Dentist Drama, Extradition Dilemmas, and Condo Conflict

 

Have you ever grappled with the intricate workings of the legal system or wondered how an ordinary person can fare against its complexities? Michael Mulligan from Mulligan Defense Lawyers joins us to unpack a gripping small claims court drama where a patient fearlessly faces a dentist over accusations of negligence. Walk through the courtroom doors in Abbotsford and witness the struggle of gathering admissible evidence, the nuances of consent in medical treatments, and the precarious balance between self-representation and the need for legal expertise. This episode peels back the layers of professional negligence, highlighting the importance of expert testimony and the adjudication of consent and battery in medical settings.

The legal labyrinth doesn’t stop there; join us as we navigate the murky waters of extradition laws, where missed deadlines and constitutional challenges spark a heated discourse on international justice. Then, we shift gears to a contentious condo ownership dispute that reveals the decisive role of equity when legal titles clash with lived realities. Michael Mulligan helps us dissect how Canadian courts handle the delicate issues of resulting trusts and equitable interests, offering a glimpse into the soul of justice and fairness as it intersects with the surge in property market values. Through these stories, we confront the compelling question: how does the law reconcile with the twists and turns of human relationships and the inevitable missteps of bureaucracy?

 

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 Feb 22, 2024

 

Adam Stirling [00:00:00] It’s time for our regular segment with Barrister and Solicitor, with Mulligan Defence Lawyers. It’s Legally Speaking, with Michael Mulligan. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:07] See, I’m doing great. Always, good to be here.

Adam Stirling [00:00:09] Always look forward to a Thursday where we learn new things about the functioning of our justice system. What’s on the agenda for today?

Michael T. Mulligan [00:00:17] The first case on the agenda is a small claims case out of Abbotsford. And first of all, I should pause to say what it means to be in small claims court. What you could sue there for. The way it works now in B.C. is for very tiny claims, like up to $5,000. They could be done with a thing called the Civil Resolution Tribunal. It’s kind of like a pay pal dispute mechanism online with like telephone and video hearings, and then for claims up to between $5,000 and $35,000. Those are done in provincial small claims court with a judge. And beyond that, you’d be in Supreme Court if you’re suing for more money than that. And this particular case is a, it was a case, with a former patient suing a dentist from Abbotsford with a very unfortunate last name for a dentist. It looks like Nawrot, which was a very unfortunate thing. And she made this claim against the dentist for allegedly performing unnecessary and excessive treatment and negligence and battery and just all sorts of things which caused her., it’s clear from the judgement. Serious trauma. She was traumatised to the extent she wouldn’t leave her house, other than to go to work, because of what her teeth looked like at the end of the day and had all kinds of problems as a result of this treatment. And indeed the dentist involved, there was also a complaint, made to the B.C. College of Oral Health Professionals, to which the dentist made a bunch of admissions, including admissions that, things like you provided treatment that fell below the college’s expectations standard by providing excessive and comprehensive restorative treatments in a single session, rather than over multiple sessions. One of them was that he agreed that he billed for treatment, when the need for treatment was not supported by records and went on. He made six admissions there of misconduct. And that was the background. And the very unfortunate thing is that the former patient here sued in small claims court on her own, without a lawyer helping, and I should say small claims court is designed for that sort of. Right.

Adam Stirling [00:02:25] Yeah.

Michael T. Mulligan [00:02:26] The idea is it is a kind of a simplified process. You can get the forms online. It’s meant to be kind of accessible. Right. But proof is still required of things. Right. And somebody with legal training may not know what might be admissible and what might not be admissible. And here, this poor woman who had this terrible experience, was not represented at trial. And the judge described that, and she struggled to advance her case found testifying difficult was often overcome by emotion about the harm she had suffered. She was not a legal expert, didn’t know about the rules of evidence. And so, for example, she showed up and she had a letter from her new doctor providing, I suppose, information about, what had to be done to try to fix some of these problems and perhaps commentary about whether what was done by that, the doctor in Abbotsford was appropriate or not, or fell below the required standard of care. That’s not admissible. You know, you can’t just show up in court with a letter from somebody who isn’t there saying, well, this person says this or that.

Adam Stirling [00:03:30] Yeah.

Michael T. Mulligan [00:03:31] Right.

Adam Stirling [00:03:31] Yeah.

Michael T. Mulligan [00:03:31] There’s a process. You’ve got to call an expert and the judge would need that. Because when you’re suing for alleged negligence and providing professional services like this, the the judge needs to have some evidence about, you know, what is the standard of care, right. What would be expected from a dentist acting reasonably and did this fall below that standard of care? Did it amount to negligence? Right.

Adam Stirling [00:03:56] Yes.

Michael T. Mulligan [00:03:56] And here the dentist didn’t even testify at the trial so he couldn’t be asked any questions about that. Right. And so you had these admissions that he had made to the Oral Health Professions College, and you had the woman testifying about the terrible result of all this, but without some evidence about what would be expected. And did falling below expectations cause the problem? The judge was left not being able to be satisfied of many of the things that would be necessary for the claim to, succeed on all of the possible grounds. I must say, reading it is even questionable. But whether the thing should have been in small claims court to begin with, given the seriousness of what went on here.

Adam Stirling [00:04:38] Yes.

Michael T. Mulligan [00:04:38] And, for example, the admissions that the judge found he could rely upon, some of them were ambiguous. For example, one of them, the doctor, admitted that he thought this was the language billed for treatment when the need for treatment was not supported by records.

Adam Stirling [00:04:54] hmm.

Michael T. Mulligan [00:04:54] And so part of the problem was, well, did you do treatment that was unnecessary to bill more or was your record keeping poor.

Adam Stirling [00:05:00] Good point. Yeah.

Michael T. Mulligan [00:05:01] It’s kind of hard to tell. Yeah. Maybe you did this as a retreatment but didn’t document it properly.

Adam Stirling [00:05:06] Yeah.

Michael T. Mulligan [00:05:06] So the judge was left with. Well, how am I supposed to determine this? There is no admissible evidence. And the judge did find that the dentist had engaged in assault or battery. And that’s essentially like doing something to a person without their consent. Right. That’s an important element. You know, your doctor dentist doesn’t get to just pin you down and do whatever they want.

Adam Stirling [00:05:28] No.

Michael T. Mulligan [00:05:28] They have to get your agreement to do it. And so, for example, the judge found that they accepted the plaintiff’s evidence regarding her lack of consent to 19 of her teeth being treated by Doctor Nawrot, on March 18th and found her evidence to be reliable and credible. And so the judge, without the benefit of some of the evidence that you would hope would be there about that issue of negligence, was able to find, that, there was also the person made, the patient made a claim that she was had lingering and substantial fear that her bodily integrity was violated while she was sedated for many hours.

Adam Stirling [00:06:10] hmm.

Michael T. Mulligan [00:06:10] The judge was unable to find that that, she was sedated for, she was sedated for many hours. But the judge said the evidence of the plaintiff about being left alone in the care of the doctor is compelling and highly concerning but is not sufficient to support a legal finding that the doctor caused harm while she was under sedation. And so, once again, it’s sort of an example of where it would have been much more desirable had there been some help for her in advancing her claims. With all that being said, the judge concluded that they were satisfied that the plaintiff had established a compensable degree of emotional suffering and damage as a result of the misconduct which had been proven. The judge had ultimately concluded the judge was not finding that the process of sedation was negligent, but rather the plaintiff would not have been sedated for so long, but for the unauthorised and negligent dental work. And concluded the plaintiff’s fear and, fear and feelings of violation were manifest at trial and through her evidence. And so the result of all this, the judge concluded that despite the lack of evidence that would have been desirable, concluded that the doctor had acted in a high handed and reprehensible manner towards the patient, who was vulnerable due to sedation and relying entirely on his experience and integrity. The result of all that, given, sounds like a very traumatic experience. The other problem was she didn’t present in a clear way evidence of all possible financial loss. That’s another thing which would be necessary. Sort of like let’s get pay stubs and, you know, time missed and so on, and presented in a, in a way that would be helpful to the judge. The result of all of this is that the award ultimately was only for $15,551, which included some lost income and general damages. In a, a circumstance where the amount that could have been awarded was in that court up to $35,000. And so it’s an example of, while the small claims process is simplified, and judges do try to assist people.

Adam Stirling [00:08:28] mm hmm.

Michael T. Mulligan [00:08:28] In making sure that they sort of do what’s required. They’re not a substitute for having a lawyer help you. And I must say, as I read the case, the overarching, impression left is, just what a shame, that, there wasn’t some additional legal help for the plaintiff to ensure that there was, evidence that would allow the judge to assess things like the negligence claim in a more fulsome way. And, all of that is, of course, in the context where the, dentist in question has made admissions misconduct to the, oral health profession. It just turned out to be the case with respect to many of them there was ambiguity about what exactly the admissions amounted to. And so that wasn’t enough for the judge to be able to be satisfied, at least in part of the claim made here. So, there’s the outcome, and I guess the takeaway there would be, you may want to make some, inquiries with respect to the College of Oral Health Professionals to see the background of, a dentist that you’re dealing with, at least, you know, that, part of it in this case, has been admitted. And so, hopefully the college will do its job and the public will be protected in the future. That’s the case of the dentist to the small claims action.

Adam Stirling [00:09:49] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, will continue right after this.

[00:09:54] COMMERCIAL.

Adam Stirling [00:09:55] Back on the air with Michael Mulligan for Mulligan Defence Lawyers as Legally Speaking continues. Up next on the docket for today it says deadline for extradition paperwork missed and provision to allow for more time, unconstitutionally vague with no standard to apply. Sounds complicated. Let’s dive in.

Michael T. Mulligan [00:10:12] Indeed. So this is a BC case. The background of it is it was an application by the United States government to seek the extradition of a man from, British Columbia. Seeking that he be, sent, to stand trial, in the United States. In Georgia, it would appear. And the essential allegation was that some drugs were allegedly shipped from. The U.S. government believes by the accused. To a person described as, sailor, living in the great state of Georgia, two U.S. sailors residing in Georgia. And the sailors died of a drug overdose shortly after they received packages in the mail. That’s the basis of the case. Which brings us to how does extradition work? Well, the way it works. Is that a country we have an extradition treaty with can make a request to the Canadian authorities, Canadian government, to arrest and send the person somewhere else to stand trial, which is, of course, a pretty dramatic thing, being arrested in one country and shipped to another country for a trial. And the way that, there’s a time, some time requirements in the legislation. And one of the requirements is that when after somebody is arrested, on a provisional basis based on a request from another state, and here the U.S. made this request, and so there was a warrant, and the suspect in British Columbia was arrested. There’s a requirement that the country seeking to have the person extradited must provide supporting documentation no more than 60 days after the “provisional arrest”. Right. And so the man was arrested. Clock starts ticking. And then what happened is the Canadian Department of Justice erroneously calculated the time requirements and told the United States Department of Justice, that the documents were due by July 25th, 2022. That was wrong. They were due by July 23rd, 2022. Okay. So they were two days late. And so then what happened is that the Canadian Department of Justice made an application to a judge under section 14 two of the act that deals with extradition. And that’s the section which was in question here. That section says on application of the attorney general; a judge may extend a period referred to in subsection one. So a judge may extend the time period. The legal argument was, well, hold on a minute. It doesn’t say how that decision is supposed to be made. In what circumstances should a judge extend the time period? When might you not extend the time period? What should be taken into account? Is whatever the length of the judge’s foot? Well, that’s a legal requirement. The it’s a principle in Canada. It’s a charter principle. That it is contrary to section seven of the charter, if a legal provision is unconstitutionally vague and the way courts have interpreted that is sort of a test about, is there a sufficient direction in the legislation that would permit some kind of a legal debate or notice to somebody about what might or might not happen? Right. We don’t want to live in a topsy turvy world where kind of what happens kind of depends on whatever a judge might feel like. That’s not helpful. Right. And so the problem with this section is it doesn’t say, it just says a judge may give more time, but doesn’t say when or in what circumstances. Like it could say, well, if the other sides tried its best or, you know, if we keep bearing in mind the efforts made or reasons for being late, or how important the case might be, something somebody could sort of get a grip on and say, okay, well, how long can you keep me in jail without providing any paperwork? You know, the legislation says 60 days. When can you get more? Right. It does have to be the case is really complicated. If it got lost in the mail? What? And so the judge hearing this case concluded that, that was, in fact, unconstitutionally vague because there’s no indication of sort of when a judge may or may not or when they should or shouldn’t give more time, than what is required. It says 60 days. And if you don’t do it in 60 days, the legislation provides that the person’s to be discharged, like let them out. Right. Some other country has said arrest this person. They’ve done so in Canada and no paperwork and showed up in two months. The person’s in prison. The presumption in that section. Well, that’s it, that you can go. And so that’s what happened here. The conclusion was that, that section with no other guidance, was inconsistent with section seven of the Canadian Charter. And there was then debate about, you know, well, should that have effect right away? Should the government have more time to do something about this? And ultimately, the judge said no. You know, the section as it stands, without that unconstitutionally vague judge may extend that time period provision. That doesn’t stop it from working. It just means you better get there, calculate your time correctly, and you better have your paperwork ready in two months, if you’re holding somebody in prison, seeking to have them extradited somewhere else. And so the net result of this is unconstitutionally the section. It can’t be a time period extension. You missed it by two days because you got the date wrong. And that’ll be the end of this extradition. And we have to see whether anything else comes of it, but I guess the outcome, or the takeaway is read the section carefully, make sure you calculate your time period. And if you’re going to grant, have a legal provision, you’ve got to make sure that it’s clear so there can be a legal decision made, not just saying may do something with no idea when you might or might not choose to do that. So that’s the latest on extradition from British Columbia.

Adam Stirling [00:16:05] Our next story is an interesting one, and it’s a couple of, intersecting issues that we’ve discussed in the past, including an economic story that we’ve covered to no end. And that is the explosion of values in the property market means that a titanic sum of wealth has essentially been created fairly recently here in British Columbia, and it has been accumulated by those who hold title to equity in residential properties. This next case touches on how that’s dealt with.

Michael T. Mulligan [00:16:32] You’re exactly right. And so this case, like many cases these days, involves a where there’s a new relationship and adult children and sort of. Well, what’s to happen with assets, right?

Adam Stirling [00:16:43] Yes.

Michael T. Mulligan [00:16:44] That’s complicated. The background here is that this couple who had been together for 18 years was a second relationship, for each of them. They had, met in a grocery store in Edmonton back in 2003 to begin, dating, and, eventually, sadly, the, the, woman, here passed away at age 76. And she was survived by her partner of 18 years. Things got complicated, because, with respect to the ownership of the condominium they were living in. And the background of that was that, sometime a short time after they met, the couple decided to purchase property, in Kelowna. And they originally decided to purchase a mobile home to live in. And in order to fund that, the fellow who was the plaintiff in this case withdrew almost all of his RRSP savings producing, $100,000, to contribute to the purchase of this home.

Adam Stirling [00:17:55] hmm.

Michael T. Mulligan [00:17:55] The couple were moving into the home, and then this becomes more complicated, the partner who passed away, she was the recipient of spousal support from her previous relationship.

Adam Stirling [00:18:10] hmm.

Michael T. Mulligan [00:18:11] And the spousal support provisions that she had agreed to, provided that the amount of support she was getting could be revisited, if she cohabited with another person.

Adam Stirling [00:18:24] hmm.

Michael T. Mulligan [00:18:25] And she didn’t want her social support to stop.

Adam Stirling [00:18:28] ahh.

Michael T. Mulligan [00:18:29] And so she turned, told her current partner, well, I want to have the mobile home put in my name alone, because I don’t want my ex-husband to find out that I’m cohabiting with somebody.

Adam Stirling [00:18:41] hmm.

Michael T. Mulligan [00:18:41] And the evidence was she was,”somewhat strong willed”. And he agreed. Things went along for a while. They decided to sell that property eventually and purchase a condominium. Condominiums went up in value. They decided to sell that. And then they eventually bought a one-bedroom condominium, together. But with all of those homes and for the same reason, the, female spouse put, all of them in her name alone. Unfortunately, she also had some other challenges, including, it would appear, an unfortunate gambling habit, where she would go to the casino and lose, substantial amounts of money, which were being funded by, her partner, who was, still working until a, relatively late in the game, to keep funding her gambling habit.

Adam Stirling [00:19:32] hmm.

Michael T. Mulligan [00:19:33] Now, here’s what happens. She had some health problems. She was a smoker. I guess she realised she had some health challenges. And before she passed away, and without telling, her partner, she both created a will, leaving all of her assets, leaving her assets to her adult children, and went and transferred the condominium into joint tenancy, with her and her adult, it was her daughter. Children. And then what happened is she passed away. And when you have an asset in, as joint tenants, then what happens is that the, the property automatically transfers to the other person you’re joint tenant with, leaving the partner with nothing. And very quickly, the adult children of the woman who passed away promptly told him to vacate the premises and get out. And so he had to leave his condominium. And that was the basis of the lawsuit. Now, the thing…So on one hand, if you look at sort of the legal arrangement there you the okay, what was the joint tenancy. She was the sole owner. She passed away. Her adult children get it. Too bad for him. Right. That would be the sort of legal consequence of that.

Adam Stirling [00:20:49] hmm.

Michael T. Mulligan [00:20:50] But as we said, it was equity to the rescue. And this idea that we’ve touched on before, which is the idea of a trust and a resulting in a presumptive trust, and the way that works is that when you give somebody, money, it’s presumed that you’re not giving them the money as a gift, unless there’s evidence to show that this was a gift, like letter saying, you know, this is a gift.

Adam Stirling [00:21:14] Yeah.

Michael T. Mulligan [00:21:15] for example.

Adam Stirling [00:21:15] Yeah, yeah.

Michael T. Mulligan [00:21:16] There is a presumptionhe there is a presumption, that you’re giving the person the money in trust. They’re holding it for you. Not that you intended to gift it to them like if you show up at the valet and hand of Valet your keys, the presumption is not you gifted your car to the valet, the presumption would be, you know, the value is holding your car for you while you have dinner, right?

Adam Stirling [00:21:36] Yeah.

Michael T. Mulligan [00:21:36] So, that’s how the law works. And here, the judge said, and this is a good, clear, conclusion. I completely agree with the plaintiffs’ submissions in that regard. And it was clear that he provided this money to purchase the first home which sold to then purchase a second home and so on and so forth to the third condominium. Right?

Adam Stirling [00:21:59] Yes.

Michael T. Mulligan [00:21:59] And the judge concluded that indeed, the law, with respect to a gratuitous transfer of property, presumes there to be a resulting trust. And a trust is sort of an equitable concept. And as a result, the judge concluded that indeed, the person, the spouse who passed away was not the benefit beneficiary of a $100,000 gift 17 years earlier. She was effectively holding these three properties, in trust, half of it belonging to the male spouse. Right.

Adam Stirling [00:22:39] hmm.

Michael T. Mulligan [00:22:40] And the result of that, is that even though these had gone through these various properties with one being sold and purchasing the next one and so on, and even though they were all registered in her name alone, the result was that there was a resulting trust for half of the value of the condominium. One of the interesting arguments made by the daughters trying to keep the whole thing, was arguing that he shouldn’t be able to make this claim because, he was complicit in her defrauding their father, right?

Adam Stirling [00:23:11] hmm.

Michael T. Mulligan [00:23:11] By deliberately hiding the fact that they were cohabitating. For example, saying that he was single on a tax return. The judge had no time for that and said, no, he wasn’t trying to hide it at all. And that’s not a basis to deny this. And so the result is, at the end of the day, the daughters have to either purchase his half interest or the property goes up for sale, and he’ll get half the proceeds. So equity to the rescue.

Adam Stirling [00:23:34] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Thank you as always.

Michael T. Mulligan [00:23:41] Thanks so much. Have a great day.

Adam Stirling [00:23:42] All right. Quick break. News is next.

Automatically Transcribed on February 27, 2024 – MULLIGAN DEFENCE LAWYERS