The first case discussed on the show involved a dispute between two brothers over their mother’s estate. Their mother had decided to transfer her property into joint tenancy with the two sons, a decision that led to a complicated legal scenario after her passing. The brothers, having made an oral agreement to share the proceeds of the house with their other siblings, found themselves embroiled in litigation when one brother sought a larger share. Mulligan dissected the concept of consideration, an essential element for a contract to be enforceable, and the implications of joint tenancy on an individual’s estate.
Beyond the family estate, the episode also explored the intricate world of conservation law. The spotlight was on a case involving the University of British Columbia (UBC) whose housing development plans were thwarted by the existence of an eagle’s nest near the proposed site. Despite having built an alternative nest for the eagles, UBC faced opposition from a neighbour who contested the permit for the temporary deterrence of the eagles. This case underscored the delicate balance between development and conservation efforts and the complex legalities that can arise.
The discussion further extended to the role of the provincial legislature in maintaining smooth local governance. The conversation was rooted in a recent case in Alberta, where the provincial government exercised its power to remove a dysfunctional city council. It served as a stark reminder that the authority of local governments is delegated by the province. Therefore, the responsibility for any dysfunction or inappropriate behaviour ultimately falls on the provincial legislature. It emphasized the need to understand the line of authority and the legal mechanisms in place for removing or replacing councillors and mayors.
These fascinating legal scenarios elucidated by Michael Mulligan underscore the complexities of the legal landscape. The episode served as a reminder of the potential pitfalls of inadequate paperwork, the enforceability of oral agreements, the delicate balance between development and conservation, and the significant role of provincial power in local governance. It emphasized the need for legal awareness and thoughtful decision-making in our daily lives, especially in matters concerning family estates and local governance.
Whether you’re planning your estate, involved in a conservation dispute, or interested in understanding the dynamics of provincial and local power, this episode provides invaluable insights. It highlights the importance of understanding legal intricacies to navigate the potential legal landscapes that one might encounter.
A trnascript of the show:
Legally Speaking Dec 7, 2023
Adam Stirling [00:00:00] It’s time for our regular segment with Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking with Michael Mulligan on CFAX 1070. Morning Michael. How are we doing?
Michael T. Mulligan [00:00:09] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:11] Interesting stories on the agenda this week. I’m reading it’s in a state dispute in the enforceability of an agreement between brothers. But it’s an oral agreement. How does that work?
Michael T. Mulligan [00:00:20] Yeah, there are several things wrapped up in this case that I think are interesting concepts for people to know about because it could readily affect how you’re arranging your affairs. Right. And in some respects, this case is also an example of perhaps how not to arrange one’s affairs. And the background of it was a mother of six children, adult children who separated. She owned a home or principal asset worth something just south of $1 million.
Adam Stirling [00:00:52] mm hmm.
Michael T. Mulligan [00:00:52] And she obviously had some favourites as between the children, and she decided that she wished to transfer her home into a joint tenancy with two of the children. And I should just pause there to comment about what joint tenancy is and what it means when somebody does that. That’s pretty important.
Adam Stirling [00:01:14] Mm hmm.
Michael T. Mulligan [00:01:15] There are different ways multiple people can own the same property. Right. It’s simple if you just own a property yourself. Right. But if you are sharing it, it could be shared a few different ways. One concept is a concept called tenancy in common. And the way that works is you could have, let’s say, two friends decide to pool their resources and buy a two-bedroom condominium and share it. Right.
Adam Stirling [00:01:41] mm hmm.
Michael T. Mulligan [00:01:41] That would probably be done as tenants in common, or each of them would own 50% of the jointly owned condominium. Right. If one of the friends passed away, their half interest in the condominium would be divided up in accordance with their will. Just like any other assets that they might have.
Adam Stirling [00:02:00] mm hmm.
Michael T. Mulligan [00:02:00] There’s another concept called joint tenancy, which can be used where multiple people share the same property. The difference with joint tenancy is let’s say if you and your friend purchased a condominium and you were both on title as joint tenants, if one of the two friends passed away, the other person just automatically owns all of it.
Adam Stirling [00:02:21] Hmm.
Michael T. Mulligan [00:02:21] It doesn’t pass through their will.
Adam Stirling [00:02:23] Hmm.
Michael T. Mulligan [00:02:23] Okay. Which is a very interesting state of affairs.
Adam Stirling [00:02:27] Yeah.
Michael T. Mulligan [00:02:27] Some people may use that as an estate planning technique, and it has a number of impacts. One of them is it might avoid some probate fees we have for it because the property wouldn’t go through somebodies’ estate.
Adam Stirling [00:02:41] Yeah.
Michael T. Mulligan [00:02:41] It would just go to the other person. That may be exactly what’s intended. For example, with a couple, right? If you and your spouse purchase a home. That may be precisely what you intend. Right. Look, if one of us passes away, obviously the other person gets the home but carries on all’s good. But then the other effect you could have, is and we’ve talked about this before, there’s an act called the Wills Variation Act, where somebody’s spouse or children can apply to vary a person’s will if they can establish that they weren’t adequately provided for. Now, if property is transferred by way of putting a property in joint tenancy, that doesn’t apply because it’s not going through the will or the estate.
Adam Stirling [00:03:24] interesting.
Michael T. Mulligan [00:03:24] It just automatically goes to the other person. So that’s the background. So, the mother of six announced that she wanted to put two of her adult sons on title as joint tenants, which would mean that if she passed away, they would each get half of it. Okay. But for reasons unexplained, the paperwork didn’t get done to reflect that. And what happened is both adult sons were put on this joint tenancy for half of the property.
Adam Stirling [00:03:51] huh.
Michael T. Mulligan [00:03:52] So that’s the affair. That’s the state of affairs. And then, sadly, the mother passes away. Naturally, what this is going to produce rate, if you have six children and you’ve disinherited four of them and you set up this wonky structure, and I should say one of the children, one of the two that you liked was the sole beneficiary of her will.
Adam Stirling [00:04:12] Oh.
Michael T. Mulligan [00:04:13] Even more provocative. So naturally, litigation ensued.
Adam Stirling [00:04:17] Yes.
Michael T. Mulligan [00:04:18] And you end up with the other siblings suing under the Wills Variation Act, saying, hey, this should be we haven’t been provided for. Mom gave everything to George was one of the people involved. And so, the litigation started and the two brothers. Right. Who were put on as joint tenants in the course of discussing, well, what do we do, about all this litigation came to a verbal agreement whereby they would agree to share the property and provide a substantial portion of the value of the home to all of the other siblings. They kind of worked it out, would be the way to describe it. And that was the oral agreement. Okay. Then what happened is the brother who was the one who was the sole beneficiary of the will changed his mind and took the position that, no, I don’t want to do that. And I want 75% of the house because.
Adam Stirling [00:05:12] Oh.
Michael T. Mulligan [00:05:13] I get 25% as being one of the joint tenants, right. Automatically. And then the other 50% was Mom’s, which goes into the will and I’m the sole beneficiary of it. I want all that too bad. And so, there was a court case then about whether this oral agreement to share the proceeds of the house was enforceable. And that brings us to that concept of the oral agreement. And another important principle people should know about, which is the concept of what’s called consideration. And the importance of consideration is that the law doesn’t enforce bare promises to do things oral or in writing. Like if I come up to you and say, you know, hey, Adam, the great guy, you know, I’m going to give you a new car for Christmas. When you say wonderful, when I don’t, you can’t go to court.
Adam Stirling [00:06:08] Where’s my car?
Michael T. Mulligan [00:06:10] Where’s my car?
Adam Stirling [00:06:12] Okay.
Michael T. Mulligan [00:06:12] What’s missing from that is I’ve just made a gratuitous promise to you, which I may or may not follow up on, but the law isn’t going to enforce it. Whether I write it down and say, I’m going to give you a car for Christmas, or I tell you that, well, you hope I follow through, but that’s not a contract.
Adam Stirling [00:06:27] I see.
Michael T. Mulligan [00:06:27] A contract requires a concept of consideration and exchange. Right.
Adam Stirling [00:06:31] Okay.
Michael T. Mulligan [00:06:32] So on the other hand, if I come to you say, hey, do you like my car? You say, I love that car, and I know you are a great guy also. I will sell it for $100. Okay, you got a deal. Now that’s enforceable because. Well, I promised to give you the car and you’ve promised to give me $100.
Adam Stirling [00:06:46] Okay.
Michael T. Mulligan [00:06:47] Now we have a contract. So here, the brother that didn’t want to share said, well, yeah, there was some dispute about what was said, but he said, Well, that’s not enforceable anyways. That was just like a gratuitous promise of a gift to my other siblings. You can’t make me do that.
Adam Stirling [00:07:05] hmm.
Michael T. Mulligan [00:07:05] Because there wasn’t some payment of money as all the other siblings say, okay, here’s my $100 or my $1 or something else. It could be anything, something of value, right?
Adam Stirling [00:07:14] mm hmm.
Michael T. Mulligan [00:07:14] And so that was the argument at trial. And then on appeal, this went to the Court of Appeal and the trial judge, and now the Court of Appeals concluded there was consideration. And the consideration came in the form of the brother, the one who wanted to keep everything ultimately taking a position on that Wills Variation application. All the siblings were like, hey, this isn’t fair, Mom. Give everything to you George, right.
Adam Stirling [00:07:40] Yeah.
Michael T. Mulligan [00:07:41] And George saying, okay, I’ll agree to this, sharing the money from the house. We don’t need the wills variation application that there was consideration in the form of his agreement to how he dealt with the Wills Variation application.
Adam Stirling [00:07:56] Interesting.
Michael T. Mulligan [00:07:57] consideration doesn’t always have to be money. It could be something like that interest. And so, because the Court of Appeal and the trial judge found it to be, George did have consideration for what he had agreed to do. The agreement was enforceable. And so, the net result of all this is a result which could have been achieved probably a decade ago if mom hadn’t come up with the idea that she was going to disinherit five of her children and try to put the house in joint tenancy. If she hadn’t done that, all of this litigation could have been avoided. But I should say this had mom succeeded in properly putting the house into joint tenancy. Like had that been done as she had said she wanted to, then the result would have been the Wills Variation Application could have done nothing because the value of the home, which was the main asset, wouldn’t have gone through the will.
Adam Stirling [00:08:48] Yeah.
Michael T. Mulligan [00:08:48] And the result of that is the two brothers would have wound up with half each and nothing other siblings could have done about it. And so you can see how those concepts could be important ones when somebody is planning their estate, particularly if you’ve gotten some complex fact pattern like this one or somebody has some idea about wanting to unequally, you know, disinherit some children and give everything to one person, they like that kind of thing. You can see how people might use those legal processes and techniques to achieve that goal or to try to immunize something from being reviewed under the Wills Variation Act. But here, through that complex series of things, including that oral agreement which ultimately was enforceable, the net result is going to be after many years of litigation and wasted money, what remains is going to get shared amongst the kids, which probably should have been the starting point to begin with. So there is a concept of joint tenancy and consideration why they’re so important.
Adam Stirling [00:09:45] All right. Michael Mulligan for Mulligan Defence Lawyers, Legally Speaking, we’ll take our first break on CFAX1070. We’ll be back with more right after this.
Adam Stirling [00:09:54] Legally Speaking on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers. Michael The Next story. My reading this correctly, it says standing to litigate the installation of a temporary cone on an eagle’s nest.
Michael T. Mulligan [00:10:08] You wouldn’t believe it, but it’s true.
Adam Stirling [00:10:10] Okay.
Michael T. Mulligan [00:10:11] So that’s one of the many reasons why we can’t build nice things at least very quickly. And so, this case is from UBC and the UBC has some property around it, there is a thing called the UBC Properties Trust, I guess at least the land or build housing or things of that sort on it.
Adam Stirling [00:10:28] Okay.
Michael T. Mulligan [00:10:28] And the UBC wanted to build a housing development on their property, but they determined that there was an eagle’s nest not too far away from where they wanted to build it. It was a nice-looking nest from the description 120cm deep, 50 or 50cm deep, 120cm in diameter, and it was only eight meters from the top of a tree, so a nice-looking nest.
Adam Stirling [00:10:53] hmm.
Michael T. Mulligan [00:10:53] The nest had been there for a number of years, and it had been vacant for a few years. Apparently, the Eagles aren’t subject to the speculation of vacancy tax.
Adam Stirling [00:11:01] yet.
Michael T. Mulligan [00:11:01] So the nest had stood vacant for a while. But then in 2017, some eagles started using the nest, and as the development was proceeding, it was going to get too close to the recommended noise buffer, buffer zone around an eagle’s nest. And I mention this if you don’t know it, in order to order your affairs correctly, it’s stay out of legal trouble.
Adam Stirling [00:11:22] Yes.
Michael T. Mulligan [00:11:24] Section 34 of the Wildlife Act specifically makes it an offence to interfere with the nest of eagles.
Adam Stirling [00:11:31] huh.
Michael T. Mulligan [00:11:31] So don’t bother the eagle’s nest. You’ve got to stay back. And so, the UBC applied for a permit to allow them to put a cone on the nest temporarily to deter the Eagles from nesting in it. And indeed, they then built an alternative Eagles nest for the Eagles. So, they constructed other housing for the Eagles nearby outside of the zone, so they didn’t bother them.
Adam Stirling [00:11:58] hmm.
Michael T. Mulligan [00:11:58] And they got their permit and they put up their cone. But I should say the nest they built was apparently nice now. So, the Eagles used it in 2020. And having not succeeded in having chicks for a few years in the old nest. It worked out. They were successful.
Adam Stirling [00:12:14] Wow.
Michael T. Mulligan [00:12:15] So good for the Eagles.
Adam Stirling [00:12:16] Yeah.
Michael T. Mulligan [00:12:17] So the developer must have built them a nice nest. But all of this resulted in a person who lived nearby starting a campaign to not allow the cone.
Adam Stirling [00:12:27] on no.
Michael T. Mulligan [00:12:28] On the original eagle’s nest. And there were some public and there were stories in the paper and media reports about it and all of this. And then ultimately, the person at the time who was the neighbour, Ryan, I take it he is male. Ryan. He applied for funding through West Coast environmental law and got funding. So now there’s a legal help funded to oppose the cone. And so an application was brought in court arguing that the cone permit shouldn’t have been issued by this point, the Eagles, they happily apparently have another nest. They moved down to Pacific Spirit Park in 2022. So, after succeeding in the constructed nest, they went back to the park and the cone went up. But on the litigation now, when somebody wants to litigate thing, that’s things. Not everyone is permitted to show up in court and complain about anything they don’t like. There is a concept that you have to have standing in order to challenge something, right?
Adam Stirling [00:13:32] hmm.
Michael T. Mulligan [00:13:32] You can’t just randomly sue anyone for any purpose for matters that don’t concern you.
Adam Stirling [00:13:36] Oh, I see.
Michael T. Mulligan [00:13:37] And one of the, and so the courts have developed this concept of sort of when somebody should get standing. And one of the purposes of that is to screen out what they describe as busybody litigants. Right. So, you want people to have a, you know, an interest in something, not just anyone who likes to make waves going to court. And so that’s the form in which this thing showed up for the hearing. And the first part, sorry the other thing which happened in the intervening period of time is the person who started all of this opposition to the cone moved away. And it appears that their interest in the cone diminished, having moved away from the development and the cone. And so, the court then had to apply the test for when do you grant public interest standing and should this person, the previous neighbour who oppose the cone, should they be able to carry on with the help of the funding from this environmental legal organization? And so the first issue is that a judge has to think about is whether there’s a serious issue to be decided. Right. About whether in this case, the permit was properly issued, and the judge found the yeah, there was a meaningful legal issue there to be decided. And the issue was essentially whether the lieutenant governor and council could properly delegate authority to a wildlife expert to make the decision about the cone. That’s, that’s what that amounted to. So, yeah, there was a legal issue. The challenge here, the second part of the test, is does the person have a genuine interest in what’s going on here? Because the other problem is you don’t want somebody starting some litigation on an important topic and then having just lost interest and doing a poor job of it, nor do we want people that are just kind of busybodies. And on that front, it was a bit of a struggle because the person, presumably after they moved away from the development, seemed to lose a lot of interest in it and were not signing letters or doing anything else. And the judge described it as a person who had minimal continuing, genuine interest in the nest or the permit after they moved away. I found that there’s little evidence that the petitioner had any continuing interest or engagement with the nest and provided no evidence of any steps that she had taken with respect to the nest other than this litigation.
Adam Stirling [00:15:54] hmm.
Michael T. Mulligan [00:15:54] so that one was scraping the bottom of the barrel. But the final part of the test, do they all have to be thought about together? Is there any other reasonable and effective method that the legal issues if it’s an important one can be decided? Right. And the judge found on that ground, there really wasn’t nobody else was lining up to advocate for the removing of the cone and so on that test for standing, even though the person was just barely above water on the having any continued interest in the cone. Yeah, fair enough, perhaps there were other motivations involved there, with somebody who’s living next to the cone and, you know, maybe other intervening factors, like the Eagles apparently have at least a couple of other nest options that seem to be doing fine. Maybe that played a role in it. But the judge felt that this discretionary and even though that second factor, the genuine interest was really weak, the other two mitigated in favour of allowing this litigation to continue. And so then on the judge went to analyze the substantive issue about whether there was some improper delegation of the power to issue the permit to put the cone up. And on that basis, the on the merits of it, the judge concluded that Cabinet had properly provided guidance to the regional manager in terms of how to exercise the cone discretion and so that the delegation was not an improper sub delegation of authority to grant the permit to put up the cone. And so, the outcome of all of that is that the cone could stay, the Eagles could enjoy, for the moment their temporary, and apparently a successful nest or the other one in the park. And then once this housing development gets finished, they’ll be able to take the cone off. And if they so desire, go back to this nest or either of the other two that are available. But through all of that, I must say, you know, we’re talked about sort of an emergency and not enough housing. And you can easily imagine how this sort of thing might slow that down. And so,
Adam Stirling [00:18:00] Yeah.
Michael T. Mulligan [00:18:01] Here it is. We have a decision. The cone was lawful and sounds like the Eagles are doing well. They just have to watch out for the vacancy tax on the other two nests that were left behind.
Adam Stirling [00:18:11] Oh yeah. We have four minutes left. And the province of Alberta, it says here, fires dysfunctional city councilors. Help us understand this.
Michael T. Mulligan [00:18:21] Yeah, we mentioned this sort of in passing a show or two ago about sort of who ultimately bears responsibility and by what mechanism could a city councilor or councilors be removed? That was a live issue in terms of Victoria City Councilor Kim.
Adam Stirling [00:18:41] hmm.
Michael T. Mulligan [00:18:41] And there’s also of course you know, let’s talk about other dysfunction in other municipalities. And I mentioned that the legislature, provincial legislature would have authority to remove any of those people at any time. And this was an example of that kind of power being exercised just last week in Alberta. And so, this was a case where there was a city council, I think it was near Calgary, and there was dysfunction and rancour and so on going on. And there the legislation which they have in place already in Alberta allowed the minister in charge provincially to just dismiss all those people. And so, they did that. And so, they’re no longer the mayor and the city councilors are just gone. And it’s important to remember that all of the authority that city councilors are mayors, local governments have, all of it is entirely delegated by the province. Right. We have Local Government Act and it’s a special act with respect to Vancouver and what’s going on with all of these local governments is all of the powers are exercising are entirely provided to them by the provincial government that’s really derive all of their authority. And one of the corollaries of that is that the existence of any of these municipalities and the continued service of any of these councilors, mayors, or anyone else. Is entirely a function of the benevolence of the provincial legislature. Right. And so, if there is dysfunction or inappropriate behaviour or incompetence or any of that going on, there should be no lack of clarity in terms of how that, and who, is permitting that to continue. It is the provincial government, the province.
Adam Stirling [00:20:36] Yes.
Michael T. Mulligan [00:20:36] Anyone could or introduce a piece of legislation. It could be the, you know, John Doe Council or Removal Act. And if that passes in the legislature, John Doe is no longer a councilor. And if you wish to, if the legislature wishes to pass legislation amalgamating things, removing municipalities, reorganizing them, firing the mayor, firing the councilor, reversing any bylaw, anything essentially, they want to do, they are entirely free to do that. There is no independent authority that any of those councilors, mayors, or anyone else has. And so, people should know that where there is dysfunction an issue about, well, who bears responsibility for this, what can we do? Can we do nothing? Some people are wringing their hands. What do you do if a municipality is just completely dysfunctional or can’t operate or people engage or councilors or mayors or others engage in outrageous and offensive conduct? There’s a clear line of authority, and when it’s not exercised, it’s tacit approval for what’s going on.
Adam Stirling [00:21:44] hmm.
Michael T. Mulligan [00:21:44] And if there’s a view that what’s going on is not appropriate or they’re dysfunctional, ineffective, or just engaged in inappropriate behaviour, there is a clear legal mechanism whereby any or all of them could be removed or replaced at any time. And so that’s where the line of authority, that’s where the buck stops. It stops at the provincial legislature. That’s where it stops. And so, when you have somebody who’s engaged as a councilor, outrageous or inappropriate behaviour or an entirely dysfunctional council, the majority of the provincial legislature can’t avoid responsibility by looking the other way and whistling. It’s up to them. They’re the ones who have delegated the authority to these people to carry on. And so people should know that. And who ultimately bears supervisory responsibility, it is the provincial legislature.
Adam Stirling [00:22:34] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, during the second half of our second hour every Thursday. Pleasure, as always. Until next week.
Michael T. Mulligan [00:22:41] Thank you so much. Have a great day.
Automatically Transcribed on December 8, 2023 – MULLIGAN DEFENCE LAWYERS