Occupiers’ Liability, Wills Variation and Judicial Case Managers

 

Curious about the legalities that surround everyday mishaps? Join us as we explore these fascinating topics with Michael Mulligan, a seasoned Barrister and Solicitor from Mulligan Defence Lawyers. We kick off by dissecting a real-life incident where a woman sustained serious injuries after tripping in a pothole at a 7-Eleven parking lot. Michael offers a deep dive into the Occupiers Liability Act in British Columbia, emphasizing the critical need for a reasonable system of inspections and maintenance to counter negligence claims. We’ll also touch on the nuances of exceptions, such as for trespassers and specific rural or recreational properties.

Our discussion then shifts to a compelling estate dispute involving a father’s will and his three daughters. The youngest daughter, despite being raised in a well-off environment by her aunt and uncle, felt emotionally abandoned by her biological father. This emotional complexity led to a court decision enforcing equal distribution among the daughters, stressing the moral obligation of adequate support. Wrapping up, we discuss the responsibilities of Judicial Case Managers in the Provincial Court.

 

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 Sep 12, 2024

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

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

Adam Stirling [00:00:08] What is on our agenda for today?

Michael T. Mulligan [00:00:12] The first case on our agenda deals with a pothole at 7-Eleven and how that can cause or how it did cause this case, very serious problems,

Adam Stirling [00:00:22] A pothole.

Michael T. Mulligan [00:00:22] And ultimately a pothole.

Adam Stirling [00:00:24] Okay.

Michael T. Mulligan [00:00:25] And how that connects to the Occupiers Liability Act and why you need to be careful to make sure you’re filling your potholes. And so, the factual background here involved a woman who was on her way to work. She worked doing a physically demanding job at a nursery planting trees as she’d done for many years. And she stopped with some co-workers to get morning coffee at 7-Eleven. And on the way back to the vehicle, she tripped in a pothole and broke her ankle very seriously in three places. She reluctantly went to the hospital after having somebody take pictures of the pothole. And the injury turned out to be much more serious than expected. She wound up being off work for several months. She wound up on crutches, eventually in a wheelchair. And then she walked with mobility impairment and a limp. And as a result of those problems, she fell down some stairs and injured her back.

Adam Stirling [00:01:30] oh no.

Michael T. Mulligan [00:01:31] So it really didn’t go well. The result of this was a lawsuit suing 7-Eleven. And so, you might wonder, how was 7-Eleven responsible for tripping in the parking lot? Well, the legal answer to that comes from a BC Act, called the Occupiers Liability Act. And the idea of that act is that in many circumstances, somebody who is like an occupier of property and they could be like the owner of the property or it could be, for example, when property is leased, like it would be to a business 7-Eleven.

Adam Stirling [00:02:06] mm-hmm.

Michael T. Mulligan [00:02:06] They are the occupier under the Occupiers Liability Act. And what that act does is it imposes a duty of care on the occupier to take care with respect to things, including the condition of the premises and activities on the premises and conduct even conduct of other people on the premises. And the reason that’s important is one of the starting points for whether you can sue somebody for negligence, that’s being careless. Right. And that’s distinct from suing somebody, for example, over a contract, right?

Adam Stirling [00:02:40] Yeah.

Michael T. Mulligan [00:02:40] So civil claim negligence. One of the things you need to establish is that the person that you’re suing owes you a duty of care.

Adam Stirling [00:02:47] Yeah.

Michael T. Mulligan [00:02:48] Just like does that is that person responsible for, you know, being careful? And so, this act makes it clear that somebody who’s an occupier has this statutory duty of care to take care of things, including in this case, the relevant thing was the condition of the premises. Now, I should pause here for a moment to see there are some exceptions set out in the Occupiers Liability Act. One of the exceptions in there is that you don’t owe a duty of care under that act to somebody who comes on is trespassing on premises while committing or intending to commit a criminal act.

Adam Stirling [00:03:23] hmm.

Michael T. Mulligan [00:03:23] The idea is they’ve deemed to have willfully assumed all risks. And so that might be, for example, let’s say a burglar is trying to, you know, climb in your window using your ladder or something, and it turns out the ladder is in poor condition. They fall down and get hurt.

Adam Stirling [00:03:37] Yeah.

Michael T. Mulligan [00:03:37] Right. You’d be able to say, well, look, maybe I didn’t maintain my ladder that well, but this person was using my ladder to break into my house to steal things. And so tough luck, at least under the Occupiers Liability Act. And then there are some other exceptions that apply dealing with things like rural properties. When you think about what I’ve told you, but how the Occupiers Liability Act works, you might have some concern if, let’s say you’re a farmer and you’ve got a big farm, people are cutting through it.

Adam Stirling [00:04:05] yeah.

Michael T. Mulligan [00:04:05] Or you own some piece of undeveloped land. No, now what? And so, they’ve carved out exceptions whereby a person is with respect to premises like that whereby somebody is either trespassing or on property for recreational activity and the person who owns the property is receiving no payment and the person’s not paying to live there. And so, there are then categories of places where it doesn’t apply. For example, rural premises, which are used for forestry and range purposes, like if you have a big, you know, land lot that you might want to log at some point, you’re not going to wind up in trouble under the Occupiers Liability Act or forested wilderness premises or private roads marked clearly as private roads or recreational trails. Which explains why in some cases you would see those things marked in that way. Also excluded are utility rights of way. Like, you know, for example, sometimes are places where hydro lines go down and people would use them for recreational purposes like hiking through there or whatnot.

Adam Stirling [00:05:12] Yeah.

Michael T. Mulligan [00:05:12] You’re also off the hook there. So, the Occupiers Liability Act is a starting point here for the pothole in the parking lot. But there’s another exemption under the Occupiers Liability Act where the occupier is able to rebut the presumption that these have this duty, where they can show that they have acted, have a reasonable system of inspections and maintenance in place. And that’s really what this case turns on. We don’t have a standard of perfection, bearing in mind the concept is sort of you have to have duty of care and somebody has to have sort of breached what their duty of care is. Your duty of care isn’t to ensure perfection. You don’t need to if you’re 7-Eleven, ensure that, you know, absolutely you don’t you can’t have a twist on your parking lot or whatnot. And so here the case turned on things like, well, what does 7-Eleven do to make sure there aren’t things like potholes you might trip on when you’re coming out with your morning coffee?

Adam Stirling [00:06:09] Yeah.

Michael T. Mulligan [00:06:10] And 7-Eleven being sort of and this is an interesting thing, too, is if you have a sort of a sophisticated, large franchised operation, you know, you’re likely to have more in place than if you’re a sort of mom and pop corner store. Right. And so, this is important to know if your mom-and-pop corner store, because this is the sort of thing this kind of case would turn on if somebody, you know, trips your pothole and badly, badly breaks their ankle. And 7-Eleven pointed to the fact that each new employee is required to take an online safety course called, “working safely”. That’s well named.

Adam Stirling [00:06:47] hmm.

Michael T. Mulligan [00:06:47] And then complete a five answer at the end of it and they have to get a mark of 80%. And the course included a section entitled Slips, Trips and Falls, Exterior Hazards. So, it seems sort of relevant.

Adam Stirling [00:07:01] Yeah.

Michael T. Mulligan [00:07:02] And so the judge wound up looking at, well, how was that managed? Did everyone have to do this or was this enough? And here interestingly, even though 7-Eleven was sophisticated enough to have such a class with including that particular course, including that particular section, the judge found that that wasn’t really sufficient. And they looked at a number of things, including there was no written material on site. It was sort of unclear who all took this thing. 7-Eleven had changed its policy to have a policy where people should or would be encouraged to take this like on an annual basis, this online course. But there was no consequence for not doing it. And also looked interestingly at the fact and this is a credit to the woman who badly broken ankle. She asked a friend to take a picture of the pothole at the time and then went back and took pictures that had been filled in the next day.

Adam Stirling [00:07:59] hmm.

Michael T. Mulligan [00:07:59] And that went a long way to responding to the 7-Eleven claim that this really wasn’t anything, and you couldn’t have kept on this thing or whatnot.

Adam Stirling [00:08:06] Yeah.

Michael T. Mulligan [00:08:06] And so at the end of the day, pursuant to the Occupiers Liability Act, they found that they hadn’t taken sufficient steps to maintain the property. She had indeed trapped the trip in this thing. She was vigorously challenged on that, but the judge accepted her evidence and then had to go on and figure out, well, what compensation should she be due for this injury. And in that respect, as in many cases involving personal injury, the judge will look at a number of things. They would include the concept of non-pecuniary damages, which is like pain and suffering.

Adam Stirling [00:08:38] yeah.

Michael T. Mulligan [00:08:39] And in this case, this altered this woman’s life terribly. You know, she gained weight. She couldn’t work. She wound up in poverty, totally devastated her life and ongoing pain and issues until the judge awarded her $175,000 for the pain and suffering. Now, I must say, sometimes when you see those figures, you think, well, that’s a lot of money. But on the other hand, if I said to you, if I can turn your life from a happy, productive state of affairs where everything is going great to this terrible state of affairs, would you do that for $175,000? Many people’s answer would be absolutely not. That’s totally not putting me back into where I was. But that’s what was done.

Adam Stirling [00:09:18] Yeah.

Michael T. Mulligan [00:09:18] And then the judge also has other heads of damages, like lost future loss of income. So, the judge would have to look at what would you have been able to make doing the work you were doing. But you can no longer make because you can’t lift trees or do the work you’ve done for many years. And on that ground, that was the largest set of damages. That was $494,000. Both of those things. Now, of course, under no fault in car accidents, which are the most common way people are injured either don’t exist at all. There is no award at all for like pain and suffering that’s gone under no fault. And the future lost income is not analyzed on the basis of what would you actually have made. It’s got like artificial caps and deductions and percentages and all these things. It doesn’t come out the way you used to, but it still applies for these other kinds of injuries. And then adding it all up, including things like cost of future care and like specific losses, your specific costs of things like what’s your wheelchair going to cost for the rest of your life, for crutches, that kind of thing.

Adam Stirling [00:10:21] Yeah.

Michael T. Mulligan [00:10:21] She was awarded $907,363.

Adam Stirling [00:10:25] Wow.

Michael T. Mulligan [00:10:26] So very substantial loss. And just a cautionary tale for all involved. If you’re a small business person, if you’re a homeowner, if you are a like you have a condo right, you and the Strata Corporation need to be aware of these things because this sort of thing can happen if you’re not being diligent and have some system in place to prove that you’re diligent. Right. About all the kinds of things. Or what about potholes? Are you cleaning the snow off of your steps? Are you just taking reasonable steps to ensure the safety of that place that you own or are responsible for if you’re leasing it? And many people aren’t going to be 7-Eleven. And I’m sure if you asked a lot of small restaurants or small businesses, you know, what is your policy in place about training your employees to ensure the safety of the entrance to your premises? It’s going to produce a blank stare. And so, this is just important to be aware of it. It’s also why it’s so important in any of those circumstances to have proper insurance. Otherwise, you might wind up on the hook for a very large amount of money, if somebody like this poor woman winds up with just a devastating consequence when they trip in your unfilled pothole. So that’s the latest from 7-Eleven, the Occupiers Liability Act and what you need to do to act reasonably to keep people safe.

Adam Stirling [00:11:47] All right. We’re going to take a quick break. Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers continues right after this.

[00:11:54] COMMERCIAL.

Adam Stirling [00:11:54] Back on the air here at CFAX 1070 as we continue Legally Speaking with Michael Mulligan for Mulligan Defence Lawyers. Michael, our next story has to do with someone’s last will and testament, multiple siblings and whether or not equal or fair shares of one’s assets were actually provided to each. How does all that work?

Michael T. Mulligan [00:12:13] Well, it’s very interesting. There seems to be an increasing number of these cases in B.C. and the cases under what is now called the Wills Estates Succession Act, Section 60. And that section deals with what used to be in the past, the Wills Variation Act. And the idea behind that part of the WESA is that if somebody doesn’t make adequate provision for the support of their spouse or children in their will, an application can be made to vary the will. And it’s interesting to see just how that’s been applied. And in this particular case, one of the conclusions eventually the judge reaches here is he asks the question this way. The question is whether there is a legitimate basis for departing from the reasonable expectation that adult children will share equally in their parents’ estate. And I’ll tell you, this is an interesting fact pattern but that’s how the judge approaches. So, there’s no it would seem to be a quite a strong legal presumption that that will be what happens with somebodies’ estate. And if they don’t do that without some judge referred to it as valid and rational reason, it’s very likely the will just isn’t going to be implemented. It’ll be modified. Which raises just interesting questions about, you know, what degree of autonomy do people have in terms of their estate. And the interesting fact pattern here is it involves three sisters and the originally lived in Macao and the later in Hong Kong before they all wound up moving to Canada family at various different times. And the father who eventually passed away and he had an estate of $584,000, he provided that two of his biological children would share equally. But the third child who was the applicant in this case would receive $10,000 USD. And the factual background of that is that when that third child was only four years old, she was taken from her home where she lived in Macao and was left to live with the father’s sister. And I think it was her husband. And she grew up in Hong Kong with them serving as her parents effectively. And the background appears to the rationale for that may well have been financial. The description was that the two daughters who lived with the biological father who passed away, the conditions that included living in an apartment with 7 or 8 people without flush toilets, hot water, no refrigerator, no television, and food was scarce.

Adam Stirling [00:14:58] Wow.

Michael T. Mulligan [00:14:59] In contrast, the daughter who was the applicant in this case who went and lived with her aunt and uncle, effectively what she referred to as mother and father lived in a prestigious neighbourhood in Hong Kong in a spacious, modern home with indoor plumbing, hot water, appliances, servants quarters, a large backyard, abundant food, stylish clothing, lots of toys and so material wealth.

Adam Stirling [00:15:26] Yes.

Michael T. Mulligan [00:15:28] But she the evidence was she was always confused and upset of the fact that from her perspective, she was abandoned to that circumstance, even though she lived in material abundance, unlike her sisters, she knew because this happened at age four, that this was her aunt and uncle and not her mother and father. And interestingly, the father in his will referred to her as his nephew in the will, even though he was her biological daughter. And one of the issues that arose here was the issue about whether the aunt and uncle had adopted her, because if she was adopted, that will what was the wills, now WESA allows for or requires that there be adequate support and that doesn’t mean just if you’re impoverished, you have to be supported. Adequate support for spouses or children and if she was, in fact adopted by the aunt and uncle, she would then no longer be the child of the person who made the will. But and so that was one of the issues at the trial. Ultimately, the sisters who are defending this claim by the end of the case, the judge said, accepted that she had not, in fact, been adopted. So, she did have authority to, under this act, make this application. And so the judge then had to go through, as in many of these cases, like the whole background of how these people grew up and who got support at this time or at that time, you know, who got help buying a house, what happened when they moved to Canada to go to university and all of these things. But then also looked at things like the nature of the relationship like later in life. And there wasn’t much of a relationship between the biological daughter, plaintiff, and her biological father. In large part, the judge found because of that childhood background and how strained that made their relationship. And it was clear the other two others did have a, you know, ongoing good relationship with their father, despite the, you know, some of the financial challenges that they had. And so, at the end of the day, as I indicated at the outset, the judge assessed it from the perspective of whether there was a legitimate basis for deviating from that reasonable expectation that adult children would share equally. And the judge found that there was not and the test under that act isn’t looking at whether there’s a legal claim to money. There isn’t. Right. There’s no legal obligation to support your adult children.

Adam Stirling [00:18:03] No.

Michael T. Mulligan [00:18:03] But it’s analyzed from the perspective of moral obligation. And the judge found that indeed there was a moral obligation and maybe a greater one because of that childhood background, despite the fact that the daughter grew up in material with material wealth. And so, at the end of the day, the judge modified the will, and all three sisters will share equally. The daughter who made the claim will be entitled to her costs of the litigation that will eat into some of it. But I thought it was just an interesting case and fact pattern for people to be aware of that there is now in the law a strong presumption of what the judge indicated there was equal sharing by adult children in a will. And if somebody is departing from it, they better have a good reason expressed in the will why that’s happening. And the judge did allude to sometimes there could be explanations like, well, you know, a parent provided much more support to one of the children when they were alive, for example, or as we said, well, I helped this child buy a home or something. Right. And so that’s why I’m going to treat the other children differently. But there has to be that kind of valid reason or else this kind of an application can occur. The other thing to know is that there are no constraints on what somebody might do when they’re alive, right? You don’t have a moral, you don’t have a legal obligation to support your adult children. And so parents, while they’re alive, could do whatever they want, but in their will, if it doesn’t meet the legal criteria of adequate support, which is quite liberally interpreted in B.C., this is the sort of change that can occur. So that was an interesting fact pattern and just a cautionary tale in terms of how people are trying to organize their affairs.

Adam Stirling [00:19:47] All right. We’ve got two minutes left and one more story on the agenda. What is a Judicial Case Manager and what do they do?

Michael T. Mulligan [00:19:55] Yeah, this is important to know. So Judicial Case Managers, work in the provincial court in British Columbia. And the way that works is that they may have authority which is delegated to them under the Provincial Court Act, and that act allows the chief judge of the province to delegate responsibilities to other judicial officers. And judicial case managers wind up doing all kinds of things. They actually sit in court like often, and somebody goes to court like for a first appearance on a criminal case, the person sitting there is unlikely to be a judge. They’re much more likely to be a judicial case manager. And the idea there is to have judges focusing all of their time on things to be judges for like conducting trials and doing sentencings and things of that sort.

Adam Stirling [00:20:44] Yes.

Michael T. Mulligan [00:20:45] And then some of the other tasks can be delegated to other judicial officials and judicial case managers one of their principal obligations is to do things like schedule trial dates and sentencings and so on. And that’s complicated. Many, many years ago, it might have been some judge sitting up there with a big, thick book and a calendar, but those days are way gone. And so that’s a very complicated thing. But they do all kinds of other things like dealing with adjournments and appearances and making all kinds of orders where there is consent. Like if you have the crown and the defence agreeing that, for example, the case should be adjourned for something to happen. The idea is you could have a judicial case manager do that and not have to have a judge hear that. And there’s also been a real push over the past number of years to get as many things as they possibly can dealt with, like in writing by counsel with a judicial case manager to reduce the just otherwise overwhelming flood of people would have to show up every single week or whatever, every two weeks in criminal cases. And so judicial case managers could deal with all of those sort of things as well, things like amending or vacating a bench warrant where that’s by consent or implementing bans on publication, when that’s by consent or adjourning cases when it’s by consent. So, they fulfil a very important rule. And there was just a recent update specifying again what precisely all of their powers are. So, if you wind up going to court, you may well find yourself looking up at a judicial case manager for many of the administrative appearances rather than a provincial court judge. So that’s what they are.

Adam Stirling [00:22:23] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour. Every Thursday. Michael. Pleasure, as always.

Michael T. Mulligan [00:22:30] Thank you so much. Always great to be here. Have a great day.

Adam Stirling [00:22:32] All right. You too. Quick break. We’re back right after this.

Automatically Transcribed on September 18, 2024 – MULLIGAN DEFENCE LAWYERS