May 8, 2025 • 21 mins
The complex legal landscape of vicarious liability takes center stage in this illuminating discussion with Lawyer Michael Mulligan. At the heart of our conversation is a heartbreaking Victoria case where a retired teacher-turned-tutor sexually abused a grade six student, resulting in a $2.3 million judgment. We dissect the Court of Appeal's reasoning on why, despite creating the initial relationship, the school board wasn't held vicariously liable for the teacher's actions that occurred after retirement and away from school grounds.
The legal principle at stake here affects countless institutions across Canada. While the abuse would never have occurred without the school's arrangement, the court determined this causal connection alone wasn't enough to establish liability. Tragically, with the perpetrator deceased, the victim's substantial judgment may go largely uncollected, demonstrating how technical legal distinctions can profoundly impact survivors' ability to receive compensation.
We also examine two other rulings with everyday implications for Canadians. If you've ever missed your traffic court date due to illness, take note: the BC Supreme Court has confirmed doctor's notes aren't mandatory for appeals. Alternative evidence, like medication receipts or witness affidavits, can suffice – a welcome clarification that removes unnecessary barriers to justice.
Looking toward our digital future, we analyze a split Supreme Court of Canada decision determining that 5G antennas don't qualify as "transmission lines" under telecommunications regulations. This seemingly technical ruling means telecom giants must now negotiate with individual municipalities to install the hundreds of thousands of small antennas needed for nationwide 5G coverage, potentially affecting the rollout of next-generation wireless technology in your neighbourhood.
Have you encountered any of these legal issues? These cases highlight how judicial interpretations directly affect everything from institutional accountability to your traffic ticket disputes and even your cell phone reception.
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 it's Michael
Mulligan with Legally Speakingon CFAX Morning, Michael, or
afternoon, I should say.
How are we doing?
Michael Mulligan (00:10):
I'm doing great.
It's always good to be here.
Adam Stirling (00:12):
One of these days I'm going to say afternoon
instead of morning, and then Iwill finally have learned what's
on our agenda today.
Michael Mulligan (00:20):
So the first case on the agenda is a local
case from Victoria.
It's a decision that just cameout from the BC Court of Appeal
and it dealt with the issue ofwhat's called vicarious
liability in the context ofsexual abuse.
That's the context and so theidea here, and I should say that
(00:51):
the case involved a teacher whohad taught in Greater Victoria
School District 61, taught inVictoria for some 25 years,
retired in 1997.
And a number of years after theteacher retired there was a
civil claim brought by a formerstudent suing both the defendant
, who was a retired teacher whotook on the role of a tutor and
we'll come to that in a momentand also the school board, on
the basis that the school boardclaim was was vicariously liable
(01:15):
for what the retiredteacher-cum-tutor did to this
boy.
And so that was the issue thathad to be decided.
And it was meaningful becauseat the original trial the judge
accepted what the then-adultformer student testified
happened to him and awarded hima substantial amount of money in
(01:38):
damages a total of $2.3 millionin the form of lost future
income, aggravated damages, painand suffering, future care,
counseling, that kind of thing.
The claim was brought when theformer grade six student was 35
years of age, and so there waslots of evidence before the
judge about what impact this hadon him.
(02:00):
And the reason this vicariousliability issue is so
significant is that theteacher-cum-tutor-cum-abuser had
died before the trial finished,and so the former student wound
up with a judgment against theestate of the dead
(02:20):
teacher-abuser teacher abuserbut was unsuccessful at trial in
terms of persuading the trialjudge that the school board
should also be responsiblevicariously for what the teacher
slash tutor had done.
And so that's the issue thatwas appealed to the Court of
Appeal.
And so the Court of Appealreviewed and there's case laws
(02:44):
about this from the SupremeCourt of Canada in terms of what
needs to be established, andthe Court of Appeal looked at
the nature of the relationship,how this developed, and
essentially the plaintiffstudent when he was in grade six
, apparently he was very good atEnglish and he was trying to
write a novel and the schooldidn't have enough resources to
(03:04):
kind of help him and Green SixEnglish wasn't challenging
enough and they had no fundingto hire a tutor to help him.
But the teacher thought of thisrecently retired teacher and
they managed to arrange him tobe a tutor for the boy while the
English class was going on, andso the relationship started
with these 40-minute tutoringsessions in the school, and
(03:28):
those went on for a significantperiod of time.
And then the Court of Appeal asthe trial judge found this
retired teacher volunteer tutorstarted the process of grooming
this boy for what he eventuallydid at the school, but then
moved to having the boy comeover to his home, originally
(03:50):
doing things like helping withsome yard work and then watching
movies and so on, eventuallygrooming him to the point where
he engaged in this abusivesexual behavior with him.
And the trial judge and thecourt of appeal found that, if
you apply a but-for test likethe issue of could this or would
(04:10):
this have happened, would thisboy have wound up being abused
but for the fact that the schoolboard made this arrangement for
the retired teacher to come inand do this tutoring?
The answer to that question isno, right, I mean.
But for the fact he's broughtin there, he wouldn't have had a
chance to form thisrelationship and start grooming
the boy and invite him over tohis house and so on, and so it
(04:33):
wouldn't have happened.
And so the issue, though, isthat whether the nature of that
pattern and that relationshipwas a strong enough connection
to the arrangements made by theemployer in this case the school
board.
Right, he was a volunteer, butit was the same test whether
that was a strong enoughconnection or not right, because
(04:54):
you know, an employer isn't ofcourse responsible for anything
some employee might do at anytime to anyone.
That's not it right.
But on the other hand, ifthere's a really strong
connection between what theemployee is doing and the harm,
like this kind of abuse, theemployer is responsible.
And one of the several casesthat was actually out of the
(05:17):
Supreme Court of Canada involveda circumstance where there was
a care facility for troubledchildren where one of the
employees of that facility, whowas authorized to sort of fill
the role of a parent basicallylike tucking the child into bed
and bathing them and doing allthose kinds of things turned out
(05:39):
to be a pedophile and abusingchildren.
And that was found to be acircumstance where there was
vicarious liability.
It's not just the person whowas doing it, it's also the
institution that employed themand put the person in that
position.
Right, and there's good reasonfor that kind of liability
because it creates a very strongincentive for employers to vet
(06:02):
and monitor their employees.
Those sort of things don'thappen.
But this case was sort of on thebubble of that, because there's
no evidence, no suggestion thatthe abuse occurred at the
school.
It occurred at the home of thisteacher slash retired teacher
slash tutor.
And so the court of appeallooked at things like you know,
(06:24):
was that relationship put inplace by the school?
And the answer was no.
Like the school board didn'tknow, this was going on
afterwards and furthermore, thatrelationship continued like
after the role of tutoring hadfinished.
The boy finished up his novelwith the assistance of this
tutor shortly after he finishedgrade six, but the abuse wasn't
(06:47):
going on yet the grooming was,but the teacher tutor managed to
continue the relationship andeventually, by various means,
including, you know, tellinghe's going to kill himself.
You know, there's a slow, justcompletely disturbing pattern of
grooming continued until theabuse occurred.
Just completely disturbingpattern of grooming continued
(07:09):
until the abuse occurred.
And so on that basis it didn'tmeet, according to the trial and
now the Court of Appeal in thisdecision that just came out,
even though this never wouldhave happened but for the fact
that the school board and theteacher and so on arranged this
man to do this tutoring so itwouldn't have happened.
But for them that was enough,that was clear.
(07:38):
But it didn't represent astrong enough connection between
what the employer had arrangedyou know, the tutoring at the
school and at the school thingslike the door was open, other
people could see it and no abuseoccurred at the school.
So there wasn't something thatwas so tightly tied to what the
school board had orchestrated interms of the relationship.
Nor was there somethingapparent there, nothing the
(08:00):
teacher in the class saw thatwas inappropriate.
And so, on that basis, novicarious liability.
And so, on that basis, novicarious liability.
And so the net outcome of thatfor this boy, who clearly
suffered, has major impacts onhis life, but I think,
(08:22):
post-traumatic stress disorderand engaging in risky behavior
and all the kinds of things thatcan occur where somebody is
abused in that way.
He has this judgment for twopoint three million dollars, but
his only avenue to collect itwould be whatever was left in
the estate of the retiredteacher-tutor abuser.
And so while the amount ofcollection isn't specified in
the Court of Appeal decision,you can be sure that the amount
collected was nowhere near theamount ordered, or else there
(08:44):
would have been no appeal to theCourt of Appeal and so that's
the latest out of the BC Courtof Appeal in the case of the
victoria teacher tutor.
And when you can and when youcan't have vicarious liability
for this kind of terrible abuseall right, we're going to take a
quick break here.
Adam Stirling (08:59):
On cfax 1070 legally speaking with michael
mulligan continues right afterthis.
Legally speaking continues oncfax 1070 michael Mulligan from
Mulligan Defense Lawyers.
Michael up next it says you'rea doctor's note not required for
appeal of a traffic ticket.
Michael Mulligan (09:15):
That seems like a good rule, doesn't it?
So this is a BC Supreme Courtdecision and it deals with the
Offense Act and tickets and howthose work.
So it impacts a lot of peoplewith the Offence Act and tickets
and how those work.
So it impacts a lot of peopleand the particular provision of
the Offence Act here at issue isSection 16.
And essentially the way thatworks is that if you dispute a
(09:39):
traffic ticket and then youdon't show up at your trial, you
miss it for some reason, youare deemed to have pled guilty
right to the ticket and it'sfine.
We'll go into your licensepoints whatever is going to
happen.
And that's different from whathappens in a criminal case.
Right, in a criminal case, ifyou don't show up for your trial
, you're not deemed to have pledguilty.
They'll issue a warrant foryour arrest and make sure you're
(09:59):
brought in to have your trial.
But you know that's not reallyon for the speeding ticket or
whatever is being disputed.
Now the problem with that, orone of the common problems with
it, is that when somebodydisputes their ticket, they mail
you out your court date and youcan just imagine how successful
that is.
Right.
Sometimes the mail gets there.
Sometimes they're on strike,sometimes you've moved, you
don't pick it up, whatever right, and so a lot of these things
(10:22):
get missed, or there are otherreasons people wind up not being
there.
Just as an aside, it used to bethat if somebody missed their
traffic ticket dispute, the onlyavenue to appeal that was to it
by way of a appeal to the BCSupreme Court.
And what used to happen is likein Victoria every Wednesday at
(10:43):
two o'clock we have a thingcalled criminal chambers and
it's kind of like criminal caseswhere they're deciding
procedural things likescheduling dates or, you know,
doing bail reviews, other kindof procedural stuff for criminal
cases, right, so many of thethings in there are pretty
serious in Supreme Court.
But that's also where they haveto put everyone who would try
to dispute their traffic ticketand they missed it, didn't get
the mail or they missed the datefor some reason, and so they
(11:05):
all used to have to come inthere.
This was up to I don't know, 10or 15 years ago, and so you'd
have in that room like 30 peopleevery single week who would
like miss their traffic courtdate because they'd mailed it
out and the only thing theyfound out later they were deemed
to have been convicted, and weused to have a experienced judge
in town, judge Melvin, who'snow passed away.
Nice guy, he used to sit inthere and he would at the
(11:29):
beginning of criminal chambers.
He would look.
When he was sitting in there,he would look at everyone and
say, okay, who here is here todispute because of your traffic
ticket?
And 30 people would put theirhands up and say, okay, and
amongst the 30 of you who didn'tget your notice in the mail,
put your hands up.
They all put their hands up.
He would just say, appealsallowed.
He kind of laid his hand overit Go, kind of leave his hand
(11:53):
over it, go get new dates.
They would all go down and lineup at the court registry and
get new dates rather thanspending two hours hearing every
single person about how theydidn't get the letter and they
moved or whatever.
Anyways, they improved upon thatthe provincial government did
by creating a process.
So if you had on the first timeyou didn't get your date or you
missed it or whatever, youcould show up at the court
registry and swear an affidavit.
So it's punishable by perjuryif you're lying, setting out
(12:15):
what happened, why didn't youget your mail or why did you
miss the court date or whatnot,and then a justice in the court
registry, rather than theSupreme Court judge, can decide
whether to give you a new courtdate to go dispute your traffic
ticket.
And there's a list of thingsthey have to consider, like you
know.
Did they miss it by no fault oftheir own?
Did they have a genuineinterest to dispute it?
Is there any undue prejudice?
(12:36):
You know, for the police due tothe time?
You know additional time taken?
Is it in the interest ofjustice?
You know there's a scheme, asyou would expect, and this
particular case involved aperson who did get the notice
but then got sick and so hemissed his court date because he
was sick.
And so he went into the courtregistry when he recovered and
(12:56):
swore one of these affidavitsjust not very long, saying I was
sick.
I got sick two days before thehearing.
I thought it would get better.
I wrote a letter about it.
You know, can I have my trialdate again please?
And the justice of the courtregistry.
Their entire reasons were,quote no evidence was supplied
to confirm illness.
Close quote those are theentire judicial reasons.
(13:19):
And he was denied and so heappealed that to the BC Supreme
Court and so this is thedecision by the BC Supreme Court
having to sort out, you know,when he says no evidence was
supplied to confirm illness, wasthat reasonable?
Because the judicial review ofthat decision is on a
reasonableness standard.
Adam Stirling (13:39):
Sorry about that.
That's my fault.
Oh okay, so is that reasonableright?
Michael Mulligan (13:46):
Is that reason enough?
And so the suggestion by Iguess you got a lawyer to help
them with the appeal was thatwell, that really would mean
that a person would have to goand get a doctor's note every
time they had the flu orsomething right, bearing in mind
, of course, we've justimplemented provincially a
scheme so you don't have to geta doctor's note if you're
missing work.
So is that really appropriate?
Should every person with thesniffles or a sore throat or
(14:08):
whatever have to go in to get adoctor's note?
And the Supreme Court judgehere said well, no, it doesn't
necessarily those reasons,although they're very, very
short, it's one sentence.
It doesn't really say you'vegot to get a doctor's note and
you know the justice does haveto be satisfied that you missed
it through no fault of their own.
But he said well, you know youcould be other evidence could be
(14:29):
provided, maybe like a copy ofthe receipt for the cold
medication you bought, or maybeanother affidavit from your mom
or spouse or roommate orsomething.
So the judge didn't really saythat it had to be a doctor's
note, said he said the languageused there, that one sentence
(14:50):
reason for denying the personhis trial for his ticket was not
reasonable because it suggestedthat the justice who said no
had sort of interpreted thosethings that have to be
considered as sort of anadditional test that there would
have to be a quote,confirmation of illness.
And that's not on there, right,and I guess when you read it
(15:12):
there is some evidence of theillness.
It's the person's affidavitsaying I was sick.
So you know there is someevidence of that and those
reasons.
The one sentence just didn'tcut it and so the I guess, like
Judge Melvin waving his handover the courtroom, the judge
here hearing this judicialreview concluded that that one
(15:36):
sentence reasons for denying theperson their trial was not
reasonable.
And back to the drawing boardhe gets to have his day in court
for his traffic ticket.
And so I guess really thetakeaway there for you is that
if you do find yourself in acircumstance where you know you
don't get the notice in the mailbecause they just mailed it out
(15:56):
or you moved or you were sickand you're down there trying to
get your day in court, you mightbe well advised to well you.
Example here are the personsthat they were sick but they
didn't say with what and theydidn't explain why, being sick,
didn't let them come in, whichis also, I guess, interesting in
(16:16):
a post-COVID world.
You know, at one point ifsomebody said I was sick so I
didn't come to court, everyonewould have said yeah, okay,
no-transcript.
Adam Stirling (16:36):
All right, we have four minutes left.
And it says here the SEC findsthat quote.
Transmission line does notinclude small 5G antennas.
Michael Mulligan (16:47):
There's a lot going on.
Adam Stirling (16:48):
There isn't there , there is.
Michael Mulligan (16:51):
This is out of the Supreme Court of Canada.
It's a brand new decision andit's meaningful, even though it
sounds sort of obscure.
And what's going on here isthat the various telecom
providers TELUS and Rogers andso on right, are busy trying to
roll out 5G connectivity soeveryone's cell phones can work
faster and we can all stay onsocial media at all time of the
(17:13):
day, no matter where we are.
And unlike the previousgeneration of cellular networks,
which required something like13,000 large cell phone antennas
across the whole country toproduce coverage, the 5G setup
uses like uses like apparentlymany smaller antennas, and so
(17:34):
they're fast, faster.
But you need more of theselittle things all over the place
, and they would commonly beinstalled in places like
telephone poles, lampposts, busshelters or buildings.
And many of those places are onmunicipally owned property, and
so if you had to in every caseget permission from every
(17:55):
municipality to, you know, runwires or do various things, it
would be a very slow process ifyou're trying to build out well,
near anything, right, you know,you've seen that with pipelines
you imagine every singlemunicipality having to approve
every telephone line, and so onlines, you imagine every single
municipality having to approveevery telephone line and so on.
And so we have some specialrules that the crtc, the
(18:15):
telephone, the federal canadianradio, television
telecommunications commission,has the power to grant carriers,
cell phone carriers, uh, accessto public property for the
purpose of constructing,maintaining or operating their
quote transmission lines, closequote.
And so the legal issue is well,what is a transmission line?
(18:38):
Does a transmission lineliterally mean the wire?
Can the, you know, can TELUS orRogers, when they're running
the wire, can they stick anantenna on it?
And it matters, because if theycan, the CRTC can just give
them permission to override, Iguess, municipal wishes and go
stick that little antenna up sothat your cell phone works Well.
(18:59):
So that wound up all the way inthe Supreme Court of Canada.
And the Supreme Court of Canadadivided.
It was a split decision.
The majority found thatantennas are not within the
meaning of transmission line.
Two of them judges disagreed.
They said no, no, you know,transmission line, that's a
(19:20):
pretty broad term.
A line doesn't necessarily meana physical wire.
It could be like the line ofcommunication, kind of a broader
interpretation of it.
But the majority of courseprevails.
And so, as a result of thisdecision, those little antennas
that would need to go up to make5G work everywhere are not
(19:40):
covered by that termtransmission line, meaning the
CRTC can't just give permissionto go in and put them up.
And so where does that leave us?
Well, where it leaves us isthat either the communications
companies will need to go andnegotiate with each municipality
about may I put up littleantennas on the telephone poles,
or may I put that up on the busshelter or whatever it might be
(20:02):
I put that up on the busshelter, or whatever it might be
.
Or there is other federallegislation and the feds can
override these things, I thinkhappily or nobody's cell phone
would work.
But that process requires sortof ministerial approval under
the Radio Communication Act, andso really, the consequence of
(20:26):
this is going to be morenegotiating with local
municipalities in order to get.
Well, you could put your line upIf you wish to put the antenna
at the end of the line.
There'll need to benegotiations and get agreement
for all of these 250 or 300,000tiny cell phone antennas or,
failing that, they'll have to gooff and get permission,
ministerial permission underthat other Radio Communication
Act, in order to get that towork, or else, you know, all
(20:46):
hell will break loose and nobodywill be able to get onto, you
know social media for at thehighest of possible speeds while
they're waiting for the bus.
So that's the latest from theSupreme Court of Canada on what
a transmission line is, and younow know who you might blame if
you've got a dead zone on yourcell phone, or at least it falls
back to 4G, and you're waitingfor your picture of the cat or
whatever to show up on yourscreen.
(21:07):
That's the latest from SupremeCourt of Canada.
Adam Stirling (21:09):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Michael Mulligan (21:17):
Thanks so much .
Always great to be here.
Adam Stirling (21:18):
All right, we'll take a quick break Back after
this.
It's time for our regular segment with barrister
and solicitor, with MulliganDefence Lawyers it's Michael
Mulligan with Legally Speakingon CFAX Morning, Michael, or
afternoon, I should say.
How are we doing?
Michael Mulligan (00:10):
I'm doing great.
It's always good to be here.
Adam Stirling (00:12):
One of these days I'm going to say afternoon
instead of morning, and then Iwill finally have learned what's
on our agenda today.
Michael Mulligan (00:20):
So the first case on the agenda is a local
case from Victoria.
It's a decision that just cameout from the BC Court of Appeal
and it dealt with the issue ofwhat's called vicarious
liability in the context ofsexual abuse.
That's the context and so theidea here, and I should say that
(00:51):
the case involved a teacher whohad taught in Greater Victoria
School District 61, taught inVictoria for some 25 years,
retired in 1997.
And a number of years after theteacher retired there was a
civil claim brought by a formerstudent suing both the defendant
, who was a retired teacher whotook on the role of a tutor and
we'll come to that in a momentand also the school board, on
the basis that the school boardclaim was was vicariously liable
(01:15):
for what the retiredteacher-cum-tutor did to this
boy.
And so that was the issue thathad to be decided.
And it was meaningful becauseat the original trial the judge
accepted what the then-adultformer student testified
happened to him and awarded hima substantial amount of money in
(01:38):
damages a total of $2.3 millionin the form of lost future
income, aggravated damages, painand suffering, future care,
counseling, that kind of thing.
The claim was brought when theformer grade six student was 35
years of age, and so there waslots of evidence before the
judge about what impact this hadon him.
(02:00):
And the reason this vicariousliability issue is so
significant is that theteacher-cum-tutor-cum-abuser had
died before the trial finished,and so the former student wound
up with a judgment against theestate of the dead
(02:20):
teacher-abuser teacher abuserbut was unsuccessful at trial in
terms of persuading the trialjudge that the school board
should also be responsiblevicariously for what the teacher
slash tutor had done.
And so that's the issue thatwas appealed to the Court of
Appeal.
And so the Court of Appealreviewed and there's case laws
(02:44):
about this from the SupremeCourt of Canada in terms of what
needs to be established, andthe Court of Appeal looked at
the nature of the relationship,how this developed, and
essentially the plaintiffstudent when he was in grade six
, apparently he was very good atEnglish and he was trying to
write a novel and the schooldidn't have enough resources to
(03:04):
kind of help him and Green SixEnglish wasn't challenging
enough and they had no fundingto hire a tutor to help him.
But the teacher thought of thisrecently retired teacher and
they managed to arrange him tobe a tutor for the boy while the
English class was going on, andso the relationship started
with these 40-minute tutoringsessions in the school, and
(03:28):
those went on for a significantperiod of time.
And then the Court of Appeal asthe trial judge found this
retired teacher volunteer tutorstarted the process of grooming
this boy for what he eventuallydid at the school, but then
moved to having the boy comeover to his home, originally
(03:50):
doing things like helping withsome yard work and then watching
movies and so on, eventuallygrooming him to the point where
he engaged in this abusivesexual behavior with him.
And the trial judge and thecourt of appeal found that, if
you apply a but-for test likethe issue of could this or would
(04:10):
this have happened, would thisboy have wound up being abused
but for the fact that the schoolboard made this arrangement for
the retired teacher to come inand do this tutoring?
The answer to that question isno, right, I mean.
But for the fact he's broughtin there, he wouldn't have had a
chance to form thisrelationship and start grooming
the boy and invite him over tohis house and so on, and so it
(04:33):
wouldn't have happened.
And so the issue, though, isthat whether the nature of that
pattern and that relationshipwas a strong enough connection
to the arrangements made by theemployer in this case the school
board.
Right, he was a volunteer, butit was the same test whether
that was a strong enoughconnection or not right, because
(04:54):
you know, an employer isn't ofcourse responsible for anything
some employee might do at anytime to anyone.
That's not it right.
But on the other hand, ifthere's a really strong
connection between what theemployee is doing and the harm,
like this kind of abuse, theemployer is responsible.
And one of the several casesthat was actually out of the
(05:17):
Supreme Court of Canada involveda circumstance where there was
a care facility for troubledchildren where one of the
employees of that facility, whowas authorized to sort of fill
the role of a parent basicallylike tucking the child into bed
and bathing them and doing allthose kinds of things turned out
(05:39):
to be a pedophile and abusingchildren.
And that was found to be acircumstance where there was
vicarious liability.
It's not just the person whowas doing it, it's also the
institution that employed themand put the person in that
position.
Right, and there's good reasonfor that kind of liability
because it creates a very strongincentive for employers to vet
(06:02):
and monitor their employees.
Those sort of things don'thappen.
But this case was sort of on thebubble of that, because there's
no evidence, no suggestion thatthe abuse occurred at the
school.
It occurred at the home of thisteacher slash retired teacher
slash tutor.
And so the court of appeallooked at things like you know,
(06:24):
was that relationship put inplace by the school?
And the answer was no.
Like the school board didn'tknow, this was going on
afterwards and furthermore, thatrelationship continued like
after the role of tutoring hadfinished.
The boy finished up his novelwith the assistance of this
tutor shortly after he finishedgrade six, but the abuse wasn't
(06:47):
going on yet the grooming was,but the teacher tutor managed to
continue the relationship andeventually, by various means,
including, you know, tellinghe's going to kill himself.
You know, there's a slow, justcompletely disturbing pattern of
grooming continued until theabuse occurred.
Just completely disturbingpattern of grooming continued
(07:09):
until the abuse occurred.
And so on that basis it didn'tmeet, according to the trial and
now the Court of Appeal in thisdecision that just came out,
even though this never wouldhave happened but for the fact
that the school board and theteacher and so on arranged this
man to do this tutoring so itwouldn't have happened.
But for them that was enough,that was clear.
(07:38):
But it didn't represent astrong enough connection between
what the employer had arrangedyou know, the tutoring at the
school and at the school thingslike the door was open, other
people could see it and no abuseoccurred at the school.
So there wasn't something thatwas so tightly tied to what the
school board had orchestrated interms of the relationship.
Nor was there somethingapparent there, nothing the
(08:00):
teacher in the class saw thatwas inappropriate.
And so, on that basis, novicarious liability.
And so, on that basis, novicarious liability.
And so the net outcome of thatfor this boy, who clearly
suffered, has major impacts onhis life, but I think,
(08:22):
post-traumatic stress disorderand engaging in risky behavior
and all the kinds of things thatcan occur where somebody is
abused in that way.
He has this judgment for twopoint three million dollars, but
his only avenue to collect itwould be whatever was left in
the estate of the retiredteacher-tutor abuser.
And so while the amount ofcollection isn't specified in
the Court of Appeal decision,you can be sure that the amount
collected was nowhere near theamount ordered, or else there
(08:44):
would have been no appeal to theCourt of Appeal and so that's
the latest out of the BC Courtof Appeal in the case of the
victoria teacher tutor.
And when you can and when youcan't have vicarious liability
for this kind of terrible abuseall right, we're going to take a
quick break here.
Adam Stirling (08:59):
On cfax 1070 legally speaking with michael
mulligan continues right afterthis.
Legally speaking continues oncfax 1070 michael Mulligan from
Mulligan Defense Lawyers.
Michael up next it says you'rea doctor's note not required for
appeal of a traffic ticket.
Michael Mulligan (09:15):
That seems like a good rule, doesn't it?
So this is a BC Supreme Courtdecision and it deals with the
Offense Act and tickets and howthose work.
So it impacts a lot of peoplewith the Offence Act and tickets
and how those work.
So it impacts a lot of peopleand the particular provision of
the Offence Act here at issue isSection 16.
And essentially the way thatworks is that if you dispute a
(09:39):
traffic ticket and then youdon't show up at your trial, you
miss it for some reason, youare deemed to have pled guilty
right to the ticket and it'sfine.
We'll go into your licensepoints whatever is going to
happen.
And that's different from whathappens in a criminal case.
Right, in a criminal case, ifyou don't show up for your trial
, you're not deemed to have pledguilty.
They'll issue a warrant foryour arrest and make sure you're
(09:59):
brought in to have your trial.
But you know that's not reallyon for the speeding ticket or
whatever is being disputed.
Now the problem with that, orone of the common problems with
it, is that when somebodydisputes their ticket, they mail
you out your court date and youcan just imagine how successful
that is.
Right.
Sometimes the mail gets there.
Sometimes they're on strike,sometimes you've moved, you
don't pick it up, whatever right, and so a lot of these things
(10:22):
get missed, or there are otherreasons people wind up not being
there.
Just as an aside, it used to bethat if somebody missed their
traffic ticket dispute, the onlyavenue to appeal that was to it
by way of a appeal to the BCSupreme Court.
And what used to happen is likein Victoria every Wednesday at
(10:43):
two o'clock we have a thingcalled criminal chambers and
it's kind of like criminal caseswhere they're deciding
procedural things likescheduling dates or, you know,
doing bail reviews, other kindof procedural stuff for criminal
cases, right, so many of thethings in there are pretty
serious in Supreme Court.
But that's also where they haveto put everyone who would try
to dispute their traffic ticketand they missed it, didn't get
the mail or they missed the datefor some reason, and so they
(11:05):
all used to have to come inthere.
This was up to I don't know, 10or 15 years ago, and so you'd
have in that room like 30 peopleevery single week who would
like miss their traffic courtdate because they'd mailed it
out and the only thing theyfound out later they were deemed
to have been convicted, and weused to have a experienced judge
in town, judge Melvin, who'snow passed away.
Nice guy, he used to sit inthere and he would at the
(11:29):
beginning of criminal chambers.
He would look.
When he was sitting in there,he would look at everyone and
say, okay, who here is here todispute because of your traffic
ticket?
And 30 people would put theirhands up and say, okay, and
amongst the 30 of you who didn'tget your notice in the mail,
put your hands up.
They all put their hands up.
He would just say, appealsallowed.
He kind of laid his hand overit Go, kind of leave his hand
(11:53):
over it, go get new dates.
They would all go down and lineup at the court registry and
get new dates rather thanspending two hours hearing every
single person about how theydidn't get the letter and they
moved or whatever.
Anyways, they improved upon thatthe provincial government did
by creating a process.
So if you had on the first timeyou didn't get your date or you
missed it or whatever, youcould show up at the court
registry and swear an affidavit.
So it's punishable by perjuryif you're lying, setting out
(12:15):
what happened, why didn't youget your mail or why did you
miss the court date or whatnot,and then a justice in the court
registry, rather than theSupreme Court judge, can decide
whether to give you a new courtdate to go dispute your traffic
ticket.
And there's a list of thingsthey have to consider, like you
know.
Did they miss it by no fault oftheir own?
Did they have a genuineinterest to dispute it?
Is there any undue prejudice?
(12:36):
You know, for the police due tothe time?
You know additional time taken?
Is it in the interest ofjustice?
You know there's a scheme, asyou would expect, and this
particular case involved aperson who did get the notice
but then got sick and so hemissed his court date because he
was sick.
And so he went into the courtregistry when he recovered and
(12:56):
swore one of these affidavitsjust not very long, saying I was
sick.
I got sick two days before thehearing.
I thought it would get better.
I wrote a letter about it.
You know, can I have my trialdate again please?
And the justice of the courtregistry.
Their entire reasons were,quote no evidence was supplied
to confirm illness.
Close quote those are theentire judicial reasons.
(13:19):
And he was denied and so heappealed that to the BC Supreme
Court and so this is thedecision by the BC Supreme Court
having to sort out, you know,when he says no evidence was
supplied to confirm illness, wasthat reasonable?
Because the judicial review ofthat decision is on a
reasonableness standard.
Adam Stirling (13:39):
Sorry about that.
That's my fault.
Oh okay, so is that reasonableright?
Michael Mulligan (13:46):
Is that reason enough?
And so the suggestion by Iguess you got a lawyer to help
them with the appeal was thatwell, that really would mean
that a person would have to goand get a doctor's note every
time they had the flu orsomething right, bearing in mind
, of course, we've justimplemented provincially a
scheme so you don't have to geta doctor's note if you're
missing work.
So is that really appropriate?
Should every person with thesniffles or a sore throat or
(14:08):
whatever have to go in to get adoctor's note?
And the Supreme Court judgehere said well, no, it doesn't
necessarily those reasons,although they're very, very
short, it's one sentence.
It doesn't really say you'vegot to get a doctor's note and
you know the justice does haveto be satisfied that you missed
it through no fault of their own.
But he said well, you know youcould be other evidence could be
(14:29):
provided, maybe like a copy ofthe receipt for the cold
medication you bought, or maybeanother affidavit from your mom
or spouse or roommate orsomething.
So the judge didn't really saythat it had to be a doctor's
note, said he said the languageused there, that one sentence
(14:50):
reason for denying the personhis trial for his ticket was not
reasonable because it suggestedthat the justice who said no
had sort of interpreted thosethings that have to be
considered as sort of anadditional test that there would
have to be a quote,confirmation of illness.
And that's not on there, right,and I guess when you read it
(15:12):
there is some evidence of theillness.
It's the person's affidavitsaying I was sick.
So you know there is someevidence of that and those
reasons.
The one sentence just didn'tcut it and so the I guess, like
Judge Melvin waving his handover the courtroom, the judge
here hearing this judicialreview concluded that that one
(15:36):
sentence reasons for denying theperson their trial was not
reasonable.
And back to the drawing boardhe gets to have his day in court
for his traffic ticket.
And so I guess really thetakeaway there for you is that
if you do find yourself in acircumstance where you know you
don't get the notice in the mailbecause they just mailed it out
(15:56):
or you moved or you were sickand you're down there trying to
get your day in court, you mightbe well advised to well you.
Example here are the personsthat they were sick but they
didn't say with what and theydidn't explain why, being sick,
didn't let them come in, whichis also, I guess, interesting in
(16:16):
a post-COVID world.
You know, at one point ifsomebody said I was sick so I
didn't come to court, everyonewould have said yeah, okay,
no-transcript.
Adam Stirling (16:36):
All right, we have four minutes left.
And it says here the SEC findsthat quote.
Transmission line does notinclude small 5G antennas.
Michael Mulligan (16:47):
There's a lot going on.
Adam Stirling (16:48):
There isn't there , there is.
Michael Mulligan (16:51):
This is out of the Supreme Court of Canada.
It's a brand new decision andit's meaningful, even though it
sounds sort of obscure.
And what's going on here isthat the various telecom
providers TELUS and Rogers andso on right, are busy trying to
roll out 5G connectivity soeveryone's cell phones can work
faster and we can all stay onsocial media at all time of the
(17:13):
day, no matter where we are.
And unlike the previousgeneration of cellular networks,
which required something like13,000 large cell phone antennas
across the whole country toproduce coverage, the 5G setup
uses like uses like apparentlymany smaller antennas, and so
(17:34):
they're fast, faster.
But you need more of theselittle things all over the place
, and they would commonly beinstalled in places like
telephone poles, lampposts, busshelters or buildings.
And many of those places are onmunicipally owned property, and
so if you had to in every caseget permission from every
(17:55):
municipality to, you know, runwires or do various things, it
would be a very slow process ifyou're trying to build out well,
near anything, right, you know,you've seen that with pipelines
you imagine every singlemunicipality having to approve
every telephone line, and so onlines, you imagine every single
municipality having to approveevery telephone line and so on.
And so we have some specialrules that the crtc, the
(18:15):
telephone, the federal canadianradio, television
telecommunications commission,has the power to grant carriers,
cell phone carriers, uh, accessto public property for the
purpose of constructing,maintaining or operating their
quote transmission lines, closequote.
And so the legal issue is well,what is a transmission line?
(18:38):
Does a transmission lineliterally mean the wire?
Can the, you know, can TELUS orRogers, when they're running
the wire, can they stick anantenna on it?
And it matters, because if theycan, the CRTC can just give
them permission to override, Iguess, municipal wishes and go
stick that little antenna up sothat your cell phone works Well.
(18:59):
So that wound up all the way inthe Supreme Court of Canada.
And the Supreme Court of Canadadivided.
It was a split decision.
The majority found thatantennas are not within the
meaning of transmission line.
Two of them judges disagreed.
They said no, no, you know,transmission line, that's a
(19:20):
pretty broad term.
A line doesn't necessarily meana physical wire.
It could be like the line ofcommunication, kind of a broader
interpretation of it.
But the majority of courseprevails.
And so, as a result of thisdecision, those little antennas
that would need to go up to make5G work everywhere are not
(19:40):
covered by that termtransmission line, meaning the
CRTC can't just give permissionto go in and put them up.
And so where does that leave us?
Well, where it leaves us isthat either the communications
companies will need to go andnegotiate with each municipality
about may I put up littleantennas on the telephone poles,
or may I put that up on the busshelter or whatever it might be
(20:02):
I put that up on the busshelter, or whatever it might be
.
Or there is other federallegislation and the feds can
override these things, I thinkhappily or nobody's cell phone
would work.
But that process requires sortof ministerial approval under
the Radio Communication Act, andso really, the consequence of
(20:26):
this is going to be morenegotiating with local
municipalities in order to get.
Well, you could put your line upIf you wish to put the antenna
at the end of the line.
There'll need to benegotiations and get agreement
for all of these 250 or 300,000tiny cell phone antennas or,
failing that, they'll have to gooff and get permission,
ministerial permission underthat other Radio Communication
Act, in order to get that towork, or else, you know, all
(20:46):
hell will break loose and nobodywill be able to get onto, you
know social media for at thehighest of possible speeds while
they're waiting for the bus.
So that's the latest from theSupreme Court of Canada on what
a transmission line is, and younow know who you might blame if
you've got a dead zone on yourcell phone, or at least it falls
back to 4G, and you're waitingfor your picture of the cat or
whatever to show up on yourscreen.
(21:07):
That's the latest from SupremeCourt of Canada.
Adam Stirling (21:09):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Michael Mulligan (21:17):
Thanks so much .
Always great to be here.
Adam Stirling (21:18):
All right, we'll take a quick break Back after
this.
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