Courts Versus Government: A Battle Over Rights and Autonomy
Can a province truly bypass judicial processes in the name of housing development? Join us as we tackle this question with Michael Mulligan of Mulligan Defence Lawyers, providing his expert insights into a legal storm brewing over a proposed 12-story housing project in Vancouver’s Kitsilano neighbourhood. This episode uncovers constitutional tensions as the provincial government attempts to circumvent judicial review, sparking a broader discussion about the limits of provincial power and the essential role of superior courts as outlined in section 96 of the Constitution Act 1867. Listen closely as we dissect the court’s stance on rezoning requirements and the implications for due process.
In another compelling narrative, we follow the legal fight for a young woman in foster care, spotlighting her struggle for adequate lifelong support against the backdrop of government-imposed financial caps. Delve into the province’s contentious plan to offset compensation with potential aid from Community Living BC. At the same time, we introduce the novel “Peter’s Promise” concept from the UK that challenges conventional compensation frameworks. Through this analysis, we emphasize the dignity and autonomy of individuals affected by legal decisions whilst navigating the uncertainties of relying on government support. Michael Mulligan’s expertise brings clarity to these intricate issues, making this episode a must-listen for anyone interested in the dynamic interplay between law, community, and individual rights.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Jan 2 2025
Adam Stirling [00:00:00] Time for our regular segment, Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:06] Hey, good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:08] Happy New Year.
Michael T. Mulligan [00:00:10] Thank you very much. You too. Hard to believe. 2025. How did that happen?
Adam Stirling [00:00:14] I know. I’m just looking at our agenda for today. Up first, it says attempt to prevent judicial review by the province of B.C. unconstitutional. Help us understand this. When I was trying to work my way around it earlier in the show. I got confused. So, I know you can help us out.
Michael T. Mulligan [00:00:30] Sure. So, this is a case that relates to a proposed housing development over in Vancouver, the Kitsilano neighbourhood. And it’s a proposal to build a 12-story development there, which would be sort of subsidized and in some case for some part supportive housing. And the project has been probably not surprisingly, given that description, controversial. And there’s been stiff opposition from people who live in the neighbourhood. Issues included, about things like whether there would be a safe injection site located in this property, not something you might want to have next to your home in Kitsilano. And so, the project required there to be changes to bylaws, to rezone the property and how those are supposed to operate are set out in provincial legislation that dictates how municipalities are to conduct rezoning. And the process includes a requirement that there be a public hearing conducted. And the legislation as it stood at the time included a provision that at the hearing, all persons who deemed themselves affected by the proposed bylaw shall be afforded an opportunity to be heard. And so there was a hearing, in fact, that went on for several days on various occasions. However, during the course of that hearing, various concerns were deemed to be “off limits for discussion”, including things like how this facility would operate, the tentating decisions about the building. There were restrictions on questioning about, for example, the safe injection site idea. At the hearing the residents were told, no, there wouldn’t be a safe injection site, but in B.C., Housing said they would be providing, “supervised injection services” to tenants. And how does that how do you parse that out from a safe injection site.
Adam Stirling [00:02:34] yeah.
Michael T. Mulligan [00:02:34] Meaning unsafe supervised injection services, anyway, would be you said these were shut down and not permitted to ask about those things. And so, the city went ahead and approved the rezoning. But there was then a judicial review filed arguing that the city hadn’t followed the rules that it has to follow in order to make the changes to the zoning. Right. Because there was a scheme for that. And so, after the thing went to court, the provincial government, who was supportive of this development, was concerned that they might either lose in court or that it might delay their plans. And so, the provincial NDP passed a specific piece of legislation that effectively tried to prevent the judicial review by deeming what took place to be permissible, sort of deeming provision. And so, the legal issue was whether the province is allowed to conclusively deem something like this to have been done properly rather than, which effectively prevents the judicial review process and none of this, the court pointed out, is an assessment of whether this is a good or bad project or whether we need more housing or whether we need more supportive housing or indeed whether we should have safe injection sites. The court reviews all of those considerations, and this has nothing whatsoever to do with that. The legal issue has to do with whether the provincial government or provincial legislature has authority to effectively prevent a judicial review from taking place by deeming the outcome. And the legal analysis for that comes from section 96 of the Constitution Act, 1867 and Section 96, when you read it, speaks about the authority of the federal government to appoint superior court judges in the provinces. And so, you might say, well, how does that have to do with anything? Well, the law that’s developed around that and I should say the reason we have Section 96, in part it protects the authority of the superior court, because the authority to appoint superior court judges who can only be removed by like, you know, joint resolution of the Senate and House of Commons. They have considerable protections, so they have autonomy.
Adam Stirling [00:04:59] Yeah.
Michael T. Mulligan [00:05:00] Would be pretty meaningless if legislatures could just, you know. say well, those kinds of judges don’t do anything at all, or their only thing they’re going to deal with are going to be missing pets or something. Right.
Adam Stirling [00:05:14] Yeah.
Michael T. Mulligan [00:05:14] And all other decisions shall be made by some, you know, star chamber of people that whatever government of the day is decided to appoint. Right. That’s not permitted. Right. And you can see why you need to it needs to be interpreted in that way otherwise that the constitutional sort of division of power is there, and protections afforded by having superior court judges that do have this independence from government would be meaningless. If you could just say, well, they can’t make any decisions at all. Or appointing somebody else who could do all the same things. So and so we’ll just give them no money and it’ll be over. Right.
Adam Stirling [00:05:47] Yeah.
Michael T. Mulligan [00:05:48] And so it is on the in the alternative, the as the Court of Appeal pointed out tin BC the government is permitted to change legislation to you know have different tests or different things applied like for example, you know, the requirement that there be public hearings or that certain things be done before a municipality can amend the bylaw or do rezoning. There’s nothing constitutional about that. And if the province just wanted to get rid of those requirements, just say, for example, you know, a municipality may rezone property at any time in any way they like, and there shall never be any kind of public hearing at all. Well, that’s likely fine. Right. There’s not a constitutional right to a public hearing, but where you have a legal process, whatever it might be. It’s not permissible for the provincial for the province to say, well, you can’t go to court and have reviewed whether it was done legally. That’s what’s not allowed. You don’t have to have a provision that allows for a public hearing. But if you have a provision that allows for a public hearing, you can’t pass a law which says no matter what the court says, this is deemed to be done properly. That’s a very different thing from deciding whether it wished public hearings or don’t wish to public hearings. That’s completely up to the province, right? We could have no zoning at all. That’s permitted too. Right. But, you know, you could repeal all of that and the provincial government could just say, look, you can build anything you like anywhere, and that’s presumably fine. It really wouldn’t interfere with Section 96. But what you can’t do and what the Court of Appeals found the province tried to do here, was to prevent a meaningful judicial review of the legislative scheme that did exist. They created this.
Adam Stirling [00:07:35] Yeah.
Michael T. Mulligan [00:07:35] And so you can’t have the province can’t say this is the legal requirement to do something. But in this particular case, because this legislation was found to be unconstitutional, the language was its conclusively deemed to have been validly done. Right. That’s not allowed. We you have a right, legal right, in Canada to go to a superior court to judicially review a, you know, administrative decision to make sure that it was done in accordance with the law. Right. People have to act lawfully.
Adam Stirling [00:08:10] Yeah.
Michael T. Mulligan [00:08:10] And you can’t avoid that by just saying we’re going to just deem it all to be lawful. Think about that. Otherwise, you could just say, you know, superior court judges could no longer do X and Y. And by the way, that’s not reviewable. You can’t just immunize yourself from a review to determine if what was done was lawful by saying you can’t review this. That’s not going to do it. And so the B.C. Court of Appeal found that the piece of provincial legislation that conclusively deemed what went on here to be valid was, it is, unconstitutional because it prevents the people from meaningfully going before a superior court judge to determine whether the process that was followed was in accordance with the law. Now, if the province wants to change the law, fine. The court also points out you can even change the law retroactively. That may not be fair, but you could do that. Right. But what you can’t do is avoid changing the law and just say we’re going to deem it to be fine. So, there’s nothing you can do, and you can’t go to court. That’s not allowed and isn’t allowed. And so that’s the latest, that’s how it was decided. Really, it’s not an issue about whether we should have, you know, something there that’s a supervised injection service or whether we need a 12-story building of this kind or what it’s going to do to the neighbourhood. It’s none of that. It’s just that you can’t prevent somebody from going to court to make sure that a decision was made in accordance with the law, whatever that law might be. And so, the way the province tried to do this was impermissible, that is unconstitutional. And there can now be a proper review to determine whether the process that was applied meets the legal requirements. So that’s the latest from Kitsilano and what you can and cannot do to prevent a judicial review.
Adam Stirling [00:10:10] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, will continue right after this.
[00:10:16] COMMERCIAL BREAK.
Adam Stirling [00:10:16] Legally Speaking, continues with Michael Mulligan with Mulligan Defence Lawyers. Up next on our agenda, Michael, we’ve talked about where the province can intervene in regarding legal aspects or perhaps how, be intervened upon by the courts. The next story, though, deals with what can happen when an intervention does not take place soon enough. When there is a duty of care that exists. Help us understand this matter.
Michael T. Mulligan [00:10:39] Well, I must say, you’re exactly right. And I got to say, this was probably one of the saddest opening paragraphs in a court case that I’ve read recently. Here’s how this case begins. The plaintiff, now 17, suffered a deliberately inflicted brain injury. At six weeks old, she was born premature to a 15-year-old mother in a household marked by multigenerational illegal drug use, commercial sexual exploitation, mental illness, and physical, physical, and verbal violence. Here’s the opening. And this case involved a claim against the Ministry of Children and Families for failing to intervene to prevent this intentional brain injury at six weeks of age. And the provincial government conceded that that was so. They agreed that the Ministry of Children and Families fell below the standard of care in not intervening earlier to protect the plaintiff. It admits liability. And so, this case involves a very interesting and novel legal question in Canada. And this concept of what’s been referred to as a Peters promise. And here’s what that’s about. So, the plaintiff in this case is represented by the public guardian and trustee who will act for people who are not capable of doing so on their own. So that is how the case comes to court. And the poor girl who’s now 19 years of age and suffers just horrific impairment as a result of this intentional brain injury, you know, she needs help cooking, cleaning, going to bed at night, social impairment, borderline verbal functioning, massive problems. She, the issue is this the province’s acknowledged that it’s responsible for not taking steps to protect her. But the province argues that the amount of money that she should receive to pay for her ongoing care should be reduced by the value of potential future government welfare services.
Adam Stirling [00:12:46] hmm.
Michael T. Mulligan [00:12:46] And so that makes a very big difference.
Michael T. Mulligan [00:12:48] Yeah.
Adam Stirling [00:12:49] In this case, if she was to receive the amount of money necessary to care for her for the rest of her life, which amounts to effectively 24-hour care. And I should say in that note, she’s very fortunate. She’s described as she has a foster family. The foster mother is described this way “as a remarkable caregiver, patient, yet firm temperament, which shone through in her testimony. A person who has a diploma in early childhood education and worked with children for 55 years” and continues to live with her foster parents as long as possible. They live on a rural farm near the Alberta border. And sadly, it’s described as the foster mother is presently 76 years old. And that remaining time is, of course, limited. But the conclusion is that in order to pay for her care for the rest of her life, it’s going to cost between 10 to $13 million. She requires effectively 24-hour care and monitoring. The province is position is she should receive only $2 Million. And that being on the basis that she should have to deduct from the full cost of her care what services might be provided by Community living B.C. And there is this legal principle that prevents the concept of double recovery. When somebody when the idea is if you injure somebody or you’re careless and they’re injured, they should receive what they need to put them back in the position they would have been in. But for what you did, when you think about it, that’s a pretty fair principle
Adam Stirling [00:14:21] Yes.
Michael T. Mulligan [00:14:21] Make it right. But you’re not entitled to profit from it. Right. If you’re recovering something in one way, you shouldn’t recover twice so that you’re better off. You should be put back in the position you would have been in no hurry to imagine quite how we do this with this kind of a horrific circumstance. But we can certainly care for somebody. And so, the province argued that, well, we should deduct from the tender of $13 million what she might be expected to receive from Community Living B.C., arguing that it is very likely that that would be available for her. And so, the novel legal concept, as I mentioned, is this concept of a Peters promise, which was a concept out of the U.K. It came out of a case about 15 years ago where the plaintiff was Peters. And the concept there was can and this is accepted in the U.K. now. Can the victim of a torts, like negligence, can they promise not to accept government support so as to avoid duplicate the double recovery, a promise.
Adam Stirling [00:15:26] yeah.
Michael T. Mulligan [00:15:27] Not to take government support and the reason that’s important is, as the court pointed out here, is that even though there might be government support available, that’s far from a certainty. Right. And there was evidence about how the community living because financial pressures and what they can provide might go down. And, you know, as we talked about in the last story, legislation can change any time the government likes. You might get it, you might not. Furthermore, as the court pointed out, if this young woman ever, for example, moved to Alberta is right on the border, she would be no longer entitled to the BC community living support. And so taking the position the government advocated for would mean effectively she can never leave the province and it would be hoping that there would be support available in that amount, which of course that’s hopeful. That might be so Might that be less. It sure might be. And then the other point that’s made here, and this is an important one is a very important one, is the idea that people should have personal autonomy and dignity in order to make decisions for themselves about things like where they are going to live or what kind of care they’re going to receive. And this young lady will need help doing that. But that’s available through the Public Guardian and Trustee. And so, for example, she would, at age 19, age out of the foster care system. And so, then she would be over to Community Living B.C., whatever they might provide. What if she wishes to continue to live with her foster parents?
Adam Stirling [00:16:55] Yeah.
Michael T. Mulligan [00:16:56] Should she be required to do whatever the government is telling her to do? And I must say that’s also one of the changes which has occurred under no fault with ICBC, prior to no fault people would get a sum of money. If somebody is, you know, who chooses to modify their home or do whatever they’re going to do in their life, they’re free to make those decisions. Whereas we’ve adopted this model, the provincial government has adopted this model where effectively, if you’re seriously injured now, you become a ward of the government.
Adam Stirling [00:17:23] yeah.
Michael T. Mulligan [00:17:23] And you have to go cap in hand every time you want to get a new wheelchair or put a ramp in or take some physiotherapy, you can you don’t have dignity and autonomy.
Adam Stirling [00:17:32] No.
Michael T. Mulligan [00:17:32] You’re just a ward of the province.
Adam Stirling [00:17:34] Yeah.
Michael T. Mulligan [00:17:34] And so that was an important consideration for the judge in this particular case was that idea of having dignity, autonomy, and security. And so, it’s a very interesting read and the judge adopted that legal principle for the very first time in Canada, which evolved in the United Kingdom from that case called Peters. And it was done in a way which in addition to there being a promise not to, you know, accept government, other government services to get double recovery, it was made a condition of the order that the person that she not do that. And so that’s an interesting thing as well the province’s argument was, well, you can’t really opt out of that. You’re just entitled to these things. As long as they might exist and as long as community living might have the money. And as long as you don’t leave province of British Columbia. But that did not carry the day. And it’s also, I think, an interesting example for everyone about how common law evolves. It’s not a static thing. This wasn’t some legislative change. This decision came out on December 24th and it was a matter of the judge analyzing those principles of law and analyzing the reason we have the torts system and the all the principles that underlie that, but which, as I said at the outset, the idea is you put the person back in position they would have been in. And that’s just sort of fair, if you do harm to somebody or you fail to do something you were required to do and they suffer serious harm, you should make that right. And the idea that, while, I shouldn’t have to make it all right now, you should be able to collect welfare, or you should be able to get help for community living. B.C. Surely those things might be around for the next 30 years and some acceptable form you hope. Didn’t carry the day. And so it’s a very interesting decision and I thought in many respects, you know, it comes from a core of total, absolute tragedy.
Adam Stirling [00:19:42] Yes.
Michael T. Mulligan [00:19:43] And you read this case about sort of what this young lady’s life involves now and how she manages to survive. I must say it is quite remarkable the place she lives, interestingly, on this rural farm is described with the very supportive and experienced stepfamily. She’s able to do things like ride horses there. She needs supervision, but she has some autonomy doing that. She’s able to get some autonomy, helping out with farm tasks on the farm. She’s able to help, you know, make some meals and so on with support and as a result of this decision, she’ll wind up with that lump sum of money which will be managed by the Public Guardian and Trustee. And so she will be able to, you know, make decisions about her life that will provide the sort of dignity and autonomy that is not possible when you are having to go, you know, cap in hand, hoping that whatever facility they might deposit you in is going to meet your needs for the rest of your life. And so that’s really, I think, what people should think about when we have these discussions in this context and in a, you know, more common context of people that are injured in serious car accidents. About what does it really mean to somebody when you tell them that you have no autonomy and no ability to make decisions about where you’re going to live or how that’s how your life is going to unfold. And how, that’s just an extra indignity piled on top of, of course, whatever it was that got you to court in the first place, assuming you can still get to court. And so, this decision, I must say, in the position the province took in this case and in the case, we just talked about in terms of deeming the zoning to be permissible and the province’s position in terms of no-fault insurance. And what that means to people are all consistent theme of how this provincial government has operated for the past number of years in order in terms of just that philosophy of.
Adam Stirling [00:21:51] yeah.
Michael T. Mulligan [00:21:51] You know, what does it mean in terms of, you know, somebody’s dignity and autonomy, should you be able to go to court? Should you be a living independent judge to decide something? Should you be able to make decisions for yourself about where you’re living and what you’re doing and how you’re going to care for yourself? And there’s just a very different philosophy between sort of the status view of, don’t worry, everything should be fine, will decide for you. And no, we’re going to treat things here and treat you with some autonomy and dignity. Anyways, this was a victory for the autonomy and dignity camp and hopefully this unfortunate young lady will be able to continue on at least as long as possible in the very good position that she’s been in after the worst start in life one could imagine.
Adam Stirling [00:22:30] That’s all the time we have left. Yeah.
Michael T. Mulligan [00:22:33] Thank you so much.
Adam Stirling [00:22:34] Michael Mulligan. Thank you so much, a little bit over, but a fascinating and an important story. So, thank you so much as always.
Michael T. Mulligan [00:22:40] Thank you so much. Have a great day.
Adam Stirling [00:22:41] All right.
Automatically Transcribed on Jan 14, 2024 – MULLIGAN DEFENCE LAWYERS