This week on Legally Speaking with Michael Mulligan:
Unlike criminal cases, where there is always a next appearance date scheduled in court until a case is completed, civil cases are generally moved along by the plaintiff.
The case discussed on the show involved a civil claim resulting from an apparently defective drop-side crib. The issue was identified in 2009 and resulted in the crib manufacturer recalling the cribs. Several proposed class actions were also filed in different provinces.
In BC, a proposed class action was filed one day after the recall of the cribs was announced.
A couple of years after the BC case was commended, the plaintiff asked the court to be replaced as the proposed representative plaintiff because of family and work time commitments. The judge managing the case denied the application to change plaintiffs, in part because the original plaintiff still had the crib, which the defendants wanted to have examined by an engineer.
Approximately 8 years then passed without any meaningful steps being taken by the plaintiff to move the case forward.
The defendant crib manufacturer eventually applied to have the case dismissed for “want of prosecution”. The test when this kind of application is made involves consideration of the length of the delay, explanations for the delay, an assessment of whether the defendants suffered prejudice and finally the judge deciding if the balance of justice requires the action to be dismissed.
The case discussed was dismissed both because of the amount of time that had passed and the fact that the crib in question had inexplicably been lost, before it was examined by the defendants.
Also, on the show, the lawyer for an accused person in a criminal contempt prosecution relating to the alleged blocking of a driveway at a “tank farm” in Burnaby, contrary to an injunction prohibiting interference with the Trans Mountain Pipeline, asked the judge to take judicial notice that the activity occurred on “unceded indigenous territory” or “indigenous territory”.
In criminal cases, ordinarily, evidence of an alleged fact needs to be called if a party wants a judge to take it into consideration.
Judges can, however, take judicial notice of facts that are clearly uncontroversial without requiring evidence.
To take judicial notice of something a judge must be satisfied that a fact is either: 1) so notorious or generally accepted as not to be the subject of debate among reasonable persons or 2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
While the judge agreed that it’s obvious that indigenous people occupied some parts of BC before Europeans arrived, the assertion that the driveway in question was either “unceded” or “indigenous territory” was not a notorious fact.
The judge rejected the claim that the territorial acknowledgements often used by politicians could be the basis for taking judicial notice of the alleged fact: “In any event, I hardly think that statements by politicians, which may be made for any number of reasons and not for the purpose of court proceedings, can be taken as a readily accessible source of indisputable accuracy.”
While it’s unclear that the claim the driveway in question was unceded indigenous territory will have any relevance to the criminal contempt trial, if the defendant wishes to rely on this assertion, they will need to call evidence to establish it.
Finally, on the show, courts in BC have announced that many of the COVID safety protocols that were put in place at courthouses will be removed as of April 11, 2022.
Legally Speaking April 7, 2022
Adam Stirling [00:00:00] Time for Legally Speaking, joined, as always, by Michael Mulligan for Mulligan Defence Lawyers. Morning, Michael, how are you doing?
Michael T. Mulligan [00:00:06] I’m doing great. Always good to be here.
Adam Stirling [00:00:08] What is on our agenda today?
Michael T. Mulligan [00:00:11] Well, the first thing on the agenda is a long-running case concerning Cribs, of all things. That is to say, like baby cribs.
Adam Stirling [00:00:19] Yeah.
Michael T. Mulligan [00:00:20] And it’s a case that actually originated in Victoria, and it originated a long time ago, which will come to what’s eventually become of that case. Some listeners may recall a number of years ago issues concerning possible safety concerns about drop-sided cribs, like cribs, where you could lower one side down to get the child out more easily.
Adam Stirling [00:00:44] Yeah.
Michael T. Mulligan [00:00:45] And in fact, back in September of 2009, a then articling student in Victoria, had a young baby and noticed that one side of his drop sided crib, had fallen down about ten inches lower than the other side, causing concern that the child might be able to climb over that and get hurt.
Adam Stirling [00:01:08] Hmm.
Michael T. Mulligan [00:01:09] So he zaps strap the thing back together. And then a short time later, that was September of 2009. A couple of months later, the company that manufactured the crib sent out a recall notice to get all of these things back. So, it does look like there was some sort of a problem with the manufacturer or the design of the crib. So, one day after the company recalled all the cribs, the article student, who happened to be articling at a firm that did class action work started, what one would expect a class action lawsuit.
Adam Stirling [00:01:46] Yeah.
Michael T. Mulligan [00:01:47] Class action lawsuit. Hey, what about these cribs? And the case sort of meandered along for a little bit. And it’s a good example of how there’s a difference between how a criminal case proceeds through the court system as opposed to a civil case proceeding through the court system.
Adam Stirling [00:02:07] Yeah.
Michael T. Mulligan [00:02:07] With a, with a criminal case, there’s always a next court appearance scheduled, and the court sort of manages the case to make sure it keeps going in a forward direction, right? We want to know, hey, how are you pleading? Guilty or not guilty? Okay, when are we going to have that trial date? Are you ready to go now? Right? There’s always sort of a court driven process to keep things going in the desired direction of a conclusion. Whereas with a civil case, it’s different. The case is very much being driven by the plaintiffs, right?
Adam Stirling [00:02:42] Yes. Yeah.
Michael T. Mulligan [00:02:43] So if you’re suing somebody, you would draught up your statement, your notice of your civil claim, you would serve the other side with it. The other side would respond, but it then has to be sort of driven forward by the lawyer or the plaintiff,.
Adam Stirling [00:02:57] yup.
Michael T. Mulligan [00:02:58] Afraid if the person doesn’t do anything, nothing happens.
Adam Stirling [00:03:00] You can sit there for years. Exactly.
Michael T. Mulligan [00:03:02] Yeah, yeah, nobody’s calling up saying, hey, what’s going on over there? What about that crib claim? And so, what happened here; it looks like there were various other claims started for cribs and other parts of the country, right? There is action started in Quebec, Ontario, Manitoba, Saskatchewan, and Alberta. And so, things sort of didn’t move too fast, probably because there was some waiting to see what what’s happening with these other cases, right? Then what happened is a couple of years later, the now lawyer, right, who was the representative plaintiff who had the crib that was falling apart, applied to remove himself from being the representative plaintiff. And the reason for that is there could be a fair bit of work involved. If you’re the representative plaintiff in a case like this, you can have to show up for examinations, for discovery, and it can take a bunch of basically free time. Right. You’ve got to put into it right. And the compensation that an individual person might get as part of a class action could be pretty modest right here. The claim was for the lost value of the use of the crib, where somebody said, hey, I can’t use that crib because it might injure my child or perhaps to get the value of the crib back, but hardly a fortunate right. And so, somebody could spend days of work as a representative plaintiff and wind up with a few hundred dollars, right? Good that we’ve got the Class Action System because you might affect, you know, thousands or hundreds of other people. But for the person doing it themself, it’s a whole bunch of work for what may be, you know, a small amount of money for each individual person. And so, the then very busy lawyer who obviously had a young child, the sort of person who might need the crib applied to stop being the representative plaintiff and ask that some other people be substituted who were willing to take on that role. He was unsuccessful. The judge managing the case said, no, you’ve got to continue. And part of the reason for that was that he still had the crib. And one of the challenges, of course, you know, if you’re a young parent, how long are you keeping around in your house, the defective broken crib?
Adam Stirling [00:05:18] Yeah.
Michael T. Mulligan [00:05:18] Probably not that long.
Adam Stirling [00:05:19] No.
Michael T. Mulligan [00:05:20] After a couple of years, you’ve got this broken thing that’s been recalled might well be hazardous.
Adam Stirling [00:05:25] Let’s keep it around so the kid can find it someday. Yeah, exactly.
Michael T. Mulligan [00:05:29] You know, you know, putting it on the mantelpiece, you’re probably not giving it to your friend if it’s been recall, right? You know, it’s like we told you, this is deadly, dangerous object. What do you what do you do?
Adam Stirling [00:05:41] Secret Santa at the office?
Michael T. Mulligan [00:05:43] Yeah, yeah. That’s put a bow on it and give it to your enemy, right? So, the other people propose, the judge said, No, no, no. You’ve got to carry on here. You know you. You can’t just swap somebody else in. After all, you’ve got the crib. And also allowed in order for the crib manufacturer to be able to have an engineer examine the crib. That’s not crazy. They said, we want to look at it, see what was going on here. Although, it does cause me to scratch my head a little bit, given that there was a recall for all the other cribs. So, you know, this could hardly be the only available crib, one would imagine the company did recall them all. But nonetheless, that was the order. Now, things didn’t move very fast from that point on, probably for the reasons indicated by the young lawyer who indicated Hey, I’m just too busy to do this. I’ve got a young child. My wife’s back at work. I just don’t have time to pursue this thing. And so, the case just kind of languished for years. There were some very general enquiries made about can we schedule a date back in 2009, I think nobody replied, oh sorry 2017, and nobody replied to that. And then recently, the manufacturer of the cribs brought an application to the judge, who would be assigned to manage the case. And what happens with these proposed class actions is that a judge will get assigned to be like the management judge to manage the pre-trial applications and then eventually the trial, because what happens so often is that the person, or the company, it is always a company being sued, winds up making all kinds of procedural applications, trying to stop the certification or delay things or split it up or whatever you can to kind of stop the thing from going ahead.
Adam Stirling [00:07:29] mm-hmm.
Michael T. Mulligan [00:07:29] And so generally, they’ll assign a judge to manage all those possible things. But here the thing just kind of languished, right? There is no other court date. It’s not like a criminal case where somebody saying, hey, what do you want to do over there?
Adam Stirling [00:07:42] Yeah.
Michael T. Mulligan [00:07:42] And so nothing really happened. And so recently, a company made an application to ask that the claim be dismissed for want of prosecution.
Adam Stirling [00:07:53] Hmm.
Michael T. Mulligan [00:07:54] And indeed, there is a rule dealing with that in B.C., the civil rules 22-7(7) for those that are following along at home.
Adam Stirling [00:08:05] Mm hmm.
Michael T. Mulligan [00:08:06] And it allows a court to dismiss the case for one of prosecution. And there’s things that a judge would consider. First of all, was there an inordinate delay? And then other sort of criteria of the kind you might expect things like was there was the delay excusable? Like, was there some good reason for it? And then right of the heart of it, did the delay caused some prejudice to the defendant and then a balancing of sort of, you know, interests and so on the prejudice front, the law is that you can assume prejudice after a lot of time passes, right? Because you know, people’s memories fade, witnesses become unavailable. And, you know, cribs may not have pressed would disintegrate or, you know, whatever happens in this world
Adam Stirling [00:08:49] and the heat death of the universe. Yeah, exactly.
Michael T. Mulligan [00:08:51] Yeah, that’s right. You know? And so here those were all factors. But then probably the factor which pushed it over the edge is that for reasons unknown, the, now lawyers, the crib was somehow gone. There was little evidence about how that happened. At one point, apparently a decade or so ago, the evidence was that the crib had been stored at the lawyer’s office. But then as of now, somehow between, you know, 2009 or whatever this was and in 2022, no more crib. Maybe the thing just disintegrated into dust, leaving behind not much. Perhaps that’s the outcome, but whatever the case may be. No crib anymore. And so that, I think, was probably the final straw for the judge when balancing, hey, is there any prejudice because not only has a lot of time gone by, but the crib itself is gone? Right? And so particularly in the context of where the defendants had this order to be allowed to examine. The crib. Yeah, that, of course, is not possible. And so, at the end of the day, the judge concluded that look, just too much time has gone by here. There hasn’t been an adequate explanation for it and there’s actual prejudice. They just can’t have a fair trial, when you know, this crib is now for reasons unknown, no longer available. And so, the outcome of all of this and is that there will be no class action proceeding over the crib in various other provinces. It looks like the claims kind of fell off or were abandoned after a period of time. And you know, of course, sometimes that’s a function of economics, right?
Adam Stirling [00:10:41] Yeah.
Michael T. Mulligan [00:10:42] Because with these class actions, you know, some lawyers got to spend a whole pile of time pursuing it, hoping that at the end of the day, there’d be some recovery for it.
Adam Stirling [00:10:51] Yeah.
Michael T. Mulligan [00:10:52] And if at the end of the day, you know, sort of what’s at stake is the, you know, lost use value of a crib or the value of a crib, particularly yes, in a context where the company has recalled them, which would ordinarily mean I’m going to pay you for the thing. It may be that, you know, there is just the economic analysis was how much work can you put in to trying to advance a claim or the potential compensation is going to be pretty small? Right?
Adam Stirling [00:11:21] Yeah.
Michael T. Mulligan [00:11:22] You know, there wasn’t an allegation here that somebody actually, you know, was injured by the crib. It was just that the crib, for reasons we will never know, appeared to be kind of falling apart. And so that’s the long, slow saga of the falling apart or at least falling half down, crib from back in 2009. And so, if you still have one of these things in your garage, don’t use it. Don’t give it to a friend. Get it, get it sent back to company with stork craft manufacturing. So, if you find some old crib in your basement, you may want to look up the information about the recall. And for heaven’s sakes, don’t give that to somebody. Give it back.
Adam Stirling [00:12:09] Michael Mulligan with Mulligan Defence Lawyers it’s Legally Speaking on CFAX 1070. We’ll take a quick break and continue right after this.
Adam Stirling [00:12:16] All right, we’re back on the air here at CFAX 1070. Michael Mulligan with Mulligan Defence Lawyers as we continue with this week’s legally speaking, I’m reading criminal contempt trial, judicial notice, and a claim respecting unceded Indigenous territory. Michael?
Michael T. Mulligan [00:12:32] Yes, indeed. So, this was a decision as part of an ongoing trial involving an allegation of criminal contempt arising from various people who are alleged to have blocked the driveway at the Burnaby terminal or “tank farm” in an effort to interfere with the operations of Trans Mountain Pipeline.
Adam Stirling [00:12:56] Sounds familiar? Yeah.
Michael T. Mulligan [00:12:57] Yeah. Allegedly, contrary to the injunction, we’ve had a lot of it.
Adam Stirling [00:13:01] Yeah, yeah.
Michael T. Mulligan [00:13:03] And so the legal issue here, I think, is an interesting one. The legal issue is this concept, as you mentioned of judicial notice and in particular, a lawyer for one of the accused people in this trial was asking the judge to take judicial notice that the area in question was either was unceded Indigenous territory or “Indigenous territory”.
Adam Stirling [00:13:32] Hmm.
Michael T. Mulligan [00:13:33] And so that brings us to what is judicial notice.
Adam Stirling [00:13:35] Yeah.
Michael T. Mulligan [00:13:36] Well, the idea there is that the starting point in a criminal case is going to be if you want evidence of some fact, you’ve got to call evidence of that fact to prove it right. If you want to prove that you know, Bob robbed the bank, you better call somebody that says you have a guy over there, Bob, robbed the bag. You don’t just assume that he robbed the bank. And so, the concept of judicial notice is that where there are facts that are obvious. And I guess here is how obvious would be described as a matter of law comes from a Supreme Court of Canada case, Regina versus Find; where there are facts that are clearly uncontroversial or beyond reasonable dispute. And it’s described this way facts that are 1) so notorious are generally accepted as not to be the subject of debate amongst reasonable people or 2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy that a judge can just proceed on the basis of those things are true without having to call evidence. Like, for example, if somebody said, look, I’m asking your honour to take judicial notice that water runs downhill.
Adam Stirling [00:14:49] hmm.
Michael T. Mulligan [00:14:49] Or I’d have to take judicial notice that when it gets very cold, water can freeze into ice, right?
Adam Stirling [00:14:55] Hmm.
Michael T. Mulligan [00:14:56] A judge could just say, yes, I don’t need to have a witness come and tell me, that water generally runs downhill.
Adam Stirling [00:15:01] Yes.
Michael T. Mulligan [00:15:02] You know, water freezes into ice. I’m just going to operate on the basis that those things are true, otherwise we would spend time proving the ridiculous and the obvious every day, right we don’t.
Adam Stirling [00:15:12] Okay.
Michael T. Mulligan [00:15:13] but the issue here became that lawyer was saying that this area was, she claimed. It was notorious. This was unceded Indigenous territory.
Adam Stirling [00:15:24] Is it?
Michael T. Mulligan [00:15:25] And so the issue was, is that the kind of thing that you can take judicial notice of?
Adam Stirling [00:15:29] Yeah.
Michael T. Mulligan [00:15:30] And so she pointed to various things an effort to try to persuade the judge of that, including interestingly statements made by various politicians, which you will often hear the beginning of political speeches or addresses. You’ll have the politician stand up and say, I am on the unceded territory of X or Y, right?
Adam Stirling [00:15:50] Yeah, actually in here? Yeah, here with the Lək̓ʷəŋən
speaking peoples, they prefer the term traditional territories because of the Douglas treaties and then not being technically unceded. So yes.
Michael T. Mulligan [00:16:00] So that’s one of the things you point to. And I must say, I really quite enjoyed the judge’s reply to that. Judge said when dealing with comments made by politicians in various contexts, including those ones, the judge said, ” in any event, I hardly think that statements by politicians, which may be made for any number of reasons, are not for the purpose of court proceedings to be taken as reasonably accessible sources of indisputable accuracy.” I must say, the kindest of judicial treatment of, you know, how much we could rely upon the statements being made by politicians in various circumstances.
Adam Stirling [00:16:38] The courts, hold on, hold on all you want us to take a politician seriously, though we’re not going to do that story.
Michael T. Mulligan [00:16:42] So that’s been judicially rejected. And then the lawyer also tried to rely upon a book found in the Burnaby Village Museum, entitled Indigenous History in Burnaby. And so, the judge had a look at that, but the judge was not persuaded. The crown in this case said, look we are not agreeing that that is notoriously so that nobody could debate it. And the judge pointed out that look, even though it may be undisputed that, of course, there were Indigenous people living in what is now Canada prior to Europeans arriving here. And even though that’s clearly so, that doesn’t necessarily lead to the conclusion that it is a notorious fact that the driveway at the tank farm in Burnaby was unceded Indigenous territory or indeed Indigenous territory at all. It just doesn’t follow. And so, the result of this decision is that if the lawyer wants that allegation to be part of the defence in some fashion, right, that this is somehow relevant, that this driveway that was being blocked was unceded Indigenous territory.
Adam Stirling [00:17:56] yeah.
Michael T. Mulligan [00:17:56] And it’s not entirely clear how that would play into the defence, but it seems to be important to the lawyer. So, if they wish to try to rely upon that assertion, they will not be able to do so by claiming that the judge should take judicial notice of it. It’s going to be a matter of calling some evidence to try to establish that. And the point is that if you take judicial notice of it, it kind of deprives the other party from being able to do anything to challenge it.
Adam Stirling [00:18:24] Oh I see.
Michael T. Mulligan [00:18:25] I’m just taking judicial notice of this; driveway was unseated Indigenous territory. The other side, of course, wait hold on a minute. Maybe it was subject to a treaty. Maybe there was never any Indigenous claim to this driveway or this area of Burnaby. Hey, I should at least be able to ask questions about that. And so that’s what’s going to occur here. If the, if the lawyer thinks that is important to the defence, then they would be required to prove it. They can’t just stand up and say that claim is the equivalent of a claim that gravity pulls things towards the Earth or something. It’s going to actually require some evidence. And so, on goes the case of alleged criminal contempt over the blocking of the driveway at the tank firm in Burnaby.
Adam Stirling [00:19:09] So in terms of taking judicial notice, it would depend on the specificity or the precision of the information. For example, you take judicial notice that at some temperature water freezes to ice, the exact temperature the one the conditions might require expert testimony, right?
Michael T. Mulligan [00:19:23] For sure.
Adam Stirling [00:19:24] Okay.
Michael T. Mulligan [00:19:24] is that saltwater? Is that freshwater or what altitude does that add when you try to think of examples of things that are just obviously so it can be challenging, right?
Adam Stirling [00:19:33] Yeah.
Michael T. Mulligan [00:19:33] I mean, if somebody were saying, I think, for example, if the claim was, look, I want you to take judicial notice of the fact that they were Indigenous people living in what is now British Columbia prior to European contact, that’s probably the sort of fact which a judge would say, yes, I could take judicial notice of that.
Adam Stirling [00:19:48] Yeah.
Michael T. Mulligan [00:19:48] No reasonable person is going to argue that that was not so.
Adam Stirling [00:19:52] mm-hmm.
Michael T. Mulligan [00:19:53] Right, but it is a very different thing to say. No reasonable person could argue about whether this driveway in Burnaby was Indigenous territory or unceded Indigenous territory, or it could be. Well, was there a treaty or what? You know, what group of Indigenous people lived in this part of Burnaby? Did include what is now the driveway? There are all kinds of questions that you might reasonably want to ask about those claims. And I shall see as well. Just to be clear, it’s not as if you managed to establish that something was “unceded Indigenous territory” that somehow the Supreme Court of British Columbia doesn’t have the authority to grant an injunction prohibiting a person from blocking that. It’s not how it works. And so, I want to be just very clear that it’s not a matter of, well, if you somehow establish that this wasn’t unceded Indigenous territory, that somehow that’s a licence to go out and erect a blockade contrary to an injunction. That’s just not the state of the law in British Columbia.
Adam Stirling [00:20:51] No, you won’t have some wily litigator, once upon a time managed to convince a court to will away all of its power and become meaningless.
Michael T. Mulligan [00:20:59] That’s not likely that,.
Adam Stirling [00:21:00] No, we’ve got two minutes left COVID protocols at the courthouse. There’s a revision coming April 11th. Is there not?
Michael T. Mulligan [00:21:07] Yes, some pretty significant changes, removing many of the restrictions that have been in place, including things like they’re going to remove the health screening that occurs at the door of a courthouse. Like if you go to a courthouse now, there’d be a sheriff there asking you, Hey, any COVID symptoms, right? How’s your health? That kind of thing. You got a mask there? Okay, great, carry on. Also eliminating capacity limits in courthouses like right now, they’ve got every second chair blocked off in courtrooms right for the gallery. They’re going to eliminate the requirement that face masks be worn in the courthouse, although they remain recommended and the provision now is going to be that in courtrooms, masks are not required unless the presiding judge or judicial official requires it. Right because there could be some circumstance you know, let’s see what a witness was immunocompromised or something. You may say, OK, look, everyone, put your masks on. We’re going to take a special provision here to keep somebody safe. So, a judge does have discretion. Barriers are going to remain in place plexiglass barriers, and they’re still going to have hand sanitizer available and face masks available. But there is a broad message here is that there’s going to be a general loosening of some of the protocols that were in place. And there’s also the notice given that there are going to be further announcements about how future court proceedings are going to operate because they moved a whole bunch of things to online using MS teams and so on.
Adam Stirling [00:22:40] Yes.
Michael T. Mulligan [00:22:40] And some of those have turned out to be just very effective, and good time savers. We’re able to have judges appear from other parts of the province when they have time, and we’ve avoided people having to unnecessarily travel. And so there have been some positives out of the protocols that were put in place, and I expect that some of those are going to continue because they’ve just turned out to be good exercises in efficiency. So, change is coming at the courthouse April 11.
Adam Stirling [00:23:05] Michael Mulligan during the second half of our second hour every Thursday on CAFX 1070 with Mulligan Defence Lawyers. Legally Speaking. Michael, thank you as always. Until next week.
Michael T. Mulligan [00:23:14] Thank you so much. Have a great day.
Adam Stirling [00:23:15] You too. Bye now.
Automatically Transcribed on April 11, 2022 – MULLIGAN DEFENCE LAWYERS