This week on Legally Speaking with Michael Mulligan:
Since the beginning of COVID, civil jury trials have been suspended in British Columbia.
Unlike criminal jury trials, which are constitutionally required as an option for people facing more than 5 years in jail, there is no similar protection for civil jury trials.
While civil jury trials were the norm at the time of confederation, their use has decreased. One of the reasons for this is the cost of conducting a jury trial. The party requesting a civil jury trial needs to pay the costs, which can run into thousands of dollars. Ordinarily, the party who wins at trial would, ultimately, pay the additional costs.
Recently, in BC, most civil jury trials are requested by ICBC when defending claims. This may have some strategic advantages for ICBC because of how civil jury trials work. Juries cannot be given any instructions with respect to how damages for pain and suffering should be determined. With no guidelines, the amounts awarded can be unusually low, or high.
Where the amount of very high, this can be appealed to the Court of Appeal. When the amount is very low, this is argued to be the jury just not believing the person was seriously injured.
In BC, civil juries are comprised of 8 people and, after three hours of deliberation, 6 of the 8 are sufficient to render a verdict. This is because civil cases are decided on a balance of probabilities, and not proof beyond a reasonable doubt.
Some provinces, including Alberta, have restricted civil jury trials to categories of cases where community values may be the most important including malicious prosecution, wrongful imprisonment and claims for breach of promise to marry.
An example of a breach of promise to marry case, from BC, is discussed on the show.
In addition to bringing community values to the justice system, allowing jury trials can also be valuable in permitting ordinary people to participate and share their experiences with the community.
The BC government is accepting submissions with respect to what should be done with civil juries until September 30, 2021. Submissions can be emailed to PLD@gov.bc.ca
A report with respect to civil jury trials has also been prepared.
Also on the show, the BC Court of Appeal considers how much more money a man who failed to pay income taxes for more than a decade should need to pay before being discharged from bankruptcy.
Declaring bankruptcy does not ensure that someone will be discharged either quickly, or without needing to pay back more money over many years. In the case discussed, after several years in bankruptcy, the man was ordered to pay an additional $45,000 over five years, at a rate of no less than $750 / month.
Finally, a case involving a BC employment contract that provided for adjudication in Ontario is discussed. The clause would have made it more expensive and difficult for the BC employee to sue for wrongful dismissal.
The employee in the case was fired with 30 days of notice, after working for more than a decade as a counsellor. The judge concluded that the clause was unenforceable for several reasons including that it was unconscionable, that there was no consideration provided when the clause was added to the contract, and because it didn’t say that Ontario jurisdiction was exclusive.
An automated transcript of the show:
Legally Speaking Aug 26, 2021
Adam Stirling [00:00:00] Time for our weekly segment with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking, on CFAX 1070. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:09] Good morning. Always great to be here.
Adam Stirling [00:00:11] Some interesting stories on the agenda today with respect to the resumption of normal activities within the justice system, or will it ever go back to exactly the way it was before? I’m looking at a civil jury trials, covid, and whether or not they will continue.
Michael T. Mulligan [00:00:28] Yes. So that’s actually up for debate right now. And the government is looking for input about what people think about that. And what’s going on is that criminal jury trials in British Columbia resumed. They resumed back in September of 2020. They put into effect barriers and so on in the courtroom to separate off the jurors. And in some cases, they’re using two courtrooms, one for the jurors to go and deliberate in and a separate one to hear evidence in. And so, we’ve got those going again, although we’re using, I think, a little bit of care in terms of when they should be used. And for criminal jury trials, you actually have a constitutional right to a criminal jury trial.
Adam Stirling [00:01:15] mhmm.
Michael T. Mulligan [00:01:15] Any time somebody is charged with an offence which could be punished by five years or more in jail.
Adam Stirling [00:01:21] mhmm.
Michael T. Mulligan [00:01:21] But there’s no similar right to a civil jury trial.
Adam Stirling [00:01:26] Interesting.
Michael T. Mulligan [00:01:26] And in British Columbia, we have suspended and kept suspended. The government has, civil jury trials as a result of covid. Now, there’s a long history of civil jury trials in British Columbia. They go back to sort of the eighteen hundreds. And in fact, at that time, they were the norm. The default option was going to be, look, if you were suing somebody, it would be with a jury deciding the case. And as far back as 1860, there’s a decision of then Governor Douglas to permit non-British subjects to serve on juror, juries. And at that time, that same proclamation provided that if it wasn’t possible or convenient to locate 12 people, to be on a juror, jury for a civil matter, 7 would do. And so, we continue to have the vestiges of that in British Columbia. Now, civil juries, unlike criminal ones, don’t have 12 people on them. They are smaller. A civil jury trial would have 8 people on it. And another interesting thing about them is that they don’t require a unanimous verdict. In a criminal case all 12 people have to agree, right.
Adam Stirling [00:02:41] Yes.
Michael T. Mulligan [00:02:41] One way or the other for your verdict in civil cases after 3 hours of deliberation 75% are sufficient, which means 6 of the 8. And that comes from the fact that, of course, in a civil case, it’s just a balance of probabilities. Right. Not proof beyond a reasonable doubt. Sort of a lower threshold.
Adam Stirling [00:03:00] Yes.
Michael T. Mulligan [00:03:01] And so there certainly are some differences. And I should also say that now in B.C., there are a number of areas where you can’t have a civil jury trial and you haven’t been allowed to have one. They include if you’re suing the crown, they don’t allow you to have a civil jury trial.
Adam Stirling [00:03:17] mhmm.
Michael T. Mulligan [00:03:17] I guess the crown didn’t like the idea that a bunch of us rabble might come to some decision about what will be the government.
Adam Stirling [00:03:24] Well, you know, yeah.
Michael T. Mulligan [00:03:26] You know, and there are various other things that you can’t go there for dealing with, things like mortgage foreclosures and other things.
Adam Stirling [00:03:35] Yes.
Michael T. Mulligan [00:03:35] And so, one, there are several possibilities. One possibility would be to carry on with them and continue with them, with civil jury trials. Right. Once we’re able to do that safely, another would be to restrict the kinds of matters that can have, you can have a civil jury trial for, or to get rid of them altogether, permanently. And it was interesting to see there’s a very good report written by the BC Law Institute that has looked at the whole history of all of this and how different provinces deal with it, different Commonwealth jurisdictions deal with it. And one of the interesting elements there is that in some places, including Alberta and the Yukon, they restrict civil jury trials to particular kinds of cases. And the idea there would be cases where it might be particularly important to have sort of the community standard applied to decisions. And so, for example, in Alberta.
Adam Stirling [00:04:34] mhmm.
Michael T. Mulligan [00:04:34] They allow civil jury trials for things including false imprisonment, malicious prosecution, sedition, and another interesting one, breach of promise to marry.
Adam Stirling [00:04:44] Breach of promise to marry. Wow.
Michael T. Mulligan [00:04:48] When I read that, I thought to myself, how common are cases of breach of promise to marry. It has indeed not common, but we do have them.
Adam Stirling [00:04:55] No, we don’t prosecute sedition very often either do we.
Michael T. Mulligan [00:04:59] That’s true, but, you know, there it is, a civil jury trial in Alberta, and so that caused me to look in B.C., you know, when was the last time there was a reported case for breach of promise to marry?
Adam Stirling [00:05:10] yeah.
Michael T. Mulligan [00:05:10] And indeed, they found one from February of 1981.
Adam Stirling [00:05:13] Really?
Michael T. Mulligan [00:05:13] And this was a fact pattern. There’s a judge alone.
Adam Stirling [00:05:16] Yeah.
Michael T. Mulligan [00:05:16] This was the ad run in the newspaper “S.O.S widower sixty-five young and sporty, non-alcoholic gentlemen, financially independent, alone, 168 centimeters tall and nice-looking house and property, looking for an educated lady without dependents to meet.” That person managed to attract a beautician a few years earlier younger than him.
Adam Stirling [00:05:36] Yes.
Michael T. Mulligan [00:05:37] And unfortunately, the ad wasn’t completely accurate. The defendant was two years older than the ad said. His financial independence was only the fact that he was a pensioner and lived in Canada with some small savings.
Adam Stirling [00:05:49] ahh.
Michael T. Mulligan [00:05:49] But the judge concluded the person he was going to marry was not misled. They lived together for a very short period of time before he realized this just was not going to work. And so, he called off the marriage.
Adam Stirling [00:06:00] interesting.
Michael T. Mulligan [00:06:00] She sued.
Adam Stirling [00:06:01] Wow.
Michael T. Mulligan [00:06:02] And ultimately, the judge found that, yes, indeed, he had breached his promise to marry, but concluded that really this woman had lost out on nothing in terms of damages. The judge concluded had the marriage proceeded. It most surely would have been short lived because the parties had clearly demonstrated their incompatibility during the few weeks they lived together. And so, the complaint person who was suing didn’t get any damages. So indeed, those cases do exist, but they’re awfully rare in modern times. So that will be one approach limit where they could be used. And the other interesting thing about this discussion is sort of where are they currently used?
Adam Stirling [00:06:42] Yeah.
Michael T. Mulligan [00:06:42] What kind of cases are currently scheduled to have a civil jury trial? Because if you want to have a civil jury trial, one of the interesting elements of the party wanting one has to ask for one and file some paperwork, but they also have to pay for it. And you have to start by a $1,500 deposit. And then the juries, juror member jurors get paid each day. They’re serving as a juror and that has to be paid for. And so, if a party doesn’t provide the requisite money each day, that’s the end of the case. And so there has to be payments to the sheriff in order to pay the jurors and pay the other associated expenses. And one of the things that does is presumptively the winning side is going to have to pay for all of that. And so, it puts pressure on the parties to try to come to a settlement because the costs awards could have gone way up because of the need to pay for the jury.
Adam Stirling [00:07:39] yes.
Michael T. Mulligan [00:07:40] Now, here’s an interesting stat. Between 2016 and 2020, there were in BC 21,374 notices requesting a civil jury trial. Almost all of them were Motor Vehicle Act cases. And we get to why in a moment.
Adam Stirling [00:07:58] oh.
Michael T. Mulligan [00:07:58] But only of those, 120 proceeded to a final decision. So, 21,000 and change requests. 120 get to a final resolution. And most of the requests come by defence counsel acting for ICBC. And the cynical explanation for that would include the fact that jurors might be concerned about their own rates going up if they wind up awarding a significant amount.
Adam Stirling [00:08:27] mhmm.
Michael T. Mulligan [00:08:27] And there’s also an interesting little wrinkle that causes problems for civil jury cases, because there’s a rule that provides that for non-pecuniary losses, like pain and suffering, juries your lawyers cannot make submissions and the judge cannot provide instructions to the jury about what would be an appropriate range of damages. So, the jury is kind of left on their own.
Adam Stirling [00:08:57] hmm.
Michael T. Mulligan [00:08:57] To come up with whatever they think might be appropriate. And so sometimes the amount they award is enormous. Right.
Adam Stirling [00:09:05] Yeah, because..
Michael T. Mulligan [00:09:05] In other cases it might be tiny. Right. Yeah. And so, if you’re defending the case, what happens is if they award, you know, five billion dollars or something, it goes to the Court of Appeal and that gets overturned. Right.
Adam Stirling [00:09:18] Yeah.
Michael T. Mulligan [00:09:18] Is completely excessive. But if they award $50, they conclusion would be, well, I guess they just didn’t think the person was that hurt.
Adam Stirling [00:09:25] Oh, I see the symmetry in the errors. If it’s too high, it’s overturned. But if it’s too low, it’s ignored. Interesting.
Michael T. Mulligan [00:09:32] So that that may well explain why that is a category of cases for which they are frequently requested. But one of the key arguments for keeping civil jury trials is that it brings a community standard to what’s going on in court. And that, I think, is very important.
Adam Stirling [00:09:49] Yes.
Michael T. Mulligan [00:09:49] It’s also, I think, really valuable that people in the community participate in juries, both criminal and civil, when we have them, because in addition to bringing community standards to decisions. The people that serve on juries, go back into the community, and can report to others about what’s going on in that building, right. You don’t want the justice system to be some abstract, inaccessible, remote thing decided by people in funny robes. You want, in my view, a justice system where the community is participating in it?
Adam Stirling [00:10:22] Yes.
Michael T. Mulligan [00:10:22] And it’s both valuable because community members have a real impact on what is the jury’s decision, of course, they are deciding, but also because they have that experience when they go back and tell their friends and family, hey, here’s what it’s actually like to have to decide one of these cases. And I think for many people, it’s both a rewarding experience and it’s very eye-opening in terms of how much harder it is in reality than it might appear when you just see a headline about something, you think, oh, well, that’s easy. I could figure that out. No problem. When you’re the actual person who has to listen to the witnesses and make a decision.
Adam Stirling [00:10:57] Yeah.
Michael T. Mulligan [00:10:58] It’s often much more challenging than it would seem. And I think that’s really important as well. So, if people have a view about that, the government just announced this review to decide what they’re going to do, they’re only allowing feedback up to September the 30th. So, it’s just a short time. And if you have views on the matter and you want to express them, I would encourage you to have people to look up and review the B.C. Law Institute paper and civil juries in British Columbia. You can read about it. And then if you want to express your opinion to the government, you could do that by email. And the email for that is mailto:firstname.lastname@example.org. And so, if you have views on whether we should keep them or restrict them or get rid of them altogether, that’s your opportunity to provide a submission about what you think should happen.
Adam Stirling [00:11:54] Confirming: email@example.com
Michael T. Mulligan [00:11:59] That’s exactly it.
Adam Stirling [00:12:01] All right. Interesting. Thank you so much. Is this a good spot for a first break?
Michael T. Mulligan [00:12:05] Sounds good.
Adam Stirling [00:12:05] All right. We’ll take a quick break. We’re back in just a moment with Legally Speaking on CFAX 1070. All right.
Adam Stirling [00:12:11] We’re back on the air here at CNN extensively, legally speaking, on CFAX 1070 Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. After paying no taxes for many years, could declaring bankruptcy absolve oneself of one’s financial responsibilities? Michael.
Michael T. Mulligan [00:12:29] Not necessarily as a gentleman just found out by the time he got all the way to the Court of Appeal in British Columbia. And the case involves a man who, for extended period of time, he was self-employed. He installed fire protection equipment and for a period for just about 11 years, he just didn’t file or pay his income taxes. And during that period of time, at some point, he sought out advice from people, described those tax protesters, of which there are a few,.
Adam Stirling [00:13:06] hmm.
Michael T. Mulligan [00:13:06] Who refused to pay their taxes and eventually wind up in court. Finally, the man got in touch after the revenue people were involved with an accountant. But by that point, he owed something in excess of just over 1 million dollars in unpaid taxes and penalties and interest. And so, when he wasn’t paying his GST, wasn’t paying his income taxes. And so that’s what it all totals up to.
Adam Stirling [00:13:31] I see.
Michael T. Mulligan [00:13:32] And so the man trundled off and went bankrupt thinking, well, this might clear this all the way for me, I can just carry on. It’ll be great. But I think perhaps, unknown to him, declaring bankruptcy, even if it’s your first time around, does not mean that everything just automatically goes away or you don’t get to go up and stand up and just yell, I declare bankruptcy and carry on about your business.
Adam Stirling [00:13:55] No. Surely it would be misused if that was possible, and somebody would have fixed that error by now.
Michael T. Mulligan [00:14:01] And indeed they have. And so, the case eventually wound up in front of a registrar and the registrar provided or made a decision that the man, in order to be eventually discharged from bankruptcy, right. Gone bankrupt. You can certainly choose to do that.
Adam Stirling [00:14:18] Yes.
Michael T. Mulligan [00:14:19] But he would need to repay $150,000 dollars with monthly payments of not less than $1,000.
Adam Stirling [00:14:26] Wow.
Michael T. Mulligan [00:14:26] And the reason for doing that, one of the sections of the Bankruptcy Act, Section 173 provides that if somebody goes bankrupt and their assets are less than 50 cents on the dollar, right. Your debts, succeed your assets by that amount.
Adam Stirling [00:14:43] Yes.
Michael T. Mulligan [00:14:43] And unless you satisfy the court that your bankruptcy has arisen as a result of circumstances for which the bankrupt cannot justly be held responsible, then that is a consideration in terms of whether to discharge the person or require them to keep paying before they eventually become discharged. And the registrar didn’t have much sympathy for the man not paying taxes and then taking the advice of the tax protesters and continuing not to pay taxes for a very long period of time. But the case eventually got to the Court of Appeal because the man arguing essentially that, look, you know, even though he didn’t pay the money and he acknowledges that he made a poor decision and he should have not listened to the tax protesters, his lawyer was arguing that, look, he wasn’t a scoundrel, but rather an unsophisticated person who made poor decisions. And inadvertently briefly turned to tax protester.
Adam Stirling [00:15:43] I’m sorry. I just like a picture, Counsel, your Honour, my client he is not a scoundrel. He is, he is merely unsophisticated. You could just picture what the guy looked like.
Michael T. Mulligan [00:15:53] So, you know, it’s never a good thing when you have to make sure that your client is not a scoundrel. But the so eventually the Court of Appeal came down on a middle ground here. The judge concluded that the Court of Appeal concluded that requiring him to pay $150,000 back would mean that he’d be paying this money back until he was 67 years old and likely into retirement at that point. And there is some concept that a person should eventually be able to make a fresh start. And so, the Court of Appeal came to a compromise position whereby the man will be required, to say he’d been bankrupt for several years, so some of the money would have been paid back over the course of the period of time when he was just in bankruptcy. Because when you’re in bankruptcy, all of your money is going to the trustees and paying back your creditors and so on.
Adam Stirling [00:16:49] Yes.
Michael T. Mulligan [00:16:49] But the in order to eventually become discharged, the Court of Appeal has ordered that the man pay back an additional $45,000 with minimum instalments of $750 a month over a period of 5 years. And so, he’ll have to continue paying back, but not as long as what was originally ordered. But the real takeaway there is don’t think that you can just, you know, I declare bankruptcy and not pay your taxes. And if you’re getting advice, you might want to speak to an accountant or a tax lawyer or not somebody who’s got some really great sounding advice about how, you know, you’re not a real person and don’t have to pay anything that will eventually end in tears, as it did for this man.
Adam Stirling [00:17:31] All right. A clause in a contract to do with litigation in Ontario. I’m reading here we’ve got four and a half minutes left.
Michael T. Mulligan [00:17:40] Yeah. So, this is a good one. This is actually another decision of Justice Verhoeven, who’s got some attention lately.
[00:17:46] Yes he has.
Michael T. Mulligan [00:17:46] I should say about him.
Adam Stirling [00:17:47] Yeah.
Michael T. Mulligan [00:17:47] He’s a very nice man. I dealt with him when he was a lawyer doing volunteer work for the Canadian Bar Association. But this was a case involving a, a woman who had worked for many years for an organization called Homewood Health as a counsellor, a registered clinical counsellor, chief counsel, employees, and other corporate clients. And over the years, from 2008 until 2020, she was required to sign various contracts, setting off how much she’d be paid. $50/hour, $60/hour at one point they reduced, it seems a little Scrooge McDuck.
Adam Stirling [00:18:26] hmm.
Michael T. Mulligan [00:18:26] But in any case, she had to sign these various contracts. And then one of the contracts in 2015, which they told her signed this, had a clause that said ” The parties hereby irrevocably attorn to the jurisdiction of the Superior Court of the Province of Ontario:
Adam Stirling [00:18:45] attorn? I don’t know what that means
Michael T. Mulligan [00:18:47] it means, I agree to the fact that that court would have jurisdiction.
Adam Stirling [00:18:50] Okay.
Michael T. Mulligan [00:18:51] We agree now that that court has jurisdiction.
Adam Stirling [00:18:53] Okay.
Michael T. Mulligan [00:18:53] And then eventually the company fired the woman and the with 30 days’ notice. And so, the woman was suing the company. She lives in BC. Right. And the company’s here too, right they have offices here. She was suing them for wrongful dismissal, a failure to give her enough notice when they fired her after her 12 years of service. Right. Thank you for the 30 days’ notice.
Adam Stirling [00:19:18] Yes.
Michael T. Mulligan [00:19:19] And when she did that, the company said, oh, no, you can’t sue us in British Columbia. You’ve got to come to Ontario, look at the clause here. And so, the judge had to decide whether that clause had that effect, whether this woman would be unable to sue the company for this contract, which she entered into in British Columbia when she lives in British Columbia and worked in British Columbia. Does she have to go do that in Ontario at some significant expense?
Adam Stirling [00:19:48] Yes.
Michael T. Mulligan [00:19:49] And Justice Verhoeven for with great clarity and for multiple reasons, concluded that that’s not fair. The company cannot do that. The clause is not effective. He found, first of all, that the clause doesn’t say it’s exclusive jurisdiction for Ontario. So that was his first reason. Then he found, in addition, that the company provided no consideration for her entering into the contract. One of the requirements for there to be a valid contract is that there has to be something given by each side.
Adam Stirling [00:20:22] hmm.
Michael T. Mulligan [00:20:23] Consideration, which is what separates a contract from a bare promise.
Adam Stirling [00:20:25] Okay.
Michael T. Mulligan [00:20:25] If somebody walks up to you and says, I promise to give you $100 tomorrow and then doesn’t, that’s not enforceable because that was just some promise. But if they say to you, I’ll give you a $100 tomorrow if you’ll move your car, that now we got a contract.
Adam Stirling [00:20:39] Okay, okay.
Michael T. Mulligan [00:20:40] We’re moving the car. I’m promising a $100. That’s a contract rather than a bare promise. And so, the judge also found that there was no consideration here. The company just told her to sign this thing. She got nothing for it other than the company got to insert this clause that made it harder for them to be sued. And so, for that reason as well, it was ineffective. Next. And finally, the judge found that the clause was void for unconscionability. The idea that, look, you’ve got an employee here, there’s no parity of bargaining power. You know, you’re just telling your sign this thing. There’s no opportunity for negotiations or anything else. I mean, it has this effect of making it extremely difficult and expensive to successfully, you know, advance your claim. And so, the conclusion was that the clause was unfair, disadvantageous, no consideration and just basically unenforceable. And so that was his conclusion. And so, this woman will be able to continue with her claim and then to put a cherry on top of all of that. I think probably as a result of that conclusion that, you know, this woman was treated in a pretty apparently unfair fashion by having her sign this totally disadvantageous agreement to keep working.
Adam Stirling [00:22:01] Yes.
Michael T. Mulligan [00:22:01] Until she was fired. He awarded costs for the application in any event of the cause payable within 30 days, which means the company tried to get the claim struck out on the basis of this unfair clause. She’s going to get her costs for having to defend that no matter what happens with the eventual case. So, there’ll be a little bit of justice for the fired counsellor from Homewood Health Inc. And so, there’s the decision from Justice Verhoeven.
Adam Stirling [00:22:29] Very well, Michael Mulligan. Thank you, as always, for the benefit of your knowledge and insight on these matters. We look forward to next week.
Michael T. Mulligan [00:22:35] Always a pleasure. Stay safe.
Adam Stirling [00:22:37] All right. You too. We’ll see you then.
Automatically Transcribed on August 26, 2021 – MULLIGAN DEFENCE LAWYERS