As a result of the City of Victoria deciding not to enforce a bylaw that prohibits camping in Beacon Hill Park, 78 structures have been erected in the park.
Following weeks of complaints from nearby residents, and other people wishing to use the park, the City of Victoria obtained an interim injunction requiring people living in the park to remove the structures form portions of the park that are environmentally sensitive, or of cultural significance.
The Friends of Beacon Hill Park Society is not satisfied with the interim injunction and wish to have all of the structures that have been erected by people camping in the park removed.
The City of Victoria only owns Beacon Hill Park pursuant to the terms of a trust. The 1882 trust requires the park “to be maintained and preserved…for the use, recreation and enjoyment of the public.”
On the show, an 1884 court decision by Chief Justice Begbie, is discussed. At that time the City of Vitoria had permitted an agricultural pavilion to be constructed in the park. This was found to be contrary to the terms of the trust and had to be removed.
In 1998, another court decision held that the City of Victoria could not allow a music festival to be held in the park as it would have involved an area of the park being fenced off and tickets being sold for entry. This was also found to be contrary to the terms of the trust as it would exclude people without tickets from using and enjoying the fenced-off section of the park.
The Friends of Beacon Hill Park Society intends to argue that permitting people to erect semi-permanent structures in the park is also contrary to the terms of the trust.
When someone holds property pursuant to a trust, they can only use the property in accordance with the terms of the trust. It is not theirs to do with as they wish.
While there are usually time limits on how long the terms of a trust can restrict the way property can be used, as a result of the rule against perpetuities, these time limits do not apply to dispositions of property made by the provincial government. Because Beacon Hill Park was given to the City of Victoria by the provincial government, there is no time limit on how long the trust conditions apply for.
Also discussed is a class action against ICBC as a result of an employee of ICBC selling personal information to drug dealers.
The ICBC employee was selling address, and other personal information, associated with the licence plates of vehicles parked at the Justice Institute in New Westminster. The drug dealers concluded that people parked there were likely police officers.
The drug dealers were using the address information to vandalize, start fires, and shoot at the homes of the people identified by the ICBC employee.
Despite admitting what the employee was doing, ICBC has been attempting to stop the class action in various ways, with a host of legal arguments.
Most recently, ICBC attempted to third party the drug deals. Because ICBC did so out of time, and without obtaining permission from the court, this tactic was not permitted.
The various ways ICBC has attempted to avoid legal responsibility for the conduct of its employee is cause for concern in the context of current plans to establish a monopoly no-fault insurance system which would allow ICBC to decide how claims would be handled without any meaningful oversight by the courts.
An automated transcript of the show:
Legally Speaking July 30, 2020
Adam Stirling [00:00:00] It is time for Legally Speaking on CFAX 1070, joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. Thank you for your time, as always.
Michael T. Mulligan [00:00:09] Good morning. Thank you very much for having me.
Adam Stirling [00:00:11] Some pretty interesting things on the docket this week, including the story everyone’s been talking about, Beacon Hill Park, take it away.
Michael T. Mulligan [00:00:18] Yes, indeed. So, the city obtained a, an interim injunction, to require people to stop tenting in some areas of the park, which were viewed as sensitive from an environmental or cultural perspective. That decision, however, in the view of counsel for the friends of the Beacon Hill Park Society, didn’t go far enough. And the argument that is going to be, I think, continue to be advanced by the Friends of Beacon Hill, Friends of the Beacon Hill Park Society.
Adam Stirling [00:00:55] mhmm.
Michael T. Mulligan [00:00:56] Are that the utilization of the park for semi-permanent tenting is inconsistent with the trust and the trust terms under which the City of Victoria holds the park. The City of Victoria doesn’t simply own Beacon Hill Park…
Adam Stirling [00:01:16] ..Yeah, how does that work?
Michael T. Mulligan [00:01:16] ..it not there to do as they see fit.
Adam Stirling [00:01:20] Yeah.
Michael T. Mulligan [00:01:20] And that requires a reflection back to the very long history of Beacon Hill Park. The history goes back a very long way. One of the interesting little titbits goes back to prior to it being set up as a park, and they’re actually a very long time ago was some camping and Beacon Hill Park. But that was back in 1870 when the Victoria Rifle Volunteer Corp set up camp in what is now Beacon Hill Park. They had organized themselves to respond what they thought was the Fenian threat, a raid by the Irish immigrants they thought might come against Victoria to pressure the Irish or pressure the British to get out of Ireland. And so, there was camping in 1870. (laughter) I mean, maybe it’s some Mulligan relatives’ way back then were plotting, a plotting a raid. The raid never came about. So, a very long time ago, there was camping.
Adam Stirling [00:02:14] I was going to say in those days, my O’Brien ancestors, and my Sterling ancestors, being Irish and Scottish, may not have been the best of friends.
Michael T. Mulligan [00:02:20] No, that’s true. Well, one of them might have been ensconced in the Rifle Volunteer Corp and the other might have been a member of the Fenian threat. So, what eventually happened is that the Beacon Hill Park was owned by the Province of British Columbia, and the Province of British Columbia granted, or gave title to the park to the City of Victoria in 1882. But they did so pursuant to a trust document, which was an order in council from February 21st, 1882. And essentially, that document says that the City of Victoria is going to hold the park in trust but may only use it in accordance with the terms of the trust. And the trust says that the City of Victoria may use it only for the purpose of the recreation and enjoyment of the public. And they are not permitted to do, you know, other things with it. And that language was pretty quickly tested in court because a short time after the city got the park in trust, they tried to or they permitted the construction of an agricultural fair building on a corner of the Beacon Hill Park and the predecessors to the Friends of Beacon Hill Park challenged that. They said, hey, hold on. That’s not what this trust document permitted and there was a court case that went to the B.C. Supreme Court in 1884. And it was a case heard by Judge Matthew Begbie, who were probably one of the most famous historical judges in British Columbia history. And a law school here used to be named the Begbie Building, but it was subsequently renamed. Interestingly, there used to be a statue of Judge Begbie in the entranceway to the law school, but a number of years ago, it was mysteriously stolen and since been replaced by other things. So back in 1884, Judge Begbie had this challenge saying, hey, you can’t build an agricultural building here. That’s not what this trust allows. And he agreed the building had to come down. And Judge Begbie ruled in 1884 looking at the terms of that trust, he said, look, you know, this could be, its only to be used for these recreational purposes for the public, not other things. And he specified some things that might be acceptable things including cricket fields or lawn bowling. I guess that they’re accessible to the public but specified a number of examples of things that could not be done by the City of Victoria. It could not be used as a university to build a sanitarium, to build barracks for soldiers, to build a, in his language, a lunatic asylum, or a cemetery, those were his various examples of things which would not be permitted.
Adam Stirling [00:05:08] Now, what a sanitarium in those times be viewed as a place where sick people would be kept until they were well for tuberculosis consumption or other illnesses.
Michael T. Mulligan [00:05:17] Yeah, that would be the idea.
Adam Stirling [00:05:18] Interesting.
[00:05:19] You know, there are a number of other concerns back in the 1800s with the park. There was actually a city bylaw prohibiting various, I guess at that time, troublesome activity in the park. Things that were prohibited by the city included the grazing of cattle, which apparently was an ongoing problem. The discharge of firearms. Also, you were not permitted to use the grass to clean your carpets and no gambling was permitted.
Adam Stirling [00:05:39] Well, we don’t have problems with the carpet cleaning, gamble, and gambling anymore. Discharge of air rifles, though, becoming a concern.
Michael T. Mulligan [00:05:45] Yes. Things have moved on. And that’s not the last piece of litigation with respect to the park. Your listeners may, of course, remember the case from back in 1998 where there is a proposal to set up fencing and have paid music festival in the park and that case as well into the BC Supreme Court and the judge at that point, again, looked at the trust and said, no, you can’t do that. You can’t set up fences and charge an admission. That’s not a use, which is a sort of use for the enjoyment and recreation of the public, that’s excluding people that don’t have money to pay for the music concert. You can’t do that.
Adam Stirling [00:06:24] Yes.
Michael T. Mulligan [00:06:24] Now, I should see this, sharp eared listeners may be asking themselves, what about the ruling perpetuities? Right. Surely you can’t tie up the park for uses forever, right. You couldn’t leave your house to somebody saying, look, you must forever keep this as a, you know, burial ground or something or whatever. And that’s true. There is, people may have heard of the rule against perpetuities that limits how long you can put conditions on property that you give to somebody in a trust. Right? You can’t, we don’t want is a matter of public policy things to be tied up forever, to be only be used for particular purposes. But that rather confusing rule, the rule against perpetuities, does not apply to the government where they dispose of property.
Adam Stirling [00:07:10] hmm.
Michael T. Mulligan [00:07:10] And that’s what happened here. This was a trust document created by the Province of British Columbia, giving the park, in trust, to the City of Victoria. And because of the Section 5 of the Perpetuity Act, that condition goes on forever.
Adam Stirling [00:07:26] hmh.
Michael T. Mulligan [00:07:27] Now, in the case of the province, I suppose the remedy would be, look, if you created a trust document that, you know, mandated that a place can only be used to fix, you know, horse buggies or something, you could remedy that, of course, by some legislative act.
Adam Stirling [00:07:40] Or provincial order. Would that work, Lieutenant Governor, in council order?
Michael T. Mulligan [00:07:44] I think you would need a piece of legislation…
Adam Stirling [00:07:46] The only reason I ask is when this first started. One of the hold-ups that the mayor communicated to the public with respect to a planned camp within Beacon Hill Park was they were awaiting on orders from the province where the words that were used that never were forthcoming. I’m wondering if that relates to this.
Michael T. Mulligan [00:08:03] She may have been referencing perhaps some order into the emergency legislation or ministerial order that would have been permitted. So, you could have in ordinary times, you could have a piece of legislation which would sort of overrule those trust terms. But basically, those terms of the trust, that trustees set up in the 1800, they go on forever. And the city just doesn’t own that part to do with as they see fit. They are a trustee and they can only use the park for purposes that are permitted in that trust document. They just can’t get outside those lanes. And if they do, the expectation is that the Friends of Beacon Hill Park or some other group, are going to go to court and they will wind up getting an injunction telling the city to stop doing that. The city can’t set up you know; they can’t go and build a public building on the park. They are certainly going to have problems if they start doing things like erecting fences and not letting members of the public use it. And it seems to me the friends of the park have a pretty compelling argument. If you have the city saying, look, people can setup, what amount to or semi-permanent dwellings in the park, which would, by their nature, not allow people to use that portion of the park for the purpose that it is intended. Right? It can only be used for those purposes within in the trust document. It cannot be used for other purposes, no matter how meritorious they might be. And so, when there’s a proposed use, you need to ask yourself, is this the use consistent with the recreation and enjoyment of the public? If not, city can’t do that. The city doesn’t have the authority to simply say, you know, we’re going to fence off an area and designate this as a place for people to set up temporary shelters. That looking at the trust documents and the cases that interpret it, that seems to be outside of the authority of the city. And so we have this interim injunction from this that the city has obtained, but it seems to me entirely likely that somebody interested in the matter would be at the Friends of Beacon Hill Park or somebody else, are going to decide to bring an application to say, look, the city’s outside of its obligations here as trustees. It’s not permitted to use the park to set up know agricultural pavilions. They can’t set it up to have paid concerts. You’re not allowed to build a hospital on it. There are all kinds of things you just can’t do because they don’t own it in that way. It’s not theirs to do with as they wish. They’re simply a trustee. And in that capacity, the city is required to comply with the terms of the trust. And if they don’t do that, the expectation is that they’ll wind up with an injunction telling them to stop. So, it seems to me the what’s currently happened is likely far from the end of what is going to happen in terms of the use of Beacon Hill Park.
Adam Stirling [00:10:59] One thing I did want to ask you, I was reading through the application that the city filed. I don’t know the difference between a statutory injunction and an equitable injunction. What does that mean?
Michael T. Mulligan [00:11:09] Well, statutory injunction has some basis in legislation. Right. Sort of equitable, equitable one would be something other than that.
Adam Stirling [00:11:16] Okay.
Michael T. Mulligan [00:11:17] And what they’ve obtained is an interim injunction. So that would be sort of an injunction which would be in place until there’s a fulsome hearing of the merits of the city’s application. But as we said that interim injunction is unlikely to be the end of the matter.
Adam Stirling [00:11:32] Okay
Michael T. Mulligan [00:11:33] Based on the comments made by counsel for the Friends of Beacon Hill Park Society, it seems overwhelmingly likely that they’re going to bring some form of application for a broader injunction to get the city back in line with what it’s permitted to do with Beacon Hill Park. They just don’t they just don’t own it.
Adam Stirling [00:11:56] Interesting.
Michael T. Mulligan [00:11:56] It’s like other circumstances where you might be a trustee if you were a trustee or for a will or something else.
Adam Stirling [00:12:02] Yes
Michael T. Mulligan [00:12:02] Property isn’t yours.
Adam Stirling [00:12:03] Okay.
Michael T. Mulligan [00:12:03] you can’t just use it anyway you see, fit your obligation as a trustee, be it in a will or something like this, if you use it in accordance with the terms of the trust. And that’s the full extent of the authority the city of Victoria has.
Adam Stirling [00:12:17] So who would speak ostensibly for the whoever owns the park, it would be the first master of British Columbia, John Horgan, wouldn’t it?
Michael T. Mulligan [00:12:26] Well, I mean, the park is sort of in the possession of the City of Victoria. It’s sort of like if somebody passes away and there will establishes the trust and you were the executor of the will and you’re holding property in trust.
Adam Stirling [00:12:38] Okay.
Michael T. Mulligan [00:12:38] You own the thing as a trustee, but it’s not yours to sort of do with as you see fit. Right. If you are a trustee of a will, you can’t just move into the house of the person who passed away is not yours. You own it, but you’re only permitted to use it in a way in accordance with what the will permitted.
Adam Stirling [00:12:55] Yeah
Michael T. Mulligan [00:12:56] And here the city, Victoria, they own the park, but only in accordance with the terms of the trust. And so, while they own it and they have some degree of control over it. They are only permitted to use the park for the purpose of recreation and enjoyment of the public. That’s it. They can’t to use it to build hospitals, agricultural pavilions, military encampments, or anything else, no matter how wise they might think those things are. And if they don’t follow that, the expectation is that they’ll wind up with an injunction telling them to do what they’re obliged to do with the park. That’s the only basis upon which they own it.
Adam Stirling [00:13:36] Thank you so much for helping us understand some of the intricacies here Michael. It is certainly is a complicated situation.
Michael T. Mulligan [00:13:42] Well, I must say, anytime you’re able to work, the ruling is perpetuities into a discussion of something here if you’re really a well into the weeds of a complicated circumstance.
Adam Stirling [00:13:50] I actually did not even know where that rule existed, much less that it did not apply to government. So, I’m learning all sorts of new things here.
Michael T. Mulligan [00:13:57] Yeah. You’ll have to put aside your plans to leave your house to somebody in trust (laughter) in perpetuity it must be used for some ridiculous purpose.
Adam Stirling [00:14:05] Here we go. All right. Let’s say let’s take a break. Up next, we’ll talk about an interesting situation regarding your personal information and my personal information. And the Insurance Corporation of British Columbia. That’s coming up.
Adam Stirling [00:14:17] Legally Speaking, continues on CFAX 1070 as we continue our conversation with Michael Mulligan from Mulligan Defence Lawyers. Anything else on Beacon Hill Park before we move on, Michael?
Michael T. Mulligan [00:14:26] No, we just have to keep our eye open for that Irish invasion, that could happen any time now.
Adam Stirling [00:14:33] If you can’t trust any of us. A class action against the Insurance Corporation of British Columbia. Michael, with respect to personal information and the duties the corporation and others have to protect it. What’s happening here?
Michael T. Mulligan [00:14:46] Yeah, boy, this is a troubling case. This case involved an insurance adjuster working for ICBC and the insurance adjuster, it was between 2011 and 2012 was selling personal information of customers to drug dealers and the personal information they were selling was based on the license plates of cars that were parked at or near the Justice Institute of British Columbia in New West. And it would appear what was going on, this insurance adjuster that worked for ICBC was selling the drug dealers all the contact and personal information of people who were parked near the Justice Institute on the basis that the drug dealers thought those people might be police officers, right.
Adam Stirling [00:15:39] That’s a dreadfully troubling, very troubling.
Michael T. Mulligan [00:15:41] So then the drug dealers were going around committing vandalism, arson and shootings at the houses of the police officers and others who had parked around the Justice Institute based on the personal information that the ICBC employee was selling to the drug dealers.
Adam Stirling [00:15:58] Awful.
Michael T. Mulligan [00:15:58] by the way, the ICBC employee, it looks like she sold 78 people’s personal information and the drug dealers were paying her twenty-five dollars each. The ICBC insurance adjuster wound up pleading guilty to offences relating to that. I think it was unlawfully accessing computer equipment, something to that effect. She received nine months of probation and 40 hours of community work service. But that was far from the end of the matter. A number of the people that were targeted for the vandalism and shootings that flowed from this breach of privacy by the ICBC employee, sued ICBC.
Adam Stirling [00:16:45] Indeed.
Michael T. Mulligan [00:16:45] And got the matter certified of a class action.
Adam Stirling [00:16:48] Good.
Michael T. Mulligan [00:16:48] You see, ICBC resisted that arms and legs outstretched and the thing went all the way to the Court of Appeal who ultimately agreed it should be certified and certified on the basis that it would include other people who lived in the homes who’d be vandalized or shot at or lit on fire or various other things that were done. It wasn’t restricted to just the 78 people; it could include family members and others that would be victimized by this conduct. And the class action could include punitive damages potentially against ICBC. What ICBC then tried to do some six years after this thing started and after it had been certified, is they tried to do, what they called third party, that is, blame somebody else. Adding those people to the litigation, saying, hey, look, if we ICBC feel responsible, really, this should be paid for by the drug dealers or the woman who we used to employ. Right. Not us. The problem with that is that if you wish to do that in the course of civil litigation, you’re required to do it within a short period of time after when you’re sued.
Adam Stirling [00:17:54] Yes.
Michael T. Mulligan [00:17:54] If somebody who’s you and what your defence is, is. Well, yeah, I did it. But it’s really this other person’s responsibility over here. You’ve got to say so within 42 days of when you’re sued. And if you don’t do it in that time, you have to get permission to do it. Well, ICBC did neither of those things. They had six years had elapsed, since the case had started. They didn’t ask for permission of the court and they just tried to say, look. Not us. Yeah, it’s got to be the drug dealers or our employee. Right. Those are the people that are responsible. And then they took the position, and this was really troubling.
Adam Stirling [00:18:27] Yes.
Michael T. Mulligan [00:18:28] When it was pointed out to them that, hey, you didn’t get permission and your way out of time, ICBC took a rather arrogant position, which was, well, we think we’re right. And if you don’t like it, you plaintiffs can go to court to get that set aside.
Adam Stirling [00:18:42] Hmm.
Michael T. Mulligan [00:18:42] That fell absolutely flat in a decision which was just released by the Supreme Court in BC on the 23rd of July. They said absolutely not. This thing is a nullity. They didn’t get permission, ICBC to do this, they needed permission. That was entirely inappropriate. And I must say, one of the other things that’s troubling about how ICBC has approached the thing is that it just displays a certain degree of, frankly, arrogance, right, in dealing with this sort of a claim when you take the position that, I’m clearly outside of what the rules require, but if you don’t like it, you can go and ask somebody else to fix that. Right. And that’s pretty troubling, particularly in the context of the current debate surrounding whether we should have a mandatory no fault scheme where if you have other disputes with ICBC, you would not be able to go to court in the ordinary way to get them fixed.
Adam Stirling [00:19:34] Of course, that is a great point.
Michael T. Mulligan [00:19:36] So if you’re dealing with an entity that behaves in this way when dealing with members of the public, who have been clearly wronged, there is just no doubt about it. Right. People who have had fires started their houses vandalized, treating people in that way and then telling them, if you don’t like it, you can go to court and try to prevent us from behaving in the high handed fashion. Doesn’t correspond with the kind of organization which you’d want to trust to make decisions which would not be readily reviewable by a genuinely independent body, like the court is. Right. And so, it’s just really troubling on that level as well. Frankly, when you have a claim of this sort, which clearly it occurred right, there’s just no doubt it happened.
Adam Stirling [00:20:22] Yes.
Michael T. Mulligan [00:20:22] Pled guilty, it plainly happened. The response by ICBC should not be years of litigation and fighting over it and arms and legs outstretched and doing all of those things. The appropriate response to that would be, pay for it. Right. This person who you employed sold information to drug dealers that caused serious harm. Just pay for it.
Adam Stirling [00:20:46] Ya, that seems reasonable to me.
Michael T. Mulligan [00:20:47] And if you want to try to get the money back from drug dealers or of a woman that you employed power to you. But don’t leave all these people high and dry, sort of police officers or their families or other people who were just had the misfortune of parking at the Justice Institute and having this employee of ICBC sell their information for 25 bucks. Don’t fight about that. That approach to sort of say, look, we’re going to litigate everything to the ends of the Earth. We’re going to go to the Court of Appeal. We’re going to fight about everything. We’re going to try to blame other people for everything. That is an inappropriate institutional approach by what is supposed to be a public entity. A public entity like ICBC should not behave like some private insurance company that’s trying to extract as much profit as they possibly can, no matter how that’s done. They should be behaving in a fashion which is consistent with what they are supposed to be. And at a time when the proposal is to make a mandatory no fault scheme, so that really all of the power would lie with ICBC to determine how somebody is dealt with and the review mechanism would be not independent of government in any way. That’s really concerning.
Adam Stirling [00:22:07] Yes.
Michael T. Mulligan [00:22:08] And this case and how it’s been handled should be getting some attention and there should be a tune up in terms of how ICBC is behaving and how they’re conducting themselves. This kind of thing shouldn’t be litigated in this way. The instruction on high should be pay this claim. And if there’s somebody else to be gone, you know, gone after, do you think you can get all this money back from the insurance adjuster that you employed? Well, good luck to you. But you shouldn’t make all of these people wait for that to happen. It’s clearly a claim that’s got merit and they should just pay it and stop fighting over the thing. Just because there is an argument to be made, doesn’t mean you should be making that argument, particularly when you’re a government agency like ICBC is.
Adam Stirling [00:22:54] Very true. Michael Mulligan, thank you, as always, for your knowledge and your insight. We appreciate these segments every week.
Michael T. Mulligan [00:22:59] Always a pleasure. Thank you so much.
Adam Stirling [00:23:01] Until next time, sir. Take care.
Michael T. Mulligan [00:23:02] Thank you.
Adam Stirling [00:23:03] Michael Mulligan with Legally Speaking.
Automatically Transcribed on July 30, 2020 – MULLIGAN DEFENCE LAWYERS