Land Act Amendments, Contract Frustration and Municipal Censure Overturned
Proposed Land Act changes for First Nations
Discover the far-reaching consequences of proposed changes to the Land Act in BC. With 94% of BC’s land owned by the Crown, changes that would afford First Nations groups veto power over land use decisions could have a profound impact on how the province is governed.
The provincial government’s attempt to make the changes without a transparent consultation process, as well as the broader implications for democracy in the province, are discussed.
Severance pay for duty-free shop worker
Also, on the show, the doctrine of frustration of contract is discussed in the context of a case involving a claim for severance pay by an employee from a duty-free shop that was forced to close due to COVID-19.
Court of Appeal decision on councillor censure
Finally, a Court of Appeal decision involving the censure of an elected councillor who disclosed confidential information to a lawyer in order to obtain legal advice is discussed.
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 1, 2024
Adam Stirling [00:00:00] It’s time for a regular segment with Barrister and Solicitor, with Mulligan Defence Lawyers. It’s Michael Mulligan with Legally Speaking. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:08] Hey. Good morning. I’m doing great. It’s good to be here.
Adam Stirling [00:00:10] Some really interesting stories on the agenda for this week. I had a lot of texts earlier in the week saying, Adam, you need to take a look at what’s happening with the Land Act here in the province of British Columbia. I know you and I have discussed legislative change in the past, so I was wondering, what are your thoughts on this?
Michael T. Mulligan [00:00:27] Well, here’s some background in terms of what’s going on and why there’s been some concern raised about an act that I’m sure most listeners have never heard of before.
Adam Stirling [00:00:36] Yeah.
Michael T. Mulligan [00:00:36] And it is an Act you probably should have heard of, because in fact, in British Columbia, 94% of the land in British Columbia is Crown land not owned by any individual or company or anything else, 94%. So just think about that as you’re struggling to find a townhouse to buy or a condo or something. Bear in mind that 94% of the land isn’t owned by anyone other than the province. Now, the Land Act authorizes a provincial minister. In this case, it’s Nathan Cohen, minister of Water Lands, and its Water Land and Land Resource Stewardship is what they’ve currently called it, although that bounces around from government to government, what they may call the thing. It allows the minister who said, given the authority under this Land Act to authorize the use of this 94% of the province in various ways for various purposes. And the overarching idea would be the Minister can make decisions which are in the public interest. Right. But we sort of the threshold you might differ in terms of what that amounts to in any particular case, but that’s the sort of the, the North Star there. And the Land Act would allow things like land to be leased to somebody for some purpose, used for maybe hydro development, leased for logging, used for mining, or even small things that might affect people like you want to build a dock on your property? Well, that’s under water, if it is covered by water. That’s Crown land. You need to get permission. There’s the land act.
Adam Stirling [00:02:08] Interesting.
Michael T. Mulligan [00:02:09] So that’s the Land Act that governs 94% of the province’s land.
Adam Stirling [00:02:12] So all the lake bottoms, too. I haven’t thought of that, but.
Michael T. Mulligan [00:02:14] Yeah, correct. All the lake bottoms, all the rivers. It has a really big impact on everything. I mean, just imagine anytime any, you know, large project to be developed you want to put up I don’t know hydro lines.
Adam Stirling [00:02:27] yeah.
Michael T. Mulligan [00:02:27] Or something wants to build a dam, or somebody wants to have a mine or open a business, or indeed the province could sell land, right? That’s there. So anyways, it’s really important. So that’s that act.
Adam Stirling [00:02:38] okay.
Michael T. Mulligan [00:02:38] And what happened most recently caused some real concern. And credit to it’s a large law firm in Vancouver called McMillan. A number of senior lawyers there noticed a posting on, they describe this little-known government website. I’d never heard of it. www.engage.gov.bc.ca.
Adam Stirling [00:03:00] Hmm.
Michael T. Mulligan [00:03:01] And on that, little known website was a picture of some, you know, land and their topic was land act amendments. And it gave people a short time to look at a PowerPoint presentation that’s posted there. And it allowed people to make written submissions about those things on a really short timeline until the end of March. And then legislation was proposed to amend that Land Act. And I must say, I smiled as I read the things you cannot do. In the written submissions, they include, expressly telling you that you cannot include obscene, illegal, immoral, or sexually explicit material. And then they take the time to note that it, profanity, or other acceptable language, by substituting asterisks or other symbols or words is not acceptable if the word remains recognizable. So don’t think about using unacceptable language with asterisks. They have prohibited that. You also can’t make unproven or unsupported accusations anyway, so they’ve the government has put up this proposal to amend the Land Act without giving any like there was no press release, there was no suggestion they were doing this, they didn’t say anything about it. It was sort of in the category of it appeared to be, slip one in. But it is basically if anyone’s going to notice this. But anyways, the law firm in Vancouver noticed it. They wrote a critique of that in terms of what impact that could have, and I produced a credit for him. Ron Palmer wrote a couple of pieces on it. And now people are looking at what exactly are you doing over there? What is this thing you’re trying to sneak, sneak in without telling anyone. And what the government has proposed when you look at the PowerPoint thing.
Adam Stirling [00:04:39] Yeah.
Michael T. Mulligan [00:04:39] They are proposing changes to the Land Act, and they say they’re doing it to implement the UN declaration on the Rights of Indigenous People, which in B.C., was, included in a piece of legislation that the government introduced back in 2019, which, attaches to it the entire UN declaration on the Rights of Indigenous People. That’s where that comes from, says UN document.
Adam Stirling [00:05:03] Yes.
Michael T. Mulligan [00:05:03] And that document or that declaration? There are a number of things about it that are, you know, mother’s apple pie. You know, things like, you know, Indigenous people have all the rights set out in the U.N. charter and so on. Much of it is like, yes, of course. Right. What other conclusion would you come to? But there are some elements of it in terms of things like the right to, self-determination, rights to things like funding for autonomous government functions, which might cause, we all say, well, hold on a minute. What exactly does that mean?
Adam Stirling [00:05:36] Yeah.
Michael T. Mulligan [00:05:36] Right. And so that brings us to what this is. And the government’s, the PowerPoint that was put out about proposed changes to the Land Act impacting on 94% of the province. And what the government says is that they are going to or plan to amend the Land Act, to make it consistent with this Declaration on the Rights of Indigenous people. In particular, section six and seven, which causes you to go and look at what are those that’s overlooked. And what’s contemplated here is that the changes would allow the government to enter into agreements without any further legislation or debate, that would give Indigenous groups the right to veto land use changes.
Adam Stirling [00:06:22] Interesting.
Michael T. Mulligan [00:06:22] And so the idea is that currently under the charter, there’s special protections for Indigenous rights. So, they include a right to consultation. Right. So, if there’s going to be land use that there’s some First Nations claim to remember. It’s like what is it like 120% of the province has been claimed. So that’s everywhere, right? There’s a there’s a duty to consult and there’s a duty to try to accommodate.
Adam Stirling [00:06:45] Yes.
Michael T. Mulligan [00:06:45] But the courts have been very clear. That does not mean a veto. Right? Correct. Right. It’s sort of, but this what is proposed would, turn the consultation into a right of co- decision making, which would mean that no longer would the, Minister, whatever they might be called in any particular time, be making a decision in the public interest, taking everyone’s interests into account, including the constitutional requirement for consultation. Instead, it would turn it into, without further legislation, a circumstance where there could be a First Nations just veto. No, we don’t want that power line. No, we don’t want that line for natural gas. No, we don’t want that dam being built. No, we don’t want whatever. And then that would be it.
Adam Stirling [00:07:34] hmm.
Michael T. Mulligan [00:07:34] And so that is a very large change. That is not a that is not the kind of change that should be sort of slipped through with no press release by putting a consultation notice on a website that nobody’s ever heard of before. Frankly, when I saw that one of the things that caused me to smile was, of course, there was a constitutional right to consultation, which we currently have with First Nations, right?
Adam Stirling [00:08:00] yes.
Michael T. Mulligan [00:08:00] That exists. Everyone agrees that’s there.
Adam Stirling [00:08:01] Yeah.
Adam Stirling [00:08:02] If that was the form of consultation the government trade on with First Nations, well, we’ve.
Adam Stirling [00:08:06] Never worked.
Michael T. Mulligan [00:08:07] On putting on a website. You didn’t notice it? I guess you didn’t have any problem with that, start clearcutting, right?
Adam Stirling [00:08:13] yeah.
Michael T. Mulligan [00:08:13] You can imagine that would go absolutely nowhere.
Adam Stirling [00:08:15] Yeah.
Michael T. Mulligan [00:08:17] Nor should it. Right. And so, this is a big change. This is not a small change. This is not something which you might want to make if you find the websites have written submission. And the plan would be to implement this, the legislation that they plan to implement or pass legislation in the session between April and May this year.
Adam Stirling [00:08:38] Wow.
Michael T. Mulligan [00:08:38] Introducing the bill.
Adam Stirling [00:08:38] So would it be, would it be cabinet. So, I’m just trying to understand where the actual decision.
Adam Stirling [00:08:44] yep.
Michael T. Mulligan [00:08:44] Would be made. Do they give the ability to veto in advance, or is it a veto that, you know, the Premier’s office or the cabinet can allow? But if the cabinet disagrees with it, can it veto the veto?
Michael T. Mulligan [00:08:55] I don’t know about vetoing the veto in the veto must and we don’t have the actual legislation.
Adam Stirling [00:08:59] Oh, great.
Michael T. Mulligan [00:08:59] All we have is a power point that he put up saying this was what they’re planning to do.
Adam Stirling [00:09:04] Okay. No, I get it. This is Serious.
Michael T. Mulligan [00:09:05] Create a make a submission, don’t put any asterisks in your sexually explicit submission to them.
Adam Stirling [00:09:11] Okay.
Michael T. Mulligan [00:09:11] So I don’t have the wording. Just the proposal. But what it would allow the government to do, be it cabinet or the minister, that it hasn’t been specified.
Adam Stirling [00:09:20] yeah.
Michael T. Mulligan [00:09:20] Would be to turn over veto rights, to a First Nation, without passing legislation. They could just do it.
Adam Stirling [00:09:29] hmm.
Michael T. Mulligan [00:09:29] And that’s a very big change in terms of how the province would be operated. Yeah. And I think one that should be debated and thought about. And, you know, people should have a chance to have real input into it. They had a good idea. Some people might say yes, some people might say no. So, people might look at the sections of the UN declaration on the Rights of Indigenous People saying, oh, yes, I agree with all of that. Other people might say, well, hold on a minute. Maybe this part isn’t exactly in accordance with values, but it shouldn’t be slipped through. It’s important and good on the law firm for noticing it. And good on Ron Palmer for bringing it to people’s attention, because otherwise no one would have been off at that government website. Realizing what was going on. The number of people that engage.gov.bc.ca, I’m sure is nothing.
Adam Stirling [00:10:13] Yeah.
Michael T. Mulligan [00:10:14] And so, people should know about it. Maybe you want to make a submission or.
Adam Stirling [00:10:18] Yeah.
Michael T. Mulligan [00:10:19] Do something about it, because otherwise, it’s a big change in terms of virtually the whole province.
Adam Stirling [00:10:24] Does it say whether or not the right to veto could be taken away by government once given?
Michael T. Mulligan [00:10:29] That’s really interesting because there would be constitutional issues about that.
Adam Stirling [00:10:32] Yeah.
Michael T. Mulligan [00:10:33] If there was some agreement made with the First Nation saying, we’re going to do this and it became a treaty, right? There would be constitutional issues about whether a future government could take that away.
Adam Stirling [00:10:42] Exactly.
Michael T. Mulligan [00:10:42] So just think about that.
Adam Stirling [00:10:43] Yeah.
Michael T. Mulligan [00:10:44] You could enter into some agreement which could turn over veto control for virtually the entire province, with no further legislation in a way that couldn’t be modified later. Just think about that.
Adam Stirling [00:10:55] That’s Scary.
Michael T. Mulligan [00:10:56] That’s a pretty big change.
Adam Stirling [00:10:57] Yeah.
Michael T. Mulligan [00:10:58] Probably something deserving a little more debate and consideration of public input. Maybe this will be an issue in the upcoming election, whether this is something people support in this way or something else, but whatever is going on, it shouldn’t be slipped through, in an attempt to make it unnoticed. And the fact that the government clearly tried to do that.
Adam Stirling [00:11:17] yeah.
Michael T. Mulligan [00:11:17] Is also troubling.
Adam Stirling [00:11:18] Yes.
Michael T. Mulligan [00:11:18] That’s really not on. So that’s the Land Act and that’s what’s going on.
Adam Stirling [00:11:22] All right. We’ll take our first break. Michael Mulligan with Mulligan Defence Lawyers Legally Speaking back after this.
[00:11:28] COMMERCIAL.
Adam Stirling [00:11:28] All right. Legally Speaking continues here on CFAX 1070 Michael Mulligan for Mulligan Defence Lawyers. Michael, up next, another Covid 19 story. What’s on the agenda?
Michael T. Mulligan [00:11:38] It just will never end, will it. So, there is a Covid 19 story, case that has its origin in that, and, the parties involved, are both sort of sympathetic sounding parties. One is a, a small, family owned, duty free shop and Aldergrove. And the other party was a 70-year-old clerk who worked there for a number of years, also did janitorial work. And then, what happened, of course, is the border got shut down in March of 2020. Nobody could cross. Not good news if you have a small, family owned, duty free shop at the border.
Adam Stirling [00:12:16] No.
Michael T. Mulligan [00:12:17] Who, virtually 99% of their business was holiday and vacation travelers, of which there were none. And so, because there was no one crossing the family-owned duty-free shop. Closed. Basically, it was closed for a couple of years. Maybe not quite that long, but long time. It closed. And so, it laid off the all the employees, including the 78-year-old salesclerk. And the reason for that was, according to the owner, “there was essentially no work for employees to do” well, by operation, of the Employment Standards Act. After that layoff ran to a certain period of time, it was deemed to be a dismissal. And so, the 78-year-old sued for wrongful dismissal.
Adam Stirling [00:13:06] mm hmm.
Michael T. Mulligan [00:13:06] And the defence raised by the family, duty free shot was that the contract was frustrated by the border being closed. And so that’s the legal issue, that concept of frustration of a contract is what wound up, now in the Court of Appeal. And I think that’s interesting for people to know about. We’ve all dealt with a lot of frustration, I’m sure, in our lives at one point or another. But what is legal frustration? Well, it’s been expressed in a variety of different ways by different courts using different language, talking about things like, situation, which is something radically different from what the parties undertook. You know, in, in that case, you might relieve a party from your obligations to fulfil a contract. But some of that language, and the court gave various examples of how different courts have tried to interpret what it means for a contract to be frustrated. And one of the things they found is a sort of a consistent theme; is that the kind of, impact, the or the kind of thing contemplated by that sort of common law principle of a frustrated contract, is that there must, it must that event must impact the very nature of the contractual obligation themselves between the parties. And the court said, look, it’s not enough that a party claiming frustration, some change would result in hardship or an onerous circumstance or inconvenience or a material loss. And so, the court then tried to articulate again, okay, well, what exactly does this mean when somebody is claiming a contract was frustrated? And this was then, finally they articulated it. First of all, there has to be a qualifying superseding event that was not contemplated by the parties when they entered into the contract. So, when the small duty-free shop hired the woman to be clerk there, nobody contemplated Covid 19 on the border getting shot down, right? Fair enough to be. The superseding event was not the fault of either party. That’s important. You can’t create the problem in that same mode of a contract.
Adam Stirling [00:15:13] good Point. Yeah, Good point.
Michael T. Mulligan [00:15:14] Neither of neither of them did that. And then finally, this is important one the superseding event rendered performance of the contract something radically different from that which was undertaken.
Adam Stirling [00:15:25] hmm.
Michael T. Mulligan [00:15:26] Now here’s how that fits into this factor. Because you might still be scratching your heads any little play or not.
Adam Stirling [00:15:31] Yeah.
Michael T. Mulligan [00:15:31] And indeed, this went to the Court of Appeal. So here be a good example of how something might be and might not be. Let’s say you and I had a contract. You agree to buy my car. And you are on your way to the bank to get the money. And, before you get back with the money, a tree falls on my car, crashing it into a pancake. And you show back up, you say, well, I’m not buying that. It’s a pancake now, that’s not what we agreed to. And I thought it was a perfectly good car. That would be something radically different. Like the cars now crushed by a tree. Probably that would frustrate the contract, but let’s see, on the other hand, we entered into the agreement. We shake hands. You’re on your way back from the bank, and you get a phone call saying you’ve just been transferred to Calgary, for your job, and you say, oh, I don’t want that car anymore. My circumstances have changed that. Well, a big deal for you and would be a reasonable basis for somebody to say, you don’t want this car anymore. I need a truck or something. Right?
Adam Stirling [00:16:25] Yeah.
Michael T. Mulligan [00:16:26] That would not amount to frustration of the contract because it doesn’t interfere with the car sale agreement. Right. I can still give you what we bargained for. There’s a car. We agreed on the price. You’ve got to finish that, right.
Adam Stirling [00:16:41] okay.
Michael T. Mulligan [00:16:41] And so on that analysis, the Court of Appeal found that this contract, the contract to employ the clerk, was not frustrated by the fact that the border was closed.
Adam Stirling [00:16:51] hmm.
Michael T. Mulligan [00:16:51] It sure would cause hardship, right. For the small company to have to keep paying somebody when there’s no work to do. No doubt about that.
Adam Stirling [00:16:58] yeah.
Michael T. Mulligan [00:16:58] Just like if you agreed to buy my car and then got word that you got a job somewhere else where the other was five feet of snow, the car wouldn’t work or something.
Adam Stirling [00:17:06] Yeah.
Michael T. Mulligan [00:17:06] Boy, that’s unfortunate for you, but it doesn’t really prevent me selling my car to you. The car is the same. The money’s the same. Yeah, I get it. It’s kind of a hardship. You now get a car. You don’t want that. That doesn’t get you out of a contract. And so, that was the outcome here. The Court of Appeal found that, yeah, there was a lot less business. And yes, that definitely creates some financial hardship for the company. And in fact, you may even have a circumstance where the company just goes bankrupt and can’t pay.
Adam Stirling [00:17:34] yeah.
Michael T. Mulligan [00:17:34] That’s possible, but it doesn’t get you out of the obligation to hire the person, because you’re still able to have the person stand there at the cash register and clean the store, even though there’s only 1% of the people coming through the store, you know, essential truck drivers or something getting liquor. Although maybe that’s not a great thing. You know, it doesn’t prevent that contract from continuing, even though it was uncontemplated and even though neither people court person caused it, that change, the border closing wasn’t the sort of event that interfered radically with the contract. It interfered with the desirability of the contract very substantially for one of the parties. But that doesn’t amount to frustration. And so that’s really the point the Court of Appeal made, and that’s why the case is important.
Adam Stirling [00:18:20] Interesting. We’ve got one more talk of censuring politicians that comes up from time to time. And I’m noticing a regional district board member is mentioned in this next one.
Michael T. Mulligan [00:18:29] Indeed, we’ve had lots of talk of censoring, but we.
Adam Stirling [00:18:31] We have.
Michael T. Mulligan [00:18:32] Well, so this is a case involving the Strathcona Regional District. And the fact pattern is one of the elected board members of that district, had some property on which there was, a small cabin, that the board member’s father lived in, the cabin very sadly burned down. And some friends of the people involved set up a GoFundMe page to try to raise money to rebuild the modest cabin. GoFundMe raised $3,700 to try to rebuild this cabin. And then what happened, is that there was a complaint made, by some of the constituents complaining that, hey, this elected person is getting some $3,700 benefit as a result of being a board member. Well, that then resulted in a closed session, of the, which also seems like a common theme around here.
Adam Stirling [00:19:32] Yep.
Michael T. Mulligan [00:19:32] Sort of an in-camera session of this, regional district, discussing that issue about, whether some benefit and whether there should be a censure or whether she was in fact, disqualified from continuing to be a board member, based on the legislation Local Government Act. Now, the board member, the woman whose father has her cabin burned, his cabin burned down.
Adam Stirling [00:19:55] Yeah.
Michael T. Mulligan [00:19:56] Was concerned about all this and went to consult a lawyer. To get some legal advice on where she stood and what should happen. And the lawyer wrote a letter to the board about making a submission, on her behalf, about whether she should be censured and so on. So fair enough. The board then disciplined her on the basis that she told the lawyer about what happened in the closed meeting.
Adam Stirling [00:20:24] hmm.
Michael T. Mulligan [00:20:24] So the interesting issue is the issue was for the Court of Appeal is telling, lawyer that you’ve hired, a breach, of, confidentiality and one of these secret local government meetings.
Adam Stirling [00:20:38] Oh, I wouldn’t think it be.
Michael T. Mulligan [00:20:39] Because, because of the basis of that, they disciplined her.
Adam Stirling [00:20:43] Yeah.
Michael T. Mulligan [00:20:44] Okay. And then the other issue was, was she the subject or should she get compensation for the cost of hiring a lawyer to defend the unsuccessful effort to have her disqualified on the basis of the money raised for her father’s cabin? Ultimately, the conclusion of that was no, she didn’t get some personal benefit. This was a modest amount she hadn’t organized for her father, and it wasn’t a result of her position. Right. She didn’t get any benefit because of her position. The Court of Appeal, well, first of all, that, on the, trial decision, the judge found that, the censure decision and the decision not to indemnify her for legal expenses were reasonable and didn’t overturn them. But that didn’t survive scrutiny in the Court of Appeal. And the Court of Appeal found that, of course, it’s a pretty fundamental principle that somebody be able to get legal advice in terms of, you know, what should they be doing and what are their obligations and so on. And the Court of Appeal found that given the importance of that, and the, of course, solicitor client privilege that would attached to all of that and the duties of confidentiality that lawyers have to their, clients, that it was not, according to the Court of Appeal, a, breach of the, requirement to maintain confidentiality, for one of these closed in-camera hearings to go and get legal advice about it and by necessity, tell the lawyer, here’s what’s going on in this meeting they want to censure me and or have me kicked out. Can they do that? What should I do? And so, the Court of Appeal found that, that was not a breach, that it was unreasonable as a result to censure her for doing that and overturn that. And furthermore, found that it was unreasonable too, unreasonable to refuse to pay for her legal expenses generated by this unsuccessful application to have her disqualified. And so, a complete victory at the end of the day for the elected councilor in the Strathcona Regional District. The censure was overturned, and there will be a requirement that her legal expenses be paid. And so, you’re not breaching your confidentiality agreement, when you get the legal advice.
Adam Stirling [00:22:59] Very well. Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Pleasure, as always.
Michael T. Mulligan [00:23:06] Thank you so much. Have a great day.
Adam Stirling [00:23:08] All right. Bye now.
Automatically Transcribed on February 9, 2024 – MULLIGAN DEFENCE LAWYERS