This week on Legally Speaking with Michael Mulligan:
Following 7 days of hearings, with 79 pages of notices of application, responses to applications, and pleadings, 13 affidavits totalling more than 500 pages, 67 authorities, and over 90 pages of written submissions, a BC Supreme Court Judge has concluded that the District of Central Saanich did not have authority, pursuant to its Tree Protection Bylaw, to prevent a farmer from clearing trees to expand their farm.
The judge concluded that while municipalities have some authority to regulate tree removal, the Community Charter, which delegated this authority to municipalities, does not permit such bylaws or regulations to prevent trees from being removed to the extent necessary to permit a property owner from engaging in “development to the density permitted” by applicable zoning.
The District of Central Saanich argued, unsuccessfully, that the words “development” and “density” should be narrowly construed so as to apply only to the construction of homes or buildings.
The judge hearing the case concluded that the terms “development” and “density” include more than the construction of homes or buildings and that these terms include things such as the development of a farm to increase crop yields.
As the property owners pointed out, and the judge accepted, one cannot farm in a forest.
Also on the show, a case involving a vulnerable, elderly, woman who signed away her home as part of an unconscionable purchase and sale agreement is discussed.
The woman, who was 84 at the time of trial, was persuaded to sign a transfer of her home after she had moved into an assisted living facility. The sale agreement said that the woman would receive $485,000 but the terms of the sale provided that no payments would be made for 24 months and then, over between 20 and 40 years, she would be paid from profits of a proposed winery.
Two of the people involved in the purchase took the woman to a notary, rather than a lawyer, to have the home transferred.
Unlike lawyers, notaries don’t provide legal advice.
This notary made no inquiries about the transaction, made no inquiries about the relationship between the woman and the men who brought her to the notary’s office, made no inquiries about the woman’s capacity, did not recommend legal advice, and made no notes.
The notary charged $50 and executed the document transferring the woman’s home to the would-be wine company.
At trial, the judge found that the notary had breached even the duty of care the notary owed the elderly woman and ordered that the notary pay the woman for the home.
The BC Court of Appeal agreed that the notary had breached his duty of care but found there was insufficient evidence for the trial judge to have concluded the woman would not have signed the paperwork to transfer her home even if she had been told that she should obtain independent legal advice before signing the transfer papers.
The case is a cautionary tale about the risk of harm to vulnerable people when significant transactions occur without proper legal advice.
It’s not likely a coincidence that the men involved in the unconscionable purchase of the home took the woman to a notary to execute the transfer, rather than a lawyer who would be expected to make further inquiries and offer the woman legal advice about what she was being asked to sign.
An automated transcript of the show:
Legally Speaking Feb 9 2023
Adam Stirling [00:00:00] Time for our regular segment, Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are you doing?
Michael T. Mulligan [00:00:08] Good Morning, I’m doing great, always good to be here.
Adam Stirling [00:00:09] Lots of interesting stories on the agenda today, and I may have even seen a tree preservation by law among them.
Michael T. Mulligan [00:00:17] Yes, indeed. We can actually start with that one if you like. It’s a topical issue. So, this particular decision was just released this month from the B.C. Supreme Court in Victoria. And it’s a case that involved a dispute that a farm owner had with the District of Central Saanich. And the dispute involved what authority the District of Central Saanich had to impose their tree protection bylaw and how far that went. And in this case, the particular dispute was that the plaintiff who owned the farm and they were wanting to clear the farm in order to increase the amount of farming one could do. And as the judge pointed out, one cannot farm in a forest and the property in question part of it was in the agricultural land reserve and part was not. It was common ground that the municipality did not have authority to prevent trees from being removed in the agricultural land reserve to allow farming. But the District of Central Saanich took the position that their tree protection by law permitted them to prevent trees are being removed in the part of the farm outside of the agricultural land reserve. And when the farm owner went to remove the trees, the municipality sent what was described as a sort of cease-and-desist letter ordering them to stop. And the bylaw in question pointed out various fines that could be imposed and obligations to put up new trees and so forth. And so this case involves, first of all, a discussion about what authorities do Municipalities actually have to restrict trees from being removed. And it is far from unlimited and probably makes sense because if you think about it for even a few minutes, you might realize that if a municipality were to say no trees can be removed, period.
Adam Stirling [00:02:27] mm.
Michael T. Mulligan [00:02:28] people’s land would be in many cases valueless, where you could do nothing with it.
Adam Stirling [00:02:33] Yeah.
Michael T. Mulligan [00:02:33] If you had a bunch of trees, you couldn’t build a house, you couldn’t build a building, you couldn’t do anything right. Essentially, you would have expropriated your property. And so the court begins by looking at the community charter, which is the British Columbia piece of legislation that delegates to municipalities the authority to do various things, including making bylaws with respect to trees. And indeed, there is some authority to pass bylaws with respect to trees, but it is limited.
Adam Stirling [00:03:05] hmm.
Michael T. Mulligan [00:03:06] And one of the ways in which municipalities are limited by the province in terms of their ability to make bylaws respecting trees is that bylaws cannot have the effect of tree bylaws cannot have the effect of preventing somebody from developing their property to its permitted density. And so, think about that. For example, once see that property zoned for to build home.
Adam Stirling [00:03:33] mmm hmm.
Michael T. Mulligan [00:03:33] The municipality couldn’t say no trees can come down your lot has got trees all over it. Therefore, no house for you.
Adam Stirling [00:03:42] yeah, yeah.
Michael T. Mulligan [00:03:42] they cannot do that. And so one of the issues here was, well, what do those concepts mean in terms of the concept of density and development, what do those terms mean? And the municipality tried of Central Saanich, tried arguing a few things. First of all, they tried arguing that our letter saying, you better stop this or stop this, you can’t take those trees out, didn’t come to any kind of a decision that could be reviewed in court that got short shift. Right, it wasn’t a letter saying, you know, maybe you don’t want to take the trees out. It was, you know, ordering the people not to take the trees out. So indeed, the court found that that was something that could be reviewed. Then the next issue was the issue of what do those concepts mean, that concept of development and density.
Adam Stirling [00:04:33] hmm.
Michael T. Mulligan [00:04:33] Bearing in mind that municipalities cannot restrict tree removal in a way that would prevent you from developing your property to the maximum density permitted by the zoning for that property?
Adam Stirling [00:04:43] Interesting.
Michael T. Mulligan [00:04:44] And so the municipality argued that those concepts ought to have a narrow meaning, meaning only that you would not it couldn’t have a tree protection bylaw, couldn’t interfere with your right to build a structure on your property. Like the house or the farmhouse or something like that.
Adam Stirling [00:05:02] Yeah.
Michael T. Mulligan [00:05:03] But the judge in this case concluded that, no, that’s not what those terms mean. And the concept of development and the concept of density includes application to people who are wanting to farm. And those concepts include the idea of developing a farm to increase the yield, how much you can grow on it. Pointing out, of course, you can’t farm in a forest.
Adam Stirling [00:05:25] Yeah.
Michael T. Mulligan [00:05:26] And so the judge concluded that this was indeed a decision by the municipality when they simply sent the farm owners a letter saying cease and desist, so it could be reviewed by the court. Moreover, the judge found that the district’s decision to tell the people, Stop, you can’t take these trees down was unreasonable because the tree protection by law is not applicable to the extent that it would prevent somebody from fully developing their property in accordance with the zoning allowed there. And in this case the zoning permitted that there to be a farm and therefore you cannot have a tree protection bylaw that protects prevents a person from fully utilizing their farm to increase density. That is to say yield by developing it, which is to say cutting down the trees so that you can farm not in a forest. And so that is the particular decision in this case with the Central Saanich. And I must say this was a marathon looking at this thing. There were 13 affidavits, the 500 pages of material, all kinds of authorities. The case went on for days and days. And the costs have been ordered against the municipality, which will, I suspect, not be insubstantial.
Michael T. Mulligan [00:06:46] Hmm.
Michael T. Mulligan [00:06:46] And so the important takeaways for people, first of all, these were the particular decision in terms of what that means. You know, if you wanted to take down trees on your property to farm. Well, the court is determined that, yes, if you’re zoned for farming development, that density includes taking trees down for that purpose. But it’s also important to remember more broadly that there is that constraint in terms of what municipalities are permitted to do at all. And so to the extent that if a municipality said no trees could come down, the bylaw, even if it says that, can’t have that effect because the capacity, the legal capacity of a municipality, which was of course delegated to it by the province, is not unlimited in that regard.
Adam Stirling [00:07:34] hmm.
Michael T. Mulligan [00:07:34] And well, they can do things to protect trees. They can’t do it in a way that would prevent a person from developing their property in accordance with what zoning might otherwise permit. And so that may provide some solace, of course, for people who are worried that, oh, my goodness, you know, I’ve got a bunch of saplings on my property. Colwood’s going to prevent me from doing anything, anywhere, how am I, I am hemmed in by, you know, one-foot-tall trees or something; I can’t build anything other than something sitting on top of a pole. That is not what or how that is likely to be interpreted given the restricted capacity that municipalities have to impose these kinds of rules. It’s limited and probably good that it’s limited, right, because all of those kinds of rules to introduce sort of an interesting tension between what other people might like and the rights of a person who owns the property. Right?
Adam Stirling [00:08:35] Yeah.
Michael T. Mulligan [00:08:36] You know, everyone else in the community may think this is swell. I wish to just keep all these lots, a bunch of trees. The forest is lovely. Right.
Adam Stirling [00:08:43] Yeah.
Michael T. Mulligan [00:08:44] But to the extent you do that, really, what you’re doing would amount to expropriating the capacity of the person who owns the lot to build a home or build a make a farm or construct the building, whatever might ordinarily be permitted there. And so property owners should not be concerned that a bylaw, no matter, what it says, is going to have the effect of preventing them from developing their property in accordance with what zoning might ordinarily allow. You might have other issues if you’re trying to rezone your property, of course.
Adam Stirling [00:09:16] Yes, yeah.
Michael T. Mulligan [00:09:16] But if somebody says, Look, I purchased a residential lot here, permits me to build a house of this size with these setbacks and so forth, right?
Adam Stirling [00:09:23] Yes.
Michael T. Mulligan [00:09:24] You should not be concerned that the municipality is going to take a liking to trees in such a way that you will not be able to build your house or construct your farm or do any of those things. It’s a message or a clear interpretation from the Supreme Court about how those powers are limited. And I must say as well, reading the whole history of the thing, it was an odyssey. And it, you know, goes on for pages and pages, setting out the back and forth with this municipality between the farm holder in the midst, apparently sending them things, threatening things and telling them to stop doing things and so on. And that I must say, it is also unfortunate that you would have a circumstance where you would wound up with such an extensive period of litigation and so much tension over these things. But that’s the result. The everyone else in Central Saanich will be paying what I suspect will be a large legal bill in the bill of costs. And the farm owners will be able to proceed with their farm.
Adam Stirling [00:10:30] Very topical, Michael. Much appreciated. Let’s take our first break, Legally Speaking. We’ll continue right after this in just a moment.
Adam Stirling [00:10:37] All right. We’re back on the air here at CFAX 1070, Michael Mulligan continuing this conversation. Mulligan Defence Lawyers, legally speaking, just talked about tree by laws and recent findings made by the B.C. Supreme Court that may well prove to be relevant in future cases because, of course, stare decisis, to stand by that which has been decided, as part of the legal concepts that you’ve taught us about. Michael what’s next on the agenda today?
Michael T. Mulligan [00:10:59] Next on the agenda is another timely decision, this time just after the B.C. Court of Appeal. And it’s timely in the sense that we’ve talked previously about a provincial government proposal to try to expand the roles of like unsupervised paralegals.
Adam Stirling [00:11:20] Yeah.
Michael T. Mulligan [00:11:20] To provide family law services or potentially the rules of notaries and whether how they should be regulated, what should be going on there. And it’s a case involving, I must say, very unfortunate fact pattern. It’s a woman who, at the time of the trial decision, now this was the appeal, of course, that just came out. She was 82 years of age and or 84 years of age at the time of the trial. And the background is that a few years prior to that, there was an agreement that was brokered by her son in law, which was described by the trial judge as an unconscionable agreement for the sale of her home. And the elderly woman in question owned a home in Grand Forks, I think on some 20 acres. And this agreement that she signed provided that the home would be sold to a proposed wine company. And, while the agreement said that the purchase price was $465,000. The agreement provided that no money was to be provided initially and that she might be paid from a hoped future profits from this wine proposal, proposed company with an unspecified amortization period that might run anywhere from 20 to 40 years. This is somebody who’s 84.
Adam Stirling [00:12:45] Yeah that’s…hmm.
Michael T. Mulligan [00:12:47] Not a good agreement.
Adam Stirling [00:12:49] No, no.
Michael T. Mulligan [00:12:50] That it would be a kind description of it, described as unconscionable by the trial judge.
Adam Stirling [00:12:55] Yeah.
Michael T. Mulligan [00:12:56] And the unfortunate thing here, that cause of this particular case going to the Court of Appeal is that this elderly woman who was described by the judge as somebody who would have appeared, clearly would have appeared vulnerable. She was living in a care facility at the time, was recovering from hip surgery, was taken by two other people who were involved in the transaction to a notary in order to convey her property, signing the signal of Form A, sort of a paperwork you would use to convey property be filed in the land title office.
Adam Stirling [00:13:33] Mm hmm.
Michael T. Mulligan [00:13:34] And notaries, unlike lawyers, aren’t there to provide legal advice. They sort of execute transactions. And here the notary in question didn’t make any contemporaneous notes, didn’t advise this elderly woman that she should get independent legal advice, didn’t make inquiries about the nature of the agreement or the appropriateness of it. Instead, what happened is the notary charged $50 and witnessed the woman’s signature, signing away her home.
Adam Stirling [00:14:08] Hmm.
Michael T. Mulligan [00:14:09] And so that’s how the woman lost her home. And the trial judge found that had the notary made even the most basic of inquiries, they would have discovered potentially the problem with this agreement. And the trial judge found the notary liable on the basis that the judge found the notary had breached even the limited duty of, duty of care, that even a notary would have to make some further inquiries about things like, has this person got independent legal advice. You know, those kinds of things. And furthermore found it as a result of not making those inquiries. The notary caused this transaction to proceed and ordered the notary to pay the $465,000 the woman lost by signing away her home in this fashion. That got appealed to the Court of Appeal and the B.C. Court of Appeal didn’t find that the judge made any mistakes in terms of analyzing the responsibility of the notary to make further inquiries. That being the standard of care that would be expected of even a notary in those circumstances. But the Court of Appeal found that the trial judge’s decision had to be overturned because there wasn’t enough evidence for the trial judge to concede a second part of this, which was the concept of causation.
Adam Stirling [00:15:37] hmm.
Michael T. Mulligan [00:15:37] And the way that works is when you’re if you’re suing somebody alleging, they breached their duty of care to you, you’d have to, first of all, show did they have a duty of care? What was that? And was it breached? And then you also have to establish, on the balance of probabilities, that that breach caused your loss. And the Court of Appeal found that even though none of those things were done. No notes, no inquiries about independent legal advice, just $50 for witnessing the signature of this vulnerable woman who was there with two other people who were involved with this transaction. They found that there wasn’t enough evidence for the trial judge to conclude that that breach of the duty of care caused the loss. And in part, that came because of the fact that this elderly woman, when she testified, she was obviously confused when she was testifying. Her answers often didn’t, by that point, make sense. Several years had gone by. She was saying things like, but I am quite sure I was not myself agreeing to it, but my pen was, I suppose, things like that. And so it wasn’t here on the evidence that had the notary done what they should have done in terms of making further inquiries or advising the woman to get proper independent legal advice that it would have prevented this transaction. It wasn’t a case where the woman said, look, if I had only been told what this was, I never would have done it. She was obviously confused about it, but by the time she testified in the Court of Appeal to say, look, there just wasn’t enough evidence that even if she had been advised that she should get independent legal advice, that she would have done so and follow the advice. And so, sadly for her, the result is that the claim has been struck out, or has been overturned on appeal, I should say. And the case is also, as I said at the outset, timely, because it sort of this is a decision sort of in the context of the current completed changes to permit more transactions, including in family law cases, which can be very complicated, by people who may not be fully trained to do those things.
Adam Stirling [00:17:49] Yeah.
Michael T. Mulligan [00:17:50] And I should say there’s been concern expressed in the to the Law Society about that in terms of whether that is in the public interest, because you would hope that a lawyer who would have a higher standard of care and a higher duty of care to somebody, if they, if a vulnerable, apparently vulnerable elderly person came in with this agreement that would provide for the transfer of her home. You would hope that there would be further inquiries made and legal advice offered, and you would hope it would serve to prevent some of this kind of a problem rather than the sort of $50 we completed the transaction. And well, you know, I can appreciate you people often are not wanting to spend extra money on things. Right.
Adam Stirling [00:18:41] yeah.
Michael T. Mulligan [00:18:41] And that’s why I think, frankly, notaries still exist, even though they came from a time when there weren’t enough lawyers around the province. And so, we had this concept of notaries to provide these, you know, some services. You know, I don’t know whether it’s a great public policy to have a good number of people who are not offering legal advice, who are for $50, causing these kinds of transactions to occur, because this isn’t going to be an isolated thing. Right. There are lots of people out there that are vulnerable. Not only people who might be elderly, not appreciate the nature of what they’re doing or what they’re signing, even though the pen’s moving. But you can also imagine quite easily how those same kinds of concerns about things like capacity and whether somebody is doing something is unconscionable could arise with other transactions, including, for example, in the family sphere. Right. Yeah. You know, you could have somebody where there’s a great power imbalance. You could have people that don’t have a full understanding or appreciation of what their rights are. And I’m worried that if you take some of these areas, which are indeed very complicated and which can have huge implications for people in terms of, you know, their homes, support, and children. All of these things, it strikes me that we may well be better off with a circumstance , where the people doing those transactions are properly, legally trained and have some obligation, have some further legal obligation to not only, you know, suggest that perhaps you should get legal advice, but provide the legal advice to somebody.
Adam Stirling [00:20:21] hmm.
Michael T. Mulligan [00:20:21] You know, have a discussion with the person about, okay, now, do you appreciate here what is your signing. Have the discussions independently. Do you appreciate the effect of this? You know, what’s the basis for it? Some additional inquiries which are not going to happen with somebody who’s being paid $50 and their view of it is a witness to signature and confirm the person’s identity and sign the documents which cause your house to be transferred away. And so I think this is informative and we should be taking this into account when we’re thinking about whether there should be an expansion of the kinds of transactions and things that are being done by non-lawyers appreciating that they may save money. There’s no doubt that, you know, it would have cost, I’m sure, this person more than $50 if they were having a lawyer help with the transaction. And perhaps that’s why when you think about it, this in this particular case, the elderly woman appears to have been taken to the notary by two other men.
Adam Stirling [00:21:24] yeah.
Michael T. Mulligan [00:21:24] Who are involved with the transaction.
Adam Stirling [00:21:27] yeah.
Michael T. Mulligan [00:21:27] And so that was another thing the judge pointed out to you when I read the decision, I couldn’t help but think, you know, if you were somebody trying to get an elderly person to sign their home away on the promise of possible future payments over 40 years or something, your first thought might not be the trusted of the lawyer.
Adam Stirling [00:21:45] No.
Michael T. Mulligan [00:21:46] Your first thought might be somebody who’s going to for 50 bucks, sign the forms and not ask any questions.
Adam Stirling [00:21:50] Yeah,
Michael T. Mulligan [00:21:51] And I and I’m not sure that we are all going to benefit by expanding that. It’s a tragic case. It’s really a shame. It’s understandable why the Court of Appeal made the decision they did. But boy, oh, boy, you just hope that there would be more provided by way of advice to vulnerable seniors rather than just sign here, have confirmed your identity. Thank you for the $50, for me things like this, that just to my mind, doesn’t seem enough.
Adam Stirling [00:22:17] Indeed. Totally agree. Michael Mulligan with Mulligan Defence Lawyers. Legally speaking. Thank you so much as always. Until next week.
Michael T. Mulligan [00:22:23] Thank you so much. Always a pleasure.
Adam Stirling [00:22:24] All right. Bye now.
Automatically Transcribed on February 10, 2023 – MULLIGAN DEFENCE LAWYERS