Camp Thunderbird Gate Fight And A 15-Year Lawsuit Over A Supposed Public Road
A locked gate at a kids’ camp sounds like a small-town nuisance until you trace it back to 1935 and forward to a trial date in 2027. We dig into a Greater Victoria dispute where companies say a historic public road, sometimes labelled Settlers Road or Glints Lake Road, should let them pass through Camp Thunderbird to reach adjacent land for a cell phone antenna. The twist is procedural: the lawsuit has dragged on since 2010, and the YMCA tries to have it tossed for want of prosecution after roughly 15 years of delay. We break down how BC Supreme Court judges weigh “inordinate delay”, excuses, presumed prejudice, and the interests of justice when time itself starts changing the evidence.
Then we pivot to a criminal law problem that hits even harder. Police recorded an interview where a key witness allegedly recanted, the investigation was closed, and years later the allegation returned with charges. The recording that could test credibility is gone. We unpack Charter section 7 disclosure rights, the duty to preserve evidence, and the line between an abusive process and “unacceptable negligence”, plus why the remedy often depends on how the rest of the trial unfolds.
We close with a Law Society discipline case involving client identification rules, anti money laundering safeguards, and a pro bono lawyer caught in the system. The fine gets overturned on judicial review, but the Court of Appeal blocks special costs against the Law Society, raising tough questions about accountability when a tribunal gets it wrong. If you value smart legal analysis grounded in real BC cases, subscribe, share this with a friend, and leave a review. What part of these rulings sits wrong with you?
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking May 14, 2026
Adam Stirling [00:00:00] It’s time for our regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan with Legally Speaking on CFAX 1070. Afternoon, Michael, how are we doing?
Michael T. Mulligan [00:00:10] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:12] Interesting items on the agenda for today. I’m reading the first one. It asks a question. Does a law firm need to pay an employment agency that responded to a job posting? And what is quantum meruit?
Michael T. Mulligan [00:00:25] Yes, so these are actually important issues that were discussed in this case. I think listeners may just want to know about in terms of their daily dealings with people and contracting for things. And the particular fact pattern here was this law firm posted a job posting on a Canadian Bar Association website indicating they were looking for a junior associate as a lawyer to hire. And they got a response, not correctly from a prospective lawyer, but instead they got a response from a company called Wise Work. And the company that responded said, hey, we’re an employment company. Would you be interested in working with an external recruiter? Words of that effect. And the lawyer at the law firm said, sure. And that firm, Wise Work, first of all, sent them a resume for somebody who was a lawyer with some 15 years’ experience, which the law firm said, well, that’s not quite what we’re looking for. We want somebody more junior. And Wise Work responded with another resume for someone who was more junior, and the law firm wound up meeting with that person, had an interview, seemed to go well, and then they got another inquiry from the employment company, saying, you know, how did that all go? And by the way, here’s our contract for our standard form contract for service. And the contract had various things in it, including requests for a fee amounting to 17.5% of the salary paid to the person if they were hired.
Adam Stirling [00:02:03] wow.
Michael T. Mulligan [00:02:03] The law firm didn’t sign the contract or agree to it. They had interviewed the person, and the law firm hired the person. And then what came of it is that the employment firm responded by saying, where’s our fee? We deserve 17.5%. I guess you can do the math, but the employment firm requested $17,500 as a fee for hiring the person. The law firm said, no, we don’t have a contract to do that. And so the case went to court. And so the first thing the judge had to deal with, and this is why it’s sort of a general principle of importance for people to know about, is that the court had to get into what is required in order for there to be a contract, like what is necessary for that? And the first thing to know is that not all contracts are in writing. You can have contracts that are oral, right? It’s like if you say to somebody, do you want to buy my bike for $500? The person says, sure, I’ll take it. Well, that’s a contract, right? But The core idea, before there can be a contract, is that there needs to be what’s referred to as like a meeting of the minds, like an agreement between the two people to enter into the contract, which are the various elements to it. Okay, this is my bike, I’m selling it, I want $500. Do you want that? Yes? Great. Okay. We have a contract. And there, so there has to be like an offer, somebody saying, want to buy my bike? Then there has to be acceptance, sure, right?
Adam Stirling [00:03:29] mm hmm.
Michael T. Mulligan [00:03:29] And other terms like the price of it and so on, right. Now here, one of the challenges was, well, this firm’s rich started with, hey, do you want to work with an employment recruit, external recruiter, to which the lawyer at the law firm said, sure. Now I started getting these resumes sent. And so they argued that, well, that was an agreement to this contract, oral, or at least by email and so another thing to know about, right, in that regard is that, well, the cost of something would ordinarily be an element of a contract. There can be circumstances where you can kind of conclude that there would be an agreement to pay even if it wasn’t specified in the agreement. Like for example, if you phoned up a company and said, oh my goodness, my hot water tank has just exploded. Can you come over and replace it for me and the plumber says sure I’m on my way. And they come on over and get the exploded water tank out, put the new one in and then hand you a bill for it . You’re not going to be able to get away with saying well, He never told me how much the water tank was, so I thought it was free.
Adam Stirling [00:04:37] Right.
Michael T. Mulligan [00:04:37] You’re going to wind up with, okay, you’re going to be on the hook for the reasonable cost of doing that. You didn’t expect the plumber to show up at an emergency in the middle of the night and change your water tank for nothing. But here, the law firm said, well, look, it’s even more than that. The law firm says, look they asked whether I’d be prepared to work with them. But it wasn’t even clear to us, the law firm, that meant that we would have to pay for it. It’s not like we phoned up the plumber to fix our hot water tank. The law firms said, look it could have been that the person was paying that recruiting firm for the purpose of having them seek out work for them. Saying it wasn’t made clear to us that we would even have to pay for it. Now, in that regard, the judge said, well, I’m not quite sure about that. The law firm’s a pretty sophisticated actor. You’d expect if they had experience with such things, they would have understood that they would’ve had some obligation to pay for it, not just the person using that kind of recruiting firm.
Adam Stirling [00:05:31] Yeah.
Michael T. Mulligan [00:05:31] But despite that, the Judge said, look, there just wasn’t a meeting of the minds here. You had the one party sending the contract, the other person not signing it. They just didn’t agree, and it’s not like the plumber case.
Adam Stirling [00:05:43] Yeah.
[00:05:43] But that wasn’t the end of it, and this is where that quantum meruit comes in and it’s important for people to know this. So even though there’s no contract, and so the starting point might be, well, no contract, no pay, too bad for you, the court has equitable jurisdiction. And now the other thing about that is this. Even though this is in small claims court, it was made clear in a decision just last from the BC Supreme Court, but the provincial court, even though it’s not a Court of Inherent Jurisdiction does have authority to grant what are referred to as equitable remedies. And one of those is this, it comes from this concept of unjust enrichment and then that concept of quantum meruit, which would amount to the concept of reasonable renumeration, like what’s the job worth? And that same concept of quantum meruit would apply in, for example, in the exploded hot water tank for example. When you phone up and say, fix my hot water tank, it’s an emergency, get over here, and somebody urges over and does that, you sure couldn’t expect it’s going to be free. But if the plumber handed you a bill for $50,000, you’d be able to say, well, hold on a minute, that’s not reasonable, right. And what would be imputed would be sort of the reasonable amount to do that work. The court might need to have evidence on that point. And so this equitable jurisdiction allows courts to deal with circumstances where there may not be a contract, but sort of equitable principles for things like unjust enrichment or a person being deprived of something to arrive at sort of a fair resolution of something even where it might not fit within contract law.
Adam Stirling [00:07:18] mm hmm.
Michael T. Mulligan [00:07:18] And there’s a long history to that jurisdiction. It used to be in the UK many years ago, there were separate courts that would deal with those different concepts, but they’ve been unified. And now it’s clear that even the provincial court, small claims court, has jurisdiction to impose these sort of equitable remedies, which would include things more than just, hey, you haven’t met your legal requirements for a contract, nothing for you, too bad. This allows there to be the sort of equitable, fairness sort of based legal remedies. And here, the other interesting thing was that the recruiting firm hadn’t pled those things and by pleading them, it means like when you sue somebody, you’ve got to put down like, why are you suing them? What are you asking for?
Adam Stirling [00:07:59] Yeah.
Michael T. Mulligan [00:07:59] Those are the plea, and the other side responds saying, no, I don’t have to. Here’s why I say you don’t have to. And they never asked for that, it wasn’t in there. And so one of the issues for the judge was, can they get into these equitable remedies when the other side hadn’t even asked for them? And on that ground and I dare say in Supreme Court, you might well find that you just would be out of luck if you didn’t ask for it. You don’t get what you don’t ask for, because that’s what pleadings kind of frame what this is all about. But in provincial courts, small claims court; the Small Claims Court Act says that the purpose of that thing, small Claim’s Court, is to provide, amongst other things, a just, speedy, inexpensive, and simple manner of remedying a dispute. And so the judge took that into account when deciding whether it was appropriate to allow considerations of those equitable remedies even though they hadn’t been written out in the pleadings. And the judge concluded, yes, it was fair and reasonable even though it wasn’t in the pleadings, and that finally led the judge to, okay, well, what would be the fair amount to provide? The recruiting firm said, well we want our $17,500 because that’s what we would usually get if you signed our standard contract. The judge looked at that and contemplated that and said, no, that’s not really what the quantum-meruit. Kind of fair amount for this would be. And the parties aren’t bound by the contract that wasn’t signed. And so the fact that you might have asked for that, but the other side didn’t agree to that contract doesn’t mean you get that now. Instead, the judge relied on that sort of quantum meruit assessment kind of like, what’s the fair amount of the hot water tank and changing that out at four in the morning for you. It’s going to be whatever fair amount would be for that up to the judge. Might need some evidence on it, but here ultimately considering all those things, the judge concluded that it was an appropriate case for one of those equitable remedies and instead awarded the employment firm the sum of $4,500. And so that’s the outcome and I thought it was just an interesting case because it deals both with those issues of what do you need to actually have a contract and then what some of the other remedies might be when the legal requirements for a thing like a contract aren’t met, but you still have a circumstance where one side might been, for example, unjustly enriched and gotten some benefit and how the court has some jurisdiction to make that right. And so that’s the latest in the BC Provincial Court, dealing with employment contracts, who has to pay when there’s a company like that involved, and what happens when you haven’t actually met the requirements for a contract.
Adam Stirling [00:10:28] Michael Mulligan with Mulligan Defence Lawyers. Legally speaking, we’ll continue right after this.
[00:10:33] Commercial.
[00:10:33] Legally Speaking continues with Michael Mulligan from Mulligan Defence lawyers up next on the agenda. Does passing a performance review change a one-year contract into a permanent job? And does changing a title constitute constructive dismissal? Michael, employment law, complicated area, how does it fit together?
Michael T. Mulligan [00:10:51] Yeah, for sure. This is a complicated area, but it’s also one of those areas sort of like contract law, that’s going to have a lot of impact on a lot of people.
Adam Stirling [00:10:59] Yeah.
Michael T. Mulligan [00:10:59] So I think it’s something worth knowing about and so the background here is that the person making a claim for wrongful dismissal Had been hired originally the title was manager of a it was a not-for-profit local arts Community organization and so she was hired as a manager of that and happily for everyone maybe not everyone, but happily, I guess for the purpose of sorting out disputes, there was a written contract of employment, good news. And the written employment contract indicated that she was referred to as a manager, and that it would be a contract for one year, while which could be renewed, may be renewed on a yearly basis, and it provided that either party could terminate it, giving two weeks’ notice, or the contract could be modified with written consent of both of them. So, well off the person goes, starts in this job, and several months into it, they have a performance review. That was also an element of the contract. And she passed the performance review. And then a number of months later, the employee made a request, I don’t know quite why but requested that there be a change of her title from manager to executive director. And then things went on for a little bit longer until the volunteer board of directors provided notice that they were not going to be renewing the contract, and that it was provided more than two weeks before the end of it. And so you think, well, what’s the problem there? Well, the arguments made by the employee included a number of things: one of the arguments made was that once they did this review of her employment that was referred to as a passing a performance review. One of the arguments made was, well, that changed the nature of what this agreement was and now that’s become a permanent job, not a one-year job. The judge didn’t have much time for that, saying, look, passing a performance review after three months confirmed that you were doing your job, kind of what you’d agreed to. It doesn’t mean that it’s been transformed in some material way into something else. And so that didn’t get too far. In the next argument made, this is an interesting one, is this argument, that this change of title, had some implication in terms of the nature of the contract. And one of the ways in which that was argued, which I thought was a creative one, was that there is an argument that if you have a complete change in what the nature of, what the employment relationship is, that can effectively render the contract no longer in force. So here would be an example of that. Let’s say somebody was hired as a part-time receptionist at a firm, and then they do really well, and sometime later they get promoted to general manager.
Adam Stirling [00:14:02] Yeah.
Michael T. Mulligan [00:14:03] And they have a completely different set of job requirements and so on. In that kind of circumstance, you can actually argue that because there was just a total change in what was going on here from part-time receptionist to full-time general manager, that the original contract is really no longer dealing with what’s going on here. And so that was one of the arguments made with respect to that title change, the idea that the change from the term manager to the term executive director was that kind of just a fundamental change, meaning the whole contract written down is just no longer had anything to do with anything. But it didn’t get any traction here because the evidence for the judge was that, well, there was that change in the title, which the claimant claimed was a promotion, indicated that there was absolutely no evidence that there’s any change in actual duties required of the person. They didn’t have to do anything else. There were no new duties. There wasn’t a change in job description. Nothing else changed. It was just a title change. And so it just didn’t have that effect. And so what’s left is the written agreement, which is, well, it’s a one-year agreement and parties can renew it and either party can give notice. And the other thing pointed out is that when you have an agreement like that, it doesn’t transform into a permanent contract at the expiry of that term even, and that there’s also no obligation for there to be any particular process or explanation for not renewing a contract, which is for a particular term, just like a person the employee could decide after the one year. Thanks so much, really enjoyed it all here, bye, I’m not renewing that. An employer would be equally, this is a one-year contract, I appreciate all of your work very much, but we’re not renewing it. And so there isn’t a legal obligation either to explain yourself or indeed to enter into a process or anything else to come to that conclusion. When you have an employment contract for that period of time, unlike, I guess, in the residential tenancy context, they don’t transform into a permanent position simply by the expiry of time. And so the result of all that, despite some creative arguments about the job title and the impact of that, and the impact of passing the performance review, none of that had an impact on the nature of the written agreement, and so the claim for wrongful dismissal was itself dismissed. And I guess the other takeaway there is just, it’s a good thing for both parties to make these agreements in writing so that there isn’t ambiguity, and at least in a case like this, it can shorten the disagreement. We can just look at the thing and say, here’s what was agreed to. And so that’s the legal outcome of the claim for wrongful dismissal despite changes in job title and passing your performance review.
Adam Stirling [00:17:11] And number three on our agenda today, a question, is the yacht club responsible when a wooden yacht collapses when being lifted out of the water in a boat lift?
Michael T. Mulligan [00:17:21] So a few things here, I guess first of all, this is not exactly an ad for buying yourself a vintage wooden yacht. This was this by the yacht in question is well named, was called the Real Nauti, spelled N-A-U-T-I, which was a 1969, 40-foot wooden yacht and the woman who bought it purchased it in 2021, and she was storing it at the Royal Vancouver Yacht Club. And as one must do from time to time when you’re the owner of a 40-foot wooden vessel, you would need to from time-to-time have it hauled out of the water in order to clean up the bottom of it and you’ll repaint the bottom and perform repairs, that kind of thing. And on the occasion in question, back in 2023, this was like the fourth time that that had been done for this particular wooden yacht by the owner. And what happened, as you probably deduced from the title there, when it was being hauled out of the water, initially it seemed to get out of water fine, and it was suspended in this thing that heaved it out of the water. And then the owner of it had been doing some work on it, I think it was mixing up some paint to put on the bottom, and a couple of hours after it was out of the water there were some creaking sounds, which sounded problematic, causing her to get off and I think run back to the office, and then the entire thing, unfortunately collapsed, in what was described as a catastrophic damage. The boat lift, the thing in the boat lift collapsed, forcing the keel up into the bottom of it. It was just completely destroyed, fell apart. And so the claim was brought against the Yacht Club on a claim based on negligence, claiming that they were careless in terms of how they had prepared the wooden boat to be lifted up. And so that was one issue, sort of the substantive issue of did they do something careless. But this also turned on, again, a written agreement. And as is common with these kind of risky things, there was a waiver form handed to the person to sign. And it was common ground that she signed the waiver form. The dispute in part was she claimed, first of all, that she had not signed the waiver form until after the boat was lifted up, which is interesting. And in that regard, she also made an interesting legal argument on a point that people should also be aware of. She had claimed that the yacht club had engaged in what’s referred to as spoliation. And that term spoliation refers to a circumstance where one of the parties in a civil case has destroyed evidence. And if you do that, knowing that you’re going to be involved in litigation, there can be an adverse inference drawn about what you’ve done.
Adam Stirling [00:20:11] mm.
Michael T. Mulligan [00:20:11] And here, the claim was that the Yacht Club had destroyed the video of her signing the agreement because this area was on video. However, it didn’t get anywhere because the video itself just got overwritten every couple of weeks. The Yacht Club, for their part, had saved the video of the boat collapsing, but not everything else. By the time they were asked to go and look for it, it just didn’t exist. And so that concept of spoliation simply didn’t apply, and despite various other arguments made by the boat owner about why this written waiver shouldn’t have any application, I think she came up with seven of them, all kinds of things alleging that she was induced into it or that because she took a photograph of it that meant that she wasn’t agreeing to it, various arguments about why it ought not to apply.
Adam Stirling [00:21:03] hmmm.
Michael T. Mulligan [00:21:03] None of those, the judge found, had any application. The judge pointed to the fact that she had signed similar things at the same place on multiple occasions when the boat had been hauled out before, and also pointed out that her own employee, one of the people that she was going to have do some of the work on the boat, testified that she saw her actually sign the agreement before the boat got lifted up. And so the spoliation argument didn’t get anywhere on the basis that it wasn’t done intentionally, and it was clear from that evidence that she had signed it in advance and the net result was the waiver agreement was found to be valid and the final part of it, people should be aware of, is that that agreement indicated that if you nonetheless sued you would be on the hook for all of the expenses caused by doing that. And so the next issue for the judge having dismissed the claim will be whether the woman the boat owner will be required to pay all the legal expenses of the Yacht Club. And so that’s the latest on what happens when you lift your wooden yacht and the whole thing falls apart and why you need to pay attention to those waivers because they are in fact enforceable assuming the various requirements are met.
Adam Stirling [00:22:07] Legally speaking on CFAX 1070 with Michael Mulligan with Mulligan Defence Lawyers, thank you so much Michael. Pleasure as always.
Michael T. Mulligan [00:22:14] Thanks so much.
Adam Stirling [00:22:14] All right. Quick break. The news is next.
Automatically Transcribed on June 1, 2026 – MULLIGAN DEFENCE LAWYERS