$500,000 bet on rock, paper, scissors ruled invalid by Quebec Court of Appeal, latest for BC Courts dealing with COVID-19, and a replacement judge decides a family law case


In 2011 two men in Quebec wagered $517,000 on a best-of-three rock, paper, scissors game.

The man the lost took out a mortgage on his home to pay the debt but was successful in having the gambling contract, and mortgage set aside.

In Quebec, private contractual disputes are deal with pursuant to the Civil Code of Quebec, rather than common law principles of contract, that apply in other Canadian provinces.

The Civil Code of Quebec specifies that gambling contracts are only valid if they relate to activities “requiring only skill or bodily exertion on the part of the parties” rather than to chance. In addition, the amount of the wager must not be excessive.

The trial judge who originally decided the case found that rock, paper, scissors was not simply a game of luck because it called upon the skill of the parties in terms of the speed of execution, sense of observation, and in selecting strategic sequences.

The Quebec Court of Appeal disagreed with the trial judge and concluded that rock, paper, scissors was a game involving a large part of chance, and not only the skill or bodily exertion of the parties.

Both the trial judge, and the Court of Appeal, agreed however that the amount wagered was excessive and so the gambling contract, and resulting mortgage, was set aside.

Also discussed are continued efforts, by British Columbia courts, to manage the dislocation caused by COVID-19.

While the Court of Appeal will be back to full operation using Zoom for hearings, the trial courts are still trying to find ways to manage witnesses, juries, and other practical issues, safely.

The Provincial Court has now adjourned cases that were set until July 3rd. In an effort to mitigate what will otherwise be a potentially unmanageable backlog, the court will begin dealing with an increased number of less urgent matters by telephone, including criminal sentencing cases where a jail sentence is not being requested. Judges will also engage in pre-trial telephone hearings in an effort to encourage the resolution of outstanding criminal and family law cases.

Finally, a recently released family law decision from the BC Supreme Court involved the assignment of a replacement judge to decide a case, after the original trial judge became incapable of continuing after hearing a seven-day trial.

The replacement judge was able to listen to audio recordings of the trial, review the transcripts and exhibits, and hear submissions from the lawyers involved.

The replacement judge pointed out that while they were not able to observe the demeanour of witnesses in order to assess creditability, that this is only a small part of making this assessment, and that based on the material and audio recordings they were able to accomplish what was required without needing to start the trial over.

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

An automated transcript of the show:

Legally Speaking April 30, 2020

Adam Stirling [00:00:00] Right now, it is time for Legally Speaking on CFAX 1070. Joining us, as always, Michael Mulligan, Barrister and Solicitor, Mulligan Defence Lawyers. Michael, good morning. Thank you for joining us.

Michael T. Mulligan [00:00:10] Thank you very much for having me. Great to be here.

Adam Stirling [00:00:11] And we continue our remote operations as we are in the midst of COVID-19. What is on the agenda today?

Michael T. Mulligan [00:00:18] Well, the first case that I thought was worth talking about this week is actually out of Quebec. And it’s a case out of the Quebec Court of Appeal and quite possibly the highest authority you will ever see considering the game of rock, paper, scissors.

Adam Stirling [00:00:35] Fascinating. It also involves Quebec civil code, which is different from the common law system that we use. How does that work?

Michael T. Mulligan [00:00:42] That’s an excellent question. And I must say, as a common law lawyer, I always find it to be a little bit of a head scratcher. The common law works by having judges interpret sections and make decisions and then try to apply those to future cases. And so, if you were trying to sort out what might a particular section mean or a particular law, you might look to what a previous judge said about that and how they interpreted it. And so, it sort of evolves over time. The civil code system tries much more to code, codify every possible scenario. And so, there is in the Quebec civil code, because the in Quebec, the civil system is what is applied to civil disputes. Criminal code would apply all across the country, but if we’re having a dispute over money or a contract or something in Quebec, well, the civil code applies. And the Quebec civil code, if you can imagine, actually hit this particular section in section 2629. You’re going to need a lot of sections.

Adam Stirling [00:01:50] That’s a lot of sections.

Michael T. Mulligan [00:01:51] And when you’re trying to anticipate all manner of different possible human affairs. And so, the issue in the case involved these two people who entered into a series of best of three Rock-Paper-Scissors games back in January of 2011, and the amount of money wagered was $517,000.

Adam Stirling [00:02:16] For one rock-paper… a half a million dollars.

Michael T. Mulligan [00:02:19] Three, it is three, it is three Rock-Paper-Scissors games in all fairness.

Adam Stirling [00:02:22] Forgive me, oh that’s an entirely different matter.

Michael T. Mulligan [00:02:25] So they had these three, I guess it was sort of double or nothing, they went three games and the loser wound up on the hook for $517,000.

Adam Stirling [00:02:34] wow.

Michael T. Mulligan [00:02:34] And I suppose to his moral credit at the time, he paid in the form of granting a mortgage on his home for the amount of $517,000. And for a period of about 10 months, he made payments to the winner of the Rock-Paper-Scissors games before he maybe he spoke to a lawyer or came across section t2629 of the civil code and decided to try to go to court to see if he could get out of having to pay. He was trying to invalidate this mortgage he’d given to the other person having lost the game.

Adam Stirling [00:03:08] huh.

Michael T. Mulligan [00:03:09] And so the case wound up in the Quebec Superior Court in t 2017, and the judge there was required to go and look at this section of the civil code. And that part of the civil code provides that for a gambling contract to be valid, there are two requirements under the civil code: one, is that it must be a wager or a gambling contract on something that is activity that is requiring more that requires only skill or bodily exertion on the part of the parties. So, I suppose that would be things like gambling on a sporting event two people might engage in, for example. Right. As opposed to a lottery. And then there’s another requirement that the gambling contract must not be excessive.

Adam Stirling [00:04:01] Hmm.

Michael T. Mulligan [00:04:03] And so the Supreme Court judge had to, first of all, this was great authority, make a determination as to whether Rock-Paper-Scissors is a game of luck or not. Is Rock-Paper-Scissors, Rock-Paper-Scissors a game of luck, or is it a game involving only skill and bodily exertion? And the trial judge found that in some circumstances, Rock-Paper-Scissors is, in fact, a game of skill. And the judge made reference to the particular skills of speed of execution, sense of observation and putting in place a strategic sequence of rock, paper or scissors. The trial judge also found, so the judge found that, look, this was a game involving skill, but the amount of money involved here was excessive and found that the contract was not enforceable. Now often goes to the Court of Appeal. I guess it was worth the effort of the winner of the Rock-Paper-Scissors trio, given it was five hundred and something, $517,000 on the line.

Adam Stirling [00:05:04] Yes.

Michael T. Mulligan [00:05:05] And so the Court of Appeal had to review, again, whether Rock-Paper-Scissors was a game of skill or chance and whether the contract was for an excessive amount of money. The Court of Appeal disagreed with the trial judge and found that Rock-Paper-Scissors was, they said, it seems evident the game involves a large part of chance and does not only take skill or bodily exertion, as an interesting authority on that point, but agreed that the amount of money here on this wagered was excessive. And because this provision of the civil code requires that a gambling contract not be for an excessive amount of money. Whatever that might mean. In this case, the Court of Appeal found that $517,000 was indeed excessive. And so, whether or not Rock-Paper-Scissors simply involves skill or gambling, just a random chance it. In either case, the loser doesn’t have to pay, the mortgage is cancelled, and after a number of years, he’s off the hook for the half million dollars he lost in this ridiculous gambling effort back in January of 2011.

Adam Stirling [00:06:14] So does this mean that we have now created common law precedent on interpreting Quebec’s non common law, civil code?

Michael T. Mulligan [00:06:22] Well, one would look at and say, well, look, surely another judge being called upon to interpret that particular provision would come to the same conclusion. But if, as I understand it, the civil system doesn’t recognize precedent in the same way.

Adam Stirling [00:06:40] huh.

Michael T. Mulligan [00:06:40] That the common law system would recognize precedent.

Adam Stirling [00:06:43] Wow

Michael T. Mulligan [00:06:43] Now, the common law system, if you ask the lawyer, you know, is a gambling contract for that amount of money enforceable? Well, I would look up, you know, well, look, it seems that the Court of Appeal has made a decision on that in that amount. So, if you asked me, you know, would a gambling contract and that amount be enforceable, I would say no. Here’s look at the courts done. But in the civil system, precedent doesn’t operate in the same way. And as I understand it, there could be some different conclusion reached by based on efforts to interpret what all these thousands of sections of the civil code mean. I must say, the common law lawyer, it always leaves me as a bit of a head scratcher trying to sort out why that would be a sensible way to do it. But indeed, that is how it’s done. And, you know, maybe there’ll be some reconsideration as to maybe we need a section 2930 or some other version of this to try to, you know, take into account some other possible version of human affairs. So, there it is in Quebec, Rock-Paper-Scissors Court of Appeal, not skill, like ruling the trial judge.

Adam Stirling [00:07:54] But if it happens again, a different trial judge may find a different or make a different finding. And they would not be bound by stare decisis or by…

Michael T. Mulligan [00:08:01] Yeah, that’s right. They would be trying to interpret what that section of the civil code means.

Adam Stirling [00:08:07] Wow.

Michael T. Mulligan [00:08:07] So there it is. And I guess it’s sort of a different way of coming to these decisions with the idea being will try to anticipate all these things and codify all of these things. So, there we are in Quebec.

Adam Stirling [00:08:20] Fascinating. Well, the Court of Appeal back in action using Zoom. We’ve talked about that. I would imagine the trial courts are having a much tougher time. What is the status of all that?

Michael T. Mulligan [00:08:30] They are having a tougher time. There was yesterday a couple of things happened on this front. First of all, there was a Zoom meeting with an excess of 2000 participants, mainly lawyers and judges in British Columbia, including the Chief Judges of each of the Court of Appeal, the Supreme Court and the Provincial Court talking about what they’re trying to do and their experiences, trying to get everything back on track as best they can, while keeping everyone safe. And as of this Monday, the Court of Appeal is going to be theoretically back operating at full capacity and simply doing every hearing by Zoom. But that doesn’t work in the trial courts as easily because there are factors like, witnesses showing up, and actually having the accused person there, and in the Supreme Court juries and how do you deal with those? Right. And so, what happened yesterday as well is that the provincial court extended the period of time, they were presumptively adjourning non urgent cases. Previously, they had adjourned all of the non-urgent cases that were set up to me the 15th. We’ve extended that now to July the 3rd. So, an additional large chunk of cases will presumptive, we’ll be adjourned the July ones into October to fix new dates. However, in an effort to try and manage what’s going to be otherwise an insurmountable backlog of trials that just haven’t been completed.

Adam Stirling [00:10:08] Yes.

Michael T. Mulligan [00:10:08] The provincial court is going to try to conduct hearings by telephone involving the judge and counsel either on family things or on criminal matters. And it sounds like with the objective of trying to encourage resolution of things, even if it’s not a trial, you know, the judge perhaps intervening to encourage parties to settle the thing or offer some insight on, you know, how a particular issue might be resolved or decided. So, they’re going to try that on. There also they’ve announced that on for criminal matters for sentencings, where the Crown and Defence are, have a similar sentencing position and the Crown is not asking for a period of jail. The intention is that if both parties agree, the judges will conduct those sentencing hearings by telephone. And so, what I expect you’re going to see, would be for sentencings of on things that are at the low end of the seriousness continuum. Know you can imagine things like, you know, somebody was charged with shoplifting and they want to plead guilty to that.

Adam Stirling [00:11:26] Mmhmm

Michael T. Mulligan [00:11:26] Somebody was charged with, you know, breaching their probation condition by not, you know, drinking alcohol or not reporting on time. Something of that. Things of that sort.

Adam Stirling [00:11:37] Yes.

Michael T. Mulligan [00:11:38] And there are many, many cases in the criminal justice system that are at that relatively low end of the seriousness continuum. And collectively, they would represent thousands of cases across the province. And if we keep pushing the load of cases further and further down the road, it’s going to be impossible to get through them. And so there just is going to need to be some prioritizing in terms of what can proceed, how can it proceed? And it sounds like the intention with these telephone conferences would be to try to encourage counsel to resolve cases where possible. Right.

Adam Stirling [00:12:24] Yes.

Michael T. Mulligan [00:12:25] If the parties are not that far apart. And if the resolution is one that would not involve a jail sentence in the criminal context or there can be some resolution of a family matter, for example. The idea would be having the judge do that by telephone and get her done. Because if we, it is not a solution to forever push things along because the system had very little slack capacity at the time, they stopped dealing with these matters.

Adam Stirling [00:12:55] Right.

Michael T. Mulligan [00:12:55] And if we have months and months of cases pushed back, they simply cannot all proceed in the ordinary way. The delay would just be intolerable. Other things are going on. They’re interested in that video conference yesterday of 2000 lawyers and judges talked about provincial courts making other efforts to do things like install plexiglass barriers and sort out ways to physically separate people.

Adam Stirling [00:13:24] Yes.

Michael T. Mulligan [00:13:25] There are some practical problems, like, for example, where the judge would sit is less than six feet away from where the court clerk would sit. And the court clerk, can’t be easily moved because they have like audio recording equipment and computer systems, take notes.

Adam Stirling [00:13:39] Yes.

Michael T. Mulligan [00:13:39] Have to figure out how can you move all that stuff away or put up a barrier so that you know, as the Prime Minister saying nobody’s speaking moistly on the other individual. Right.

Adam Stirling [00:13:50] Yes

Michael T. Mulligan [00:13:51] You’re not going to be too happy if you’re the court clerk and you’ve got a judge three feet behind you, leaning over at you to do things. So perhaps some of those plexiglass barriers that were put up in grocery stores, those can be installed. Similar things may be necessary for places like the witness box.

Adam Stirling [00:14:11] Yes

Michael T. Mulligan [00:14:12] You could have them separated. You may then require other things like audio amplification, because even in the best of times, it can be difficult for everyone to hear what is being said. And then also if we’re talking about things like limiting the number of people in the courtroom. So, they’re actively working on trying to come up with physical modifications so that everyone can be there safely and do their job. But in the interim, they realize we just can’t be forcing witnesses and juries and various people to be all showing up and being in close proximity. So, the bottom line is that cases are being put off. They’re going to do their best, the judges, to try and encourage resolution. And where there can be resolution of cases, they’re going to try to do what they can to manage what can be dealt with in that way by phone, or else we’re going to find ourselves in an impossible spot. The list of adjournments now goes on until October.

Adam Stirling [00:15:16] Wow.

Michael T. Mulligan [00:15:16] The cases that were scheduled into July are being put off to the beginning of October. And that doesn’t mean that somebody would get their July 3 trial, for example, on October 8th. That would mean they can then give another date fixed for their trial and they will be behind all manner of things.

Adam Stirling [00:15:34] So what happens in terms of delays extending to the point where they constitute prejudice? Michael Mulligan.

Michael T. Mulligan [00:15:41] Well, if you get to first of all, the Supreme Court of Canada provided some guidance in terms of the maximum permissible length of time. Barring exceptional circumstances. So…

Adam Stirling [00:15:52] Oh I see,

Michael T. Mulligan [00:15:52] … Certainly may be exceptional. But if you have actual prejudice, that’s likely to be the end of the case. Like, let’s say, for example, the critical eye witnesses they might have exonerated the person dies, before the trial happens.

Adam Stirling [00:16:06] Yeah

Michael T. Mulligan [00:16:08] The likely result is this the thing will have to be stayed or discontinued. We’re not going to convict people at unfair trials. And so, it is not hard to imagine how you can, in fact, wind up with real prejudice.

Adam Stirling [00:16:26] Yeah.

Michael T. Mulligan [00:16:26] And I should say there is for many people real prejudice in just the waiting.

Adam Stirling [00:16:32] Yeah.

Michael T. Mulligan [00:16:32] Not necessarily make the trial unfair, right. Maybe all the witnesses are there, but you can imagine what it’s like if you’re an ordinary person and you’ve been waiting for, you know, a year, two years, three years for your trial to get on. You might feel that your entire life is on hold for that period of time.

Adam Stirling [00:16:48] Yes.

Michael T. Mulligan [00:16:48] That doesn’t apply to everyone, but it does certainly apply to some. And of course, we need to approach these things with the presumption that we always have. That people are innocent. And so, you must approach it from the perspective of, OK, you’ve got an innocent person here who has been waiting for a very long time within some cases, they’re on a strict bail condition.

Michael T. Mulligan [00:17:12] Even if somebody is not in jail, they may have been ordered to, you know, not leave their home or they always been ordered to do, you know, all manner of things that would interfere with their life. And so, these things are tremendously important. And the same is true, I should say, on the family front. You know, some of the things that are going on in the family context. You know, if you’re waiting for, you know, months or years to figure out are you going to have access to your child or are you going to get that child support you need or those things are very, very important. And there’s just such obvious prejudice by putting them off. We’ve talked previously built child apprehension cases.

Adam Stirling [00:17:52] Yes.

Michael T. Mulligan [00:17:52] You know, if the government has taken your child away and you’re wanting your hearing to argue that that’s not appropriate, every day that goes by is a very serious prejudice for you.

Adam Stirling [00:18:04] Indeed, I need to get my break in here, so let’s do that at this time, Michael Mulligan will continue offering us the benefit of his analysis and insight is Legally Speaking continues right after this.


Adam Stirling [00:18:13] Back on the air here at CFAX 1070, in the final four minutes of our conversation. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, the third case we’re examining today, a decision released by the B.C. Supreme Court where one judge was unable to continue after hearing evidence in a family case. What happened?

Michael T. Mulligan [00:18:31] Yes, I think this is, I think, interesting, particularly in the context of dealing with, you know, COVID-19 and how judges to deal with things by telephone and otherwise. This was a case with a, family law case where there was a seven-day trial, and then after the trial finished, the judge was able to issue some preliminary decisions, but then was incapable of continuing. It sounds like a medical, medically incapable of carrying on to render the final decision.

Adam Stirling [00:18:59] Mmhmm

Michael T. Mulligan [00:18:59] Now in B.C., we have these things called the rules, Supreme Court rules that set out how procedural things are to be dealt with, and that has been contemplated. And the rules permit the Chief Justice to decide whether it’s appropriate to appoint another judge to carry on to make the decision, like decide a case where a judge has died or become incapable of continuing. And in fact, that’s what the Chief Justice did here. And so the replacement judge, although that was the judge, of course, did not hear the witnesses live, went back and listened to all of the audio recordings of the seven day trial, looked at the exhibits, read the transcripts and listened to submissions of the lawyers and then continued to make the decision, which was just released this week. And in doing that, the replacement judge indicated that, well, they didn’t have the benefit of watching the witnesses. Indicated that this: the demeanor of witnesses is but a small factor in a credibility assessment because the witnesses presentation while testifying may be affected by a number of factors that may see less about credibility and more about personal circumstances, culture, cultural, cultural or social upbringing. And so even though there were issues of credibility in the case, the replacement judge found that they were able to, by listening to the recordings, reading the transcripts, arguments, looking at the exhibits, make decisions, including decisions in terms of the credibility of the parties, even though they weren’t the judge who actually was sitting there watching the trial. For example, there was an issue about whether the mother in this case was capable of working. She claimed that she was physically unable to do so. The respondent husband argued that, look, your social media postings of her engaging in all kinds of sporting activities during the relevant period of time. The judge looked at those, looked at that evidence and concluded that he didn’t believe the mother’s claim that she was physically incapable of working because of the activity she was engaged in. And so, for example, on that basis, made a finding of credibility, even though the judge didn’t observe the witness testifying. The case also involved an issue which I think is important for people to know about who may be in a family dispute. And that involves the concept of imputing income. And here the mother had a photography business, which for many years made virtually no money, and the judge found that even though she might have goals to work in that way, she had an obligation to go and work in a meaningful way that would generate money to help support the children. And so imputed income to her on the basis that she was choosing not to work and engage in a photography business that made, you know, $137 in one year, for example.

Adam Stirling [00:22:04] I see,

Michael T. Mulligan [00:22:05] So that’s, I think, an important thing to know. But the big takeaways there are this possibility of having a replacement judge if a judge dies or becomes incapacitated. So, you don’t have to rerun long trials. And as well, that idea that, in some circumstances, a judge, even if they can’t observe the witnesses in person, may still be in a position to deal with credibility issues. By looking at things and listening to the evidence carefully and well, observing a witness in some cases can be important, the judge points out here that that only plays a small factor in assessing credibility because there can be such misleading conclusions drawn from that.

Adam Stirling [00:22:49] That’s all the time we have for today. Michael Mulligan. Thank you as always for these segments. They are greatly appreciated until next week, sir.

Michael T. Mulligan [00:22:55] Always enjoy it. Thank you so much for having me.

Adam Stirling [00:22:57] Have a great day.

Automatically Transcribed on April 30, 2020 – MULLIGAN DEFENCE LAWYERS