This week on Legally Speaking with Michael Mulligan:
For many years, the BC government has paid all lawyers working for it on the same basis as contracts negotiated by the union representing Crown Counsel. Recently the government decided to stop doing this. That decision likely increased support for the rest of the lawyers to sign up to join the BC Government Lawyers Association: 75% did so.
The BC NDP government, whose core support is organized labour, recently introduced legislation entitled the Public Service Labour Relations Amendment Act, 2023. This act is also referred to as Bill-5.
Bill-5 is only half a page long. On the face of it, the bill appears to make some changes to the definition of “employee” in an act called the Public Service Labour Relations Act but it’s entirely unclear what impact this change would have. The Explanatory Note, which is included with Bill-5, is equally opaque.
Without reading and carefully analyzing the Public Service Labour Relations Act, it’s impossible to determine what impact the definition change would have.
The explanation provided by Minister Katrine Conroy when she introduced the bill and when she answered questions about it indicated she did not know or was misinformed about the effect of Bill-5.
When she spoke about it in the legislature Minister Katrine Conroy indicated that Bill-5 would permit the lawyers to have the BC Government Lawyers Association represent them as they wished. This is a position completely consistent with the position you’d expect from an NDP government.
If enacted, Bill-5 would force the lawyers to join a union they don’t want to: the Professional Employees Association.
That union has also said they don’t want a group of people who don’t want to join them being forced to do so.
The foregoing circumstance resulted in a most unusual spectacle of government lawyers protesting on the lawn of the legislature.
Without the benefit of advice from the flock of lawyers on the lawn of the legislature, the BC NDP government seems to have been misled about the effect of the legislation it introduced.
Also, on the show, the BCCA finds youth bail conditions improperly imposed on the show. The trial judge in the case ordered the young person to follow all rules of the house they were living at and to accept medical treatment.
The BCCA concluded that the judge didn’t have details of the house rules, the rules could change, and a failure to comply could result in the young person going to jail. In these circumstances, the condition wasn’t permissible.
The condition requiring medical treatment was also impermissible because, as with adults, a mature youth had a constitutional right not to be ordered to undergo medical treatment without their consent.
Finally, on the show, a class action on behalf of 13 women secretly video recorded in the bathroom at a grocery store is certified against both the manager who did the recording and the corporation that owned the store. Some of the resulting photographs and vides were posted on pornographic websites.
An automated transcript of the show:
March 16, 2023, Legally Speaking
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan with Mulligan Defence Lawyers. We’ll get back to open line reaction coming up after the top of the hour. 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 [00:00:10] Now, B.C. government lawyers I recently saw on the front lawn of the B.C. legislature protesting the government. Now, it’s not very common for lawyers to protest their employers, or at least I wouldn’t think what was going on there.
Michael T. Mulligan [00:00:25] No, that was quite a spectacle. And there’s a very interesting explanation for what seems to have gone on there. The little bit of background is that in B.C. for the past, like 20 years or so, there’s been organizations, the Crown Counsel Association that’s represented Crown Counsel in negotiating with the government over, you know, employment terms and so on. They’re the union for the for Crown. And one of the sort of unseemly things that’s happened over the last 20 years or so is that the Crown negotiated a contract with the government that caused their salaries to be linked to provincial court judges, who have a, the provincial court judges have their salaries theoretically determined by an arm’s length committee. So the government isn’t deciding how much they’re paying the person who’s deciding conflicts with the government, right?
Adam Stirling [00:01:19] Yeah.
Michael T. Mulligan [00:01:19] But every time that committee does its work, the government exercises its statutory authority to overrule the amount ordered for the judges to reduce it, in part because of the, I guess, the expense of the other people who are linked to the judges, including Crown. Right.
Adam Stirling [00:01:40] Yeah.
Michael T. Mulligan [00:01:40] And what happened is, after that, Crown Counsel Association formed and they negotiated a contract. The government had provided the same terms of employment for all of the government lawyers. So, they were all paid the same. Well, the government so dislikes the idea of the not having direct control over what they’re paying, the fact that it’s salaries are linked to this independent commission, that they decided to stop that linkage for all of the lawyers except Crown Counsel, and they were threatening to do the same to Crown. And you may recall perhaps a year or so ago, there were ads being run, including on this station by the Crown Counsel Association, telling people that, you know, criminals would be running rampant and all the Crown are going to be quitting because of what the government was doing with Crown salaries. Well, the Crown backed off or the government backed off for the Crown, but de linked the rest of the lawyers in the government from that agreement, I guess, to save money.
Adam Stirling [00:02:42] Hmm.
Michael T. Mulligan [00:02:43] That lit a fire, I think, under efforts by a group called the B.C. Government Lawyers Association, trying to organize all of the other lawyers, other than Crown, to join a union. And in fact, the B.C. Government Lawyers Association has had good successfully managed to get 75% of the lawyers to sign a membership card to join the B.C. Government Lawyers Association to become the union for the rest of the lawyers. Right.
Adam Stirling [00:03:09] mm Hmm.
Michael T. Mulligan [00:03:10] And all of that was under in the context of changes the B.C. NDP made to the process to certify to become a union last year, where you can sign these cards if you get 55%,the presumption is you’re the union, if you go. Right. And the inconsistent with their general philosophy, the government was touting that as one of their accomplishments last year, right making it easier for people to collectively bargain. So that brings us to what was going on last week. Well, what happened is that the provincial government, in the form of Katrine Conroy, who also the Minister of Finance, introduced what’s referred to as Bill 5, and the title to that is the 2023 Public Service Labour Relations Amendment Act. It sounds kind of innocuous and in fact, when you look at the thing, it’s only half a page long and it seems to just change the definition of who is an employee in the Public Service Labour Relations Act. Right.
Adam Stirling [00:04:12] hmm.
Michael T. Mulligan [00:04:12] And so you think, well, what’s the big deal there? Well, what seems to have happened is that Minister Conroy doesn’t seem to have appreciated the implication of what that Bill would in fact do. And in her defence, it’s kind of ambiguous when you look at the thing, because when you read it, it’s just sort of this change of definition. The explanatory note doesn’t seem to explain what this thing is. But if you take the time to go and get the other act, read the definition, figure out what the act does and really what this the effect of this thing is. This, that particular piece of legislation would have the effect, if it’s passed, of causing all of the other lawyers not to join the B.C. Government Lawyers Association, for which they wanted to join and signed cards, at least 75% of them.
Adam Stirling [00:05:00] mm hmm.
Michael T. Mulligan [00:05:00] But would cause them to automatically become members of a different union, this Professional Employees Union. A completely different one. Not the one they voted to join, which cause number of concerns. First of all, that union said, Well, hold on, we don’t want a bunch of people forced into our union that don’t want to be part of us. What’s going on there? Second of all, from the perspective of the lawyers who were trying to join the B.C. Government Lawyers Association, one of the fundamental principles of collective bargaining and unions and so on is that employees can choose whether they wish to join the union or not. Right. That’s up to them. Supposed to be Democratic. And second of all, you get to choose which union you want to join. Right.
Adam Stirling [00:05:46] yes.
Michael T. Mulligan [00:05:47] Your employer doesn’t get to pick what union you’re going to be in. That’s kind of for the employees. That’s really the whole point, right?
Adam Stirling [00:05:53] Mm hmm.
Adam Stirling [00:05:53] And so that background is what produced the gaggle of lawyers on the lawn of the legislature. Right, hey, this isn’t what we asked for. That’s not the union we want to join. What are you doing to us all?
Adam Stirling [00:06:05] Yeah.
Michael T. Mulligan [00:06:05] And so that prompted questions, in question period, that day about of the minister, what’s going on here? Right. And the answers given by the minister in question period were fascinating because they demonstrated that the minister, Mrs. Conroy, didn’t understand what this legislation would in fact do. The answer she gave sort of explaining what was going on and why the lawyers roll out on the, on the lawn was saying, oh, this legislation just permits the lawyers to join the B.C. Government Lawyers Association if they wish to. We’re not requiring them to do that. That’s up to them, which is completely wrong. And, you know, the irony of it may be that without the benefit of advice from the lawyers that are on the lawn, and presumably you were to ask them, it would appear that what’s happened is that the government, in the form of Minister Conroy, has introduced this piece of legislation and just not understood what it would do. And so, in so doing, without I guess any political judgement in terms of whether this piece of legislation forcing a bunch of people to join the union they don’t want to belong to. The government, seems to have, in my view, just completely lost the plot right. You know what could be more off brand for the B.C. NDP than interfering with collective bargaining rights or interfering with what union somebody might wish to join. And so that’s the pickle the government’s gotten itself into. It’s introduced this legislation without apparently understanding what it would do. And if it was passed, it would have this completely, apparently unintended impact from the government’s perspective, forcing people to join a union they don’t want to join and a union that doesn’t want to have them forced into it. And so that’s the background for the spectacle of the lawyers out on the lawn of the legislature. So, it’ll be really interesting to watch. You know, there may not be great public sympathy for lawyers or lawyers for the government, whatever it might be. But I think most people would agree with a general proposition that, look, it’s up to employees to decide if they want to join the union or not, and if so, they can join whatever union they want. Right. It’s not for an employer to get in and muck around with that and for the B.C. NDP of all political parties to be introducing legislation, which apparently they didn’t understand, that would undermine that is sort of disappointing. But that’s the long explanation for why there were a gaggle of lawyers on the lawn of the legislature protesting legislation that the government introduced without apparently understanding it, that if passed, would force them all into a union they didn’t want to join.
Adam Stirling [00:08:57] Now,
Michael T. Mulligan [00:08:57] That’s the that’s the background.
Adam Stirling [00:08:59] Now, weren’t those lawyers also the ones who drafted the legislation that the government introduced was not among their jobs?
Michael T. Mulligan [00:09:06] Well, that is a task that government lawyers do perform. But, you know, we’ll never know this because that’s the kind of thing which is kept in confidence.
Adam Stirling [00:09:14] Oh I see.
Michael T. Mulligan [00:09:14] But it would be unlikely the government would have had them address this. What would really be fascinating, because we have the bill write this Bill 5 and the bill happens to have this explanatory note at the bottom of it, which is meaningless. It just talks about language. It doesn’t explain what the actual effect of this would be. What would be really interesting to know, right, is what memo or explanation came with Bill 5 to Cabinet. Like, why was it that the Minister of Finance believed that this bill, if passed, would just facilitate the lawyers if they wished to join the union they wish to join? Why did she have that understanding of what this legislation would do? Because as I said, you just look at it. You can’t tell really what it does. You have to bear down, get the other bill, figure out how it works. What does this definitional change mean? And so what would be really interesting is on what basis did the government get apparently misled into thinking that the passage of this legislation would simply create space for the association to bargain with the government? Right. And, you know, the minister seemed to believe that the legislation would support the B.C. Government Lawyers Association right of association. Right. Which is the opposite of what this legislation actually does. So, if somebody were asking a really probing question of Minister Conroy, it would be what were you told this legislation would do? Why do you why did you believe that the legislation would have one effect when in fact it has the opposite effect? And so it would be really interesting to know what advice was the government given and by whom about the effect of this legislation. Because the legislation Bill 5 has an effect, which is quite the opposite of what Minister Conroy indicated that she thought it would do. It does the opposite. So, we’ll never know that. We’ll never see that.
Adam Stirling [00:11:21] mm hmm.
Michael T. Mulligan [00:11:21] But that would be fascinating. And frankly, that’s the kind of thing which would ordinarily come from some of the people probably out on the lawn. Sort of, you know, helping draft things explain what this would actually do, because not all things are clear. This one isn’t clear. Right. And so, there’s some explanations required. So it looks like this bill kind of slipped through the political process, resulting in this completely off key inconsistent message from the government in terms of collective bargaining on the basis that the minister misunderstood what it would do. And that’s what produced the protest. And we’ll have to wait and see how that is walked back or undone, because a decision to force your employees into some union they don’t want to be in, not only is sort of contrary to the sort of general principles of fairness people would expect, but is completely off key with the message that the provincial NDP would give out and you would expect them to give a right when they amended the process to form a union. They issued through a happy press release talking about a constitutional right to freedom of association, including the right to organize, you know, all these things, which would be values you would expect from the B.C. NDP. And this legislation is the exact opposite, and it appears to have slipped in by lack of understanding about what it would actually do. So that’s the explanation to the lawyers on the lawn, and it will be interesting to see how the government deals with that, whether they repeal it or fix it. Presumably, now, there’s been some explanation provided to the government about what this bill would actually do, just inconsistent with what they thought it would do based on whatever information they had.
Adam Stirling [00:13:12] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, will continue right after this.
Adam Stirling [00:13:16] And we’re listening to Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers. It’s Legally Speaking continues here on CFAX 1070. Probation conditions unlawful and deleted by the B.C. Court of Appeal. I’m reading here, Michael, what’s the story?
Michael T. Mulligan [00:13:31] Yeah, this is an interesting case just released by the B.C. Court of Appeal, and it has to do with sort of in what circumstances can the judge impose probationary conditions on a young person. And the case involves a young man who was 16 at the time of sentencing, now 18. He pled guilty to robbery, aggravated assault and breaching some other youth court sentencing condition. And he was sentenced to a period of jail, followed by a period of probation. And the case involved the lawfulness of two of the probation conditions. One of the conditions required that the young person live were directed by their youth worker; and this was a critical part, obey all the rules and regulations of that residence for them; not to change it without prior permission. So it’s to obey all the rules of the residence and the other condition was to accept and complete treatment, training, counselling and assessments, including forensic assessments and that work. And so the issue with those two conditions, which the Court of Appeal found to be unlawful with respect to the obeying all the rules conditions, the Court of Appeal found that there were multiple problems with that. First of all, the judge didn’t know the what all the rules were, so they were imposing effectively rules that were unclear. Second of all, the if you don’t comply with whatever the rules might be the consequences could be, of course, going to jail. Thirdly, the conditions could change at any time, right, the rules of the residence. And so, with in that circumstance, it was not permissible for the judge to impose an order that effectively orders somebody to do whatever somebody else says they must do. Right.
Adam Stirling [00:15:20] Yeah.
Michael T. Mulligan [00:15:21] And so that was found to be impermissible. The other condition, which is the condition requiring effectively the young person to undertake medical or other treatment, was also found to be impermissible. And the history of that arises from an adult case, Rogers from the B.C. Court of Appeal back in 1990. And the principle in that case was that you can’t constitutionally order somebody as a term of probation to take medical treatment or drugs or things like that without the person’s consent, because, you know, you can imagine how intrusive that is, right?
Adam Stirling [00:16:01] Mm hmm.
Michael T. Mulligan [00:16:02] And so the issue here was, is that different for youth? Right. Could a court to do that without the consent of the young person? And the Court of Appeal concluded that, no, that same principle applies, at least for mature youth. The principle there is that sort of a mature minor, somebody who has sort of sufficient maturity, intelligence capability to understand and make choices about medical treatment. They also can’t have unwanted medical treatment or drug requirements imposed on them unless they agree to it. Again, sort of that principle of sort of autonomy people would have over their bodies. And so, with respect to that condition, the Court of Appeal agreed with a proposed fix that the Crown suggested, which was to add the language of except you shall not be required to submit to any treatment or medication to which you do not consent. And so that’s one of the big takeaways here, include, you know, probation conditions aren’t unlimited, right? They’re not sort of whatever a judge might dream up. Right.
Adam Stirling [00:17:10] Yeah.
Michael T. Mulligan [00:17:11] And they have real consequences. Right. The consequence of breaching your condition can be you go to jail. Right. And so, the message here from the Court of Appeal is you can’t be doing things like delegating the power to make whatever rules some home might want, where the consequence would be potentially going to prison if you don’t follow them. Nor can you order even a young person who’s mature enough to make some decisions for themself about medical treatment to take drugs or treatment as a condition of probation. So I thought that was an interesting takeaway for people in terms of what is and is not permitted in terms of conditions of probation even for a young person.
Adam Stirling [00:17:54] And it touches on similar themes that you and I have discussed in the past, including but not limited to the bail system being prohibited from being used to attempt to impose medical treatment on someone.
Michael T. Mulligan [00:18:04] Absolutely correct. Bail conditions cannot include conditions intended for treatment. Right. Because remembering that a person who’s on bail is presumed to be innocent.
Adam Stirling [00:18:15] Yes.
Michael T. Mulligan [00:18:15] We don’t start treating somebody who you presume to be innocent. Bail conditions need to be conditions designed to make sure the person’s going to show up in court to protect the public or others from the person, if that’s necessary thing. But we can’t leap ahead and start trying to program somebody or fix them because, of course, they’re presumed to be innocent. Right. That if it were otherwise, the presumption of innocence would be pretty well meaningless, right?
Adam Stirling [00:18:42] Indeed. We’ve got one more issue on the agenda today. And 3 minutes and 15 seconds on the clock.
Michael T. Mulligan [00:18:48] Yeah. So, this is a local case. It’s a case that listeners may remember out of the from the Red Barn Market on Mattick’s. It’s the company whose Red Barn at Mattick’s Ltd and it involved a manager there who installed a camera and took pictures of women undressed in the bathroom. Pretty dastardly activity.
Adam Stirling [00:19:10] Yeah.
Michael T. Mulligan [00:19:11] And he was convicted of doing that. And this is a civil case flowing out of that same fact pattern. And what’s happened is that the it’s a proposed class action on behalf of this very small class of potentially 13 women who were videotaped or had pictures taken of them and in some cases had those posted online. And so the issue here for the judge was to determine, was it, you know, is it an appropriate case, first of all, for a class action? Because it’s a very small class.
Adam Stirling [00:19:48] mm hmm.
Michael T. Mulligan [00:19:48] And then the other question was, is there some reasonable prospect or cause of action against not only the person who did that, which is, I think, overwhelmingly clear he’s been\ convicted criminally, right. There’s not much of an argument to be made there. But the issue was, well, what about Red Barn Mattick’s Ltd, is the company potentially liable for it? Because that’s of course, going to be where the money might be. And that’s really the point of a civil case is financial compensation. And so the judge, in deciding whether this should be certified, has to look at some of the proposed evidence about the conduct of not only the person doing it, but the company. And interesting elements included that the at the time, at least the company was owned by one of the owners was the father of the person who was doing the video recording. And then there was evidence that there was this sort of generalized, totally inappropriate sort of sexual conduct at work, including a report from one witness who worked there of this man who did the video recording, like having discussions with her, with his pants undone, exposing himself, just completely terrible conduct. And so, the judge had to analyze is there some obligation on the company or some potential vicarious liability for what the employee did? And ultimately the judge found that indeed there was. If not, it’s there’s a reasonable course of action not only against the person who did it, but the company, and then further analyzed that it is an appropriate case, even though it’s a small number of people for class proceedings to be used. And so the result of this now is that that now has been certified as a class action and the class members would be potentially the 13 people who were recorded in that way. And the class action will proceed, not only against the person who did the recording, but also against the company. And so there’ll be more to come in terms of how this plays out, but it’s also an example of how much of the litigation surrounding class actions occur at the stage of trying to get the thing certified as a class action. And that’s now happened. And so, it’s a local case and left to watch and see what compensation the women involved wind up with and who winds up being responsible for paying it.
Adam Stirling [00:22:11] Michael Mulligan for Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday here on CFAX. Thank you so much as always. Until next week.
Michael T. Mulligan [00:22:21] Thanks so much. Always a pleasure. All right.
Adam Stirling [00:22:23] Bye now.
Automatically Transcribed on March 23, 2023 – MULLIGAN DEFENCE LAWYERS