
But we cannot start from theproposition that the making of
(07:19):
an allegation equals truth, andhere we are fortunate to have a
very careful, very detailedanalysis from the trial judge
about why she concluded thatthese allegations were not
credible and not reliable, andit's there for everyone to read
and review, and so, once again,I think the case demonstrates
(07:43):
why, at the end of the day, it'sfortunate that it turned into a
judge-alone trial.
So we have the reasons.
Another general thing to commenton that people may be
interested in is that Ontariohas a different and lower charge
approval standard than inBritish Columbia.
In Ontario, the thresholdthat's applied is whether there
is a reasonable possibility of aconviction.
(08:06):
In British Columbia it'swhether there's a substantial
likelihood of a conviction, andso a reasonable possibility is
closer to.
Well, nobody would be terribly,nobody would be surprised if
this happened to turn into aconviction, which is something
less than perhaps the slightlyhigher, perhaps more appropriate
substantial likelihood, right,rather than just.
Well, you know, anything couldhappen.
(08:28):
You never know what a jurymight do, and so we had this
case eventually approved on thatstandard and after a very long
legal process.
This is the result.
The other interesting thing tonote is that, while the accused
here were all received a greatdeal of publicity, the
(08:50):
complainant, who the judge hasfound to be not credible or
reliable, continues to have heridentity protected by a
mandatory ban on publication,and she has also been, of course
, in this context, in thisjudicial finding been the
recipient of a payment made insettlement of a civil claim
(09:12):
advanced on the basis of thisvery same allegation.
And so again, hopefully thatcauses people to reflect upon
these things.
That of course generated allsorts of political controversy
at the time and I suppose withthis outcome you know, of course
in the civil world there arerational decisions made about
(09:33):
settling claims and risks anduncertainty and so on, but it
does cause you to wonder whatthe outcome of that would have
been had the matter not beensettled and instead been
required to go to trial.
So that's the latest fromOntario on that high-profile
case.
Adam Stirling (09:47):
Michael Mulligan from Mulligan Defence Lawyers on
the latest breaking news thismorning will continue legally
speaking right after this.
Legally Speaking continues onCFAX 1070, joined by Michael
Mulligan from Mulligan DefenseLawyers.
Thank you very much, michael,for those thoughts on the
breaking news this morninginvolving the highly publicized
sexual assault case involving anumber of hockey players out of
(10:08):
Ontario.
We also have some other issueshappening closer to home.
I'm reading here and we'vediscussed this in the past the
implications of the reformsbrought by the government of
British Columbia.
It says here the civilresolution tribunal required to
award zero dollars incompensation for permanent
vision impairment due to aregulatory formula.
(10:29):
What happened here and how doesit relate to ICBC?
Michael Mulligan (10:33):
Sure well, what happened here started with
an accident that was in Nanaimothat occurred on the 29th of
November 2021.
The significance of that dateis that we got ICBC mandatory
no-fault insurance in May of2021.
And the fact pattern involved adriver who was stopped at a red
light and another vehiclerear-ended him and it caused
(11:00):
some damage to one of his eyes.
I guess the impact did, andthere was medical evidence from
two different doctors which wasaccepted by everyone concerned,
was accepted by everyoneconcerned that the result of
this resulted in a permanentimpairment in the form of a
floating pink blob floating inthe vision of one of this poor
(11:22):
person's eyes, and theconclusion was that would never
improve, it was just a permanentthing in his vision.
And in the no-fault scheme,there are regulations that set
out how there can becompensation for what's referred
to as a, pursuant to a quote,permanent impairment rating, and
(11:44):
the way that works in theregulations for vision is that
there are actually two formulasset out in the regulations, and
the formula involves variousvalues, one being a visual
acuity value, one being a visualfield value and the other one
being an ocular motility valuewhatever on earth that is.
(12:07):
And the idea is you take thosethree factors, you multiply them
together, so D times E times Fproduces the letter G, and then
you put that into anotherformula and it's multiplied
against the amount of money,which only government can, I'm
sure, explain how this cameabout $167,465.
(12:32):
$167,465.
So I guess if the DE and Fequals 100%, you're completely
blind.
For example, as a result of acar accident, you'd get $167,465
.
Now this particular case is anexample of just how dehumanizing
and inflexible the no-faultsystem is and how there is no
(12:57):
remedy for that.
This was a decision of theCivil Resolution Tribunal, which
is where somebody can go ifthey wish to take issue with
what ICBC is doing to them in ano-fault case.
Icbc's position was yes, weaccept that.
He's got this problem a pinkblob floating in his vision and
for this man that was asignificant matter, given that
(13:20):
he works in the film industry asan illustrator and scene artist
and he needs to use colorcoordination to do that, and in
addition he's a painter, amilitary signal operator and a
Canadian ranger where he has tobe able to fire a rifle, and
that he now has a dead spot inhis dominant eye which causes
(13:41):
him difficulty shooting to dothat work.
So everyone accepted.
That's what's going on.
The problem with the formula,which is mandatory, is that the
various things there are definedlike, for example, the field,
the visual field, one of theletters there, the field, the
(14:02):
visual field, one of the lettersthere E involves a test done
whether you have a reduction inyour degree of visual field lost
and retained.
And the pink blob floats around, it's always there but moves,
and so that value is zero.
And so when you multiplysomething by zero, what do you
get?
Yeah, zero.
And then you multiply zero by167, 465, and what do you get?
(14:25):
Zero.
That's awful.
And so the case goes to theCivil Resolution Tribunal.
The adjudicator at theirtribunals says well, look, you
know, this is troubling.
You have a permanent impairment, but I'm required to.
I must.
He says, however, I must applythe law in British Columbia.
(14:47):
That's what they're required todo.
And the law in British Columbiano fault is a regulation with a
math formula.
And so the result for this manis zero.
And it is just a stark reminderof just how dehumanizing that
scheme is.
And it should be a reminder foreveryone.
When the government sends outtheir yearly rebate for your
(15:08):
ICBC payment and you're payingless for your insurance.
You need to know you're gettingless, so you know you're really
in trouble.
If somebody piles into you frombehind and your particular
injury, while permanent andaccepted by everyone involved,
doesn't fit into some formula,you're out of luck, and it's not
as if you can go to thefairness officer, the Civil
(15:30):
Revolution tribunal or anyoneelse and you can't sue the
person who hit you.
They're off the hook completely, and so you're left with
nothing, and so it's just areally stark reminder of just
how problematic that is and howit can be just dehumanizing, and
the result for this man isnothing, because the accident
occurred in November and not May.
(15:50):
So that's the latest from theCivil Resolution Tribunal.
Adam Stirling (15:54):
All right, we've got four minutes left.
Certainly time for one more.
Shall we do the Songhees Nationone.
Michael Mulligan (15:59):
Sure, I guess, a good local and interesting
case.
So this is a case arising outof the Songhees Nation here in
our community and it's a caseinvolving a mobile home park and
the history of the mobile homepark.
It was set up in the 1970s by acouple of members of the
Songhees Nation.
They had an ownership interestin the land and they set up a
(16:23):
mobile home park and peoplebuilt mobile homes on it, not
surprisingly.
Now the challenge of mobilehomes is that mobile homes at a
mobile home park is a bit of amisnomer, right, they're not
usually the camper trailer youcan pick up and tow somewhere
else.
The practical reality is theycan't go anywhere.
Right, If you have a home thatwas constructed in the 1970s,
(16:44):
it's long since going to be pastthe point where you can wheel
it away somewhere else.
And for mobile home parks thatare not on reserve land, we
actually have in BritishColumbia some regulations and
law that tries to provide someprotection for people in the
event that they're being evictedhere.
The Songhees Nation decided thatthey needed the land for
(17:07):
housing for their members.
The Songhees Nation this isinteresting has 650 members.
350 of them live on reserve andthe evidence here is that that
means that there are 4.5 peopleon average in each residential
unit and there are apparentlysignificant problems with some
of the housing that's availablethere and overcrowding, and so,
(17:30):
not unreasonably the nationwants to try to improve that
circumstance.
But to do that, they gavenotice to the people in the
mobile home park that they hadto leave and, as the judge
described here, the court saidlook, the court has great
sympathy for the plaintiffs anddescribed the plaintiffs in this
case as vulnerable due to age,disability, illness and tenuous
(17:53):
financial circumstances, and theeffect of being evicted will
mean for some of them imminenthomelessness.
And so that's the unfortunatecircumstance that gave rise to
this litigation, and the basisfor resisting the notice to get
(18:15):
out of this mobile home parkincluded concepts of, first of
all, promissory estoppel, whichis an equitable concept.
The idea is, if somebody's madea representation with respect to
your right in property or tostay there, it can be unfair or
unjust to then try to go back onthat promise.
(18:35):
To then try to go back on thatpromise, and the lawyer for the
residents of these mobile homeswas making that argument and
relying in part on tax notices,because the First Nation has
taxing authority and so thesepeople had received and had been
paying taxes on their mobilehomes.
(18:56):
And you don't ordinarily, ofcourse, pay taxes.
If you're renting, like in anapartment, they'd be paid for by
the landlord right.
And so there's reliance heresaying, well, hold on.
You know that may constitutethe sort of promissory estoppel.
You were sending out taxnotices.
People have been paying thosefor years and so they had a.
You should be prevented fromnow trying to enforce your right
(19:19):
to evict the people from wherethey were living.
That did not succeed.
The judge said it's notreasonable to rely upon those
things and the result of thatwhen you're not a tenant within
the meaning of the ResidentialTenancy Act and you're not
subject to any of thoseprovincial restrictions that try
to prevent or protect tenantsin mobile homes.
(19:42):
You're just subject to acontractual relationship.
And here the First Nation waswithin its rights, found the
judge to require them to leave,leave, and so that's the order
and the net result is that,barring an appeal or something
(20:02):
to overturn this, the peopledescribed as vulnerable and
elderly and ill are going to berequired to get out so that the
Songhees Nation can develop theproperty for its members.
So a very unfortunate case andcompeting rights of people who I
think everyone involved havelegitimate needs.
But that's the latest from thecourts of the Songhees Nation
(20:27):
and the soon-to-be-finishedmobile home park.
Adam Stirling (20:31):
Second half of our second hour every Thursday
on CFAX 1070, Legally Speakingwith Michael Mulligan from
Mulligan Defence Lawyers.
Thank you, Michael Pleasure asalways.
Thanks so much.
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