This week on Legally Speaking with Michael Mulligan:
The BC Supreme Court has inherent jurisdiction to control its own process. This includes the authority to find people who breach court orders to be in contempt. The purpose of this is to uphold the rule of law.
The rule of law requires people to comply with court orders, even if they don’t agree with them.
If people were permitted to decide which laws they wished to comply with, the strongest mob would prevail, and the result would be anarchy.
There are two different forms of contempt that can apply when a court order is breached: civil contempt, and criminal contempt.
Criminal contempt involves the element of public defiance of a court order with intent, knowledge or recklessness that doing so will undermine the authority of the court.
Unlike with civil contempt, where the objective is ensuring compliance with the order, a sentence for criminal contempt includes punishment for the behaviour.
A recent BC Supreme Court case, discussed on the show, clarifies the procedure for criminal contempt proceedings and makes clear that the provincial Attorney General does not have the authority to decide if such prosecution should occur.
In British Columbia, starting with a contempt proceeding for people who were blocking access to the Everywoman’s Health Centre, in contravention of a court order, a practice of the court “inviting” the Attorney General to undertake prosecutions for criminal contempt developed.
In the current case, six individuals who were involved in a blockade of the Vancouver Port Authority, contrary to a court order, in furtherance of a dispute over a natural gas pipeline, were arrested. The court hearing the case concluded that the contempt appeared to be criminal in nature and thus invited the Attorney General to conduct the prosecution.
Rather than doing so, however, the Attorney General took the position that he had the authority to assess the prosecution in the same way as might occur when the police submit a report and recommend criminal prosecution. This kind of assessment involves both a consideration of the strength of the case, and whether prosecution would be in the public interest.
The Attorney General declined to prosecute the people who had been blocking the port in violation of the court order, citing public interest considerations.
The court, in the recent decision, has made clear that the Attorney General doesn’t have authority to decide if a criminal contempt prosecution should proceed. The court has control of the process, and if the Attorney General doesn’t accept the invitation to conduct the prosecution, the court may consider other measures, such as appointing a special counsel to present the case.
Also on the show, a 72-year-old widow ends up with a $166,702.73 bill for removing 324 tonnes of contaminated soil as a result of an underground oil tank leaking.
After an initial victor at trial, when a judge concluded the cleanup contract was unconscionable, pursuant to the Business Practices and Consumer Protection Act, this finding was overturned on appeal.
Finally, the Supreme Court of Canada has provided further guidance on when unpaid child support arrears should be reduced. Two takeaways from the case were that a person paying child support, who has a change of financial circumstances, needs to share this information in a timely way and that continuing to pay what is possible, from a reduced income, will demonstrate good faith.
Automated transcript of the episode:
Legally Speaking June 10 2021
Adam Stirling [00:00:00] Time for, Legally Speaking, joining us, Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael Mulligan. How are you?
Michael T. Mulligan [00:00:06] I’m doing great. Always good to be here.
Adam Stirling [00:00:08] Lots of interesting things on the agenda today. I see contempt, I see words like criminal or civil, I see provincial AG. I see the Supreme Court, set this up for us.
Michael T. Mulligan [00:00:19] Yeah. The first case on the agenda is an extremely important one, in terms of that concept of criminal versus civil contempt, both in terms of how those are to be prosecuted in the province and I suppose in the particular circumstances of the ongoing breaches of the court order with respect to Fairy Creek. Now, this decision that came out is a very important one people should be aware of. Here’s how it begins.
Adam Stirling [00:00:51] hmm.
Michael T. Mulligan [00:00:51] Judge says, we’ve been in the grips of a global pandemic that has dominated news coverage since March 2020, although many may not presently recall what was dominating the news in British Columbia in early February 2020. It was a crisis of a different sort, one directed at the rule of law. And what the judge was speaking about there, of course, is that back in February of 2020, there were protests with respect to the gas link pipeline and the Wet’suwet’en Nation. Which involved was described as a choke point strategy where there were blockades erected of railways, road lines, access points and so forth.
Adam Stirling [00:01:34] mhmm.
Michael T. Mulligan [00:01:34] And with respect to some of those injunctions were granted to stop those blockades. And the one being dealt with now was the blockade which occurred at the Vancouver Port Authority, that blocked access to the Port Authority, as well as a major intersection in Vancouver.
Adam Stirling [00:01:52] Yes,.
Michael T. Mulligan [00:01:52] And there was an injunction granted for the people there to stop doing that. The people didn’t stop doing that. They were involved in the protest, and several were arrested. Now, what happened is that the matter was brought back to court. The judge hearing the matter heard some preliminary evidence about what had occurred in terms of this blockade, continued blockade of the port. And it was brought to court originally by the Vancouver Port Authority, although, as the judge pointed out, they weren’t even a party to the original dispute. They were just the unfortunate victim of the blockade, right.
Adam Stirling [00:02:30] yes.
Michael T. Mulligan [00:02:30] Nothing to do with the pipeline.
Adam Stirling [00:02:33] Yes, seems very familiar.
Michael T. Mulligan [00:02:34] They just got blocked.
Adam Stirling [00:02:35] Yes.
Michael T. Mulligan [00:02:36] And so to court, they came, got an injunction. Protesters ignored the injunction, continued the blockade, and several of them were arrested. The Port Authority comes back to court and says, hey, this is what’s happened, wanting to pursue some action for contempt against the people that were intentionally failing to comply with the court order. The judge hearing it concluded, I think, probably correctly, that this matter should be dealt with by way of criminal contempt rather than civil contempt. And the court here is pointing out what the core differences between those concepts. First of all, the idea of civil contempt is to ensure that the party that’s not complying with an order start complying with the order rather than punishing the conduct. It’s designed to ensure that there is compliance with a court order. However, that’s distinguishable from criminal contempt, where the conduct engaged in is calculated to bring the administration of justice into disrepute,.
Adam Stirling [00:03:50] hmm.
Michael T. Mulligan [00:03:50] By doing things like intentionally publicly breaching a court order in order to get attention for an issue.
Adam Stirling [00:03:56] Yes.
Michael T. Mulligan [00:03:56] For example. That’s a very different thing.
Adam Stirling [00:03:58] Absolutely.
Michael T. Mulligan [00:03:59] Then somebody who is told, you know, pay this money and they don’t pay it? Then you have a civil dispute between two individuals. That might be a matter of civil contempt, but when you’re doing it intentionally and publicly, that is a really serious deleterious effect on the rule of law.
Adam Stirling [00:04:17] I agree.
Michael T. Mulligan [00:04:18] Right. And so here the court concluded, look, this should be dealt with by way of criminal contempt. And the court in the languages invited the British Columbia Attorney General to take carriage of the prosecution by calling for further evidence about what transpired so that the judge could determine whether these people were in criminal contempt and if so, what penalty would be appropriate. Now, here’s where things started to go off the rails. The B.C. Attorney General, having been invited to do that by the court, reviewed the matter and they reviewed it in the way that Crown Counsel might review a report they received from the police. So, in British Columbia, for example, if the police arrest somebody and they think there should be a criminal charge, the police would submit a report to Crown Counsel, and Crown Counsel would review that to determine, first of all, is there a substantial likelihood of conviction? Can we prove it? And second of all, is it in the public interest to proceed? And if it meets both those tests, then Crown would proceed with a criminal charge in the ordinary course of things. And so, the British Columbia Attorney General took the position that that kind of a review could or should be conducted in determining whether to proceed with the criminal contempt prosecution, where the court has invited the Attorney General to do so.
Adam Stirling [00:05:45] Hmm.
Michael T. Mulligan [00:05:46] And this is the really important point of this decision. The court has now held that the attorney general does not have the authority to do that. They do not have the authority to determine whether it would be in the public interest to proceed with the criminal prosecution for contempt, because in this case, the provincial attorney general concluded, yes, there is a substantial likelihood of convicting these people for criminal contempt of the court order, but then concluded for its own reasons, possibly with respect to delay caused by the pandemic or maybe efforts to work on reconciliation or negotiations, a whole variety of things that might be broadly considered by the Attorney General. When the Attorney General is deciding, is it in the broad public interest to prosecute these people? The Attorney General declined to proceed with the prosecution. And what the court has found in this case is that there is no there is no authority to do that. That was not an appropriate response.
Adam Stirling [00:06:52] Interesting.
Michael T. Mulligan [00:06:53] And we saw that, for example, recently when the Attorney General came before the Supreme Court and asked the Chief Justice for an injunction with respect to non-compliance with respect to public health orders at churches.
Adam Stirling [00:07:08] Indeed, you and I discussed the Port Authority matter at that time, did we not? I’m getting serious Deja vu.
Michael T. Mulligan [00:07:13] Yes,.
Adam Stirling [00:07:14] OK.
Michael T. Mulligan [00:07:14] That’s right.
Adam Stirling [00:07:15] Yeah.
Michael T. Mulligan [00:07:15] And so in that case, the Chief Justice said, province, you’re not getting your injunction. And one of the reasons you’re not getting it is that you failed to properly enforce the injunction you got with respect to the Port Authority.
Adam Stirling [00:07:29] Yes.
Michael T. Mulligan [00:07:30] And so this is the next chapter in that saga.
Adam Stirling [00:07:34] Interesting.
Michael T. Mulligan [00:07:34] And the next chapter here is the court directing the attorney general. You don’t have that authority. Once the court has made the determination that the matter ought to proceed by way of a criminal contempt prosecution when we are inviting you to then take over calling evidence that does not give you the authority to consider other things that you might think are in the public interest, be that, you know, desires for reconciliation or ongoing negotiations or various other things. You don’t have that authority. And the court went back and looked at the whole history of that sort of, “invitation” to the Attorney General to begin calling evidence. And they looked at cases including, and this is part of the History of Injunctions in British Columbia, cases involving Every Woman’s Health Centre where people decided to blockade that they were opposed to abortion.
Adam Stirling [00:08:28] I see.
Michael T. Mulligan [00:08:29] Hundreds of people were blockading it to stop it from occurring because they, despite an injunction, had their own strongly held beliefs that women should not have access to abortion; and to organize demonstrations to block women from getting into the clinic. And the history of how it is that courts begin inviting the Attorney General to conduct the prosecution. And the court has made the point that it’s part of the inherent jurisdiction of the Superior Court to enforce its own orders. And the B.C. Prosecution Service does not have authority to make its own assessment as to whether the matters in the public interest to proceed. The fact that they were treating it like a report from the police was inappropriate and they’re not to do that.
Adam Stirling [00:09:13] wow.
Michael T. Mulligan [00:09:14] And so the court has laid out how that may proceed in the future. And so, what they’ve said is, look, the Attorney General should be invited to take up the cause of prosecuting the matter in terms of presenting evidence to the court so there can be a decision made. Once the court has determined that the matter should proceed by way of a criminal contempt proceeding. And then importantly, the court has said that if the Attorney General fails to accept that, “invitation” to fulfil that role, the court has suggested that the court may adopt a different practice, which might involve the court appointing special counsel to present the evidence. And so really, this is the next chapter of this ongoing tension between who makes the decision about how a criminal contempt proceeding should occur. And the court has very clearly here directed the Attorney General, that that’s not something within your jurisdiction. The court will decide whether it’s to proceed by way of criminal contempt because of the court’s duty to uphold the rule of law. And they made the point that if you don’t have enforcement of orders in that way, you’re going to wind up with things like they refer to the strongest will mob rule over the week.
Adam Stirling [00:10:29] Yes, absolutely.
Michael T. Mulligan [00:10:31] Anarchy will.
Adam Stirling [00:10:31] Yes. That’s what happens without the courts. That’s what we were before rule of law and civil society was developed.
Michael T. Mulligan [00:10:37] And that’s exactly the point. And so even though people have strongly held beliefs like, for example, in the Every Woman’s Health Clinic, many people would have strongly held beliefs that women shouldn’t have access to abortion. It is not appropriate in a democratic society where we have the rule of law, when that is permitted and there’s an injunction telling you to stop blocking women that are trying to get into the health authority, to continue doing it simply because you really think that that shouldn’t happen.
Adam Stirling [00:11:05] Yeah.
Michael T. Mulligan [00:11:05] Or because you want attention for your side of it.
Adam Stirling [00:11:07] Yes.
Michael T. Mulligan [00:11:08] The system only works. We only have the rule of law when people are going to accept those decisions. You simply can’t have the rule by mob. And who’s able to whip up some people to block the road, block the Port Authority or block the abortion clinic because you really think you know best, despite the fact that there is a law providing for something and there’s been a court hearing and an order that something occur, we just cannot function as a society if people just insist that, well, if I don’t like the outcome of that, I’m just going to blockade the fill in the blank.
Adam Stirling [00:11:46] Yeah.
Michael T. Mulligan [00:11:46] And so the court has made clear it’s going to take charge of these things and it will make sure that its orders are enforced. And that’s not something which is a discretionary matter for the Attorney General or anyone else. And so, it is a very important decision and it’s likely to have some impact on what’s going on currently with the continued intentional breaching of the court order with respect to the blockade at Fairy Creek.
Adam Stirling [00:12:18] yes.
Michael T. Mulligan [00:12:18] Now, none of that is to say that that’s not an important issue. And the court points out there is fundamental protection for people’s right to speak about things and protest things.
Adam Stirling [00:12:29] mhmm.
Michael T. Mulligan [00:12:30] But ultimately, while you’re quite free to protest abortion or logging or pipelines or whatever it is you want to protest. If your method of doing that is to intentionally, publicly breach court orders in order to get attention to your matter, you’re going to find that the result of that is going to be a criminal prosecution for contempt. And the court has made clear that it will pursue that. It’s got inherent jurisdiction to do that, and it’s not subject to political considerations or what might be popular. And so, it is a very important decision and it’s not, I don’t think, done with this one yet. It is a really important development of how that law of contempt is developed in British Columbia and how these prosecutions will occur in the future.
Adam Stirling [00:13:16] Good, is something that I think will shore up public confidence in the administration of justice, knowing that there is no fear of political pressures, causing an Attorney General to decline to prosecute the matter, leaving it up to the courts, leaves it up to the courts. I like that.
Michael T. Mulligan [00:13:31] And that’s exactly what we’ve got. Right. And it’s an interesting example of how the common law develops over time in response to perhaps some sort of unforeseen activity. And criminal contempt is an interesting thing, is the one criminal offence that is a common law offence.
Adam Stirling [00:13:48] yeah.
Michael T. Mulligan [00:13:48] Which is within the inherent jurisdiction of the court. And this is an example of how that can develop to deal with modern circumstances.
Adam Stirling [00:13:55] All right. Let’s take our first break, Michael Mulligan from Mulligan Defence Lawyers, Legally Speaking.
Adam Stirling [00:13:59] We’ll continue right after this. On the air with Legally Speaking, Michael Mulligan with Mulligan Defence Lawyers as we continue the conversation. Michael, what’s next on the agenda?
Michael T. Mulligan [00:14:08] Well, next on the agenda is a case involving a 72-year-old widow from Burnaby, who had they wanted to sell her home a number of years after retiring. And when she went to sell her home, she consulted a real estate agent who told her that in order to make her home marketable, she should have a buried oil tank removed from the property. And so, after thinking about that for a number of months, indeed, that’s what she did. She wound up hiring a company called Speedy Oil Tank where removal or Speedy..
Adam Stirling [00:14:42] Yes,.
Michael T. Mulligan [00:14:43] Yes, Sorry Speedy Solution Oil Tank Removal. So, we don’t hire. We’ll take removal company. Oil gets removed. She pays $1,750 for the work, digging up, removing the oil tank, and putting seed back down. That’s all fine. The adviser at the time that oil. Leaked out of the tank. That’s not good. And about a year later, before she sells her house, she decided she better get the oil cleaned up. And so, she called Speedy back and she signed the contract to remove the dirty dirt with the oil in it. And the contract specifies an amount per ton of dirt to be removed. Well, sadly for the plaintiff, the amount of dirt being removed turned out to be very extensive. And she noticed that when they have to bring in a larger digger and it turned out that the oil-soaked soil had leaked onto their neighbour’s property and ultimately 324 tons of dirty dirt wound up being removed from her property and her neighbour’s property. And so, she was presented with a bill for $166,702. And so, this led to then litigation with the speedy oil tank removal people. And it became more complicated because she had then sold her house to another purchaser who didn’t keep any hold back. And so, a lien wound up on the property for the unpaid $166,000 bill. And the matter eventually went to the beach, went to the B.C. Supreme Court, and the trial judge found that there could be some relief for the widow under the B.C. Consumer Protection Legislation, finding the contract to have been, “unconscionable”. And he reduced the bill to $80,000, bearing in mind that the Speedy removal company had, in fact, paid out of pocket $77,600, I guess, for the trucking and disposal and so on, leaving aside their overhead and other costs. But Speedy appealed that and the Court of Appeal decision was just released in an a two to one decision and went against the widow. And, while all three judges agreed that this, in fact, was a consumer contract. And the B.C. Consumer Protection Act did apply. The majority carefully went through the various circumstances in which a contract can be found to be unconscionable. Things like was there undue pressure put on the person? Or, you know, was the total price grossly excessive.
Adam Stirling [00:17:29] mhmm.
Michael T. Mulligan [00:17:30] Or was there no reasonable prospect the person could pay? And going through each of those one by one, ultimately, the majority concluded, terribly sorry, but none of these apply. This was extremely expensive. But the things complained about, like, you know, not telling her on a day-to-day basis how much dirty dirt had been dug out didn’t make it an unconscionable agreement. Nor did the suggestion that they should have drilled these sort of core samples to figure out how much dirty dirt there was before they started digging for the dirt. That really wasn’t a complaint either, because ordinarily that would cost much more than would be worth doing and you would still have to dig the dirty dirt out.
Adam Stirling [00:18:12] Yeah.
Michael T. Mulligan [00:18:13] And so I guess the takeaway here, first of all is, be careful before you buy a house that’s got a buried oil tank. You could wind up with a very large bill for it. And, you know, if you’ve got one of these things, to some extent, you’re sort of stuck with it and stuck with the costs, because if you don’t clean it up before you sell the place, the person who purchases it may wind up coming back to collect that from you later. And so really, I guess the message here is that the cost of remediation, particularly when there’s been a large leak, can be really high. I should note, at least in the past, I think one of the solutions with the dirty dirt was to truck it from BC to Alberta, where the regulations for dirty dirt (laughter) are more lax and the beaches will be clean, clean dirt. I guess if you truck it up in northern Alberta and dump it in the oil sands, you just need a clean patch. So, you know, I guess maybe we should think carefully about whether it’s a great use of money to require people to clean up dirty dirt under their house. But indeed, that’s what’s required. And if that’s required of you, be careful because you may be in for a very large bill.
Adam Stirling [00:19:26] The way that the market creates solutions to minimize costs due to regulatory leakage, like driving dirt across a provincial border where suddenly it is magically viewed as being less dirty than it was before is always, fascinating to see.
Michael T. Mulligan [00:19:39] Isn’t that great? You know, I think it might just create a clean area, right? Or maybe just feed it into an oil extractor and they can pump it back to B.C. through that pipeline as bitumen or something. So, I guess it’s all a matter of where the dirty dirt is.
Adam Stirling [00:19:52] Oh, yeah. I keep forgetting about that pipeline it occupied so much of my thought process is once upon a time before Covid. We were also young, weren’t we,? Michael Mulligan Defence Lawyers pleasure, as always. Got 90 seconds left. There’s anything else you want to touch on?
Michael T. Mulligan [00:20:05] Yeah, I guess there’s one more thing to touch on in that 90 seconds. And that would be a Supreme Court of Canada case dealing with when a person can have retroactive child support decreased. And it was a case where a father didn’t pay virtually anything for many years and then came asking that his $170,000 unpaid child support bill be reduced. And the Supreme Court of Canada, the real takeaway here is that you’re not going to get that unless you have been giving notice to the other person about what your income is. They really made a clear point that people are paying child support that want to have a future reduction, have an obligation to be clear with the other party about changes in their financial circumstances. And if you don’t tell the other person and come a long years later asking for a change, you may not get it. And the other point the court makes is an important one, is that you need to you don’t need to; but if you show good faith in the sense of paying what somebody is able to pay, even if it’s less than what originally was ordered, that may also accrue to your benefit if you’re coming along later and asking for a reduction. So, the takeaway there for people who are having a change of financial circumstances because they lost their job or going to a lower paying job and you have a child support obligation include, you should tell the other person, promptly, and you should continue to pay what you can pay. And if you do those things, you may have a better prospect of getting a change retroactively if a large bill racks up.
Adam Stirling [00:21:30] Michael Mulligan. A pleasure, as always. Thank you for your time until next week.
Michael T. Mulligan [00:21:34] Thank you. Always a pleasure. Have a great day.
Automatically Transcribed on June 10, 2021 – MULLIGAN DEFENCE LAWYERS