Deck litigation, an estate without a will, and criminal jury trials almost back to normal
This week on Legally Speaking with Michael Mulligan:
Twenty-five years ago, a man and his family moved into a home they had built in the Highlands with only a temporary occupancy permit. A final occupancy permit was never obtained, and the lack of compliance was noted on title.
As his wife passed away and his children had moved out, the homeowner decided it was time to sell the home.
The homeowner hired a contractor to complete some repairs including work on some badly weathered decks. The agreement to do the work was oral and the scope of the project changed several times.
The contractor was asked to replace two smaller decks completely but, to save money, only replace the decking on a large main deck.
The contractor pointed out to the homeowner that the structure of the main deck was rotten but agreed to continue replacing only the decking.
When the home was listed for sale, a building inspector was called by a real-estate agent and several deficiencies were noted, including the rotten main deck.
The homeowner was upset that the building inspector had attended and demanded that the contractor replace the main deck as his own expense. The contractor refused because he had only been hired to replace the decking and litigation ensued.
Following a three-day trial, the judge concluded that while the contractor wasn’t responsible for the full cost of replacing the main deck, he shouldn’t have proceeded with replacing the decking given the rotten structure. The contractor was ordered to pay for the wasted time and decking material.
Because the homeowner sued in Supreme Court, seeking the full cost of a new main deck, and was awarded only $5,175, he is unlikely to receive costs that would ordinarily be awarded to a successful party because the amount awarded is within the jurisdiction of Small Claims Court.
The legal costs of the three-day trial are likely to have been substantially more than the amount awarded. The contractor represented himself at trial.
Also on the show, the BC Court of Appeal resolved a dispute over an estate that occurred because the deceased didn’t have a valid will.
The BC Wills, Estates and Succession Act has provisions that deal with who should receive an estate when someone dies without a will. If someone has a spouse and no descendants, the estate passes to the spouse.
The central issue on the appeal was whether the man who had lived with the deceased was her spouse.
The Wills, Estates and Succession Act provides that when someone is in a “marriage-like relationship” for two years prior to someone’s death is their spouse.
There are a variety of factors that courts have looked at to decide if a relationship is “marriage like”.
The trial judge focused on the fact that the man and woman didn’t engage in conjugal relations and concluded that the man wasn’t a spouse.
The Court of Appeal disagreed and pointed out that there should not be a checklist of factors and that relationships are diverse.
The man shared a bed with the deceased for three years prior to her death. He took her to hundreds of medical appointments, did the grocery shopping, they shared meals and celebrations together and testified that he loved her.
While, ultimately, the result is likely to have been in accordance with the deceased woman’s wishes, several years of litigation and uncertainty could have been avoided if she had prepared a proper will.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts, or wherever you get your podcasts.
An automated transcript of the show:
Legally Speaking June 30, 2022
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers 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] Lots of interesting things on the agenda to talk about this week. What’s up first?
Michael T. Mulligan [00:00:13] That’s for sure. I thought I should just you mentioned of the outset, of course, who all the discussion about that bank robbery the other day.
Adam Stirling [00:00:21] Yeah.
Michael T. Mulligan [00:00:21] The gun battle that ensued and the history in Victoria actually includes I don’t know if listeners can recall this, but from back in 1999 in Victoria, we had another notorious bank robbery that involved a shootout or shooting at police in Victoria.
Adam Stirling [00:00:43] Yeah.
Michael T. Mulligan [00:00:43] Back in 1999, that was Stephen Reid.
Adam Stirling [00:00:47] Yes. Yup.
Michael T. Mulligan [00:00:47] That had some notoriety from writing a book about him as a sort of a semi-autobiographical book about his involvement with The Stopwatch Gang, a group that had apparently engaged in some hundred plus highly organized bank robberies during the 1970s, netting millions of dollars. And then back in 1999, he was involved in the robbery of a bank in James Bay, I believe it was James Bay, and then there was a chase of Mr. Reid and Police Officer Bill Trudeau with Victoria Police.
Adam Stirling [00:01:29] mm hmm.
Michael T. Mulligan [00:01:30] Wound up chasing him as he was firing at Bill Trudeau and a bystander with a shotgun.
Adam Stirling [00:01:37] Yeah, they went through Beacon Hill Park. I remember that.
Michael T. Mulligan [00:01:39] That’s right.
Adam Stirling [00:01:40] Yeah.
Michael T. Mulligan [00:01:40] And then eventually he broke into the home of a James Bay couple and took them hostage and was eventually arrested later that night. He was convicted of attempted murder, and he got an 18-year sentence and passed away at age 68 back in 2018. Bill Trudeau, for his part, wound up receiving an award of valour for his efforts, pursuing Mr. Reid while being shot at with a shotgun. And so, these things don’t happen frequently, happily. But, you know, Victoria isn’t a complete stranger to this sort of violent activity. And, you know, of course, watch with interest what happens here. And hopefully, of course, the officers that are still recovering are okay. You know, some of them were still in hospital.
Adam Stirling [00:02:35] Yeah.
Michael T. Mulligan [00:02:36] And, you know, we should all be very thankful for what they did, and the harm caused to them and the risk they put themselves out in responding to this. And that does happen from time to time. And, you know, that was one of the last notorious bank robberies in Victoria that involved shooting at police.
Adam Stirling [00:02:58] You know, in terms of legal affairs issues on the agenda this week, I do have it in front of me here. Are we still going to do that?
Michael T. Mulligan [00:03:05] Yes.
Adam Stirling [00:03:06] Perfect.
Michael T. Mulligan [00:03:06] So first 1/1 of all, I had on my on the agenda was a case that came out of the highlands.
Adam Stirling [00:03:11] Yes.
Michael T. Mulligan [00:03:12] And probably a topic that would arise for people at this time of the year, which was a dispute arising over work done on a deck. Right. I’m sure a lot of us enjoy spending time some of the time on the back deck as the sunny weather comes out. and this case is a bit of a cautionary tale. The background of it was that 25 plus years ago, the plaintiff eventually in the case built a home out in the Highlands and eventually moved in with his family after having obtained a temporary occupancy permit, but never had a final inspection done on his house. And then after 25 years, his wife and sadly passed away and his kids had moved out and plaintiff decided he wanted to sell the house. But to do that he needed to get some things fixed up. And he hired a contractor to do some work on the house, including replacing some decks and some other cosmetic work, but also to include work, he wanted to replace just the surface of the main deck in the house, and he wanted to do that to try to save some money because he was planning to sell the house. So, he didn’t want to have the entire thing rebuilt. So, the contractor spent several days and rebuilt various things and then replaced the just the surface of the main deck in the house. And in fact, he says he pointed out to the owner that he the underside of this thing is pretty rotten, but nonetheless carried on and did what he said he was told to do and replaced just the top decking. Then the house got listed for sale. And of course, what happens next? Building inspector shows up and has a look at everything and a building inspector notes that the underside of the main deck is completely rotten. And the things unsafe and then notices some other bits and pieces that require work. And so, the homeowner plaintiff blames the contractor and says, hey, you should’ve replaced this whole deck. It was rotten, not just on the top, which is what I asked you to do. And so, on that basis, this thing wound up in court. And so, the judge had to sort out what obligation did the contractor have? Right. Should the contractor have done something more in terms of replacing the rotten underside of the main deck in my house? And the contractor’s perspective was, I wasn’t asked to do that I was just hired to replace the top of it. And I pointed out that the bottom was rotten. But, you know, how was that my responsibility? Ultimately, the homeowner wound up spending, I think, an excess of $50,000, having to replace, you know, the underside of the deck in order to get the building inspector to sell his house. And the judge, ultimately, this was interesting, found that even though the homeowner had only asked this contractor to do the top of the deck, the judge found that the contractor did have an obligation to make sure that this person replaced the balance of it and not just screwing the top on the new top onto a bunch of rotten wood underneath. But at the end of the day, the contractor shouldn’t have been, shouldn’t be responsible for the entire cost of rebuilding the man’s deck. But instead, the judge found that the contractor was responsible for the extra work that was required and some of the wasted wood decking that couldn’t be salvaged when the bottom was all rebuilt. And so, after a three-day trial, the net result is that the homeowner was awarded some $5,000 in Supreme Court for some of the work that had to be done to get things up to snuff and for some of the extra work required because the contractor hadn’t insisted upon redoing the bottom. And so ultimately, I suspect that the cost of hiring a lawyer to spend three days in court arguing about the deck is likely to cost more than $5,000.
Adam Stirling [00:07:14] Yeah.
Michael T. Mulligan [00:07:15] And as a side legal note, if you sue somebody in Supreme Court. Right, and you wind up with an award that should have been in the small claims court, which is where a $5,000 award should have been. Presumptively, you don’t get any costs awarded for you. And so that can make a big difference when you have to spend or hire a lawyer to spend three days in court arguing about your deck repair. And so, takeaways here for people would include, first of all, get it in writing, right? So, you don’t have a dispute about what was the oral agreement. Second of all, bear in mind, if you’re somebody who is the contractor, you’re being relied upon, right, to some extent for advice on what you’re doing. It won’t necessarily be a defence that you just say, well, he told me to screw it on to the rotten wood. So off I went. Right? There can be some obligation to do more. And then finally bear in mind, you know, think carefully about how much you might get at the end of the day, lest you spend more litigating your deck dispute that probably could have been avoided had you gotten it in writing and so forth, then then you might be awarded. So, it’s the case of the rotten deck and probably something that many people are contemplating now as the weather looks warm and we like a relaxing place to sit and enjoy it.
Adam Stirling [00:08:34] Always good advice. We will take a quick break. Coming up next, Legally Speaking, we’ll continue with Michael Mulligan. Don’t go anywhere.
Adam Stirling [00:08:41] All right. We’re back on the air here at CFAX 1070 Michael Mulligan with Mulligan Defence Lawyers as we continue. Another example, Michael, of why every person should have a will.
Michael T. Mulligan [00:08:52] Yes, indeed. That is really important advice and to keep it updated. And this case, which just came out, is from the B.C. Court of Appeal, just released. And it’s an example of the sort of thing which can occur when somebody passes away and doesn’t have a proper will. The background here is that the woman who passed away in 2016 had been married back in the seventies but got divorced in the eighties. However, she maintained a good relationship with her ex-spouse so he would, you know, go for meals, and spend time together. And then back in 2001, she created what was referred to as a testamentary document, which was a thing that didn’t, you know, didn’t meet all the requirements of a will. But she was specifying what she wanted to happen to her possessions. And she referred to her ex-husband and said she wanted to give a good share of it to him because they had a good ongoing relationship. Then flash forward a number of years and the woman had entered into a new relationship, back in 2013 until she eventually passed away in 2016. And so, when she passed away, you had this testamentary document from 2001 referencing the ex-husband, and then you had the new partner who had been living with her for the preceding three years. And so both the new partner and the ex-husband from many years ago, with whom she maintained a good relationship, showed up at their respective courthouses and got orders to, in the case of the current partner, administer her estate on the basis that she had died without a will and on the basis of the ex-husband, hey, I’m the person in charge of this, she was leaving things to me. Right. And so off they go in litigation. And at trial, the judge found that the ex-husband didn’t have a good claim because in the several years after the woman had written out this testamentary document saying she wanted to leave things to him, she had created another document where she revoked all prior wills and so forth. And so that was the end of the claim for the ex-husband. But that wasn’t the end of the matter, because the judge at trial did an analysis of the relationship that the woman had with her new partner. And the way that works is under the Wills Estates and Succession Act, ‘WESA” there’s a provision that if somebody is in a marriage like relationship, that’s the language used.
Adam Stirling [00:11:42] yeah.
Michael T. Mulligan [00:11:42] With somebody for a period of two, for the two years prior to their passing, then that person would be dealt with as a spouse. Right.
Adam Stirling [00:11:51] Yes.
Michael T. Mulligan [00:11:51] And the idea under the Wills Estates and Succession Act is that if somebody passes away and they have no will, the starting point is that all of their assets would be transferred to their spouse. Right. Sort of there. That that act, the Wills Estates Succession Act, I think is designed with sort of default outcomes for people’s assets where there’s no will or it sort of as well, what do we assume they would have wanted, I suppose. And in this case, there was a substantial estate. The woman owned a home in West Vancouver that after the mortgage might have been worth something in the order of $1,000,000. So, there’s a fair bit of money there.
Adam Stirling [00:12:30] Yeah.
Michael T. Mulligan [00:12:31] And so the Wills Estate Succession Act as this whole provision goes to the spouse. But if no spouse, then there’s sort of a list of down the rung of family members, starting with parents. And so, the judge at the original trial went through this sort of checklist of things to try to determine was this new fellow in a marriage like relationship with the woman who passed away?
Adam Stirling [00:12:57] Hmm.
Michael T. Mulligan [00:12:58] And there are a whole bunch of things for the judge to think about, so it could be unclear what the outcome should be. And the judge in this case sort of went through with a checklist of things that came from previous cases and so on. And the judge had focused on the fact that even though the new person they’d shared a bed together and that, you know, he’d taken her to hundreds of medical appointments or did the grocery shopping, lived together, had meals together, celebrated events together, all these things that you would expect in a relationship that there was little or no conjugal activity.
Adam Stirling [00:13:32] hmm.
Michael T. Mulligan [00:13:32] And really focused on that and then sort of weighed up this person’s claim and through the relationship of this person and the friendly ex-husband and found that this man, despite all these activities, didn’t have a marriage like relationship. The result of that is that the woman’s estate would pass to her mother. The mother, sadly, herself, passed away right during that trial. And so, the net result is then her estate would have gone to her siblings. Right.
Adam Stirling [00:14:00] Yeah.
Michael T. Mulligan [00:14:01] And so none of this may have been what the woman had wanted to have happen to her estate. Right. And so, the matter then wound up going off to the Court of Appeal, which, again, is an example of what happens when there’s ambiguity and no will and various people who think they might have some entitlement. And the Court of Appeal decision, which just came out, looked at how the trial judge had approached that issue of whether there was a marriage like relationship. And one of the key points that the Court of Appeal made is that judges shouldn’t approach it is sort of a checklist of factors. And the Court of Appeal pointed out that there’s a large diversity of relationships the people have, and they’re not all the same. And you shouldn’t focus on sort of, you know, add up the tick marks on one side or the other and found that the judge had placed undue weight on conjugal relations and instead should have focused on the other things which I mentioned. They share the bed together, their meals together. They spent, you know, celebrated holidays together.
Adam Stirling [00:15:07] Yes.
Michael T. Mulligan [00:15:08] You know, all the kinds of things you would expect in a relationship. And there just shouldn’t have been an undue focus on that one element of it. And so, the Court of Appeal reversed the decision that the trial judge had come to and found that, indeed, the key there, the other key was that the Court of Appeal said, look, you’re supposed to look at that two years prior to the person’s passing. It’s not a matter of trying to analyze what was going on six years ago or, you know, was there what was the relationship like with the ex-husband and how did that compare? Right.
Adam Stirling [00:15:37] Yeah.
Michael T. Mulligan [00:15:37] It’s focusing on that period of time. And here the relationship with the new partner had been from 2013 until 2016 when she passed away and so found that, yes, indeed, this was a marriage like relationship. And the result is that because there is no other valid will, her partner at the time of her passing should receive her estate. And so, I think that’s a good and fair outcome and probably in line with what she would have wanted. But bear in mind, this poor person passed away in 2016, and here we are sitting in 2022 and we finally have a decision order of the Court of Appeal. And boy, there could have been a lot of time, litigation, heartache, and uncertainty avoided had she created a will. And so, the real takeaway for anyone listening, right, is just think about all the people involved and make sure that, you know, if you take the time to prepare a will, you may save lots of strife and uncertainty and litigation. And here, you know, the cost of this litigation is the Court of Appeal ordered will be payable out of the estate. Right. And so all of this time and money has been spent trying to sort out what should happen with this woman’s estate, whereas if she had simply prepared a will, all of this could have been avoided. And the other takeaway would be, don’t try to do it yourself, as we saw in this case as well. What happens, you know, this woman had prepared this thing, the Court of Appeal referred to as a testamentary document, sort of her own set of guilt, her own desires. Right. But without all of the formal requirements of a will or terms of witnesses and so forth. Right. So, the small amount of money you might pay to hire a lawyer to help you prepare a proper will can save your beneficiaries and family endless heartache, time, expense and so on. And I would just urge anyone who’s listening, who hasn’t done that, to consider doing it sooner rather than later, to avoid just this kind of thing and to make sure that your wishes are honoured, and you don’t have family members and ex-husbands and brothers and sisters and everyone fighting over your estate. That may not be what you wanted, and the end result may not have been what you intended. And so please get that done. You’ll save a lot of people a lot of grief.
Adam Stirling [00:18:00] The return of near-normal after COVID 19. Something that we discuss a lot. I know the criminal justice system is likely to stay in a hybrid model to some degree for a while. But I’m reading here that we’re going to see is this a return to normal criminal jury trials in August?
Michael T. Mulligan [00:18:18] We’re almost back.
Adam Stirling [00:18:19] Almost back.
Michael T. Mulligan [00:18:21] We’re doing our best, we’re almost back now, I should say there are some things which we adopt in the criminal justice system during the course of COVID that hopefully will stay because they turned out just to be generally good and useful time saving advances, right? Like we’re continuing to use lots of things like MS Teams and so on to have virtual proceedings when those are appropriate, like sentencings, in a lot of cases where there’s nobody seeking a jail sentence, everyone’s agreed that it should be a fine or something, right?
Adam Stirling [00:18:53] Yeah.
Michael T. Mulligan [00:18:53] Our being done by video. They’re doing bail hearings often now by video. That’s the default. So, you can use judicial time efficiently. There’re all kinds of things that have been adopted during the pandemic that hopefully we stick with because they’re working pretty well. But some things just don’t work that way. One of them being jury trials, that was perhaps the most challenging thing during the pandemic, because you’ve got people that have to be squeezed together, you’ve got to deliberate, you’ve got to choose the jury and you’ve got people that are not there voluntarily. Right. You know, and most human affairs, you can make your own call. Hey, do you want to go to the restaurant or are you still feeling a bit skittish? Right?
Adam Stirling [00:19:31] Yeah.
Michael T. Mulligan [00:19:31] That’s up to you. But when you’re getting a jury notice, that’s not up to you. And so, we’re now we’re returning to an almost normal. So as of August 15th, the B.C. Supreme Court has announced that they’re going to be revoking remaining things like courthouse, capacity limits and physical distancing requirements. The wearing of face masks is going to be sort of optional, either up to the individual, subject to the directions from a judge.
Adam Stirling [00:20:00] Yes.
Michael T. Mulligan [00:20:00] They could say for some reason, let’s say you had somebody on the jury who had it was immunocompromised or something. You could have a judge say, no, we’re going to require this right up to the individual judge. So that’s returning. And so that will allow jury trials to resume in all of the locations across the province where they used to occur. They had restricted that because they needed places that were a bit more spaced out. Now, one of the things which at this point is going to continue, which was adopted as part of a COVID protocol, but may have some merit going forward as an efficiency matter, is having this what’s referred to as sort of a two-part jury selection process. And the way that we used to work when you got a notice to show up for jury duty is you would get a notice to show up along with 200 of your closest friends or whatever was needed for jury selection, because there could be multiple jurors picked on the same day.
Adam Stirling [00:20:56] Yes.
Michael T. Mulligan [00:20:56] And everyone would pile into the courthouse and sit cheek to jowl, and then they would draw names out of a box at random to determine who of the prospective jurors would be, and then they would go through them. You know, is there some reason they can’t serve? Do they know the witness or the friend of the accused? What’s going on here? Right. Is there some challenge? And so, it would require everyone to be there while, all that happened once they’ve done during COVID and what will stay in a slightly modified form is a two-step process. So, the idea is hundreds of jury notices would go out. People would then be required to show up, though in smaller, show sorry, on one occasion where they would then draw names and determine who are going to be the prospective jurors. Everyone else would then be excused and the people who were drawn and some additional ones in case there was a problem somebody couldn’t serve, would be asked to come back another day when they would go through that second part of the vetting, determining like, do you know the witnesses or are you a friend of the accused or is there some reason why you can’t do this next week, whatever it might be, to avoid having the crush of people that have to show up and all the wait around, all that happens. And so, they’re going to stick with that. But there’ll be a slight modification and the hope is that they will be able to return to doing that first part of it with the group showing up during the week. They were doing that on the weekend in locations to sort of spread people out. There are fewer people in the courthouse, but as of August 15th, they’re sticking with the two-stage thing to reduce the amount of time people have to be there but are going to return to doing it during the week. So, we’re almost back to normal August 15th, and let’s hope we don’t have a seventh or eighth or ninth wave or whatever it might be. And because, of course, this is an important part of the justice system and hopefully we get it back on track, preserving some of the things that were invented over COVID, which still seem like a good ideal idea, even without the risk of contagion.
Adam Stirling [00:22:52] Absolutely. Michael Mulligan, always a pleasure. Thanks for your time. We’ll see you next week.
Michael T. Mulligan [00:22:56] Thanks so much. Have a great day.
Automatically Transcribed on July 6, 2022 – MULLIGAN DEFENCE LAWYERS