May 16, 2025 • 21 mins
What does it take to sentence a dog to death? Far less than you might think. In our latest deep dive into fascinating legal territory, we explore a heartbreaking case from Kamloops where a pit bull named Ferb faced the ultimate penalty under BC's dangerous dog laws.
The story weaves through a tragic background - Ferb, stabbed five times as a puppy before being rescued, later found himself implicated in the killing of a neighbour's collie. What makes this case particularly compelling is how it illuminates the stark difference between animal and human justice systems. While humans receive the protection of "beyond a reasonable doubt," Ferb's life hung on the much lower "balance of probabilities" standard. Through expert testimony on pack mentality and circumstantial evidence, the court determined Ferb's fate in a process that raises profound questions about how we balance public safety against animal welfare.
We also unpack a creative but unsuccessful class action against ICBC that claimed drivers were overcharged for cross-border liability insurance during COVID travel restrictions. The case's dismissal reveals the complex regulatory framework governing insurance rates and the limited recourse available to consumers who feel they've paid for services they couldn't legally use. Finally, we examine a fascinating business dispute involving proprietary nasal spray technology that demonstrates unique aspects of injunctive relief when enforcing negative covenants. Together, these cases paint a vivid picture of our legal system's intricate balance of competing interests and the frameworks created to resolve conflicts across vastly different contexts.
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 with Barrister
and Solicitor, with MulliganDefence Lawyers.
Michael Mulligan, with LegallySpeaking on CFAX hey, michael,
how are we doing?
Michael Mulligan (00:08):
Hey, I'm doing great.
Always good to be here.
Adam Stirling (00:10):
Some interesting topics on the agenda today.
Where shall we begin?
Michael Mulligan (00:14):
I think we can start with the case involving a
death penalty for a dog on abalance of probabilities.
Adam Stirling (00:21):
A standard lower than other death penalties and
perhaps other jurisdictions, onewould think.
Michael Mulligan (00:27):
That's true.
So this particular case and itjust came out it's actually a
case out of Kamloops and itinvolved a dog by the name of
Heidi who was very sadly killedin her fenced backyard.
Killed in her fenced backyardand the issue involved three
(00:50):
dogs that were suspected ofdoing that to Heidi, killing
Heidi.
The dogs' names were Snoopy,bella and Ferb.
Now the way this plays out isin BC we've got authority under
the community charter.
It's a piece of legislation thatdelegates authority to well,
communities, municipalities, todo various things, including
deal with the issue of dangerousdogs, and that legislation, in
(01:21):
section 49, defines what adangerous dog is.
It's an interesting definition.
A dangerous dog means a dogthat's killed or seriously
injured.
A person that's not applicablehere, really B has killed or
seriously injured a domesticanimal while in a public place
or while on private propertyother than property owned or
occupied by the personresponsible for the dog.
That's the one that'sapplicable in this particular
case.
Also, interestingly, you canhave proactive action if an
(01:45):
animal control officer hasreasonable grounds to believe
it's likely that a dog wouldkill or seriously injure a
person.
Although, I must say ratheramusingly, the legislation
requires the animal controlofficer to consider whether the
action of the dog would be whileattempting to prevent a person
from committing an unlawful act.
(02:06):
Boy, that's a complicatedconcept for a dog, but it
requires some consideration asto whether the dog is trying to
stop shoplifting or something.
Anyways, that's how they've,that's how they've drafted it,
and so when you have a dog thatis apprehended, they would
ordinarily be put in like a dogjail kennel and then eventually
(02:28):
there can be an application madeto a provincial court judge to
determine whether the provincialcourt judge is satisfied.
It beyond all reasonable doubt.
It's only necessary that aprovincial court judge be
satisfied, on a balance ofprobabilities, that the dog is a
(02:50):
dangerous dog, and if so, thejudge can then go on to analyze
whether the dog would present aquote, unacceptable risk to the
public, close quote.
And if it gets over those twothresholds on a balance of
probabilities, then theprovincial court judge is
authorized to this is a languageorder that the dog be destroyed
(03:14):
in the manner specified in theorder, which it doesn't provide
any guidance on.
So you know, while you wouldhope that the provincial court
judge would pick euthanasiarather than firing squad, that's
up to the provincial courtjudge, and so that's the legal
fact pattern or legal basis ofthis case proceeded on.
Now, the interesting thing aboutthe case is that, well, one of
(03:37):
them, at least two of the dogssuspected in the attack, snoopy
and Bella, were both put downprior to the trial of Ferb, the
dog, who wound up eventually ontrial.
Snoopy was put down as a resultof medical reasons and Bella
wound up being euthanized byconsent.
(03:57):
And I should say the backgroundof the dogs is sad.
These three dogs were pit bullsiblings and the woman who had
them had taken them in when shehad heard that Ferb, the one on
trial, had, as a puppy, beenstabbed five times Not a good
beginning for a puppy and so shequote immediately rescued Ferb
(04:21):
and took ownership of thesethree dogs.
Immediately rescued Ferb andtook ownership of these three
dogs.
Now, the description of theowner one of the dogs, bella,
the one that was euthanized byconsent the owner described as
an instigator, aggressive andcrazy.
That's not a great combination.
She described Snoopy as more ofa follower, but I guess she
(04:47):
didn't think that Ferb, the oneon trial, would have behaved in
this way.
Now, this is why the balance ofprobabilities, rather than proof
beyond a reasonable doubt, isimportant here, because the case
against Ferb was, to a largeextent, circumstantial, and this
is why the owner of Heidi, theunfortunate 12-year-old female
collie that got attacked andkilled in her backyard.
(05:08):
The owner heard noise and then,when she came out, the attack
had essentially concluded andshe did observe three pit bull
dogs circling Heidi, butcouldn't see them any one of the
three do anything in particular.
The three pit bull dogs thenleapt over a fence and ran away.
(05:31):
Before they went ran away.
They also, unfortunately,started attacking a man on a
sidewalk who was described bythe owner of heidi as swinging
his arms at the three dogsbefore they eventually before he
eventually ran away.
The dogs ran away.
That person wasn't a witness,and so the issue here, the
reason why it was acircumstantial case, is well,
(05:52):
what role did Ferb play in allof this right?
Did Ferb work with Bella andSnoopy or was Ferb an innocent
bystander?
Right and in the human context,if the evidence was simply
somebody was standing there,that's not going to do it Now.
This particular case, which Ishould say went on for four days
(06:13):
and involved expert evidence inthe form of both a veterinarian
and another expert on dogbehavior, included evidence
about how dogs conductthemselves, including evidence
about pack mentality and howthey could sort of join in and
do things together which thejudge relied upon.
And the other interesting bitof sort of circumstantial
(06:36):
evidence was that two of thedogs, or at least one of the
dogs, bella, was observed by avet who examined her to have
dried blood on her.
That was pretty incriminating,in addition to the very
unflattering description by herowner.
Snoopy apparently had ametallic smell which is commonly
associated with blood, althoughit was more ambiguous as to
(06:58):
whether Ferb had any blood.
And there was some evidence ofsmell.
But the owner said no, didn'tnotice any blood on Ferb.
So you know, was Ferb theinnocent bystander dog or did
Ferb join?
So you know, was Ferb theinnocent bystander dog or did
Ferb join in the attack on theinnocent dog in the backyard?
And the judge at the end of theday went over the fact that you
know it need only be on abalance of probabilities.
(07:20):
There was evidence about Ferb'sbehavior following apprehension
in the kennels, which Ferb wasdescribed as agitated,
unpredictable and volatile,would growl at people and had to
be moved around with what wasdescribed as a rabies stick.
You know, I guess it was one ofthose like a rabies pole, you
know it couldn't be put on aleash, so obviously bad behavior
(07:42):
by Ferb afterwards.
But the judge said he couldn'tput much weight on the after
behavior and was required toassess whether he was satisfied,
on a balance of probabilities,that Ferb had participated in
the actual attack.
And on that basis the judgerelied on that evidence about
(08:03):
pack behavior and how circlingaround is some indication of
participating in it rather thanbeing just an innocent bystander
dog and on that basis wassatisfied, at least on a balance
of probabilities, that Ferbparticipated in the attack on
Heidi the dog.
And because in this case, well,initially there had been another
(08:27):
person who had come forward tosay that they might be able to
take custody of Ferb, whichmight result then in the Ferb
not representing a quote,unacceptable risk to the public,
that person, before the trialwas out, I guess, backed out and
said they were no longerprepared to do that, maybe after
hearing some of the evidence.
(08:48):
And the woman who had owned andquote rescued the dogs on the
morning in question.
They had escaped her home on thebasis that somebody had left
the door open while she washaving a shower, and so I guess
there wasn't much of an issueleft about whether, if the dog
had participated in this killing, whether they would amount to
(09:08):
an undue risk to the public.
And so the net result despitethe fact that Ferb obviously had
a very bad beginning as a puppybeing stabbed multiple times,
the judge was persuaded, atleast on a balance of
probabilities, there wasparticipation and that there
would be an undue risk.
And so the judge ordered thatFerb be hopefully not by firing
(09:30):
squad, but be euthanized,although did indicate that that
is not to occur for 31 days fromthe date of the order, which is
interesting that this order wasmade on May the 5th, and the
reason for that is that therewould be a 30-day appeal period,
and so I guess we'll have towait and see whether FURB has
some other benefactor thatwishes to continue to litigate.
(09:52):
But failing that, that's goingto be the fate of FURB, at least
on the basis that FURB probablyparticipated in what happened
to Heidi, and it certainlywasn't for the purpose of
preventing the commission of adefense by Heidi or anyone else.
So that's the sad story fromKamloops in terms of the three
(10:14):
dogs, the final one of whichfound to be dangerous, and
that'll be the fate of Ferb.
Adam Stirling (10:21):
We'll take a quick break.
Legally speaking, we'llcontinue right after this.
Back on the air here at CFAX1070 with Michael Mulligan from
Mulligan Defense Lawyers.
Legally speaking on CFAXMichael up next on the agenda.
I'm reading here it saysproposed class action against
ICBC for overcharging duringCOVID dismissed.
There's a lot there.
Michael Mulligan (10:40):
There is a lot to unpack there.
I thought it was a creativeidea in terms of a class action,
and here's really what itamounted to.
Back in May of 2021, the NDP,of course, switched us over to
no-fault insurance in BritishColumbia, and no-fault insurance
means essentially sort of whatit sounds like, but really what
(11:04):
it amounts to is that you can'tsue somebody for bodily injury
caused by their negligence orcarelessness in a car accident.
Right, and prior to that, thetype of insurance that we were
all required to have in BCincluded what's called
third-party liability insurance,with the idea being that if
(11:24):
you're careless and you hurtsomebody, you'd have insurance
to pay the claim.
Right being that if you'recareless and you hurt somebody,
you'd have insurance to pay theclaim.
Right, but the way no faultworks, because you can no longer
sue somebody in that way, thechance of there being a
successful claim against you fornegligence driving your car is
near zero.
And despite that, we still have, if you look at your ICBC
(11:54):
policy, this idea of liabilityinsurance coverage.
Right, and you have a.
There's a minimum amount Ithink it's $200,000, you could
purchase more.
You might wonder why would youever have that when we have no
fault here, and the answer isthat you might drive your car
across a border because BC can'tstop somebody from suing you in
Alberta or in Manitoba orSaskatchewan or Washington State
(12:14):
or anywhere else, and so westill have this element of
liability insurance in the eventthat you might cross the border
.
But of course, what elsehappened around that time?
Covid and one of the thingsthat happened during COVID now,
although it's largely a badstated memory is that there were
various periods of time whenyou were effectively prohibited
(12:37):
from leaving the province.
Right, there were prohibitionson leaving for reasons that
weren't necessary ones.
Right, you couldn't go anywhere, and so the claim was premised
on the idea that, hey, you'vecollected money for third-party
liability insurance here, on thetheory that you know you might
cross the border and be liable,but you've also ordered us to
(12:58):
stay here, so there's nopossible claim, so you've just
got a bunch of money for nothing, and so that was the thesis of
the claim.
Now the claim was broughtagainst ICBC and the issue on
this application.
It was an application by ICBCto ask to have that proposed
class action case dismissed onthe theory that it was quote
(13:22):
bound to fail, and indeed thereis authority for a judge to
dismiss a claim if it's justbound to fail just can't work,
even if you accept all thefactual things that are alleged
and the defense that ICBC wasmaking out here.
Their defense amounted to well,yes, it's true that you were
purchased this liabilityinsurance which really you could
(13:44):
not make any use of, at leastfor various periods of time,
could not make any use of, atleast for various periods of
time.
You know there's restrictionson travel between June 15th and
July 1st 2021.
Non-essential travel for all BCresidents was restricted
between March and June, march19th 2020 and June 15th 2021.
(14:07):
And they said look, evenaccepting that's true, their
defense amounted to we, icbc,don't get to set the insurance
rates.
That's not done by us, which isinteresting, and in fact in BC.
Well, of course, all variousentities involved the provincial
government, icbc owned 100% bythe government and various other
(14:27):
entities involved with thebroader process of setting rates
.
It is true that ICBC can't justunilaterally change the rates
they charge for basic carinsurance.
We have a utilities commissionand there's a process there
where they have to assess andapprove rates and rate changes.
(14:48):
Now I must pause here for amoment to say it's true that we
do have this utilitiescommission, although, on the
other hand, we have nowexperienced I think it's for the
fourth time the governmentrebating money to people, you
know, at convenient times likeprior to the election.
And so I suppose we should beasking ourselves, you know, is
(15:09):
the utilities commission reallyensuring that rates are set at
the correct level when, fourtimes in a row, there's been
money left over to send out topeople right before an election,
or some other in a row there'sbeen money left over to send out
to people right before anelection or some other you know
opportune political time for thegovernment?
But leaving that aside, that'sthe legal scheme in BC, and so
(15:30):
the defense that ICBC had iswell, look, we don't have
control over this.
So you know, you're making, youmay have a complaint, you may
have a valid complaint about thefairness of all this, but don't
look at us.
Have a valid complaint aboutthe fairness of all this, but
don't look at us, we don't getto decide it and you're suing us
.
And so the plaintiffs, in thiscase their lawyer, had tried to
frame this in various differentways.
That can be potentially claims,sort of common law actions,
(15:53):
things like negligence ornegligent misrepresentation, or
there's an attempted claim underthe consumer protection
legislation in BC or otherequitable concepts, like there's
a concept of unjust enrichmentor a claim that this amounted to
a breach of contract.
And so the judge on thisapplication had to go through
(16:14):
and look at each of those thingssaying, look, can this, is it
possible that you couldsuccessfully argue that there
was any of these things a breachof contract or an unjust
enrichment or any of thosethings, and ultimately the judge
concluded no.
And the judge relied upon someauthority for the proposition
that where there is a scheme inplace, like we have in BC with
(16:36):
the Utilities Commission, thatis intended to be sort of a
quote, comprehensive, closequote scheme for things like
setting insurance rates, whichhas its own mechanism.
It's like if you really gotsome time on your hands and you
wanted to go and makesubmissions to the Utilities
Commission about you know howmuch you're paying for car
(16:57):
insurance, or you know how muchyou're paying for car insurance,
or you know how much you'regetting charged for electricity
or something.
You're free to go and do that,although it's very unlikely that
for any individual that's goingto make any particular sense.
You know how much money do youplan to save for the hours you
would spend making submissionsto the Utilities Commission.
But who knows, there it is.
(17:19):
And so the net result of this isthat, even though for a period
of time people were paying forinsurance which it was
vanishingly unlikely you couldever make a claim against
because the claims wereprohibited in BC and you
couldn't get out of BC Despitethat, because civil claims have
to be framed in sort of a waythat you know there could be
(17:40):
authority for a judge to dosomething about it.
Here there just wasn't, and sothat's the end of the class
action.
And so if you're upset at thefact that you're repeatedly
paying insurance rates that seemto leave money left over to
send out rebate checks everysingle year, your recourse is
(18:01):
going to be making somesubmission to the Utilities
Commission.
You won't be able to wait forthe outcome of the class action
to determine whether that islegally permissible.
That's the latest from ICBC,covid and the unsuccessful
attempt to try and get somemoney back for all of us who
paid too much for insurance atthe time.
Adam Stirling (18:19):
All right, we have two minutes left.
Michael Mulligan (18:22):
So, final case , I think it's just worth
touching on briefly.
It's a case that involves theconcept of applying for an
interim injunction for what'scalled a negative covenant.
What does that mean?
Well, first of all, an interiminjunction is like a request for
an order from a judge to stopsomething from happening until a
trial is concluded right, Putsomething, sort of put the
(18:43):
brakes on it while we're sortingout whether the claim is good
or not.
And the particular caseinvolved a dispute between two
people a doctor and anotherfellow over what amounted to
businesses relating to, I thinka nasal spray is ultimately the
product, and the person who wasbeing sued was a person who was
(19:06):
involved with an earlierincarnation of a business,
although under a different name,and that person the previous
business partner, fellow,previous business partner,
fellow what had allegedly sent ademand that the doctor pay
$150,000 by a certain date, orelse the other person would
(19:27):
publish and make available abunch of data and information
that they had about the business.
I guess that would interferewith the nasal spray technology
or whatever it might be, and sothe doctor who was the owner of
the more recent incarnation ofthe company was applying for an
interim injunction to stop theman from doing that.
It seems sort of straightforward, but there are a couple of
(19:49):
wrinkles.
One is that this concept of anegative covenant is like a
agreement not to do something,and in this case that came into
effect when there was previouslitigation between the man who
had the information and wasallegedly asking for money to
not release it and the previousversion of this company, which
no longer existed.
And so one of the first issuesthere is well, can you enforce
(20:12):
something when you're not reallya party to the contract?
Right, the settlement agreementwas with respect to a company
that no longer existed in thisman.
Can the new company enforcethat?
That's an interesting point,and the judge found that at
least that's arguable.
And to get an interim injunctionyou need not establish that you
(20:33):
will win.
You just need to show thatthere's a serious issue to be
tried, and so it got over thathump.
And then the next step thereand this is the interesting one
is that you need to show usuallyirreparable harm, which is kind
of harm that you can't make upfor with money, as a reason to
get an injunction.
But the judge pointed outthere's actually authority for
the idea that when you're tryingto enforce a negative covenant
(20:55):
like an agreement, contractualagreement not to do something,
you don't actually need to showirreparable harm, and so that's
an interesting differencebetween when you could get an
order to stop somebody fromdoing something generally, as
opposed to trying to enforcethat agreement not to do
something already.
And so the net result is thejudge ordered the man don't
release the information, and soI guess we won't all have
(21:17):
published on the internet all ofthe scientific information
about the new high-tech nasalspray.
Adam Stirling (21:23):
Michael Mulgan, with Mulgan Defense Lawyers,
legally speaking, during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much, always great tobe here.
It's time for our regular segment with Barrister
and Solicitor, with MulliganDefence Lawyers.
Michael Mulligan, with LegallySpeaking on CFAX hey, michael,
how are we doing?
Michael Mulligan (00:08):
Hey, I'm doing great.
Always good to be here.
Adam Stirling (00:10):
Some interesting topics on the agenda today.
Where shall we begin?
Michael Mulligan (00:14):
I think we can start with the case involving a
death penalty for a dog on abalance of probabilities.
Adam Stirling (00:21):
A standard lower than other death penalties and
perhaps other jurisdictions, onewould think.
Michael Mulligan (00:27):
That's true.
So this particular case and itjust came out it's actually a
case out of Kamloops and itinvolved a dog by the name of
Heidi who was very sadly killedin her fenced backyard.
Killed in her fenced backyardand the issue involved three
(00:50):
dogs that were suspected ofdoing that to Heidi, killing
Heidi.
The dogs' names were Snoopy,bella and Ferb.
Now the way this plays out isin BC we've got authority under
the community charter.
It's a piece of legislation thatdelegates authority to well,
communities, municipalities, todo various things, including
deal with the issue of dangerousdogs, and that legislation, in
(01:21):
section 49, defines what adangerous dog is.
It's an interesting definition.
A dangerous dog means a dogthat's killed or seriously
injured.
A person that's not applicablehere, really B has killed or
seriously injured a domesticanimal while in a public place
or while on private propertyother than property owned or
occupied by the personresponsible for the dog.
That's the one that'sapplicable in this particular
case.
Also, interestingly, you canhave proactive action if an
(01:45):
animal control officer hasreasonable grounds to believe
it's likely that a dog wouldkill or seriously injure a
person.
Although, I must say ratheramusingly, the legislation
requires the animal controlofficer to consider whether the
action of the dog would be whileattempting to prevent a person
from committing an unlawful act.
(02:06):
Boy, that's a complicatedconcept for a dog, but it
requires some consideration asto whether the dog is trying to
stop shoplifting or something.
Anyways, that's how they've,that's how they've drafted it,
and so when you have a dog thatis apprehended, they would
ordinarily be put in like a dogjail kennel and then eventually
(02:28):
there can be an application madeto a provincial court judge to
determine whether the provincialcourt judge is satisfied.
It beyond all reasonable doubt.
It's only necessary that aprovincial court judge be
satisfied, on a balance ofprobabilities, that the dog is a
(02:50):
dangerous dog, and if so, thejudge can then go on to analyze
whether the dog would present aquote, unacceptable risk to the
public, close quote.
And if it gets over those twothresholds on a balance of
probabilities, then theprovincial court judge is
authorized to this is a languageorder that the dog be destroyed
(03:14):
in the manner specified in theorder, which it doesn't provide
any guidance on.
So you know, while you wouldhope that the provincial court
judge would pick euthanasiarather than firing squad, that's
up to the provincial courtjudge, and so that's the legal
fact pattern or legal basis ofthis case proceeded on.
Now, the interesting thing aboutthe case is that, well, one of
(03:37):
them, at least two of the dogssuspected in the attack, snoopy
and Bella, were both put downprior to the trial of Ferb, the
dog, who wound up eventually ontrial.
Snoopy was put down as a resultof medical reasons and Bella
wound up being euthanized byconsent.
(03:57):
And I should say the backgroundof the dogs is sad.
These three dogs were pit bullsiblings and the woman who had
them had taken them in when shehad heard that Ferb, the one on
trial, had, as a puppy, beenstabbed five times Not a good
beginning for a puppy and so shequote immediately rescued Ferb
(04:21):
and took ownership of thesethree dogs.
Immediately rescued Ferb andtook ownership of these three
dogs.
Now, the description of theowner one of the dogs, bella,
the one that was euthanized byconsent the owner described as
an instigator, aggressive andcrazy.
That's not a great combination.
She described Snoopy as more ofa follower, but I guess she
(04:47):
didn't think that Ferb, the oneon trial, would have behaved in
this way.
Now, this is why the balance ofprobabilities, rather than proof
beyond a reasonable doubt, isimportant here, because the case
against Ferb was, to a largeextent, circumstantial, and this
is why the owner of Heidi, theunfortunate 12-year-old female
collie that got attacked andkilled in her backyard.
(05:08):
The owner heard noise and then,when she came out, the attack
had essentially concluded andshe did observe three pit bull
dogs circling Heidi, butcouldn't see them any one of the
three do anything in particular.
The three pit bull dogs thenleapt over a fence and ran away.
(05:31):
Before they went ran away.
They also, unfortunately,started attacking a man on a
sidewalk who was described bythe owner of heidi as swinging
his arms at the three dogsbefore they eventually before he
eventually ran away.
The dogs ran away.
That person wasn't a witness,and so the issue here, the
reason why it was acircumstantial case, is well,
(05:52):
what role did Ferb play in allof this right?
Did Ferb work with Bella andSnoopy or was Ferb an innocent
bystander?
Right and in the human context,if the evidence was simply
somebody was standing there,that's not going to do it Now.
This particular case, which Ishould say went on for four days
(06:13):
and involved expert evidence inthe form of both a veterinarian
and another expert on dogbehavior, included evidence
about how dogs conductthemselves, including evidence
about pack mentality and howthey could sort of join in and
do things together which thejudge relied upon.
And the other interesting bitof sort of circumstantial
(06:36):
evidence was that two of thedogs, or at least one of the
dogs, bella, was observed by avet who examined her to have
dried blood on her.
That was pretty incriminating,in addition to the very
unflattering description by herowner.
Snoopy apparently had ametallic smell which is commonly
associated with blood, althoughit was more ambiguous as to
(06:58):
whether Ferb had any blood.
And there was some evidence ofsmell.
But the owner said no, didn'tnotice any blood on Ferb.
So you know, was Ferb theinnocent bystander dog or did
Ferb join?
So you know, was Ferb theinnocent bystander dog or did
Ferb join in the attack on theinnocent dog in the backyard?
And the judge at the end of theday went over the fact that you
know it need only be on abalance of probabilities.
(07:20):
There was evidence about Ferb'sbehavior following apprehension
in the kennels, which Ferb wasdescribed as agitated,
unpredictable and volatile,would growl at people and had to
be moved around with what wasdescribed as a rabies stick.
You know, I guess it was one ofthose like a rabies pole, you
know it couldn't be put on aleash, so obviously bad behavior
(07:42):
by Ferb afterwards.
But the judge said he couldn'tput much weight on the after
behavior and was required toassess whether he was satisfied,
on a balance of probabilities,that Ferb had participated in
the actual attack.
And on that basis the judgerelied on that evidence about
(08:03):
pack behavior and how circlingaround is some indication of
participating in it rather thanbeing just an innocent bystander
dog and on that basis wassatisfied, at least on a balance
of probabilities, that Ferbparticipated in the attack on
Heidi the dog.
And because in this case, well,initially there had been another
(08:27):
person who had come forward tosay that they might be able to
take custody of Ferb, whichmight result then in the Ferb
not representing a quote,unacceptable risk to the public,
that person, before the trialwas out, I guess, backed out and
said they were no longerprepared to do that, maybe after
hearing some of the evidence.
(08:48):
And the woman who had owned andquote rescued the dogs on the
morning in question.
They had escaped her home on thebasis that somebody had left
the door open while she washaving a shower, and so I guess
there wasn't much of an issueleft about whether, if the dog
had participated in this killing, whether they would amount to
(09:08):
an undue risk to the public.
And so the net result despitethe fact that Ferb obviously had
a very bad beginning as a puppybeing stabbed multiple times,
the judge was persuaded, atleast on a balance of
probabilities, there wasparticipation and that there
would be an undue risk.
And so the judge ordered thatFerb be hopefully not by firing
(09:30):
squad, but be euthanized,although did indicate that that
is not to occur for 31 days fromthe date of the order, which is
interesting that this order wasmade on May the 5th, and the
reason for that is that therewould be a 30-day appeal period,
and so I guess we'll have towait and see whether FURB has
some other benefactor thatwishes to continue to litigate.
(09:52):
But failing that, that's goingto be the fate of FURB, at least
on the basis that FURB probablyparticipated in what happened
to Heidi, and it certainlywasn't for the purpose of
preventing the commission of adefense by Heidi or anyone else.
So that's the sad story fromKamloops in terms of the three
(10:14):
dogs, the final one of whichfound to be dangerous, and
that'll be the fate of Ferb.
Adam Stirling (10:21):
We'll take a quick break.
Legally speaking, we'llcontinue right after this.
Back on the air here at CFAX1070 with Michael Mulligan from
Mulligan Defense Lawyers.
Legally speaking on CFAXMichael up next on the agenda.
I'm reading here it saysproposed class action against
ICBC for overcharging duringCOVID dismissed.
There's a lot there.
Michael Mulligan (10:40):
There is a lot to unpack there.
I thought it was a creativeidea in terms of a class action,
and here's really what itamounted to.
Back in May of 2021, the NDP,of course, switched us over to
no-fault insurance in BritishColumbia, and no-fault insurance
means essentially sort of whatit sounds like, but really what
(11:04):
it amounts to is that you can'tsue somebody for bodily injury
caused by their negligence orcarelessness in a car accident.
Right, and prior to that, thetype of insurance that we were
all required to have in BCincluded what's called
third-party liability insurance,with the idea being that if
(11:24):
you're careless and you hurtsomebody, you'd have insurance
to pay the claim.
Right being that if you'recareless and you hurt somebody,
you'd have insurance to pay theclaim.
Right, but the way no faultworks, because you can no longer
sue somebody in that way, thechance of there being a
successful claim against you fornegligence driving your car is
near zero.
And despite that, we still have, if you look at your ICBC
(11:54):
policy, this idea of liabilityinsurance coverage.
Right, and you have a.
There's a minimum amount Ithink it's $200,000, you could
purchase more.
You might wonder why would youever have that when we have no
fault here, and the answer isthat you might drive your car
across a border because BC can'tstop somebody from suing you in
Alberta or in Manitoba orSaskatchewan or Washington State
(12:14):
or anywhere else, and so westill have this element of
liability insurance in the eventthat you might cross the border
.
But of course, what elsehappened around that time?
Covid and one of the thingsthat happened during COVID now,
although it's largely a badstated memory is that there were
various periods of time whenyou were effectively prohibited
(12:37):
from leaving the province.
Right, there were prohibitionson leaving for reasons that
weren't necessary ones.
Right, you couldn't go anywhere, and so the claim was premised
on the idea that, hey, you'vecollected money for third-party
liability insurance here, on thetheory that you know you might
cross the border and be liable,but you've also ordered us to
(12:58):
stay here, so there's nopossible claim, so you've just
got a bunch of money for nothing, and so that was the thesis of
the claim.
Now the claim was broughtagainst ICBC and the issue on
this application.
It was an application by ICBCto ask to have that proposed
class action case dismissed onthe theory that it was quote
(13:22):
bound to fail, and indeed thereis authority for a judge to
dismiss a claim if it's justbound to fail just can't work,
even if you accept all thefactual things that are alleged
and the defense that ICBC wasmaking out here.
Their defense amounted to well,yes, it's true that you were
purchased this liabilityinsurance which really you could
(13:44):
not make any use of, at leastfor various periods of time,
could not make any use of, atleast for various periods of
time.
You know there's restrictionson travel between June 15th and
July 1st 2021.
Non-essential travel for all BCresidents was restricted
between March and June, march19th 2020 and June 15th 2021.
(14:07):
And they said look, evenaccepting that's true, their
defense amounted to we, icbc,don't get to set the insurance
rates.
That's not done by us, which isinteresting, and in fact in BC.
Well, of course, all variousentities involved the provincial
government, icbc owned 100% bythe government and various other
(14:27):
entities involved with thebroader process of setting rates
.
It is true that ICBC can't justunilaterally change the rates
they charge for basic carinsurance.
We have a utilities commissionand there's a process there
where they have to assess andapprove rates and rate changes.
(14:48):
Now I must pause here for amoment to say it's true that we
do have this utilitiescommission, although, on the
other hand, we have nowexperienced I think it's for the
fourth time the governmentrebating money to people, you
know, at convenient times likeprior to the election.
And so I suppose we should beasking ourselves, you know, is
(15:09):
the utilities commission reallyensuring that rates are set at
the correct level when, fourtimes in a row, there's been
money left over to send out topeople right before an election,
or some other in a row there'sbeen money left over to send out
to people right before anelection or some other you know
opportune political time for thegovernment?
But leaving that aside, that'sthe legal scheme in BC, and so
(15:30):
the defense that ICBC had iswell, look, we don't have
control over this.
So you know, you're making, youmay have a complaint, you may
have a valid complaint about thefairness of all this, but don't
look at us.
Have a valid complaint aboutthe fairness of all this, but
don't look at us, we don't getto decide it and you're suing us
.
And so the plaintiffs, in thiscase their lawyer, had tried to
frame this in various differentways.
That can be potentially claims,sort of common law actions,
(15:53):
things like negligence ornegligent misrepresentation, or
there's an attempted claim underthe consumer protection
legislation in BC or otherequitable concepts, like there's
a concept of unjust enrichmentor a claim that this amounted to
a breach of contract.
And so the judge on thisapplication had to go through
(16:14):
and look at each of those thingssaying, look, can this, is it
possible that you couldsuccessfully argue that there
was any of these things a breachof contract or an unjust
enrichment or any of thosethings, and ultimately the judge
concluded no.
And the judge relied upon someauthority for the proposition
that where there is a scheme inplace, like we have in BC with
(16:36):
the Utilities Commission, thatis intended to be sort of a
quote, comprehensive, closequote scheme for things like
setting insurance rates, whichhas its own mechanism.
It's like if you really gotsome time on your hands and you
wanted to go and makesubmissions to the Utilities
Commission about you know howmuch you're paying for car
(16:57):
insurance, or you know how muchyou're paying for car insurance,
or you know how much you'regetting charged for electricity
or something.
You're free to go and do that,although it's very unlikely that
for any individual that's goingto make any particular sense.
You know how much money do youplan to save for the hours you
would spend making submissionsto the Utilities Commission.
But who knows, there it is.
(17:19):
And so the net result of this isthat, even though for a period
of time people were paying forinsurance which it was
vanishingly unlikely you couldever make a claim against
because the claims wereprohibited in BC and you
couldn't get out of BC Despitethat, because civil claims have
to be framed in sort of a waythat you know there could be
(17:40):
authority for a judge to dosomething about it.
Here there just wasn't, and sothat's the end of the class
action.
And so if you're upset at thefact that you're repeatedly
paying insurance rates that seemto leave money left over to
send out rebate checks everysingle year, your recourse is
(18:01):
going to be making somesubmission to the Utilities
Commission.
You won't be able to wait forthe outcome of the class action
to determine whether that islegally permissible.
That's the latest from ICBC,covid and the unsuccessful
attempt to try and get somemoney back for all of us who
paid too much for insurance atthe time.
Adam Stirling (18:19):
All right, we have two minutes left.
Michael Mulligan (18:22):
So, final case , I think it's just worth
touching on briefly.
It's a case that involves theconcept of applying for an
interim injunction for what'scalled a negative covenant.
What does that mean?
Well, first of all, an interiminjunction is like a request for
an order from a judge to stopsomething from happening until a
trial is concluded right, Putsomething, sort of put the
(18:43):
brakes on it while we're sortingout whether the claim is good
or not.
And the particular caseinvolved a dispute between two
people a doctor and anotherfellow over what amounted to
businesses relating to, I thinka nasal spray is ultimately the
product, and the person who wasbeing sued was a person who was
(19:06):
involved with an earlierincarnation of a business,
although under a different name,and that person the previous
business partner, fellow,previous business partner,
fellow what had allegedly sent ademand that the doctor pay
$150,000 by a certain date, orelse the other person would
(19:27):
publish and make available abunch of data and information
that they had about the business.
I guess that would interferewith the nasal spray technology
or whatever it might be, and sothe doctor who was the owner of
the more recent incarnation ofthe company was applying for an
interim injunction to stop theman from doing that.
It seems sort of straightforward, but there are a couple of
(19:49):
wrinkles.
One is that this concept of anegative covenant is like a
agreement not to do something,and in this case that came into
effect when there was previouslitigation between the man who
had the information and wasallegedly asking for money to
not release it and the previousversion of this company, which
no longer existed.
And so one of the first issuesthere is well, can you enforce
(20:12):
something when you're not reallya party to the contract?
Right, the settlement agreementwas with respect to a company
that no longer existed in thisman.
Can the new company enforcethat?
That's an interesting point,and the judge found that at
least that's arguable.
And to get an interim injunctionyou need not establish that you
(20:33):
will win.
You just need to show thatthere's a serious issue to be
tried, and so it got over thathump.
And then the next step thereand this is the interesting one
is that you need to show usuallyirreparable harm, which is kind
of harm that you can't make upfor with money, as a reason to
get an injunction.
But the judge pointed outthere's actually authority for
the idea that when you're tryingto enforce a negative covenant
(20:55):
like an agreement, contractualagreement not to do something,
you don't actually need to showirreparable harm, and so that's
an interesting differencebetween when you could get an
order to stop somebody fromdoing something generally, as
opposed to trying to enforcethat agreement not to do
something already.
And so the net result is thejudge ordered the man don't
release the information, and soI guess we won't all have
(21:17):
published on the internet all ofthe scientific information
about the new high-tech nasalspray.
Adam Stirling (21:23):
Michael Mulgan, with Mulgan Defense Lawyers,
legally speaking, during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much, always great tobe here.
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