Crimes Against Humanity, Snowboarding Waivers & Acid Spill

 

The Supreme Court of Canada has permitted a claim by workers at a mine in Eritrea to proceed, after concluding that Canada has adopted “customary international law” into the Canadian legal system.

The Eritrean miners brought the proposed class claim action against a British Columbia based mining company, which is a part-owner of the Eritrean mine where they work.

The miners are seeking damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They allege that the Eritrean government has forced them to work at the mine, in terrible conditions, without pay, indefinitely.

The majority of the Supreme Court of Canada described modern international human rights law as “the phoenix that rose from the ashes of World War II and declared global war on human rights abuses.”

Also discussed on the show is a decision from the British Columbia Court of Appeal, which will permit a claim by a snowboarder against Grouse Mountain Resorts to proceed.

While attempting a run on the resort’s XL jump, the 20-year-old snowboarder suffered a significant spinal injury and is now a quadriplegic.

The Court of Appeal overturned the trial judge and found that the waiver on the back of the ticket, and posted at the resort, was not determinative. In order to be effective, the court confirmed that waivers of liability need to be sufficiently brought to the customer’s attention before they purchase a ticket. Here the sign with the waiver was only visible after the ticket was purchased, and the waiver on the back of the ticket was both small, and not provided until the ticket was already purchased.

There is a larger public policy question to be considered concerning whether waivers of liability like this should ever be permitted. If they were not, it would likely result in increased ticket prices for dangerous recreational activities to cover the cost of insurance. If waivers are permitted, the effect is to shift the cost of caring for people who are injured to the public generally.

Finally, a case concerning the largest claim ICBC has ever experienced is discussed: In 2018, on two separate occasions, sulfuric acid was spilled on the highway near Trail BC, by a truck that was transporting it. The acid damaged thousands of cars, including 846 vehicles that were written off due to the extent of the damage.

The court decision will permit ICBC, and other insurance companies, to bring a single subrogated claim against the companies that allegedly spilled the acid on the highway.

Interestingly, if BC had a no-fault insurance scheme, as has been proposed, it is unlikely anything could be recovered from the companies that spilled the acid. This would not encourage more care to be taken when driving with dangerous goods.

Legally Speaking with Victoria Lawyer Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

An automated transcript of the March 5, 2020 show:

Adam Stirling [00:00:00] The second half of our second hour on CFAX 1070 on Thursday, that means it is time for Legally Speaking on CFAX joined by Michael Mulligan, Mulligan Defence Lawyers sitting a comfortable distance away from me in studio today as I manage this bug that has my voice sounding the way it sounds. Michael, good morning and thank you for your time, as always.

Michael T. Mulligan [00:00:17] Thank you very much for having me. I should say I promise that I’ll actually leave the studio once the interview is done. I don’t plan to get too comfortable here, at the end of it.

Adam Stirling [00:00:26] Indeed, I will rely on that promise Supreme Court of Canada talking about international law and how it applies in Canada. Interesting story.

Michael T. Mulligan [00:00:35] I think it is. I think this is a very significant case. It was just released by the Supreme Court of Canada. And the essence of it is or the underlying issue that the court was dealing with was a claim brought, or proposed class action brought, on behalf of a number of people from Eritrea Country in East Africa, just north of Ethiopia, and a sort of borders the Red Sea there, to get some orientation…

Adam Stirling [00:01:01] Okay…

Michael T. Mulligan [00:01:01] As to where it is and what is allegedly going on there is the government in Eritrea requires people to engage in compulsory service, which is not uncommon. Often people would/ countries would require people to engage in compulsory military service when they become 19, this sort of thing. But what’s been alleged here is that, in the guise of this required public service, the claim is that people were being forced to work for an indefinite period of time in a mining operation in Eritrea that provides a significant portion of income for the country. That’s a mine that mines, I think, gold and various other things there. And the plaintiffs were alleging that they were essentially being required to act in a capacity like slavery. The claim that it was a forced labour de…degrading treatment, and that it violated customary international law. So, the interesting question was, well, can you bring a claim in a Canadian court to try to seek some remedy for that? And the connection to British Columbia is that, a mining company in British Columbia owns a part of the mining company in Eritrea, where these workers allegedly are required to engage in this forced labour. And so that was the connection that led to this claim. And the important issue for the Supreme Court of Canada was, well, look, can you bring a claim alleging a breach of what amounts to what’s described as customary international law?

Adam Stirling [00:02:55] Yeah.

Michael T. Mulligan [00:02:55] And so that was a very live question because there are all kinds of things which you’ll also hear about people talking in a very loose way about sort of international law and often wonder, well, what is that exactly?

Adam Stirling [00:03:08] Is there an international court like I know there is, but how, what power does it have over us? I don’t understand that.

Michael T. Mulligan [00:03:13] Right. And generally, and people you’ll see people referring to, for example, things like treaties or declarations of the United Nations. Well, this is a violation of this treaty that Canada’s a signatory to. And ordinarily, those sorts of claims are not claims they can be readily enforced in a Canadian court. You can’t go to a Canadian court and sue somebody on the basis that, hey, you breached that treaty over there, unless that treaty has been incorporated into Canadian domestic law. Like, for example, we’ve heard talk now about this new North American Canada, U.S. Mexico Free Trade Agreement.

Adam Stirling [00:03:53] Yes.

Michael T. Mulligan [00:03:53] And indeed, there’s been some agreement entered into. But currently we’re each of the countries are working to implement it in domestic law. And until there’s actually a law passed in Canada, the U.S. and Mexico, the fact that you signed a treaty really doesn’t have any effect and you’re not going to have any success if you were a company, say, hey, you shouldn’t have charged me duty on that thing and trying to bring into the U.S. until that country has implemented it. So the reason this case from the Supreme Court of Canada is so significant is that the Supreme Court of Canada found that, that concept, that customary international law, has formed a part of Canadian law in the same way and the court described in the same way that the common law develops in Canada in domestic courts. And this is the opening, this is, I think, pretty significant. So, this appeal involves the application of modern international human rights law, “the Phoenix that rose from the ashes of World War II and declared global war and human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct undermines the norms were to be identified and addressed.” And indeed, the Supreme Court of Canada has found that those sorts of things, things like crimes against humanity or forcing people into slavery or engaging in things they described as things like inhumane and degrading treatment, crimes against humanity. Those sorts of things which are often referred to as those sorts of crimes against humanity, international law principles are now, according to the Supreme Court of Canada, incorporated into domestic Canadian law. The import of that or the real effect of it in this particular case is that the proposed class action in British Columbia on behalf of a thousand some odd individuals who clearly claim that they were subject to this slavery and cruel, cruel, inhumane treatment in Eritrea by the mind partially owned by the Canadian mining company will be permitted to proceed. So, it’s not necessarily a finding that the claims are true. There hasn’t yet been an award, but that claim will be permitted to proceed. And so this is, I think, a significant change in advancement in Canadian law, because, before this case, there would have been, I think, some real legal uncertainty about whether that was so and whether you could bring a claim of that kind in a domestic Canadian court alleging that, you know, hey, there were some crimes against humanity and I’m seeking redress for that in Canada. So, an important case far from over in terms of how it will play out on those particular facts. And there will be other complicating factors, no doubt, things like, you know, are you going to be able to ever collect on that sort of a claim if you succeed? But a very important decision. And I think one people should know about.

Adam Stirling [00:07:00] Very interesting. I want to take our first break. Up next, a claim by an injured snowboarder. There’s a sign warning someone of a potential risk. Does the location of that sign actually matter? The answer may surprise you. Don’t go anywhere.

[00:07:15] COMMERCIAL BREAK.

Adam Stirling [00:07:15] A claim by an injured snowboarder can proceed Michael Mulligan. Set this one up for us.

Michael T. Mulligan [00:07:20] So here’s what happened back in March of 2016, this young person, who was 20 years of age at the time, Mr. Apps an Australian over here, I think for a couple of years working. And he decided to go snowboarding at Grouse Mountain. And in particular, he purchased a pass to use the terrain park there, and very sadly, shortly after he started using the terrain park, he had a tragic accident, suffered a severe spinal cord injury and is now a quadriplegic. That’s the tragic background of all this. Here’s a legal issue. He sues Grouse Mountain. Grouse Mountain says, oh, no, you can’t sue us, we have said that we’re not responsible for any of our negligence. And they point to two things. They point to signs, big sign that says, you know, essentially, if you read all the fine print, we’re not on the hook for any of our own negligence. And they point to the back of the ticket that this fellow purchased. And the, so the case starts, and the trial judge originally says, oh, yes, that’s right, no liability here, look at the waivers. And the decision that just came out just from the Court of Appeal and the Court of Appeals said, no, no, those are not necessarily effective here. And here are the issues: the issues include, the fact that the sign waiving liability was posted in a place where you would see it after you bought the ticket, and so there is a this is an issue which has been the Court of Appeal has commented on. We’ve been dealing with this for many, many years, sort of dealing with, you know, how and when can you have these exclusions of liability. And they point to the fact that, you know, we’ve got these really referred to as contracts of adhesion, waiving liability. And we’re all familiar with them in terms of things like, you know, when you buy some software or something online, you’ll have that, you know, 25 pages of i-Tunes contract with a you know, I agree button at the bottom of it.

Adam Stirling [00:09:22] Is anybody actually read those?

Michael T. Mulligan [00:09:24] Yeah, I guess you might say you could probably insert the entire text of Mein Kampf into the thing. We will. Yes. Yes, I agree. I agree. You know who’s reading these things? So, the courts have been careful to narrowly construe the circumstances in which companies are permitted to waive all of their own responsibility to not act in a careless fashion. And one of the principles there is that you need to, if you’re trying to do that, like waive your own responsibility for not being careless liability, you need to do, you need to clearly draw that to somebodies attention. And you need to do it before the person enters into the contract. Not afterwards. And so, the problem with and there’s this whole category of cases called the, you know, ticket cases or back of the ticket cases. The problem with that is you’ve handed over your money to enter the terrain park and only after you’ve done that and the transaction is complete to the then hand you the thing which on the back of it in tiny writing says, you know, we can be extremely dangerous, and by the way, this is also a rifle range, and, you know, make sure you duck, whatever.

Adam Stirling [00:10:27] Look out for the tooth chipper. It’s not just a name for a roller coaster.

Michael T. Mulligan [00:10:31] Yeah, that’s right. So the Court of Appeal found that here, the fact that the sign was posted in a place you would only see it after you bought the ticket and the fact that the liability waiver was on the back of the ticket and you only got that after you paid for the thing, meant that they hadn’t clearly drawn it to the person’s attention prior to the entering into the contract. And so, the case will be allowed to proceed. They’ll still be other issues like, you know, was there negligence or carelessness on behalf of the Ski Hill, this sort of thing?

Adam Stirling [00:10:59] Yes.

Michael T. Mulligan [00:11:00] But I think this case also raises some, I think, important issues that people should think about in terms of whether we should permit these kinds of broad waivers of responsibility. You know, the 25-page contract online where you click. I agree. You know, and you’ve just agreed to turn over all of your personal information to some companies so they can sell it for profit or these kinds of things. Because what really happens if you allow a complete waiver of responsibility for carelessness on behalf of companies like this, is that we, all the members of the public, wind up picking up the ultimate cost. We have somebody who has this tragic accident. He’s become a quadriplegic, and, you know, the public is going to pay for the medical treatment and everything that will be required for a lifetime. And there’s a good, I think, public policy question about, is that fair? Should we allow that? The alternative, if you said no waivers of liability like that are going to be enforceable, the practical reality that is likely to be, that companies like the ski hill, in this case, are going to need to purchase insurance to cover themselves in the event of these kinds of accidents. That’s going to be expensive. And so, what would happen is that the cost of the ticket to go on these snowboard terrain parks is probably going to go way up. But that’s probably the real cost of engaging broadly in that kind of activity. And if the people who are engaged in that activity aren’t paying the real actual cost, including the risk of becoming a quadriplegic, it means that the public effectively as the backstop is going to be bearing all of that. So, I think there’s a reasonable argument to be made that we ought not to allow those kinds of waivers at all, both because it would properly shift the actual cost of that activity to the people who are engaging in the activity, rather than having the public pick it all up. Plus, it might have the incidental benefit of encouraging more cautious behaviour. You know, if you were running a ski hill and you couldn’t just waive all liability, you might be more careful about, you know, how the thing is organized or what kind of warnings or instructions are given or whether you’re going to build some particularly dangerous sort of terrain park at all. Maybe you’d say, well, we probably shouldn’t have the 30-foot jump or something.

Adam Stirling [00:13:23] Right. Or the more the old roller coaster, that’s rusty. Exactly. Yeah.

Michael T. Mulligan [00:13:27] So it might encourage safer behaviour. And I think just as a matter of fairness, it’s probably not inappropriate that you pay the actual cost of it and not look to everyone to pick up the or subsidize the cost of, you know, hang gliding or, you know, terrain park skiing or whatever it is you might want to engage in. After all, why should everyone else have to pick up that cost? And that’s what happens when one of these waivers is effective.

Adam Stirling [00:13:51] This is a fascinating case that we wrap up with today. Spills of sulphuric acid on a highway near Trail here in British Columbia. Vehicles, thousands of them, damaged by the acid. What happened?

Michael T. Mulligan [00:14:04] Yeah, this the actual event is from 2018 up near Trail and it’s described by ICBC this way: the recent sulphuric acid spills in Trail have led to some of the largest clean losses ICBC has ever experienced, both in terms of volume and cost. And what apparently occurred is that a company, either several of them involved here, one company, Tech Medals, apparently produced this sulphuric acid, then sold it to another company called International Raw Materials Ltd., and then yet a third company transported the sulphuric acid from one company to the other to load onto a rail train. And on two separate occasions, April 10th, 2018 and May 13th, 2018, in that process of transporting the sulphuric acid, apparently a bunch of it spilled out onto the highway.

Adam Stirling [00:15:01] Twice, a month apart.

Michael T. Mulligan [00:15:02] Twice a month, twice. Apparently, they didn’t realize this spill the first time and it spilled yet again. That’s what’s alleged.

Adam Stirling [00:15:08] Good grief.

Michael T. Mulligan [00:15:09] And thousands of cars drove through the sulphuric acid, causing damage to them and 846 of the vehicles have so far been written off completely. As you can imagine, the acid getting into the engine, sprayed on the bottom of it and just couldn’t be fixed, damaged beyond repair; and so, it produced this enormous claim. And the decision which was just released was a decision on behalf of three different insurance companies, ICBC, Economical and one other insurance company. And what they were asking to do was to have permission to sue these companies altogether in one action rather than having to do it over and over and that the court has permitted that. And the concept that’s at play there is as a concept referred to as a subrogated claim. And the concept there is that if an insurance company pays out for a loss, they would be permitted to sue on behalf of the person who suffered the actual loss. So, for example, here, if you drove your car through the, you know, puddle of sulphuric acid dissolving your engine or whatever it might be, and ICBC paid you for that loss, paid you for your car. The idea would be that ICBC would be then be permitted to sue the individuals who owned or dropped, were careless and spilled the acid all over the highway to recover the money. And so that’s what’s going on here. And it’s a decision permitting that to occur in a more efficient way rather than having hundreds of individual claims. All of this, of course, is fascinating in the context of the current proposals for no-fault insurance coverage of British Columbia.

Adam Stirling [00:16:58] Oh of course.

Michael T. Mulligan [00:16:58] Because if we had a model based on Manitoba and Saskatchewan, these would be claims related to a motor vehicle and then we would all be having our participaction buttons on and not concerned with who actually caused this loss. And the net effect would be, if we had a similar system to what was in those provinces, these insurance companies would simply have to pay out for this sulphuric acid damage for all these cars and they wouldn’t have any subrogated claim against the trucking company that spilled as a clear sulphuric acid on two occasions. It would just be, well, no one’s fault. And again, the problem with, it’s no one’s fault, and we’re all driving around with participaction buttons on, is that there’s much less incentive to be careful. Here, you can well imagine, there’d be a powerful incentive for companies to really be careful when you’re transporting things like sulphuric acid because you may wind up on the hook for very substantial damages when you melt a bunch of cars. And a no-fault model, you’re not really responsible for anything at all, that’s not criminal, you just, sorry, bunch of acid spilled out of the back of my truck and melted your car. Well, I guess these things just happen, and on we would roll.

Adam Stirling [00:18:11] I suppose the insurance premiums those companies paid would be higher. But realistically, how high could an insurance premium be increased to have the same deterrent effect as a large cost award in civil litigation? I just don’t see it.

Michael T. Mulligan [00:18:25] Yeah, and so much like in the previous case in terms of, you know, what do we want to do in terms of like incentivizing, you know, ski hills to be careful? You have to ask yourself; do you want to disincentivize everyone from being careful to not do things like this? And I appreciate that, you know, we could certainly save some time and money if we had a no-fault model, and, you know, we didn’t have this subjugated claim, and, you know, the insurance companies were not permitted to go and sue the acid companies to try to recover the money for the acid spilling over the truck. Yeah, that’s certainly going to save some time. But that’s going to mean that when you have future incidents like the largest claim and loss that ICBC has ever experienced. Well, the insurance company is just going to have to eat it. You know, maybe there’ll be some tiny bump in premiums for the acid spiller and really nobody’s going to have any particular incentive to be any more careful at all. So, you know, there’s a real question, this case, I think, brings into pretty sharp relief what the actual effect of something like the proposed ICBC no-fault regime is going to mean. It’s just going to mean, well, it just doesn’t matter. I guess these things just happen. And sure, we’ll save some money in the litigation process. But is that fair? Do we want that? Because I daresay you’re likely to have, you know, more of this sort of activity if just no one’s responsible.

Adam Stirling [00:19:47] I don’t think most people realize that their insurance company, after paying the policy that they have purchased, will in many cases engage in civil litigation against any person or persons who may have breached their standard of care engaged in negligence to cause that. You might say, oh don’t worry about that, what you did, Phil. I’m insured, they’ll cover it. And then the insurance company goes sues Phil for what he did. And I think most people don’t realize that happens.

Michael T. Mulligan [00:20:11] It does happen, and you’ll see it in other types of insurance as well. Right. You’ll see it, for example, in like home insurance. Let’s say you have some faulty appliance that starts your house on fire and burns the thing to the ground. What’s likely to happen there when you make a claim against your home insurance company is that they would pay you to rebuild your home, but then you can be pretty confident that the insurance company is going to go and sue, you know, whoever built the faulty toaster.

Adam Stirling [00:20:38] Yes.

Michael T. Mulligan [00:20:39] Trying to recover the money, and that’s healthy. And that has an effect. And it works. And it has the effect of creating safer toasters because no one wants to bear the responsibility of burning your house down. And when you, if you move to a model where it just doesn’t matter what you do, we all just sort of assume these things happen. I daresay there’s going to be much less incentive in the world for safer toasters and putting a lid on your acid truck when you’re driving it to the, you know, train depot.

Adam Stirling [00:21:08] I have to read up on this one. I can’t believe it happened twice. The sulphuric acid spill twice in just over a month. Michael Mulligan. It is a pleasure, as always. Thank you so much for coming in. 90 seconds. Laughs. Anything else you touch on today?

Michael T. Mulligan [00:21:21] Yeah, there’s another case I think that’s worth commenting on briefly in 90 seconds, which is one people may have heard about in the news. And it was sentencing of a man in Victoria who is described as being mentally ill and was taking photographs of women in bathrooms.

Adam Stirling [00:21:37] Yes…

Michael T. Mulligan [00:21:37] Without their knowledge. Obviously, a very disturbing case and very upsetting for anyone who might have been subject to that. But I must say, reading that one really caused me to reflect upon, you know, the sort of services we’re providing for people that are engaged in that kind of behaviour, because the description of the person who was sentenced involved mental illness, homelessness and obviously extremely disturbed and was doing things like being found naked in women’s bathrooms and this sort of thing and well, extremely upsetting and certainly understandable. You know, the sentence I think it was imposed was 18 months. It really caused me to reflect upon whether we’re doing enough to ensure that the public is safe and people that are engaging in that behaviour are getting the sort of treatment required to ensure they’re not engaging that behaviour. And the public isn’t subject to it, because I daresay, well, we may all be safer for 18 months. I’m not sure that when we release the person again with profound mental illness onto the street, we’re all going to be a lot safer than. And so, I think that case is one which we should reflect upon.

Adam Stirling [00:22:47] yeah.

Michael T. Mulligan [00:22:47] When we make decisions about things like, you know, what sort of supports and services are we going to have for the mentally ill? And is it appropriate that we have people that are homeless and profoundly mentally ill out on the street? This is the sort of activity not only very upsetting for everyone involved, really unfair for everyone involved in that circumstance. It really caused me to think that we should be as a community, doing much more to ensure that we have proper mental health supports and, in some cases, I think we need to look at better residential treatment for somebody. At one point we would have had places where somebody would have gone and received treatment, and leaving people like that on the street, I think is not an appropriate solution.

Adam Stirling [00:23:31] Agreed. Michael, pleasure, as always. Thank you.

Michael T. Mulligan [00:23:33] Thank you.

Adam Stirling [00:23:33] Take care.

Automatically Transcribed on March 5, 2020 – MULLIGAN DEFENCE LAWYERS