Public Health Act enforcement, duty of honest performance, and a solitary confinement class action


This week on Legally Speaking with Michael Mulligan:

Provisions of the British Columbia Public Health Act allow for the enforcement of public health orders by means other than the imposition of fines.

If someone is refusing to comply with an order to remain in quarantine or isolation, a judge can issue a warrant for their arrest and to require that they remain detained in a location and on conditions determined by the judge. When someone is arrested pursuant to such an order there is provision for the detention to be reviewed by a judge as soon as reasonably possible, but no later than 7 days from the start of the detention.

Section 114 of the Public Health Act also allows for the provincial government to make regulations that would require people to participate in preventive measures, such as receiving a vaccine or to prohibit people who have not taken a preventive measure from entering a place, working with a class of people, or in a class of occupations.

While the provincial government has indicated that it does not plan to require vaccinations, it would not be surprising if people who chose not to be vaccinated would not be permitted to work at or attend, places where people at high risk from COVID-19 are such as hospitals or long-term care homes.

Also on the show: a recent case from the Supreme Court of Canada has expanded the concept of the “duty of honest performance” with respect to contracts.

The case involved a small property maintenance company in Ontario that had a contract to perform winter maintenance for a condominium complex. The contract said that it could be cancelled with 10-days of notice. Despite this, members of the condominium complex knowing mislead the owner of the maintenance company suggesting that the contract would be continued.

The Supreme Court of Canada concluded that, while there was no obligation to give more than 10-days of notice, intentionally misleading a party to the contract was not permitted by the duty of honest performance. In reaching this conclusion the majority of the Supreme Court of Canada considered the civil law abuse of rights framework and used this to inform their analysis of the common law duty of honest performance.

Finally, on the show, a class action was certified against the Province of British Columbia for harm caused by keeping inmates in solitary confinement.

Two groups of imamates were included: those who were kept in solitary confinement for at least fifteen consecutive days, and those who suffered from mental illness and were placed in solitary confinement.

An argument by the Province of British Columbia that provincial jails don’t have “solitary confinement”, but rather “separate confinement” or “segregation” was not accepted by the court.

Legally Speaking is live on CFAX 1070 every Thursday at 10:30.


An automated transcript of the show:


Legally Speaking Dec 24, 2020

Adam Stirling [00:00:00] Well, we’ve had a lot of questions about public health orders and COVID-19 lately, Legally Speaking, here on CFAX 1070, is where we discuss and benefit from the analysis and insight of Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. I want to say Merry Christmas Eve and a good morning to Michael Mulligan. As always, how are you doing?

Michael T. Mulligan [00:00:17] I’m doing great. Thanks so much for having me. I’m happy to be healthy and not in breach of the Public Health Act.

Adam Stirling [00:00:23] Absolutely. But what would happen hypothetically if a person did find themselves in breach of the Public Health Act? We got fines; what sort of legal authority exists to prevent people from breaching these orders?

Michael T. Mulligan [00:00:34] Yeah, that’s a good question. I was, it caused me to think about it the other day as I drove past the health building downtown, and there was a group of people without masks on outside protesting the fact that people are required to wear masks in some circumstances.

Adam Stirling [00:00:50] Yes.

Michael T. Mulligan [00:00:51] Happily, the group of protesters was outnumbered by the number of signs they had, which is usually a sign that a protest of that sort is not exactly catching fire, which is, I think, good news for the rest of us.

Adam Stirling [00:01:03] Indeed.

Michael T. Mulligan [00:01:04] So the Public Health Act has a number of provisions that allow for enforcement of orders that go beyond the issuing of fines, which is what’s been the principal approach to this point. There is a general provision in Section 48 of the Public Health Act that would allow an application in Supreme Court for there to be an injunction or interim or final injunction issued by the Supreme Court to require compliance with a public health order. That might have some application. For example, there have been a number of churches, both I think one in Victoria, and a few over in the Fraser Valley, who which have repeatedly refused to abide by public health orders, and which have insisted upon having in-person services rather than doing them online. And so that might be an example of where that kind of an injunction would be necessary to stop repeated intentional breaches of health orders that put people in jeopardy. If such an injunction was granted by the Supreme Court and there was a continued refusal to comply, it would turn into a contempt circumstance where there could be prosecutions for that. There are also provisions in the Public Health Act Section 49, which is a section that would permit an application to be made by a medical health officer with the approval of the public health officer, Bonnie Henry.

Adam Stirling [00:02:46] Mhmm.

Michael T. Mulligan [00:02:46] To a provincial court judge, if there was a circumstance where the judge could be satisfied that a person was failing to remain in a place or not enter a place in contravention of a medical health order.

Adam Stirling [00:03:02] mhmm.

Michael T. Mulligan [00:03:02] An example of that might be, for example, the requirement that somebody self-isolate for 14 days if they were travelling internationally, right?

Adam Stirling [00:03:11] Yes.

Michael T. Mulligan [00:03:12] And so the way Section 49 would operate is that the provincial court judge would need to be satisfied that there is a danger to public health if a person is not detained and there’s a contravention of a medical health order. And if a judge were so satisfied, they would be able to issue a warrant to authorize the apprehension of the person and then to direct that they be transported to a place specified by the judge.

Adam Stirling [00:03:51] mhmm.

Michael T. Mulligan [00:03:52] And there would then be the section of the act provides for a review mechanism. Somebody is then arrested pursuant to that kind of a warrant and transported to a hotel or some other place where they would be required to isolate there would then have to be an application made as soon as possible, but in any case, within 7 days to determine whether the person should be continued to be detained in that location. So, we do have a, we do have a legal regime in place which would, both, allow for general orders at junctions from the Supreme Court to ensure compliance and we have that specific provision which would deal with the issue of somebody who’s refusing to self-isolate, for example, following travel.

Adam Stirling [00:04:38] yes.

Michael T. Mulligan [00:04:38] Or somebody who was diagnosed and was refusing to remain in quarantine and going out and potentially infecting others. There is a legal authority to deal with that under the act. Happily, I should say, and I think this is one of the reasons why we’ve had better success than in other places.

Adam Stirling [00:05:01] Yes,.

Michael T. Mulligan [00:05:01] I think there is just a greater desire to sort of act in a way that is of assistance to your community, and maybe that’s a function of, you know, on Vancouver Island, we are a smaller community than some other places. Right.

Adam Stirling [00:05:16] mhmm.

Michael T. Mulligan [00:05:16] And so, you know, the approach which has generally been taken, although there have certainly been fines issued, where there are repeated breaches, you know, we’ve relied essentially on goodwill of people to, you know, not to do things which endanger others.

Adam Stirling [00:05:32] Indeed.

Michael T. Mulligan [00:05:33] And, you know, really, at the end of the day, we can’t jail everyone. There has to be broad public acceptance and compliance with those kind of orders and restrictions.

Adam Stirling [00:05:43] Yes

Michael T. Mulligan [00:05:44] And we’ve happily we’ve seen that here. And that’s why, you know, Vancouver Island doesn’t look like many parts of California, for example, right.

Adam Stirling [00:05:53] indeed.

Michael T. Mulligan [00:05:53] Where there is a huge number of people in their hospitals or, you know, full and that kind of thing, a horrific circumstance. So, there are these legal provisions, but happily, we haven’t had to use them. Another thing to mention, and this is, I think, sort of been a topic of discussion in the context of the vaccines becoming approved.

Adam Stirling [00:06:14] Mhmm

Michael T. Mulligan [00:06:15] There’s no indication that the provincial government plans to use this legal authority. But people should know that there is legal authority in the Public Health Act, and it set out in Section 114 that would allow regulations to be passed by the government right.

Adam Stirling [00:06:32] yes.

Michael T. Mulligan [00:06:33] Which would require, amongst other things, a person to take a preventative measure. So, you could actually have an order that somebody or more people generally get vaccinated. That would be permitted, although no indication that the government plans to do it. It’s just mentioning that there is legal authority to require that in the existing legislation. There’s also in the existing legislation authority in Section 114(d), which would allow regulations to be passed by the government, which would place restrictions or prohibitions on people who have not taken preventative measures, so have not gotten themselves vaccinated, for example, once that’s available.

Adam Stirling [00:07:15] Yeah.

Michael T. Mulligan [00:07:15] Which would do things including restricting their people’s ability to have not taken those kind of measures to enter a place, work with a class of people or in a class of occupation.

Adam Stirling [00:07:27] Interesting.

Michael T. Mulligan [00:07:27] So you could imagine that, for example, let’s say people who were going to be employees in long term care homes.

Adam Stirling [00:07:35] Yes,.

[00:07:35] Right. You could easily imagine saying, look, there’s just such a grave risk if people that are living there become infected. We’re not going to permit somebody who hasn’t taken a preventative measure to work there. Or you can imagine other restrictions where there could be people put it particular jeopardy or where there might be a higher risk of transmission or infection. So maybe other health care workers that something that could be considered, or you can even imagine things like where there are people would be put in a confined space it might be more likely to transmit disease. There is authority to place restrictions on people doing particular kinds of jobs or working with certain, you know, vulnerable people, for example, if they haven’t chosen to take measures to protect themselves.

Adam Stirling [00:08:28] Michael Mulligan with Mulligan Defence Lawyers as we continue with, Legally Speaking, during the second half of our second hour on a Thursday, Christmas Eve, live and serving you as we always do. We’ll take a quick break and continue our conversation coming up in just a moment. Stay with us.

[00:08:42] COMMERCIAL.

Adam Stirling [00:08:42] Back on the air here at CFAX 1070 as we continue our conversation with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking, on CFAX 1070. Now that we have carefully reviewed Section 114 of the Public Health Act, Michael, is there anything else on this matter upon which we would like to touch before moving on?

Michael T. Mulligan [00:09:01] No, I suppose other than I’ll be keeping my eyes peeled for the anemic group of no mask protesters to be showing up and protesting that section as well. So, keep your eyes peeled outside the public health building in Victoria.

Adam Stirling [00:09:16] Absolutely. Just as long as there’s no covid this spread, I suppose throwing gasoline on a rock doesn’t do any harm. It’s when one throws gasoline on an ember or a spark that things get rough. So as long as we keep covid out of our community will be safe. I worry about what happens if it becomes more prevalent, though.

Michael T. Mulligan [00:09:32] no, we’ve been very fortunate here. A lot of places are in much tougher shape than we are in. And that’s, I think, a function of the really difficult and hard work everyone’s been doing to keep their keep their neighbours safe.

Adam Stirling [00:09:46] Also on the docket this week, we talk from time to time about duty. Now on the plain ordinary sense, the word duty might mean something different than a legal duty, a duty that someone has I’m seeing here. What is a duty of honest performance? And how does it relate to a new Supreme Court of Canada case?

Michael T. Mulligan [00:10:03] Yeah, I think this maybe this could be summed up as the principle you would have hoped you would have learnt in kindergarten. But I guess they didn’t sink in for everyone. And we’ve, we’ve seen as a result a development that’s been occurring over the past few years from the Supreme Court of Canada, which has to do with how people are required to behave in the context of a contract they have with someone else. And one school of thought would be, well, look, you know, a contract specifies exactly what somebody must do, and I must do exactly that. Let’s read the fine print here and find out what I must do. But one of the trends which has been apparent in this case is the latest there’s a recent case, which is the latest example of that. It’s a case out of Ontario that involved a contract to clean snow and do other winter maintenance for a condo building. And in that context, the Supreme Court of Canada dealt with that concept of the duty of honest performance. Now, the fact pattern here is that the plaintiff, Mr. Callow, had a small property maintenance business and he had a contract with a condo strata council to do maintenance work to the winter contract was for clearing away snow and other activity like that. And then he would also get a contract in the summer to do other work on the building. Now, the contract specified, that winter maintenance contract, said that the condo company, the condo strata council, would be able to cancel the contract on 10 days’ notice. So, if you read the thing over is, okay, very good, 10 days’ notice, that’s what they can do. What happened, though, is that there was, I guess, some member of the condo had some complaint about the way the snow was cleared. They had a meeting with Mr. Callow, he thought it went well and addressed the concern. But without telling him, the strata corporation decided that they were going to cancel his contract the following year but didn’t tell him. In fact, they strung him along, suggesting that the contract would be renewed and that they were happy with his service. He went the extra mile over the summer to do extra work and then on 10 days’ notice, told him right before the following winter season, sorry, your contract is cancelled.

Adam Stirling [00:12:35] ohm.

Michael T. Mulligan [00:12:35] And so he sued.

Adam Stirling [00:12:36] Yes.

Michael T. Mulligan [00:12:36] And, you know, on one level, the condo, condo, and council would have looked at that and said, well, look, it says right here, 10 days’ notice, right?

Adam Stirling [00:12:45] Yes.

[00:12:46] But the argument made, which ultimately was accepted by the Supreme Court of Canada, is that there is an obligation to do more than simply follow the words that are written in the contract.

Adam Stirling [00:13:00] Hmm

Michael T. Mulligan [00:13:00] And it comes down to that that concept you mentioned, which was the duty of honest performance.

Adam Stirling [00:13:05] Yes.

Michael T. Mulligan [00:13:06] And the Supreme Court of Canada as a majority, concluded that there is this duty, which means that people who make contracts with each other can’t do things like lie or mislead one another with respect to how they’re going to perform in terms of the obligations of the contract. And the Supreme Court of Canada said, look, you know, that doesn’t mean that a person has to sacrifice their own interests, and it doesn’t mean that you would have to do more necessarily than what’s listed in the contract. But it does mean that you cannot do things like mislead somebody else about how you’re intending to behave. And the Supreme Court of Canada in coming to the conclusion that contracts require this duty of honest performance and that that can mean things like, you know, a person can’t engage in; they described it as things like lies, half-truths, omissions, or even in some cases remaining silent about what they’re going to do.

Adam Stirling [00:14:07] mhmm.

Michael T. Mulligan [00:14:07] You need to not behave in that fashion.

Adam Stirling [00:14:09] Yes.

Michael T. Mulligan [00:14:10] And one of the interesting things that informed this case is that you know, in Canada, we’ve got two different systems for dealing with civil law. We’ve got, you know, contracts and so on for all of the for Canada other than Quebec, we’ve got the common law system and in Quebec, they’ve got the civil law system.

Adam Stirling [00:14:31] Yes.

Michael T. Mulligan [00:14:31] And one of the things which the majority of the judges in the Supreme Court of Canada did in this case is that they when interpreting what that sort of concept of you know, honest performance of a contract should mean. They looked at they were informed by this concept of abuse of rights, which is a commitment, which was a framework concept which exists in the civil law.

Adam Stirling [00:14:58] Interesting.

Michael T. Mulligan [00:14:59] And they found that, you know, what they were doing was not applying the civil law to the common law, they’re different systems that are distinct.

Adam Stirling [00:15:07] Yes.

Michael T. Mulligan [00:15:07] But found that that was helpful and informative when deciding, you know, how broad should that this duty of honest performance be as part of the common law, which is what we’ve got in B.C. and most of Canada.

Adam Stirling [00:15:19] Yes.

Michael T. Mulligan [00:15:20] And so that’s in part how they came to this conclusion, which is an interesting thing. You know, it’s I think probably a positive thing allowing some cross pollination of good ideas from those two legal traditions.

Adam Stirling [00:15:34] Yes.

Michael T. Mulligan [00:15:35] And the takeaway for people is really act in an honest fashion, right? Don’t mislead somebody or be too sharp in your dealings where you have a contract with somebody.

Adam Stirling [00:15:48] Yeah.

Michael T. Mulligan [00:15:49] It doesn’t mean that you’re going to sacrifice your own interests. Right. But it does mean that you can’t be acting in a way that’s, you know, designed to, you know, telling half-truths and.

Adam Stirling [00:15:59] to trick people.

Michael T. Mulligan [00:15:59] Yeah. Stringing them along. Oh, yes. Oh, yes. We’re going to renew your contract. You’re you know,.

Adam Stirling [00:16:04] yeah.

Michael T. Mulligan [00:16:04] You’re doing a great job of my job. Oh, by the way, here’s your ten days’ notice. You’re done. Right.

Adam Stirling [00:16:08] I see

Michael T. Mulligan [00:16:09] And so maybe there’s a good Christmas theme there. And perhaps we all should have learnt that in in kindergarten, but we all apparently have not. And so, you’ve now got this principal from the Supreme Court of Canada. So, act in a decent and reasonable fashion when you’re engaged in a contractual relationship with somebody. That’s really what that stands for.

Adam Stirling [00:16:31] Always a good thing.

Michael T. Mulligan [00:16:32] A Christmas scene.

Adam Stirling [00:16:32] Yes. All right. And we’ve got I think we have a class action against the province of British Columbia for the practice of holding people in solitary confinement. Says here it’s certified. What does that mean again when the class action gets certified?

Michael T. Mulligan [00:16:45] Yeah, what that means is that a class action isn’t just a matter of always a big case or something of that sort. If you wish to start a class action, there is a test for that and a process to do that. And one of the early steps in a proposed class action is an application to a judge to certify the class action, which is to mean have a judge determine that the claim is an appropriate claim to be a class action, right?

Adam Stirling [00:17:15] Yes.

Michael T. Mulligan [00:17:16] And that would include a number of elements. Right. The judge would have to be satisfied that there is a reasonable you know, there is a cause of action disclosed by the pleadings, right?

Adam Stirling [00:17:24] Yes.

Michael T. Mulligan [00:17:24] That there would be, you know, an identifiable group of two or more people and then some more controversial things like, you know, are there common issues? Right. You don’t want a class action where every class member is completely different. We’re not saving any time there. Right. Maybe some common issues. And then there’s some assessment as to whether a class action would be the preferable procedure to deal with the particular kind of claim. And then there’s an assessment as to whether the proposed representative plaintiff, they call them, the person sort of starting it.

Adam Stirling [00:17:56] mhmm.

Michael T. Mulligan [00:17:56] is an appropriate representative for it. And there’s some elements to that. And so, this was an application, or this was a claim, proposed claim against the province of British Columbia. And it was brought by a woman who had been put into solitary confinement for an extended period of time.

Adam Stirling [00:18:17] Yes.

Michael T. Mulligan [00:18:18] It was somebody who suffered from mental illness and that made it more difficult for her. According to the claim, she had spent 7 consecutive months in segregation and then put in medical observation where she was alone for 23 hours a day for another 16 months. And so, she was the claim is a claim that that breached fiduciary duty, obligation on behalf of the province, that it amounted to negligence and also breached various charter rights.

Adam Stirling [00:18:52] Yes,.

Michael T. Mulligan [00:18:53] I must say, I smiled a little bit watching her reading the way in which the province was resisting the effort to have this certified as a class action. They were spending some time dealing with that first element, which is, you know, do these pleadings show that there is a cause of action here, like a reason to sue somebody.

Adam Stirling [00:19:12] mhmm.

Michael T. Mulligan [00:19:13] and one of the things that they obviously spent some time on was claiming that the province of British Columbia did not have solitary confinement in the provincial correctional system.

Adam Stirling [00:19:27] hmm.

Michael T. Mulligan [00:19:27] And instead they said, well, they had the province, and its correctional system did not have a classification that meets the definition of solitary confinement.

Adam Stirling [00:19:35] Interesting

Michael T. Mulligan [00:19:36] And they said, well, we haven’t said separate confinement(laughter). Well, you know,.

Adam Stirling [00:19:43] You’re not solitary. You’re separate.

Michael T. Mulligan [00:19:45] You’re separate, very different. So, you know, oh, I just have the picture of this poor woman with mental health difficulties sitting by herself for 24 hour. Don’t worry, it’s not solitary. It’s separate.

Adam Stirling [00:19:57] I just. Yeah, well. I can just imagine the restraint that must be exercised by members of the judiciary at times when considering some of these arguments, but yeah, yeah,.

Michael T. Mulligan [00:20:08] I know it nonetheless is very carefully reasoned.

Adam Stirling [00:20:11] Oh, yeah.

Michael T. Mulligan [00:20:11] But, you know. Yes. Let’s look at what separate confinement is. Right. And how is it different from solitary confinement. (laugher).

Adam Stirling [00:20:19] you get that raised eyebrow from the bench. It’s never good.

Michael T. Mulligan [00:20:23] No (laugher), really Mr. Mulligan?

Michael T. Mulligan [00:20:26] And so the judge at the end of the day went through that the analysis that’s required and has certified this claim now as a class action. And so, what that means is that that person who brought the claim, the woman who spent that time in solitary, well, separate confinement.

Adam Stirling [00:20:44] Yes.

Michael T. Mulligan [00:20:45] Will be the representative plaintiff. And there will be, ultimately expect a trial and the decision then would have the impact on people who were in the class as defined by the judge in the certification process. So as part of the certification application, the judge would be defining things like, you know, how would the class be described? You know, who would the potential class members, be that kind of thing? And here it dealt with people who spent at least 15 consecutive days. They described as prolonged solitary confinement or a second group of people which were described as solitary confinement of people with mental health disorders.

Adam Stirling [00:21:29] Mhmm, yes

Michael T. Mulligan [00:21:30] And so they’ve got these two groups. I must say one of the other things that caused me to shake my head, along with the separate confinement argument, the province also made an argument that the province shouldn’t be responsible for the mental health category of people because inmates health records, including mental health diagnosis, are kept separate from correctional records. And correctional officers have no access to them, which seems like a ponderous state of affairs.

Adam Stirling [00:21:59] Indeed

Michael T. Mulligan [00:21:59] The people deciding whether to put you into separate confinement would have no access to information about your mental health condition. That might indicate that was going to be harmful to you.

Adam Stirling [00:22:09] Yeah

Michael T. Mulligan [00:22:09] But there is the defence and, you know, hopefully the outcome of these things will be more humane treatment. That doesn’t cause people who already have major challenges to have one more.

Adam Stirling [00:22:24] Yeah, Michael Mulligan, we’re all out of time. Thank you, as always. Merry Christmas Eve to you. We look forward to many more conversations in future.

Michael T. Mulligan [00:22:30] Yes. Merry Christmas and stay safe.

Adam Stirling [00:22:31] All right. Michael Mulligan during the second half of our second hour every Thursday, including Christmas Eve right here on CFAX1070, Legally Speaking.

Automatically Transcribed on December 24, 2020 – MULLIGAN DEFENCE LAWYERS