Preserving the Independence of the Legal Profession in British Columbia
Plans to revamp the Law Society of BC
Discover the fate of legal independence in British Columbia as Michael Mulligan from Mulligan Defence Lawyers lends his expertise to the latest legal system ‘modernization’ attempts. This week’s episode pulls back the curtain on the government’s controversial plans to revamp the Law Society of British Columbia, including a reduction in elected lawyer positions, which may lead to increased government sway over legal affairs.
The BCNDP seems intent on ignoring a warning from the Supreme Court of Canada on the essential nature of an autonomous legal profession, particularly when the rights of individuals stand against government interests, and is proposing that it be given greater control over the regulation of lawyers. The government proposal is troubling for anyone who may have a legal conflict with the government.
ICBC’s troubling conduct
Also on the show, we lay bare the troubling conduct of the Insurance Corporation of British Columbia (ICBC) in defying a court order to pay a retired teacher her rightful compensation following a road mishap. Hear Michael’s insightful breakdown of how ICBC’s refusal to release $407,000, designated for the victim’s future care, raises alarm bells about the insurer’s integrity and the challenges faced in the pursuit of justice. With BC embracing a no-fault insurance scheme, our conversation underscores the imperative need for an unbridled judiciary to balance the scales against formidable entities like ICBC. This episode is an urgent call to stay vigilant about the mechanisms that safeguard our individual rights and the importance of a legal profession that can operate without undue influence.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Mar 21, 2024
Adam Stirling [00:00:00] It’s time for our regular segment with Barrister and Solicitor, with Mulligan Defence Lawyers. It’s Michael Mulligan with Legally Speaking on CFAX 1070. Morning, Michael. How are we doing here?
Michael T. Mulligan [00:00:09] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:12] Right off the top, I see the provincial government is making an attempt to modernize something. And it’s the Law Society of British Columbia. I have to ask, how is that going?
Michael T. Mulligan [00:00:22] Not well. So, I think it’s, it was one of those things. When you hear a government talk, like the modernization of something, you should carefully scrutinize what’s going on. And what they’ve just released that they describe as sort of an update to their plans to “modernize.” This issue is to say regulation of legal profession. And the proposals, unfortunately, are seriously problematic. And hopefully there is a complete rethink about whether this should proceed. The, the starting point for all of this, which is an important one, which is to say the legal profession is a self-governing profession. It’s not controlled by the government. And a little bit of reflection should be clear why that is so important. And indeed, the Supreme Court of Canada has recognized that, saying essentially, the language is so far as human ingenuity, it can be so designed. The legal profession needs to be free from state interference, particularly in fields like criminal law or public law, things like that, where the government is on the other side of it.
Adam Stirling [00:01:36] Yes, yeah.
Michael T. Mulligan [00:01:36] right. You do not want to have a state of affairs when you go to the, lawyer to hire them to defend you in a criminal case, help you if the government is trying to take your children, trying to advance your land claim, trying to sue the government for something, or even indeed, when you’re dealing with, government-owned entities like ICBC, for example, you do not want a state of affairs where the person you’re trying to hire, is looking over their shoulder, about, whether they might be in breach of, some desire of the government entity that you’re trying to defend yourself against or sue or try to get, some constitutional remedy from. So, it should be apparent, and the proposal at its heart would go a long distance to undermining that. The proposal, well couched in the language of modernization, really amounts to an effort by the government to exercise additional control over legal possession. You know, for example, the Law Society now, which is independent of government, has 25 elected members who are lawyers. They are volunteers, and they’re on the board of directors of the Law Society. The government appoints six members of the public, to, to be on the board as well. This proposal would reduce the number of elected lawyers, or total number of people on that board to 17, and only nine of them, a bare majority would be elected lawyers. So, the idea is the government wants to exercise additional control. They have a variety of objectives that are apparent from their proposal. One of the justifications is that DRIPA, rights of Indigenous people.
Adam Stirling [00:03:28] Yeah.
Michael T. Mulligan [00:03:28] They Cite That.
Adam Stirling [00:03:29] Yeah.
Michael T. Mulligan [00:03:30] Another thing which they make reference to is a desire to, and part of the way the government speaks here in addition to this, quote, modernization, they use this language of single regulator. And what’s going on here is really two things. First of all, we have in British Columbia lawyers. We also have notaries which perform some functions like drafting Wills. Things of that sort. Notarizing documents, and the history of that is having people in smaller communities so that those legal services were more readily available. One of the other things that’s been an ongoing source of tension is the issue of whether and what role paralegal, should have been providing legal services. We have paralegals in British Columbia, but they operate currently under the supervision of a lawyer. So, if you’re going to hire a lawyer, they might have a paralegal that would assist with doing some work on the file with the idea that it would reduce costs. The government has in mind having paralegals operating, in an unsupervised way, as an alternative to properly funding legal aid. The idea would be that for poor people, the government could have a paralegal providing them assistance rather than providing legal aid funding. That’s one of the other motivations that’s been a source of tension over the years, because the Law Society’s principal obligation is to ensure the public interest. Protection of the public. That’s why we regulate lawyers at all. Right. Just like other functions, you don’t want somebody who’s not trained as an electrician, so you have to kind of wire your house or somebody who just fancies himself a doctor performing surgery on you. That’s why we have a law society to regulate, ensure that people providing legal services are properly qualified follow ethical obligations. And if they don’t, they can be disciplined.
Adam Stirling [00:05:25] yes.
Michael T. Mulligan [00:05:25] That’s why we have.
Adam Stirling [00:05:26] Yeah.
Michael T. Mulligan [00:05:26] And so there’s been a tension there about, you know, what role should paralegals have, should they be supervised? Should they be working on their own? What form of training should they have? And the government wants to have that advance to save money on providing legal services to the poor. So that’s one of the points of friction. So, the proposal is very problematic. And you can tell that from the Law Society’s response to it was essentially clear this is not a good idea. The other thing, which is interesting in this proposal it’s something that I’ve had some experience with over the years. And it’s a proposal to prevent members of the Law Society from passing resolutions to direct what the Law Society should do.
Adam Stirling [00:06:13] hmm.
Michael T. Mulligan [00:06:13] But it’s one of the elements that exists as part of a self-governing profession. And it’s something that I’ve had some involvement with over the years. And the government wants to stop that. And, the couple of examples of that I had some involvement with a number of years ago now, probably 20 plus years, I haves to do with math. One of the resolutions that the members brought was to censure the then attorney general over funding cuts to legal aid.
Adam Stirling [00:06:41] hmm.
Michael T. Mulligan [00:06:41] And so that kind of effort would be prevented. The government doesn’t want that sort of thing happening. Right. All these uppity lawyers telling them that what they’re doing is inappropriate. Another example of that, that I had some involvement with, was a proposal to approve for a new law school Law Society, law schools require, accreditation by the Law Society if they want to have their degree recognized for the purpose of, becoming a lawyer in British Columbia. You can’t just start you know Mulligan’s Law Hut and start issuing law degrees. Well, you can, but you’re not going to be good for anything, right? And so, the Law Society has to accredit the institution. And there was an institution that was a religiously based one that had policies that would punish or expel people who were engaged in same sex relationships.
Adam Stirling [00:07:37] hmm.
Michael T. Mulligan [00:07:37] Which to my mind at the time was an outrageous policy.
Adam Stirling [00:07:40] Yes.
Michael T. Mulligan [00:07:41] And in conflict with the Law Society’s fundamental objective to uphold and protect the legal rights of all people in British Columbia. Right. How can you accredit an institution which is clearly engaged in that behaviour?
Adam Stirling [00:07:56] hmm.
Michael T. Mulligan [00:07:56] That’s an example of where the Law Society benchers approve the institution. And only by the effort of, resolution of the members lawyers, thousands of them showed up and voted. They were told, no, you can’t prove it. And so that, approval, was revoked ultimately. And those are examples of how involvement from the membership and directing what their profession should be doing. The government wants to stop. And so, if the government has its way here, it would both involve an increase of government control over the regulation of lawyers for their own purposes. Including, as I said, that issue of who is qualified to do what? And whether that’s a good idea. It’s clear why the government wants that. But in addition, you would have a circumstance where the members of the Law Society lawyers would not be able to engage in the sort of activities that I’ve just referred to, which you could understand if you were the government. You may not like the idea of there being an independent group of people who may push back on things that you wish to do.
Adam Stirling [00:09:10] Yes.
Michael T. Mulligan [00:09:11], it’s sort of understandable. People want to have all the power and control for themselves, and anyone else is mucking with them or telling them that they don’t have confidence in them, or their policies might be objectionable. You can understand why, naturally, nobody wants that, right. It’s sort of like, you know, like some group of people who might oversee you, sue you, or oppose what you’re doing or whatever it might be. Clearly, that’s uncomfortable. And so, this appears to be an effort by the government to control that kind of pushback. And it’s very unfortunate. And I should say this, the fact that there is an independent, bar out there that you can go and hire a lawyer who is not looking over their shoulder about what the government thinks, in terms of what they’re doing or how they’re opposing it, so they can vigorously sue the government to do whatever is lawfully required to help you. Is very, very important. And, you know, I appreciate it may not be something people think about every day. I get that. But you should think about it, because the existence of an independent legal profession is part of what keeps you as an individual, free of oppression by the government. Without that, you’re pretty powerless. Where if when the government comes and says, I’m taking your land or I’m putting you in jail, or I’m taking your children, or I’m not going to enforce this or that, right? If there’s no one, you can go to, the get help, or the people you can go to are beholden to the government. Just think about the position you’re left in. And we have an unfortunate history of some of that in British Columbia that should be remembered. We had for many years, for example, and in Canada, Indigenous people were prohibited from hiring lawyers.
[00:11:00] hmm.
[00:11:00] Think about that. And so, if you are in First Nation in British Columbia and you see this coming, you should look very long and hard. And what’s going on here? And, while I appreciate there is lip service to things like DRIPA, in this proposal. You need to remember that at the end of the day, your interests are often in conflict with what the government wants. And you might like the current government, but you might not like the next one. And so, you should be very, very slow and careful before you think that it would be a great idea to allow government control or increased government control over the people that are the people, whose task it is to defend you if you could wind up in a legal dispute. And so, this is a terrible proposal. People should read completely through the government speak explanation for it. And it is an attempt to creep further down the direction of government control over people. And to prevent the sort of pushback that the government gets from lawyers. And you can understand why they may feel uncomfortable and not like that. But this is not an appropriate response to that, so hopefully there is a careful rethink about the wisdom of this proposal.
Adam Stirling [00:12:25] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking. We’ll have more right after this.
[00:12:30] COMMERCIAL.
Adam Stirling [00:12:30] Back on the air here with CFAX 1070 Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking. Up next, a judge concludes ICBC engaged in conduct, says here described as egregious, refusing to pay compensation ordered. I didn’t know you just refuse an order, Michael.
Michael T. Mulligan [00:12:47] Yeah, indeed. And I must say that, heading, is maybe not news to many people in terms of how ICBC behaves. But here’s how they could refuse to do something. This is a case. It’s a Victoria case. Involves a woman who’s now 65. She had a few years ago, back in 2017, was walking along Oak Bay Avenue. And she eventually essentially got backed over by a van. Terrible accident. She wound up breaking her pelvis and a whole bunch of other injuries, seriously hurt. And it’s obviously still impacting her life now.
Adam Stirling [00:13:21] hmm.
Michael T. Mulligan [00:13:21] In, is also a good example of, no fault, and sort of the difference there. And what we had at the time. So, this, fortunately for her, predated no fault insurance in 2021. But even prior to 2021, when we moved to a strictly no-fault system in B.C. under ICBC, there was still a no component of no fault in this way. Prior to 2021, if you got injured in a car accident, you could sue the other person who drives over you with their van.
Adam Stirling [00:13:51] Yes.
Michael T. Mulligan [00:13:51] What you can’t do after 2021 is you can’t sue the van driver. You you’re left only with what ICBC might choose to give you. But even prior to that change, there was a part of ICBC insurance was called Part Seven benefits, which would provide things like, rehabilitative, care, crutches, wheelchairs, things like that. Regardless of who or whether you were responsible for the car accident or not. So even if you were the careless person who rear end somebody, you would still get those basic, you know, health care requirements covered for you under those Parts Seven of benefits. And they had a limit of $150,000 at the time. And so, when you hear the government talk about how to change to no fault, is it “enhanced care” what they’ve done is increase the potential amount of those no-fault benefits and completely eliminate the ability to sue. Right. So that’s what’s enhanced. The thing that’s gone is the bigger thing. But that’s the background. And so, at the time one of the things you don’t want is you don’t want somebody recovering twice. Right? And so, a lot when you sue somebody, a large part of what you might recover would be the cost of your future care. Like, do you require nursing care or do you require, you know, physiotherapy or whatever it might be. And so, in this case, the judge awarded a total of, because it went to court, ICBC refused to pay, so went to court. The judge awarded this retired teacher a total of $407,000, of which $272,000 were for future care, nursing care, rehabilitation, that kind of thing.
Adam Stirling [00:15:35] hmm.
Michael T. Mulligan [00:15:35] There’s a section of the ICBC, by the way, appealed that, to the Court of Appeal and lost. But they then what they did, is that there’s a section of the Insurance Motor Vehicle Act, section 83, that allows ICBC to deduct payments. That would be those old no fault payments from the amount somebody was awarded. So, they don’t get paid twice for the same thing. Right. That sort of makes sense.
Adam Stirling [00:16:00] Yeah.
Michael T. Mulligan [00:16:00] Like if the judge said I’m giving you money for physiotherapy, you don’t get the money for physiotherapy twice. You only get it once. Fair enough. But what’s happened here is ICBC was refusing to pay the woman for any of her physiotherapy costs. She had put it in for use and they wouldn’t pay them months would go by, more than a year in one case. But then they said, well, we’re now we’re not paying you the money the judge ordered you. At least a large portion of it. Because, we say that that could be covered in the future under those Part Seven benefits. We’re not paying you, but it could happen. And so we’re just going to deduct that, and sort of on a, literal reading of the section, that might be a possible interpretation, but you can appreciate how seriously unfair that is when you are saying, we’re not paying it, but we might pay it in the future, so we’re just deducting that.
Adam Stirling [00:16:55] hmm.
Michael T. Mulligan [00:16:55] Too bad for you.
Adam Stirling [00:16:56] Yeah.
Michael T. Mulligan [00:16:57] And so this woman had to hire a lawyer again, go to court. And the judge who originally ordered her to be compensated by the getting run over by the van.
Adam Stirling [00:17:08] Yeah.
Michael T. Mulligan [00:17:09] Was extremely critical of how ICBC was conducting itself here. She concluded that the judge concluded that she was unable to presume that ICBC would conduct itself honourably moving forward. She reviewed, just the terrible unfairness of how they were, approaching and using that section. That that section was not intended for that purpose. And so, to prevent ICBC from continuing to use that section, they were not paying you what was ordered by the judge and upheld by the Court of Appeal. The woman waived any future entitlement to those possible no-fault benefits and said, okay, I just waive all of them. Pay me. And that’s what the judge ordered. Because what good is a possible payment that you will not make? And so that is how ICBC, despite being ordered by a judge, upheld by the Court of Appeal and promising, because they promised, to treat this woman properly and pay her for what she was due. They refused to until the matter wound up back in court. And that’s how the judge addressed it. And so, but very upsetting in terms of how a public entity would conduct itself. And there’s yet another example. This isn’t criminal, they aren’t taking your children, and it’s not a land claim. This is just a dispute with a government owned insurance company.
Adam Stirling [00:18:32] hmm.
Michael T. Mulligan [00:18:32] And another example of how it’s so important that there be this opportunity to go to court and have a judge, the lawyer, order them to do what they have to do. By the way, that’s over. And so, we now have no fault. So, you now live in a world, where if ICBC is treating you as clearly, they treat people. This is yet another example of it. Your remedies are going to be seriously limited. You’re going to be left with going to an ombudsperson that works at ICBC, or trying to complain to a thing called the Civil Resolution Tribunal, where the people working in it or on short term renewable government contracts.
Adam Stirling [00:19:08] Yeah.
Michael T. Mulligan [00:19:09] Good luck trying to get somebody on a short-term renewable government contract, to speak about, how the government owned entity, is engaged in the grievous conduct and treating you in a completely unacceptable way. Guess what happens next time their contract comes up? And so, this is another example of why it is so important that there be an independent bar, and you can go to somebody who is not concerned about going and taking it to the government. And eventually this woman should, now after many years, get what you deserves. ICBC had been refusing to do it and dragging their feet in every way possible. And so hopefully the retired, injured, schoolteacher, can get the money she needs for her physiotherapy because she couldn’t pay for it. She was retired on a limited income and ICBC just wouldn’t pay her. And so, hopefully now she’ll get what she deserves. And yet another example of why it’s so important that she held that safety valve.
Adam Stirling [00:20:08] Yeah, I hope so, too. We have two minutes left, and one story about a judge warning about identity fraud with respect to Indigenous status. What’s going on?
Michael T. Mulligan [00:20:18] So what’s going on here is for many years in Canada, we’ve had vastly too many, people who are Indigenous in prison. They’re just completely overrepresented. And it gets worse every year. And various things have been tried over the years to help with that. The Supreme Court of Canada, in a case called Gladue, spoke about that and spoke about the terrible history of Indigenous people and how that ought to be a consideration on sentencing. It still hasn’t had that effect, but they’re trying. One of the things which is developed, though, this judge spoke about it. And so, you said the judge described it this way “a tsunami is coming, driven by a desire of non-Indigenous people to get what they perceive to be a benefit of identifying as Indigenous.” And so, the issue here was, okay, the Supreme Court of Canada said, we, you know, we have this terrible problem is getting worse. We should be taking somebody’s background into account when sentencing them. Right. Say they were a survivor residential school, that should be a consideration when determining whether they should go to jail for their, you know, assault case or whatever it might be.
Adam Stirling [00:21:20] Yeah.
Michael T. Mulligan [00:21:20] Now, the judge here said, look, this person is, identified as Metis but there’s nothing else to really support that. We operate on the basis of self-identification. And so, the judge said, look, he just doesn’t accept that. Interestingly, the judge has sort of opined that the person didn’t do a DNA test to try to connect up their background, which was an interesting thing as well. And so, there’s just really big questions there we need to be asking about what do we do about this problem? Here’s the approach we’re taking an appropriate one? Is self-identification the right method, or is it appropriate for people to be doing DNA tests to determine that? And then I guess the other bigger question is, should sentencing be a function of your DNA analysis rather than an assessment of what impact does something have on your life? Not what, what does your DNA say? Right. That’s been an approach the US Supreme Court has taken in terms of college admissions recently, saying your background can’t be a factor, but personal things that affected you can be a factor. And so maybe that’s what we need to move to in Canada rather than DNA testing, which seems a little, Orwellian in terms of, sentencing. So that suggests about the tsunami of, false identifications this Judge is worried is warning about indeed.
Michael T. Mulligan [00:22:37] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour of Thursday on CFAX. A pleasure as always, Michael. Thanks for the time.
Michael T. Mulligan [00:22:46] Thanks so much. Always great to be here.
Adam Stirling [00:22:47] All right. Bye now.
Automatically Transcribed on March 25, 2024 – MULLIGAN DEFENCE LAWYERS