May 23, 2025 • 21 mins
The BC Court of Appeal has delivered a significant ruling that serves as a stark warning to property sellers: crossing out questions on disclosure forms doesn't eliminate your responsibility to be truthful. When a seller drew lines through all disclosure questions, writing only that the property was tenant-occupied and he'd never lived there, he created a legal nightmare for himself. After discovering an unpermitted addition, the buyer backed out – but the seller kept the $300,000 deposit and sued for more. Though initially successful, the Court of Appeal reversed the decision, finding the seller knew about the problem and his line-crossing technique didn't absolve him of responsibility.
The case highlights a critical point for anyone engaging in real estate transactions: disclosure forms are binding components of your contract. If you choose to complete one, everything you state (or strategically avoid stating) can have serious financial consequences. Sellers must either be meticulously accurate or explicitly mark properties as sold "as is" with no representations or warranties.
In a separate ruling that exposes the troubling state of Indigenous child welfare, the Court restored a $150,000 human rights award to a First Nations mother who successfully proved discrimination by an Indigenous child protection agency. The statistics remain deeply concerning – Indigenous children represent a staggering 68% of those in government care despite comprising just 6% of BC's population. The case offers a glimpse into a system still struggling with its approach to Indigenous families.
These rulings demonstrate how the courts continue to shape responsibilities in property transactions and protect human rights in child welfare matters. Whether you're buying, selling, or navigating family services, understanding these legal precedents could save you from costly mistakes or help you assert your rights when systems fail.
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 Michael
Mulligan, with Mulligan DefenceLawyers Legally Speaking on CFAX
1070.
Afternoon Michael, how are wedoing?
Michael Mulligan (00:09):
Hey, I'm doing great.
Always good to be here.
Adam Stirling (00:11):
Some interesting topics on the show this week.
I'm reading the first one.
It says real estate disclosureform with a line through.
It is quote still a materialmisrepresentation.
What does that mean?
Michael Mulligan (00:22):
Well, really, it's a cautionary tale for
anyone who's buying or selling ahouse.
So that's why I thought it'd beworth knowing about this
decision that just came out fromthe BC Court of Appeal and the
case involved a house sale rightand there's a common practice
(00:43):
although I should say it is nota legal requirement in most
circumstances that there be adisclosure statement filled out
by a person who's selling ahouse.
Now, there are somecircumstances where disclosure
statements are mandatory, like Ithink, with some new property,
condo sales and things like that.
But this one deals with thesort of statement that somebody
(01:03):
might be asked to fill out ifthey were selling a house, and
it's a form that asks a wholebunch of questions about the
property.
It would ask questions like areyou aware of any problems with
the electrical system?
Are you aware of any problemswith the plumbing system?
There's an interesting questionthat used to be on.
It used to be.
It's been modified but it asksare you aware that the premises
(01:25):
have never been used to growcannabis?
They've added now bracket otherthan, as permitted by law,
close bracket, because in thepast that wasn't so.
Anyways, it's this form thatwould be filled out and where
they are filled out, ordinarilyincluded as part of the contract
to buy or sell a house.
(01:47):
Now, in this particular case, ahouse is being sold by a fellow
who was not living in it.
This is being rented out andthere was a deposit paid when
the original contract was signedfor some $300,000.
Was signed for some $300,000.
(02:08):
And there was a request for oneof these forms that was filled
out and sent over to the realestate agent for the buyer and
in this case, the person sellingthe house drew a line through
all of the questions asked onthe form and wrote at the bottom
tenanted property.
Owner has never occupied.
And that's what the form said.
Now you can probably see wherethis is going, or maybe not, but
(02:30):
anyways, one of the questionson there was whether there had
been anything built on theproperty without a building
permit.
Now, that was one of thequestions.
Had the line drawn through it?
Now, after that first deposithad been paid the $300,000, and
before the $200,000 seconddeposit had been paid, the buyer
discovered through their ownefforts that there had been an
(02:52):
unpermitted addition built on tothe home and for that reason
refused to close on the deal andthat resulted in the seller
keeping the $300,000 firstdeposit and suing to get the
$200,000 second deposit, saying,well, hold on, you just haven't
complied with this deal.
I didn't make anyrepresentation about whether
(03:14):
there had been any permits forsome addition that was added
onto the house, and so that'sthe case that went to court.
A case that went to court and attrial, the judge hearing the
case relied on a previousdecision from back in 2005,
another BC Supreme Courtdecision and in that case there
was a similar form that wasfilled out and in that case the
(03:36):
seller wrote at the bottom ofthe form quote buyer to satisfy
themselves property is sold asis, in capital letters, the as
is.
And in that case, in that 2005case, the judge concluded well,
look, this person didn't makeany representations on this form
and so you can't rely on it.
And the judge dealing with thetrial of the case that we're
(04:00):
talking about now followed thatcase.
Well, this is the same.
The person had drawn a linethrough everything and wrote
that you know, tenant andproperty owners never occupied.
Well, at trial, the seller orthe buyer lost and the seller
got to keep the damaged, thefirst deposit of $300,000 and a
judgment for another $200,000.
(04:20):
I guess the cautionary talethere is when you enter into a
real estate contract.
It's a contract and if youdon't complete you may find
yourself sued.
Now the case went to the Courtof Appeal.
A lot of money involved and thedecision on that just came out
and the Court of Appeal reversedwhat the trial judge had done.
And the Court of Appeal saidthat.
(04:43):
Well, the judge overlooked somematerial evidence, which is
interesting.
Generally the Court of Appealis pretty differential to sort
of findings of fact and thingsthe judge relied upon, but here
they went in a differentdirection and they pointed to
several things.
They pointed to, first of all,the fact that the seller was an
experienced in real estate sales, had previously been a licensed
(05:05):
realtor, although was not inthis particular case, and they
found that the seller was awarethat there had been this
addition added on to the housewithout a permit, described as a
back garden room, whatever thatmight be, that it had been
enclosed without a permit.
(05:26):
And there was evidence that heknew that because that was
written on the disclosure formthat he got when he bought the
place.
I guess he didn't care, he justbought it anyways, right?
And so they found, well, hewould have been aware of it.
And then they found that hisdrawing a line through all of
the things and writing on itthat he was tenanted and he'd
never lived there didn't amountto the same thing as when the
(05:49):
person wrote on it property issold as is and found that that
wasn't really responsive to whatwas written on the form and
then relied upon some of theother fine print that's included
at the bottom of the form abouthow the form and its comments
and so on must be filled outcompletely and form part of the
(06:11):
contract for the purchase andsale of the home completely and
form part of the contract forthe purchase and sale of the
home.
And so found that there was abasis to conclude that the buyer
had relied upon that thingbefore entering into the
contract and, given the wordingon it, that what he'd written on
there wasn't sufficient, and soreversed the judge's decision.
The court of appeals orderedthe $300,000 deposit return and
(06:33):
overturned the award of.
Ordered the $300,000 depositreturned and overturned the
award of the additional $200,000.
And so the takeaway for peoplewith this is pay really careful
attention to this document.
Know that if you're selling ahouse, you're generally not
required to fill one out, but ifyou start filling one out and
making representations aboutthings like you know, are you
(06:54):
aware of any problems with theelectrical system?
Are you aware of any problemswith the plumbing system?
You know, are you aware thatanyone grew marijuana in the
house without a permit, forexample?
And it turns out that thosethings are wrong.
You did know about some problemwith the system or the plumbing
, or the electrical or thewhatever it might be.
You might find yourself eitherthe deal not concluding and the
(07:17):
person being able to get out ofit, or you might find yourself
sued.
Right If you say, well, hold on, you know the plug didn't work
or the faucet leaked, or the youknow something or other on
there turns out to be inaccurate.
So if you do choose to fill oneof these things out, when
selling a property, you need tobe very careful that it's
accurate.
If it's not filled outaccurately, you are effectively
(07:40):
warrantying the house in everyway.
You're putting down there ohyes, everything's fine, I'm not
aware of any problem.
That turns out to be wrong.
You may wind up on the hook forit.
And if you decide you don'twant to fill one of these things
out, you might either not fillit out at all, just no thanks.
Or you might choose somelanguage along the lines of what
that person chose back in 2005,.
(08:00):
As is, other things that are notresponsive to what's there,
given this Court of Appealdecision may not be enough to
mean that that doesn't form partof the contract.
To mean that that doesn't formpart of the contract, and so
this is the sort of thing whichI rather expect is going to be
affecting a lot of people.
Right, there are thousands ofpeople buying and selling homes,
(08:21):
and this is a decision which ismaterially going to affect how
those contracts are interpreted.
So pay very careful attentionto the form.
If you're filling one out andyou're selling a property, also
bear in mind you might havereceived one of these things,
and so if somebody told youthere was a problem with the
plumbing five years ago, orsomebody 10 years ago told you
they didn't get a permit for theback garden room enclosure,
(08:44):
well you better make sure that'swritten on the same form, or
the form that you're passingalong to the potential buyer, or
you better make sure you don'teither fill one out at all or
write on it very clearly thatit's as is and none of that is
to be relied upon.
So that's the very latest fromthe Court of Appeal on
disclosure statements in realestate transactions.
Adam Stirling (09:02):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues hereon CFAX 1070.
Joined, as always, by MichaelMulligan, barrister and
solicitor, with mulligan defenselawyers.
Michael up.
Next, our second story on theday.
Michael Mulligan (09:16):
I'm reading 150 000 awarded, says here, for
discrimination against a firstnations woman by a first nations
child protection agency upheldby the bc court of appeal yeah,
I must say this is a story thatI think highlights just how far
off the rails some of the issueof care for Indigenous children
(09:39):
is in the province, or just howtroubled many Court of Appeal
here in terms of the grosslydisproportionate number of
Indigenous children that are ingovernment care.
And just to give listeners someidea of what that amounts to,
(10:05):
as of the end of January 31st2024, of the 4,835 children that
were in care, that's to saythey've been apprehended by
social workers that are in careof the government in some form
or other, and 68% of them, morethan 3,000, are Indigenous, and
(10:25):
that's to say there's about 6%of the population that's
Indigenous and 68% of thechildren who are in care are
Indigenous.
So that's just not good by anymeasure.
And so the particular case herethat the Court of Appeal just
dealt with was a case out ofVancouver and, interestingly,
(10:46):
the agency dealing with the, inthis case the apprehension of
this woman's four children, isitself an Indigenous agency.
In Vancouver, theresponsibility for child safety
has been turned over to theVancouver Aboriginal Child and
(11:07):
Family Services Society andthey've got delegated authority
under the provincial legislationto deal with safety and care of
children, and the case involveda Indigenous woman who had four
children.
She had a fifth one whotragically died as an infant,
and this woman had all sorts ofproblems described by the Court
(11:30):
of Appeal, including things likebeing an intergenerational
survivor of residential schoolsthat's code, for she didn't go
to residential school, butlikely her parent or
grandparents did.
She as a child, was in careherself and as an adult she
dealt with low income, housing,insecurity, mental health issues
and substance use disorder anddescribed as having.
(11:54):
The three of the four childrenare described as having quote
complex needs, so you justimagine what that all looks like
.
She's a single mother too, soyou can just imagine what that
looks like.
And in this case the childrenwere apprehended by the
Vancouver Aboriginal Child andFamily Services Society as a
result of things including areport from her eldest child
(12:15):
that she had been physicallyabused by her mother or
physically assaulted by hermother.
Two of the middle childrenclaimed they were scared and
hungry at home, had been lockedin their rooms with bungee cords
and had been pinched andslapped, and there were marks
that the doctor indicated lookedlike they could be cigarette
burns.
So you can imagine apprehension.
(12:36):
Probably not a large surprisegiven that fact pattern.
There were investigations andvarious multiple other
complaints some 33 complaints,although only three of them were
investigated in a thorough wayand found to be substantiated.
Some of the original complaints.
Issues arose about them.
One of the quoted cigaretteburns turned out to be a
(12:56):
birthmark.
Other cigarette burns werereportedly caused by the child
running past the mother with alit cigarette, reportedly caused
by the child running past themother with a lit cigarette and
then later the eldest childretracted the allegations of
physical assault.
So tragic and very sad.
(13:20):
The details some of thosedetails, you just never know
what the truth of them were.
While in care, the mothercontinued to have concerns about
the children, which were alsoturned out to be well-founded,
and I must say they are ratheran indictment of what it looks
like when a child winds up incare, remembering, of course,
that this mother wound up incare herself when she was a
child.
Things including one of themiddle child, while in care in
(13:43):
foster care, attempted suicidetwice.
One of the, the eldest child,ran away from foster care for as
absent for several days andthen engaged in what's described
as serious self-harm.
One of the child childrendescribed being held down by
arms and legs and there wasbruising consistent with that,
although that was investigatedand turned out not to be abuse.
(14:04):
So horrific right On everylevel, right In terms of the, no
doubt, what the challenges werefor this person trying to raise
children, all of the variousthings that she was dealing with
and the circumstances thesechildren found themselves in.
In any case, they wound up outof her care for some three years
(14:26):
approximately and eventuallythey were placed back with her
and it resulted in her thenbringing a human rights
complaint against the VancouverAboriginal Child and Family
Services Society, alleging thatthey discriminated against her
because that she was Indigenous,alleging that they
discriminated against herbecause she was Indigenous.
(14:46):
And so it's a human rightscomplaint that the Indigenous
Child and Family ServicesSociety discriminated against
the woman because she wasIndigenous, arguing that they
had made racially informedassumptions about the impact of
things like mental health orsubstance use and so on.
(15:06):
And she won.
The Human Rights Tribunal foundthat the Aboriginal Child Family
Services Society haddiscriminated against her on the
basis that she was Indigenousand they awarded her $150,000
for injury to her dignity,feelings and self-respect by the
(15:30):
government to the BC SupremeCourt.
The Supreme Court trial judge,who heard it, allowed the appeal
, found that the tribunal memberhad unfairly expanded the scope
of the complaint and overturnedthe award.
That was just appeal to theCourt of Appeal and that
decision just came out.
Also interestingly, thedecision is written by the Chief
(15:50):
Justice of the BC Court ofAppeal, who is himself
Indigenous.
The Chief Justice of the BCCourt of Appeal, who is himself
Indigenous.
And so you have an Indigenouswoman making a human rights
complaint about the IndigenousChild Family Services Society,
which is ultimately decided bythe Chief Justice of the Court
of Appeal for British Columbia,who is himself Indigenous.
The Chief Justice overturnedthe trial, the judge at trial
(16:12):
who determined that thatdecision was not proper and
restored the $150,000 award forinjury to dignity and self-worth
and so on.
And one of the things pointedto by the judge who overturned
the award was to say well, look,if that's how this is
interpreted, that's to say howthe human rights codes interpret
(16:34):
.
In relation to the Child FamilyCommunity Services Act, which is
intended, as its core principle, to protect children, One of
the concerns was that wouldhamstring social workers.
You know, if you have a reportfrom somebody saying, hey, you
know, I'm being abused by mymother, or there's cigarette
burns on the children, or theysay they're being trapped in the
room with bungee cords orsomething that they're going to
(16:57):
feel like they can't do anythingfor fear that there might be a
complaint made, the ChiefJustice concluded that wasn't a
legitimate concern, that thosetwo acts could be read
harmoniously, and pointed outthat the Child Family Community
Services Act the one that dealswith child protection, which
delegates authority to theIndigenous Family Services
(17:24):
Society in Vancouver, the socialworkers enjoy legal protection
as long as they don't makedecisions that are in bad faith,
and so what that meanseffectively is that you can't
sue the social worker right, andso the social worker isn't
protected, and so the Court ofAppeal has found that the social
workers will not be hamstrungby this award, and so the award
(17:48):
can be upheld, and instead thesetwo acts are to be read in a
harmonious fashion, and sothat's the decision of the Court
of Appeal the $150,000 award isrestored.
But I must say, the entire casestart to finish in virtually
every aspect.
When you read it is a ratherdisheartening history of just
(18:15):
how seriously troubled thecircumstances are for these
children, for the children'smother, for the agency trying to
protect the children, in termsof how they're doing that, and
when you still look at the statsabout how many, what percentage
of children that are in careare Indigenous, I must say the
entire thing just leaves you atleast leaves me just really
(18:38):
disheartened about what chancedo these 3,000-some-odd children
in care have, right, and whatdo we do about it.
And I'm not sure that we'vesolved the problem with the
Human Rights Tribunal complaintor the award that might help
this particular woman somewhat.
But you know, where are weright in 2025 when this is
(19:03):
what's going on?
This is the state that FirstNations kids are finding
themselves in in BritishColumbia.
You know these kids are ourfuture.
This is a pretty dishearteningstate of affairs.
So that's the latest from theBC Court of Appeal on liability
for discrimination by theAboriginal Child Care Society
against an Indigenous woman.
Adam Stirling (19:24):
We have about 90 seconds left and we have the
costs against 7-Eleven story.
Michael Mulligan (19:30):
Yeah, that one .
I think we can sum up in aboutthat time.
So this case we talked aboutwhen the original trial decision
came out and it was a woman whoshe tripped in a pothole going
in to get coffee from 7-Elevenon her way to work and
unfortunately the trip in thepothole caused just terrible
damage to her ankle.
(19:50):
It broke in three places.
She wound up on crutches,eventually in a wheelchair.
Long-term problems caused herto fall down again swollen foot,
lost her job just horrificcircumstances for her and she
was ultimately awarded north of$900,000 in compensation for her
lost income and pain andsuffering and future care and
(20:10):
all of this.
But the amendment to that, orthe add-on to that story, is a
decision that just came outdealing with costs, and the
reason that was an issue is thatthe woman in this case who was
suing, she had not much moneyand made various offers to
settle while the litigation wasgoing on over a period of years,
(20:31):
and she made a total of threeoffers to settle the case one
for $125,000, another for$345,000, and another for
$250,000 plus various costs andso on and then wound up and none
of which were accepted by 7-11.
And so the case went to trial,and she wound up with more than
$950,000.
What that led to is anapplication for double costs,
(20:52):
which he was successful on.
And the point there is that in acivil case where there's an
offer to settle something, if itwould be reasonable to have
accepted the offer to settle,and you don't accept it when it
would be reasonable to have doneso and more money is awarded,
there's a presumption thatyou're going to get double costs
from the time that the offerwas made.
And that's exactly what'shappened here double costs from
(21:14):
the time that the offer was made.
And that's exactly what'shappened here.
And the intention of that is tostrongly encourage people look,
if there's a reasonable offerto settle something, take it and
don't carry on and engage inlitigation if that isn't
necessary.
And the court here on thatfront found that.
Well, 7-eleven would have beenfully aware of all the facts,
including pothole maintenanceand everything else, and so it
(21:36):
would have been reasonable tohave accepted the much lower
offers prior to trial.
And so that's the finaljudgment on the case of the
terrible pothole in the 7-Elevenparking lot.
Adam Stirling (21:48):
Michael Mulligan, with Mulligan Defense Lawyers.
After the second half of oursecond hour every Thursday, it's
Legally Speaking on CFAX.
Michael, thank you so much.
Pleasure as always.
It's time for our regular segment with Michael
Mulligan, with Mulligan DefenceLawyers Legally Speaking on CFAX
1070.
Afternoon Michael, how are wedoing?
Michael Mulligan (00:09):
Hey, I'm doing great.
Always good to be here.
Adam Stirling (00:11):
Some interesting topics on the show this week.
I'm reading the first one.
It says real estate disclosureform with a line through.
It is quote still a materialmisrepresentation.
What does that mean?
Michael Mulligan (00:22):
Well, really, it's a cautionary tale for
anyone who's buying or selling ahouse.
So that's why I thought it'd beworth knowing about this
decision that just came out fromthe BC Court of Appeal and the
case involved a house sale rightand there's a common practice
(00:43):
although I should say it is nota legal requirement in most
circumstances that there be adisclosure statement filled out
by a person who's selling ahouse.
Now, there are somecircumstances where disclosure
statements are mandatory, like Ithink, with some new property,
condo sales and things like that.
But this one deals with thesort of statement that somebody
(01:03):
might be asked to fill out ifthey were selling a house, and
it's a form that asks a wholebunch of questions about the
property.
It would ask questions like areyou aware of any problems with
the electrical system?
Are you aware of any problemswith the plumbing system?
There's an interesting questionthat used to be on.
It used to be.
It's been modified but it asksare you aware that the premises
(01:25):
have never been used to growcannabis?
They've added now bracket otherthan, as permitted by law,
close bracket, because in thepast that wasn't so.
Anyways, it's this form thatwould be filled out and where
they are filled out, ordinarilyincluded as part of the contract
to buy or sell a house.
(01:47):
Now, in this particular case, ahouse is being sold by a fellow
who was not living in it.
This is being rented out andthere was a deposit paid when
the original contract was signedfor some $300,000.
Was signed for some $300,000.
(02:08):
And there was a request for oneof these forms that was filled
out and sent over to the realestate agent for the buyer and
in this case, the person sellingthe house drew a line through
all of the questions asked onthe form and wrote at the bottom
tenanted property.
Owner has never occupied.
And that's what the form said.
Now you can probably see wherethis is going, or maybe not, but
(02:30):
anyways, one of the questionson there was whether there had
been anything built on theproperty without a building
permit.
Now, that was one of thequestions.
Had the line drawn through it?
Now, after that first deposithad been paid the $300,000, and
before the $200,000 seconddeposit had been paid, the buyer
discovered through their ownefforts that there had been an
(02:52):
unpermitted addition built on tothe home and for that reason
refused to close on the deal andthat resulted in the seller
keeping the $300,000 firstdeposit and suing to get the
$200,000 second deposit, saying,well, hold on, you just haven't
complied with this deal.
I didn't make anyrepresentation about whether
(03:14):
there had been any permits forsome addition that was added
onto the house, and so that'sthe case that went to court.
A case that went to court and attrial, the judge hearing the
case relied on a previousdecision from back in 2005,
another BC Supreme Courtdecision and in that case there
was a similar form that wasfilled out and in that case the
(03:36):
seller wrote at the bottom ofthe form quote buyer to satisfy
themselves property is sold asis, in capital letters, the as
is.
And in that case, in that 2005case, the judge concluded well,
look, this person didn't makeany representations on this form
and so you can't rely on it.
And the judge dealing with thetrial of the case that we're
(04:00):
talking about now followed thatcase.
Well, this is the same.
The person had drawn a linethrough everything and wrote
that you know, tenant andproperty owners never occupied.
Well, at trial, the seller orthe buyer lost and the seller
got to keep the damaged, thefirst deposit of $300,000 and a
judgment for another $200,000.
(04:20):
I guess the cautionary talethere is when you enter into a
real estate contract.
It's a contract and if youdon't complete you may find
yourself sued.
Now the case went to the Courtof Appeal.
A lot of money involved and thedecision on that just came out
and the Court of Appeal reversedwhat the trial judge had done.
And the Court of Appeal saidthat.
(04:43):
Well, the judge overlooked somematerial evidence, which is
interesting.
Generally the Court of Appealis pretty differential to sort
of findings of fact and thingsthe judge relied upon, but here
they went in a differentdirection and they pointed to
several things.
They pointed to, first of all,the fact that the seller was an
experienced in real estate sales, had previously been a licensed
(05:05):
realtor, although was not inthis particular case, and they
found that the seller was awarethat there had been this
addition added on to the housewithout a permit, described as a
back garden room, whatever thatmight be, that it had been
enclosed without a permit.
(05:26):
And there was evidence that heknew that because that was
written on the disclosure formthat he got when he bought the
place.
I guess he didn't care, he justbought it anyways, right?
And so they found, well, hewould have been aware of it.
And then they found that hisdrawing a line through all of
the things and writing on itthat he was tenanted and he'd
never lived there didn't amountto the same thing as when the
(05:49):
person wrote on it property issold as is and found that that
wasn't really responsive to whatwas written on the form and
then relied upon some of theother fine print that's included
at the bottom of the form abouthow the form and its comments
and so on must be filled outcompletely and form part of the
(06:11):
contract for the purchase andsale of the home completely and
form part of the contract forthe purchase and sale of the
home.
And so found that there was abasis to conclude that the buyer
had relied upon that thingbefore entering into the
contract and, given the wordingon it, that what he'd written on
there wasn't sufficient, and soreversed the judge's decision.
The court of appeals orderedthe $300,000 deposit return and
(06:33):
overturned the award of.
Ordered the $300,000 depositreturned and overturned the
award of the additional $200,000.
And so the takeaway for peoplewith this is pay really careful
attention to this document.
Know that if you're selling ahouse, you're generally not
required to fill one out, but ifyou start filling one out and
making representations aboutthings like you know, are you
(06:54):
aware of any problems with theelectrical system?
Are you aware of any problemswith the plumbing system?
You know, are you aware thatanyone grew marijuana in the
house without a permit, forexample?
And it turns out that thosethings are wrong.
You did know about some problemwith the system or the plumbing
, or the electrical or thewhatever it might be.
You might find yourself eitherthe deal not concluding and the
(07:17):
person being able to get out ofit, or you might find yourself
sued.
Right If you say, well, hold on, you know the plug didn't work
or the faucet leaked, or the youknow something or other on
there turns out to be inaccurate.
So if you do choose to fill oneof these things out, when
selling a property, you need tobe very careful that it's
accurate.
If it's not filled outaccurately, you are effectively
(07:40):
warrantying the house in everyway.
You're putting down there ohyes, everything's fine, I'm not
aware of any problem.
That turns out to be wrong.
You may wind up on the hook forit.
And if you decide you don'twant to fill one of these things
out, you might either not fillit out at all, just no thanks.
Or you might choose somelanguage along the lines of what
that person chose back in 2005,.
(08:00):
As is, other things that are notresponsive to what's there,
given this Court of Appealdecision may not be enough to
mean that that doesn't form partof the contract.
To mean that that doesn't formpart of the contract, and so
this is the sort of thing whichI rather expect is going to be
affecting a lot of people.
Right, there are thousands ofpeople buying and selling homes,
(08:21):
and this is a decision which ismaterially going to affect how
those contracts are interpreted.
So pay very careful attentionto the form.
If you're filling one out andyou're selling a property, also
bear in mind you might havereceived one of these things,
and so if somebody told youthere was a problem with the
plumbing five years ago, orsomebody 10 years ago told you
they didn't get a permit for theback garden room enclosure,
(08:44):
well you better make sure that'swritten on the same form, or
the form that you're passingalong to the potential buyer, or
you better make sure you don'teither fill one out at all or
write on it very clearly thatit's as is and none of that is
to be relied upon.
So that's the very latest fromthe Court of Appeal on
disclosure statements in realestate transactions.
Adam Stirling (09:02):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues hereon CFAX 1070.
Joined, as always, by MichaelMulligan, barrister and
solicitor, with mulligan defenselawyers.
Michael up.
Next, our second story on theday.
Michael Mulligan (09:16):
I'm reading 150 000 awarded, says here, for
discrimination against a firstnations woman by a first nations
child protection agency upheldby the bc court of appeal yeah,
I must say this is a story thatI think highlights just how far
off the rails some of the issueof care for Indigenous children
(09:39):
is in the province, or just howtroubled many Court of Appeal
here in terms of the grosslydisproportionate number of
Indigenous children that are ingovernment care.
And just to give listeners someidea of what that amounts to,
(10:05):
as of the end of January 31st2024, of the 4,835 children that
were in care, that's to saythey've been apprehended by
social workers that are in careof the government in some form
or other, and 68% of them, morethan 3,000, are Indigenous, and
(10:25):
that's to say there's about 6%of the population that's
Indigenous and 68% of thechildren who are in care are
Indigenous.
So that's just not good by anymeasure.
And so the particular case herethat the Court of Appeal just
dealt with was a case out ofVancouver and, interestingly,
(10:46):
the agency dealing with the, inthis case the apprehension of
this woman's four children, isitself an Indigenous agency.
In Vancouver, theresponsibility for child safety
has been turned over to theVancouver Aboriginal Child and
(11:07):
Family Services Society andthey've got delegated authority
under the provincial legislationto deal with safety and care of
children, and the case involveda Indigenous woman who had four
children.
She had a fifth one whotragically died as an infant,
and this woman had all sorts ofproblems described by the Court
(11:30):
of Appeal, including things likebeing an intergenerational
survivor of residential schoolsthat's code, for she didn't go
to residential school, butlikely her parent or
grandparents did.
She as a child, was in careherself and as an adult she
dealt with low income, housing,insecurity, mental health issues
and substance use disorder anddescribed as having.
(11:54):
The three of the four childrenare described as having quote
complex needs, so you justimagine what that all looks like
.
She's a single mother too, soyou can just imagine what that
looks like.
And in this case the childrenwere apprehended by the
Vancouver Aboriginal Child andFamily Services Society as a
result of things including areport from her eldest child
(12:15):
that she had been physicallyabused by her mother or
physically assaulted by hermother.
Two of the middle childrenclaimed they were scared and
hungry at home, had been lockedin their rooms with bungee cords
and had been pinched andslapped, and there were marks
that the doctor indicated lookedlike they could be cigarette
burns.
So you can imagine apprehension.
(12:36):
Probably not a large surprisegiven that fact pattern.
There were investigations andvarious multiple other
complaints some 33 complaints,although only three of them were
investigated in a thorough wayand found to be substantiated.
Some of the original complaints.
Issues arose about them.
One of the quoted cigaretteburns turned out to be a
(12:56):
birthmark.
Other cigarette burns werereportedly caused by the child
running past the mother with alit cigarette, reportedly caused
by the child running past themother with a lit cigarette and
then later the eldest childretracted the allegations of
physical assault.
So tragic and very sad.
(13:20):
The details some of thosedetails, you just never know
what the truth of them were.
While in care, the mothercontinued to have concerns about
the children, which were alsoturned out to be well-founded,
and I must say they are ratheran indictment of what it looks
like when a child winds up incare, remembering, of course,
that this mother wound up incare herself when she was a
child.
Things including one of themiddle child, while in care in
(13:43):
foster care, attempted suicidetwice.
One of the, the eldest child,ran away from foster care for as
absent for several days andthen engaged in what's described
as serious self-harm.
One of the child childrendescribed being held down by
arms and legs and there wasbruising consistent with that,
although that was investigatedand turned out not to be abuse.
(14:04):
So horrific right On everylevel, right In terms of the, no
doubt, what the challenges werefor this person trying to raise
children, all of the variousthings that she was dealing with
and the circumstances thesechildren found themselves in.
In any case, they wound up outof her care for some three years
(14:26):
approximately and eventuallythey were placed back with her
and it resulted in her thenbringing a human rights
complaint against the VancouverAboriginal Child and Family
Services Society, alleging thatthey discriminated against her
because that she was Indigenous,alleging that they
discriminated against herbecause she was Indigenous.
(14:46):
And so it's a human rightscomplaint that the Indigenous
Child and Family ServicesSociety discriminated against
the woman because she wasIndigenous, arguing that they
had made racially informedassumptions about the impact of
things like mental health orsubstance use and so on.
(15:06):
And she won.
The Human Rights Tribunal foundthat the Aboriginal Child Family
Services Society haddiscriminated against her on the
basis that she was Indigenousand they awarded her $150,000
for injury to her dignity,feelings and self-respect by the
(15:30):
government to the BC SupremeCourt.
The Supreme Court trial judge,who heard it, allowed the appeal
, found that the tribunal memberhad unfairly expanded the scope
of the complaint and overturnedthe award.
That was just appeal to theCourt of Appeal and that
decision just came out.
Also interestingly, thedecision is written by the Chief
(15:50):
Justice of the BC Court ofAppeal, who is himself
Indigenous.
The Chief Justice of the BCCourt of Appeal, who is himself
Indigenous.
And so you have an Indigenouswoman making a human rights
complaint about the IndigenousChild Family Services Society,
which is ultimately decided bythe Chief Justice of the Court
of Appeal for British Columbia,who is himself Indigenous.
The Chief Justice overturnedthe trial, the judge at trial
(16:12):
who determined that thatdecision was not proper and
restored the $150,000 award forinjury to dignity and self-worth
and so on.
And one of the things pointedto by the judge who overturned
the award was to say well, look,if that's how this is
interpreted, that's to say howthe human rights codes interpret
(16:34):
.
In relation to the Child FamilyCommunity Services Act, which is
intended, as its core principle, to protect children, One of
the concerns was that wouldhamstring social workers.
You know, if you have a reportfrom somebody saying, hey, you
know, I'm being abused by mymother, or there's cigarette
burns on the children, or theysay they're being trapped in the
room with bungee cords orsomething that they're going to
(16:57):
feel like they can't do anythingfor fear that there might be a
complaint made, the ChiefJustice concluded that wasn't a
legitimate concern, that thosetwo acts could be read
harmoniously, and pointed outthat the Child Family Community
Services Act the one that dealswith child protection, which
delegates authority to theIndigenous Family Services
(17:24):
Society in Vancouver, the socialworkers enjoy legal protection
as long as they don't makedecisions that are in bad faith,
and so what that meanseffectively is that you can't
sue the social worker right, andso the social worker isn't
protected, and so the Court ofAppeal has found that the social
workers will not be hamstrungby this award, and so the award
(17:48):
can be upheld, and instead thesetwo acts are to be read in a
harmonious fashion, and sothat's the decision of the Court
of Appeal the $150,000 award isrestored.
But I must say, the entire casestart to finish in virtually
every aspect.
When you read it is a ratherdisheartening history of just
(18:15):
how seriously troubled thecircumstances are for these
children, for the children'smother, for the agency trying to
protect the children, in termsof how they're doing that, and
when you still look at the statsabout how many, what percentage
of children that are in careare Indigenous, I must say the
entire thing just leaves you atleast leaves me just really
(18:38):
disheartened about what chancedo these 3,000-some-odd children
in care have, right, and whatdo we do about it.
And I'm not sure that we'vesolved the problem with the
Human Rights Tribunal complaintor the award that might help
this particular woman somewhat.
But you know, where are weright in 2025 when this is
(19:03):
what's going on?
This is the state that FirstNations kids are finding
themselves in in BritishColumbia.
You know these kids are ourfuture.
This is a pretty dishearteningstate of affairs.
So that's the latest from theBC Court of Appeal on liability
for discrimination by theAboriginal Child Care Society
against an Indigenous woman.
Adam Stirling (19:24):
We have about 90 seconds left and we have the
costs against 7-Eleven story.
Michael Mulligan (19:30):
Yeah, that one .
I think we can sum up in aboutthat time.
So this case we talked aboutwhen the original trial decision
came out and it was a woman whoshe tripped in a pothole going
in to get coffee from 7-Elevenon her way to work and
unfortunately the trip in thepothole caused just terrible
damage to her ankle.
(19:50):
It broke in three places.
She wound up on crutches,eventually in a wheelchair.
Long-term problems caused herto fall down again swollen foot,
lost her job just horrificcircumstances for her and she
was ultimately awarded north of$900,000 in compensation for her
lost income and pain andsuffering and future care and
(20:10):
all of this.
But the amendment to that, orthe add-on to that story, is a
decision that just came outdealing with costs, and the
reason that was an issue is thatthe woman in this case who was
suing, she had not much moneyand made various offers to
settle while the litigation wasgoing on over a period of years,
(20:31):
and she made a total of threeoffers to settle the case one
for $125,000, another for$345,000, and another for
$250,000 plus various costs andso on and then wound up and none
of which were accepted by 7-11.
And so the case went to trial,and she wound up with more than
$950,000.
What that led to is anapplication for double costs,
(20:52):
which he was successful on.
And the point there is that in acivil case where there's an
offer to settle something, if itwould be reasonable to have
accepted the offer to settle,and you don't accept it when it
would be reasonable to have doneso and more money is awarded,
there's a presumption thatyou're going to get double costs
from the time that the offerwas made.
And that's exactly what'shappened here double costs from
(21:14):
the time that the offer was made.
And that's exactly what'shappened here.
And the intention of that is tostrongly encourage people look,
if there's a reasonable offerto settle something, take it and
don't carry on and engage inlitigation if that isn't
necessary.
And the court here on thatfront found that.
Well, 7-eleven would have beenfully aware of all the facts,
including pothole maintenanceand everything else, and so it
(21:36):
would have been reasonable tohave accepted the much lower
offers prior to trial.
And so that's the finaljudgment on the case of the
terrible pothole in the 7-Elevenparking lot.
Adam Stirling (21:48):
Michael Mulligan, with Mulligan Defense Lawyers.
After the second half of oursecond hour every Thursday, it's
Legally Speaking on CFAX.
Michael, thank you so much.
Pleasure as always.
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