September 25, 2025 • 21 mins
Where do your constitutional protections begin and end? The dividing line between private actions and state authority forms the heart of a fascinating BC Court of Appeal decision that clarifies when ordinary citizens become "agents of the police."
The case centers on Loomis Courier employees who, at police direction, set aside suspicious packages for warrantless seizure during a drug investigation. Unlike previous cases involving independent security guards or school administrators, these employees were acting on specific police instructions. The Court established that the key test is whether individuals would have conducted themselves the same way "but for" police involvement—a crucial distinction that determines whether evidence can be excluded from criminal trials.
Privacy rights received further examination in a separate ruling that overturned a class action against the doctor rating website RateMDs.com. The Court determined that publicly available professional information—like a doctor's office address or phone number—doesn't carry a reasonable expectation of privacy protected under BC's Privacy Act. This distinction between truly private information and professional details available through other sources highlights the contextual nature of privacy protections in the digital age.
The Court also addressed the tension between professional standards and constitutional freedoms in a case involving a lawyer disciplined for sharing inappropriate "locker room talk" about a judge with a client. While not condoning the behavior, the ruling emphasized that regulatory bodies must balance conduct requirements against fundamental rights like freedom of expression—even when regulating professionals whose speech carries special responsibilities.
These rulings collectively illustrate how courts navigate the complex intersection of individual rights, professional obligations, and state authority. They remind us that understanding these boundaries is essential in a world where the line between private and public actions continues to blur. What private actions in your life might unexpectedly cross into constitutional territory?
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.
MichaelMulligan (00:23):
Well, first of all, here's why that matters,
right?
This issue of whethersomebody's an agent of the
police.
It matters because uh you haveconstitutional protections for
various things, includingprivacy, right?
Most people are aware of that,right?
The police can't just come inand rummage around in your home
and see what they find, right?
Without a warrant or somereason to do that.
But that is a protectionagainst actions of the state,
(00:46):
like the police, for example.
It doesn't protect you fromother people.
So let's say, for example, Idon't know, your nosy neighbor
on their own accord decides tosneak into your house and spot
some drugs in your on yourbedroom and calls the police.
Well, it may be that theneighbor did something wrong,
(01:09):
even illegal, but that doesn'tnecessarily mean that you're
going to get any remedy for thatin your eventual trial for
possessing the drugs.
Uh, because you're protectedagainst actions of the state,
not actions of other people.
Interesting.
And so the the rub really comeswhen it's sort of ambiguous
about who's doing what and why.
Okay?
So uh this particular case uhinvolved the issue of whether
(01:34):
these employees of the LoomisCourier Company were in fact
agents of the RCMP uh when theywere uh setting aside packages
uh in the course of a druginvestigation.
And the whole thing startedwhen some, I guess, uh
sharp-eyed uh Canada BorderService Agency employees over at
the Vancouver airport noticedsome packages uh which they
(01:58):
investigated.
They were being shipped to NewZealand, um, and they opened
them, as I should say, by theway, you're permitted to do,
right?
It's a different thing when theborder people are doing uh
examinations of things.
Um and they found inside awhole bunch of methamphetamine
and interestingly a fingerprintmatching the accused.
So that's what they found.
(02:18):
And the border people notifiedthe RCMP.
So the RCMP did investigations,as they're apt to do, um, and
they determined that these twopackages had been shipped via a
Loomis Express location inNanaimo.
Uh and the RCMP went and madesome inquiries uh and spoke to
employees of the uh Loomis uhfacility.
(02:40):
Now, what they were told to dowas uh a little ambiguous, or at
least there was a disagreementbetween what the police alleged
and what the employees testifiedthey were told to do.
Uh the employees testified thatthe police told them to sort of
you know act natural if theperson came back in.
It was another person, not theaccused, who dropped the things
off and was using the name of aturned out to be a fictitious
(03:03):
company.
Uh, but they were told, look,if you uh anymore this person
comes back in, uh, according tothe employees, they were told
to, you know, act natural, takethe package as usual, uh, try to
take some pictures of them ifyou can do that without them
noticing, uh, and set aside thepackages and let us know.
Right?
The police were sort of claimedthey didn't quite provide all
(03:24):
that instruction, but that'swhat the employees at the Loomis
place said, and the judgeaccepted what the employees said
in preference to what thepolice uh said.
In any case, this fellow whoshipped the first package, uh
not the accused, showed upagain, and the employees did
what they said they were told todo.
They took the package as usual,uh, they made some uh discreet
uh observations, including thisperson going and getting in a
(03:47):
vehicle that was registered tothe appellant.
Okay, so another connection tothis uh person who was charged,
uh, and then phoned the policeand set aside the package.
Uh and the police showed up uhthe next day, I think, and
seized the package without awarrant.
And so the issue was, and thenthere were a couple of other
packages, the same thinghappened, and they were
(04:08):
determined eventually to containall kinds of things, fentanyl,
cocaine, this and that, I guesstrying to ship these things over
to New Zeal New Zealand.
And so the issue became isthere a problem with the
employees without a warranttaking these packages, setting
them aside, and giving them tothe police, and the police
taking them without a warrant.
And at the trial, the judgefound that, oh no, there's
(04:30):
nothing wrong with that.
Uh that that's fine.
Uh you know, that these peoplethe the uh employees of the
Loomis weren't really agents,and that's the issue that went
to the Court of Appeal.
The Court of Appeal disagreed,and they looked at three
previous cases uh that are kindof the seminal cases on that
issue of is somebody an agentfor this sort of a purpose.
(04:50):
And the first of those cases isa Supreme Court of Canada case
from a few years ago, and thatcase involved a uh private
security guard at a bus stationwho smelled some uh what he
thought to be marijuana from alocker, and he decided on his
own to open up the locker uh andsee what was in there.
Uh and he found indeed apackage with marijuana in it, uh
(05:13):
back when that was illegal, Iguess, right?
Um, but put it back in thelocker and then uh phoned the
police uh and uh the uh policeuh eventually uh got
authorization and seized thecontents of the locker.
The issue was was that securityguard sort of an agent?
And the answer from the SupremeCourt of Canada was no.
(05:33):
He wasn't.
He did those things completelyon his own.
Uh and so the person didn'thave any basis to complain about
his constitutional rights beingviolated by the security guard.
And the same answer came inanother case that was a little
closer to the line, a caseinvolving a school principal.
I think it was junior highprincipal.
And the junior high principalum got a tip that uh one of the
(05:55):
kids in his school was sellingmarijuana, uh, and at the school
dance, the vice the viceprincipal called the kid into
the office, phoned the police,told the police to come on down
here.
The police uh just before thepolice showed up, the uh vice
principal said, I'm gonna searchyou for the drugs.
Police showed up, sat down,didn't say anything to the vice
principal or the kid.
(06:16):
Uh, and the vice principalsearched the kid, and lo and
behold, he had marijuana andwound up being charged with
that.
Uh and again, the finding wasthat wasn't an agent, that's
just a vice principal doingsomething.
Police didn't direct him or askhim to do that.
The other side of the equationcame in an example or came in a
case involving uh a man uh whothe uh police suspected of
(06:39):
committing a crime but wantedDNA evidence to try to tie him
to it.
And he happened to be incustody for something else, and
the police found out that theman needed to get dental work
done while he was in jail.
And so the police contacted thedental people, yes, the dentist
and the dental assistant, andsaid, Yeah, we want his DNA.
And so when you're treatinghim, pretend just do it as
normal, but we want you settingaside, I guess, you know, blood
(07:01):
or things from saliva, whateverfrom the dental procedure, so we
can come and get them.
And the dentist and theassistant did that.
And so that came and gotseized, and eventually the
conclusion was, yeah, that isexactly what a state agent is.
Those people weren't just doingthat on their own accord.
Uh and the proper test, as theCourt of Appeal pointed out, is
whether the people involvedwould have conducted themselves
(07:23):
in the way they did but for theinvolvement of the police.
And in that example of the umdentist, the dental assistant,
no, they weren't going to besetting aside carefully the you
know saliva samples or whateverfrom this man so the police
could seize them.
Like in those other cases, thepeople acted independently.
And so the Court of Appealfound that look, the uh uh what
(07:45):
the uh Loomis employees did wasexactly that.
The judge accepted what theemployees said the police told
them to do, in preference towhat the police alleged, that
they were told to act natural,set the things aside, take
pictures if you could, andreport it to the police.
And so on that basis, on thatproper test of whether uh the uh
people would have done whatthey did but for the invention
(08:06):
the intervention of the police,that could amount to them being
an agent of the police.
And so on that basis, a newtrial's been ordered, uh, and uh
a judge at the new trial willneed to confirm that, yeah,
that's the case, and then if so,what remedy there would be.
Uh and so that's the uh Loomiscase involving agents, and
that's why it very much matterswhether somebody's doing
(08:27):
something on their own orwhether they're doing it because
the police asked them to, orindeed, even if they didn't
expressly ask them to, wouldthey have done it but for the
police involvement?
Uh that's the latest from theuh Court of Appeal.
AdamStirling (08:39):
Michael Mulligan defense will continue right
after this.
Legally speaking, we continueour conversation with Michael
Mulligan, Mulligan of Fort.
Michael Act and certificate Dr.
Rate with overturned on appeal.
How did this happen?
MichaelMulligan (09:00):
Well, it's an interesting case.
It's a BC case, of course, uh,and it involves a uh attempt to
sue uh a website that's calledratemd.com ratemds.com.
And that site apparentlycontains um a place where people
can go and provide ratings fordoctors and other medical
(09:20):
professionals, uh, and the sitewould have uh reviews and then
rankings against other medicalprofessionals in the same
location.
I guess amusingly all of thatassumes, of course, you have a
choice of a variety of medicalprofessionals in the location
you're going to be in, asopposed to, I guess, the DC
reality, which is you're goingto be absolutely thrilled to get
anyone you can possibly get tohelp you, no matter what their
(09:43):
rating is on ratemds.com.
But leaving that aside, the clathe claim was brought uh
alleging violations of thePrivacy Act.
Uh and as class actions do,there's a representative
plaintiff, right?
And then they would set outpleadings as to why they say
they have a cause of action.
And you would need to get thething certified as a class
(10:05):
action if you want it to operateon behalf of like a group of
people rather than just thatperson.
Um and so that's what uhoccurred in this case, and the
claim is brought by a doctoralleging that uh her privacy
interests were breached byhaving these reviews up on the
website.
Uh, and she relied upon twodifferent claims under the
(10:26):
Privacy Act in British Columbia.
Uh one is that you have athere's a uh tort uh without
proof of damage is interesting,so it creates this statutory
tort or cause of action on thebasis that uh your privacy has
been breached.
But what what does that mean?
And of course we have to lookat uh some of the case laws
(10:47):
surrounding it.
Um and it's not uh an uhunlimited thing.
And previous case laws said,look, that section of the
Privacy Act, you have to look atuh the nature and degree of
privacy that is reasonable inthe circumstances.
Uh and so there has to be someassessment of you know what kind
of information is this, right?
Uh and the Court of Appealpointed out this wasn't a claim
(11:12):
being brought on the basis ofsome specific review, like some
review saying, hey, you postedmy home address or a picture of
me through my bedroom windowwith a telephoto lens or
something as part of yourcomment on my medical skills.
Uh instead, it was a claimbased on look, this generally
anything on there, thisinformation about me, I have a
privacy interest in it.
And the information amounted tothings like the telephone
(11:35):
number for the doctor, uh a linkto their website, uh, or the uh
you know address for theiroffice, for example.
Um and for that kind ofinformation, as the Court of
Appeal pointed out, it's allreadily available.
If you want to get informationabout a profession
professional's you know officeaddress or contact information,
you can easily use the internetand go to, for example, the you
(11:59):
know, professional regulatorybody to determine you know what
is the contact information forthat person, even if they don't
have a website or phone number,which would be hard to imagine.
But uh so the Court of Appealfound that look, the this that
kind of information in a broadsense, it's not analysis on
particular thing.
Yeah, there could be somereview that has something that's
out of bounds, but the one-offparticular thing isn't something
(12:21):
you could have a class actionabout.
You know what I mean?
Like if some particular doctorsaid, hey, some deranged patient
took your picture of me throughmy bedroom window with a
telephoto lens and posted it onsome site, yeah, that doctor
might have a claim under thePrivacy Act, probably would.
Uh, but that doesn't mean thatevery doctor for this kind of
information has a claim of thatkind.
And so the Court of Appealfound, and this is the test,
(12:44):
that it it's plain and obviousuh that the plaintiff's claim
could not succeed.
And if it meets that plain andobvious test, and what they look
at is they look at like thepleadings.
Like when you're suingsomebody, you have to set out
why are you suing them, what areyou claiming happened, and
what's your legal basis forsaying you get anything for
that.
Uh and when you're analyzing itin that way, you you just
(13:05):
assume all the things the personis saying is true, like in
their claim.
Like, hey, you say that myphone number's on there, and you
say that my address is onthere, and you say there's a
review of me on there.
But even assuming all that'strue, there just isn't a privacy
interest in that kind ofinformation, the information
that was there.
And then that brought the Courtof Appeal to the next part of
it, which is that there's asecond section of this privacy
(13:28):
act that can also make it, makesit a statutory tort to use the
names of people for commercialpurposes.
Uh, and so there had to beanalysis of well, what is
exactly that mean?
Um and so the Court of Appealdid their analysis
interestingly, looking at thingsincluding you know, charter
(13:49):
jurisprudence and also lookingat uh a common law tort, like a
tort that exists in placeswithout even the Privacy Act.
Uh and there is a common lawtort referred to as the
misappropriation of personality.
And so that would be, forexample, using a person's name,
likeness, or voice for thepurpose of advertising or
promoting goods or services, orotherwise for the user's own
(14:12):
gain without consent.
So, you know, let's saysomebody takes AI and creates a
copy of your voice, and it's,you know, hi, I'm Adam Sterling,
and this is my absolutefavorite uh hemorrhoid
medication or something, youshould definitely load up on it.
It's a great deal.
That would be prohibited, uh,that would be a statutory tort
in addition to uh potentiallybeing uh actionable under the
(14:33):
Privacy Act.
Uh and so the Court of Appealused that analysis, that anal
that what that common law tortis to inform what is meant by
the language in the Privacy Act.
Uh and they correctly pointedout, you know, the uh rating
site on the website wasn'ttrying to sell a product.
(14:55):
Uh they weren't uh sort ofusing the person's like list
saying, you know, Dr.
So-and-so says this is a greatproduct, uh you should buy it.
Um and you know, they didacknowledge that look, you know,
there may be some financialmotivation for having the
website, but just like it wassort of closer to, I think, for
example, like the phone book,when people use the phone book,
(15:16):
it'd be sort of, yeah, I'velisted your name and address of
the in the doctor section of thephone book.
Uh, and so, yes, I I guessthere is some financial
incentive to have the phonebook, but that's a different
thing from purporting to useyour likelist to endorse
something or to sell a product.
Um, and so just like that, onthat first basis, uh, the uh
(15:38):
Court of Appeal concluded, no,that's just not what's meant by
utilizing somebody's name uh ornames of class members for a
commercial purpose.
Um and so uh the uh once again,like on that first uh base of
the claim, the Court of Appealfound that it was plain and
obvious that this could notsucceed.
Uh and so on that basis uh theyoverturned the uh trial or the
(16:01):
original judge's decision tocertify the class action.
Uh and so there will be no uhuh claim going forward to try to
shut down the doctor's uhrating site, assuming people are
using that, rather thandesperately find meadoctor.com
or something of that, whichperhaps would be uh more popular
these days.
And so that's the latest fromthe Court of Appeal on the
doctor rating site and uhprivacy.
AdamStirling (16:28):
I want to make sure I read this correctly,
telling a client about rumors ofa guided technical activity in
university with over targetedtest on appeal for failing to
consider right to freeexpression.
That's a lot there.
There is a whole lot bound upin that.
MichaelMulligan (16:46):
Uh and so uh uh here's the starting point of
it.
The uh law society, like mostprofessional uh organizations,
have rules surrounding theconduct of members of the
profession.
Uh and so there are a varietyof things in the uh um rules
that apply to lawyers.
Uh and they would includethings like uh not using
(17:08):
abusive, offensive, or otherwiseuh you know language that would
be to communicate with othersthat would be unprofessional,
for example, right?
And there would be anobligation to uh you know treat
uh courts uh and uh members ofthe judiciary with candor and
fairness, things like that.
Uh and so uh the the rub cancome, I guess, a little bit when
(17:29):
you have communication that'snot directly in that forum, but
pretty close to it.
Uh and here you've got you hada circumstance where a lawyer uh
was apparently uh sharing witha client uh rumors uh about
sexual activity of a judicialofficial uh uh while in
university.
And it may it sounds like itmay well have been just uh kind
(17:50):
of gossip, it may even have beencompletely untrue.
The client of the lawyer feltuncomfortable that this kind of
talk was going on.
The lawyer was engaging in whatwas described described by the
lawyer's locker room talk.
Uh and uh so the clientcomplained to the law society
about uh what they felt wasinappropriate communication by
(18:11):
their lawyer about the sexualactivity alleged of the judge, I
guess, who was involved in thecase.
AdamStirling (18:17):
Interesting.
MichaelMulligan (18:17):
Uh and the court and the law society uh
conducted a uh uh review ofthat, and they had a hearing
panel where they sort outwhether somebody is engaged in
professional misconduct.
And the hearing panel, uh itand in fact the the lawyer
acknowledged he said thosethings, the lawyer acknowledged
this was locker room talk,included it was ill-advised, uh,
(18:39):
and the uh uh panel of the lawsociety determined that it
amounted to professionalmisconduct uh and fined the
lawyer $7,500 uh for doing that.
Uh well the uh flash forward uhto uh just a few days ago when
the case wound up in the Courtof Appeal, and there's the
(19:01):
avenue of appeal from a lawsociety disciplinary decision is
to the Court of Appeal in BC.
Uh and the uh uh basis for theappeal, and I should say the law
society, upon having thispointed out to them by counsel
for the uh uh lawyer who hadbeen fined, uh, agreed that what
the panel had done was wrong inthat the panel had failed to
(19:26):
consider uh the freedom ofexpression constitutional rights
of the lawyer.
And that is not to say thatthat kind of communication would
necessarily be permissible.
It may not be, right?
It may be in violation of theuh strictures of about
unprofessional communication bythe the lawyer, but in order to
(19:47):
make that determination, it'snecessary to uh w weigh up that
professional obligation in theuh context of the fact that
lawyers like everyone else havea right to free expression.
Uh and so when determiningwhether that sort of commentary,
locker room commentary aboutsexual rumors about the judge uh
(20:08):
was a marked they have todetermine whether that was a
marked departure from theconduct expected of a lawyer,
and in so doing, they need tobear in mind that the lawyer
does, like everyone else, have aconstitutional right to freedom
of expression.
Uh and so the panel just didn'tdo that.
Um, they just didn't follow aprevious decision that uh spoke
about that very issue uh in thecontext of a lawyer who wrote a
(20:32):
uh uh inappropriate vitriolicletter to a judge, I guess,
following some case.
Uh and so back it goes.
Uh, and there will need to be anew decision by a new uh
tribunal at the law society, andthey will need to consider
freedom of expression whether indetermining whether this kind
of communication amounted toprofessional misconduct.
(20:52):
So that's the latest out of theCourt of Appeal, uh, and why
lawyers really ought not to beuh uh spreading rumors of that
uh sort for I suppose a varietyof reasons, quite apart from
whatever they might beconstitutionally permitted to
do.
So that's the latest from theCourt of Appeal and the uh Law
Society in BC.
AdamStirling (21:08):
Michael Mulligan with Mulligan Defense Lawyers
Legally Speaking during thesecond half of our second hour
every Thursday.
Thank you so much, Michael.
Pleasure is always thanks somuch.
Always great to be here.
All right, we'll take a quickbreak back after this.
Well, first of all, here's why that matters,
right?
This issue of whethersomebody's an agent of the
police.
It matters because uh you haveconstitutional protections for
various things, includingprivacy, right?
Most people are aware of that,right?
The police can't just come inand rummage around in your home
and see what they find, right?
Without a warrant or somereason to do that.
But that is a protectionagainst actions of the state,
(00:46):
like the police, for example.
It doesn't protect you fromother people.
So let's say, for example, Idon't know, your nosy neighbor
on their own accord decides tosneak into your house and spot
some drugs in your on yourbedroom and calls the police.
Well, it may be that theneighbor did something wrong,
(01:09):
even illegal, but that doesn'tnecessarily mean that you're
going to get any remedy for thatin your eventual trial for
possessing the drugs.
Uh, because you're protectedagainst actions of the state,
not actions of other people.
Interesting.
And so the the rub really comeswhen it's sort of ambiguous
about who's doing what and why.
Okay?
So uh this particular case uhinvolved the issue of whether
(01:34):
these employees of the LoomisCourier Company were in fact
agents of the RCMP uh when theywere uh setting aside packages
uh in the course of a druginvestigation.
And the whole thing startedwhen some, I guess, uh
sharp-eyed uh Canada BorderService Agency employees over at
the Vancouver airport noticedsome packages uh which they
(01:58):
investigated.
They were being shipped to NewZealand, um, and they opened
them, as I should say, by theway, you're permitted to do,
right?
It's a different thing when theborder people are doing uh
examinations of things.
Um and they found inside awhole bunch of methamphetamine
and interestingly a fingerprintmatching the accused.
So that's what they found.
(02:18):
And the border people notifiedthe RCMP.
So the RCMP did investigations,as they're apt to do, um, and
they determined that these twopackages had been shipped via a
Loomis Express location inNanaimo.
Uh and the RCMP went and madesome inquiries uh and spoke to
employees of the uh Loomis uhfacility.
(02:40):
Now, what they were told to dowas uh a little ambiguous, or at
least there was a disagreementbetween what the police alleged
and what the employees testifiedthey were told to do.
Uh the employees testified thatthe police told them to sort of
you know act natural if theperson came back in.
It was another person, not theaccused, who dropped the things
off and was using the name of aturned out to be a fictitious
(03:03):
company.
Uh, but they were told, look,if you uh anymore this person
comes back in, uh, according tothe employees, they were told
to, you know, act natural, takethe package as usual, uh, try to
take some pictures of them ifyou can do that without them
noticing, uh, and set aside thepackages and let us know.
Right?
The police were sort of claimedthey didn't quite provide all
(03:24):
that instruction, but that'swhat the employees at the Loomis
place said, and the judgeaccepted what the employees said
in preference to what thepolice uh said.
In any case, this fellow whoshipped the first package, uh
not the accused, showed upagain, and the employees did
what they said they were told todo.
They took the package as usual,uh, they made some uh discreet
uh observations, including thisperson going and getting in a
(03:47):
vehicle that was registered tothe appellant.
Okay, so another connection tothis uh person who was charged,
uh, and then phoned the policeand set aside the package.
Uh and the police showed up uhthe next day, I think, and
seized the package without awarrant.
And so the issue was, and thenthere were a couple of other
packages, the same thinghappened, and they were
(04:08):
determined eventually to containall kinds of things, fentanyl,
cocaine, this and that, I guesstrying to ship these things over
to New Zeal New Zealand.
And so the issue became isthere a problem with the
employees without a warranttaking these packages, setting
them aside, and giving them tothe police, and the police
taking them without a warrant.
And at the trial, the judgefound that, oh no, there's
(04:30):
nothing wrong with that.
Uh that that's fine.
Uh you know, that these peoplethe the uh employees of the
Loomis weren't really agents,and that's the issue that went
to the Court of Appeal.
The Court of Appeal disagreed,and they looked at three
previous cases uh that are kindof the seminal cases on that
issue of is somebody an agentfor this sort of a purpose.
(04:50):
And the first of those cases isa Supreme Court of Canada case
from a few years ago, and thatcase involved a uh private
security guard at a bus stationwho smelled some uh what he
thought to be marijuana from alocker, and he decided on his
own to open up the locker uh andsee what was in there.
Uh and he found indeed apackage with marijuana in it, uh
(05:13):
back when that was illegal, Iguess, right?
Um, but put it back in thelocker and then uh phoned the
police uh and uh the uh policeuh eventually uh got
authorization and seized thecontents of the locker.
The issue was was that securityguard sort of an agent?
And the answer from the SupremeCourt of Canada was no.
(05:33):
He wasn't.
He did those things completelyon his own.
Uh and so the person didn'thave any basis to complain about
his constitutional rights beingviolated by the security guard.
And the same answer came inanother case that was a little
closer to the line, a caseinvolving a school principal.
I think it was junior highprincipal.
And the junior high principalum got a tip that uh one of the
(05:55):
kids in his school was sellingmarijuana, uh, and at the school
dance, the vice the viceprincipal called the kid into
the office, phoned the police,told the police to come on down
here.
The police uh just before thepolice showed up, the uh vice
principal said, I'm gonna searchyou for the drugs.
Police showed up, sat down,didn't say anything to the vice
principal or the kid.
(06:16):
Uh, and the vice principalsearched the kid, and lo and
behold, he had marijuana andwound up being charged with
that.
Uh and again, the finding wasthat wasn't an agent, that's
just a vice principal doingsomething.
Police didn't direct him or askhim to do that.
The other side of the equationcame in an example or came in a
case involving uh a man uh whothe uh police suspected of
(06:39):
committing a crime but wantedDNA evidence to try to tie him
to it.
And he happened to be incustody for something else, and
the police found out that theman needed to get dental work
done while he was in jail.
And so the police contacted thedental people, yes, the dentist
and the dental assistant, andsaid, Yeah, we want his DNA.
And so when you're treatinghim, pretend just do it as
normal, but we want you settingaside, I guess, you know, blood
(07:01):
or things from saliva, whateverfrom the dental procedure, so we
can come and get them.
And the dentist and theassistant did that.
And so that came and gotseized, and eventually the
conclusion was, yeah, that isexactly what a state agent is.
Those people weren't just doingthat on their own accord.
Uh and the proper test, as theCourt of Appeal pointed out, is
whether the people involvedwould have conducted themselves
(07:23):
in the way they did but for theinvolvement of the police.
And in that example of the umdentist, the dental assistant,
no, they weren't going to besetting aside carefully the you
know saliva samples or whateverfrom this man so the police
could seize them.
Like in those other cases, thepeople acted independently.
And so the Court of Appealfound that look, the uh uh what
(07:45):
the uh Loomis employees did wasexactly that.
The judge accepted what theemployees said the police told
them to do, in preference towhat the police alleged, that
they were told to act natural,set the things aside, take
pictures if you could, andreport it to the police.
And so on that basis, on thatproper test of whether uh the uh
people would have done whatthey did but for the invention
(08:06):
the intervention of the police,that could amount to them being
an agent of the police.
And so on that basis, a newtrial's been ordered, uh, and uh
a judge at the new trial willneed to confirm that, yeah,
that's the case, and then if so,what remedy there would be.
Uh and so that's the uh Loomiscase involving agents, and
that's why it very much matterswhether somebody's doing
(08:27):
something on their own orwhether they're doing it because
the police asked them to, orindeed, even if they didn't
expressly ask them to, wouldthey have done it but for the
police involvement?
Uh that's the latest from theuh Court of Appeal.
AdamStirling (08:39):
Michael Mulligan defense will continue right
after this.
Legally speaking, we continueour conversation with Michael
Mulligan, Mulligan of Fort.
Michael Act and certificate Dr.
Rate with overturned on appeal.
How did this happen?
MichaelMulligan (09:00):
Well, it's an interesting case.
It's a BC case, of course, uh,and it involves a uh attempt to
sue uh a website that's calledratemd.com ratemds.com.
And that site apparentlycontains um a place where people
can go and provide ratings fordoctors and other medical
(09:20):
professionals, uh, and the sitewould have uh reviews and then
rankings against other medicalprofessionals in the same
location.
I guess amusingly all of thatassumes, of course, you have a
choice of a variety of medicalprofessionals in the location
you're going to be in, asopposed to, I guess, the DC
reality, which is you're goingto be absolutely thrilled to get
anyone you can possibly get tohelp you, no matter what their
(09:43):
rating is on ratemds.com.
But leaving that aside, the clathe claim was brought uh
alleging violations of thePrivacy Act.
Uh and as class actions do,there's a representative
plaintiff, right?
And then they would set outpleadings as to why they say
they have a cause of action.
And you would need to get thething certified as a class
(10:05):
action if you want it to operateon behalf of like a group of
people rather than just thatperson.
Um and so that's what uhoccurred in this case, and the
claim is brought by a doctoralleging that uh her privacy
interests were breached byhaving these reviews up on the
website.
Uh, and she relied upon twodifferent claims under the
(10:26):
Privacy Act in British Columbia.
Uh one is that you have athere's a uh tort uh without
proof of damage is interesting,so it creates this statutory
tort or cause of action on thebasis that uh your privacy has
been breached.
But what what does that mean?
And of course we have to lookat uh some of the case laws
(10:47):
surrounding it.
Um and it's not uh an uhunlimited thing.
And previous case laws said,look, that section of the
Privacy Act, you have to look atuh the nature and degree of
privacy that is reasonable inthe circumstances.
Uh and so there has to be someassessment of you know what kind
of information is this, right?
Uh and the Court of Appealpointed out this wasn't a claim
(11:12):
being brought on the basis ofsome specific review, like some
review saying, hey, you postedmy home address or a picture of
me through my bedroom windowwith a telephoto lens or
something as part of yourcomment on my medical skills.
Uh instead, it was a claimbased on look, this generally
anything on there, thisinformation about me, I have a
privacy interest in it.
And the information amounted tothings like the telephone
(11:35):
number for the doctor, uh a linkto their website, uh, or the uh
you know address for theiroffice, for example.
Um and for that kind ofinformation, as the Court of
Appeal pointed out, it's allreadily available.
If you want to get informationabout a profession
professional's you know officeaddress or contact information,
you can easily use the internetand go to, for example, the you
(11:59):
know, professional regulatorybody to determine you know what
is the contact information forthat person, even if they don't
have a website or phone number,which would be hard to imagine.
But uh so the Court of Appealfound that look, the this that
kind of information in a broadsense, it's not analysis on
particular thing.
Yeah, there could be somereview that has something that's
out of bounds, but the one-offparticular thing isn't something
(12:21):
you could have a class actionabout.
You know what I mean?
Like if some particular doctorsaid, hey, some deranged patient
took your picture of me throughmy bedroom window with a
telephoto lens and posted it onsome site, yeah, that doctor
might have a claim under thePrivacy Act, probably would.
Uh, but that doesn't mean thatevery doctor for this kind of
information has a claim of thatkind.
And so the Court of Appealfound, and this is the test,
(12:44):
that it it's plain and obviousuh that the plaintiff's claim
could not succeed.
And if it meets that plain andobvious test, and what they look
at is they look at like thepleadings.
Like when you're suingsomebody, you have to set out
why are you suing them, what areyou claiming happened, and
what's your legal basis forsaying you get anything for
that.
Uh and when you're analyzing itin that way, you you just
(13:05):
assume all the things the personis saying is true, like in
their claim.
Like, hey, you say that myphone number's on there, and you
say that my address is onthere, and you say there's a
review of me on there.
But even assuming all that'strue, there just isn't a privacy
interest in that kind ofinformation, the information
that was there.
And then that brought the Courtof Appeal to the next part of
it, which is that there's asecond section of this privacy
(13:28):
act that can also make it, makesit a statutory tort to use the
names of people for commercialpurposes.
Uh, and so there had to beanalysis of well, what is
exactly that mean?
Um and so the Court of Appealdid their analysis
interestingly, looking at thingsincluding you know, charter
(13:49):
jurisprudence and also lookingat uh a common law tort, like a
tort that exists in placeswithout even the Privacy Act.
Uh and there is a common lawtort referred to as the
misappropriation of personality.
And so that would be, forexample, using a person's name,
likeness, or voice for thepurpose of advertising or
promoting goods or services, orotherwise for the user's own
(14:12):
gain without consent.
So, you know, let's saysomebody takes AI and creates a
copy of your voice, and it's,you know, hi, I'm Adam Sterling,
and this is my absolutefavorite uh hemorrhoid
medication or something, youshould definitely load up on it.
It's a great deal.
That would be prohibited, uh,that would be a statutory tort
in addition to uh potentiallybeing uh actionable under the
(14:33):
Privacy Act.
Uh and so the Court of Appealused that analysis, that anal
that what that common law tortis to inform what is meant by
the language in the Privacy Act.
Uh and they correctly pointedout, you know, the uh rating
site on the website wasn'ttrying to sell a product.
(14:55):
Uh they weren't uh sort ofusing the person's like list
saying, you know, Dr.
So-and-so says this is a greatproduct, uh you should buy it.
Um and you know, they didacknowledge that look, you know,
there may be some financialmotivation for having the
website, but just like it wassort of closer to, I think, for
example, like the phone book,when people use the phone book,
(15:16):
it'd be sort of, yeah, I'velisted your name and address of
the in the doctor section of thephone book.
Uh, and so, yes, I I guessthere is some financial
incentive to have the phonebook, but that's a different
thing from purporting to useyour likelist to endorse
something or to sell a product.
Um, and so just like that, onthat first basis, uh, the uh
(15:38):
Court of Appeal concluded, no,that's just not what's meant by
utilizing somebody's name uh ornames of class members for a
commercial purpose.
Um and so uh the uh once again,like on that first uh base of
the claim, the Court of Appealfound that it was plain and
obvious that this could notsucceed.
Uh and so on that basis uh theyoverturned the uh trial or the
(16:01):
original judge's decision tocertify the class action.
Uh and so there will be no uhuh claim going forward to try to
shut down the doctor's uhrating site, assuming people are
using that, rather thandesperately find meadoctor.com
or something of that, whichperhaps would be uh more popular
these days.
And so that's the latest fromthe Court of Appeal on the
doctor rating site and uhprivacy.
AdamStirling (16:28):
I want to make sure I read this correctly,
telling a client about rumors ofa guided technical activity in
university with over targetedtest on appeal for failing to
consider right to freeexpression.
That's a lot there.
There is a whole lot bound upin that.
MichaelMulligan (16:46):
Uh and so uh uh here's the starting point of
it.
The uh law society, like mostprofessional uh organizations,
have rules surrounding theconduct of members of the
profession.
Uh and so there are a varietyof things in the uh um rules
that apply to lawyers.
Uh and they would includethings like uh not using
(17:08):
abusive, offensive, or otherwiseuh you know language that would
be to communicate with othersthat would be unprofessional,
for example, right?
And there would be anobligation to uh you know treat
uh courts uh and uh members ofthe judiciary with candor and
fairness, things like that.
Uh and so uh the the rub cancome, I guess, a little bit when
(17:29):
you have communication that'snot directly in that forum, but
pretty close to it.
Uh and here you've got you hada circumstance where a lawyer uh
was apparently uh sharing witha client uh rumors uh about
sexual activity of a judicialofficial uh uh while in
university.
And it may it sounds like itmay well have been just uh kind
(17:50):
of gossip, it may even have beencompletely untrue.
The client of the lawyer feltuncomfortable that this kind of
talk was going on.
The lawyer was engaging in whatwas described described by the
lawyer's locker room talk.
Uh and uh so the clientcomplained to the law society
about uh what they felt wasinappropriate communication by
(18:11):
their lawyer about the sexualactivity alleged of the judge, I
guess, who was involved in thecase.
AdamStirling (18:17):
Interesting.
MichaelMulligan (18:17):
Uh and the court and the law society uh
conducted a uh uh review ofthat, and they had a hearing
panel where they sort outwhether somebody is engaged in
professional misconduct.
And the hearing panel, uh itand in fact the the lawyer
acknowledged he said thosethings, the lawyer acknowledged
this was locker room talk,included it was ill-advised, uh,
(18:39):
and the uh uh panel of the lawsociety determined that it
amounted to professionalmisconduct uh and fined the
lawyer $7,500 uh for doing that.
Uh well the uh flash forward uhto uh just a few days ago when
the case wound up in the Courtof Appeal, and there's the
(19:01):
avenue of appeal from a lawsociety disciplinary decision is
to the Court of Appeal in BC.
Uh and the uh uh basis for theappeal, and I should say the law
society, upon having thispointed out to them by counsel
for the uh uh lawyer who hadbeen fined, uh, agreed that what
the panel had done was wrong inthat the panel had failed to
(19:26):
consider uh the freedom ofexpression constitutional rights
of the lawyer.
And that is not to say thatthat kind of communication would
necessarily be permissible.
It may not be, right?
It may be in violation of theuh strictures of about
unprofessional communication bythe the lawyer, but in order to
(19:47):
make that determination, it'snecessary to uh w weigh up that
professional obligation in theuh context of the fact that
lawyers like everyone else havea right to free expression.
Uh and so when determiningwhether that sort of commentary,
locker room commentary aboutsexual rumors about the judge uh
(20:08):
was a marked they have todetermine whether that was a
marked departure from theconduct expected of a lawyer,
and in so doing, they need tobear in mind that the lawyer
does, like everyone else, have aconstitutional right to freedom
of expression.
Uh and so the panel just didn'tdo that.
Um, they just didn't follow aprevious decision that uh spoke
about that very issue uh in thecontext of a lawyer who wrote a
(20:32):
uh uh inappropriate vitriolicletter to a judge, I guess,
following some case.
Uh and so back it goes.
Uh, and there will need to be anew decision by a new uh
tribunal at the law society, andthey will need to consider
freedom of expression whether indetermining whether this kind
of communication amounted toprofessional misconduct.
(20:52):
So that's the latest out of theCourt of Appeal, uh, and why
lawyers really ought not to beuh uh spreading rumors of that
uh sort for I suppose a varietyof reasons, quite apart from
whatever they might beconstitutionally permitted to
do.
So that's the latest from theCourt of Appeal and the uh Law
Society in BC.
AdamStirling (21:08):
Michael Mulligan with Mulligan Defense Lawyers
Legally Speaking during thesecond half of our second hour
every Thursday.
Thank you so much, Michael.
Pleasure is always thanks somuch.
Always great to be here.
All right, we'll take a quickbreak back after this.
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