Vancouver Island, population 870,000, only has 2 people in hospital with COVID-19, as of May 7, and a total of 18 people who have been identified with the virus, who have not recovered, according to the BC Centre for Disease Control.
If the number of people with COVID-19 reaches zero on Vancouver Island, consideration would also need to be given as to how such a state of affairs could be maintained. The number of infections in other areas of BC is greater than those on Vancouver Island.
Section 15 of the Public Health Act has a general provision that applies at all times: A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.
Also discussed is the BC Provincial Court etiquette guide for people appearing by video link for hearings in court. Tips include not eating or drinking anything but water, not needing to stand up or bow for video appearances, and to dress appropriately. The Provincial Court dress guidelines include not wearing hats, short shorts or muscle shirts and wearing shoes. Essentially, people should dress like they were planning to attend a job interview and not the beach.
In other legal news, the Court of Appeal upholds a jury verdict that found the City of Burnaby to be 29% responsible for the burns suffered by a woman when a tenant of the house owned by the city threw a bucket of used motor oil on a fire, causing an explosion. The fire department had previously been called to the house for an out of control fire, with flames 20 feet high, and nothing had been done to remove the unlawfully installed fire pit.
The fire pit was described by the Court of Appeal as a tire rim “affixed to the ground by gravity”.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
An automated transcript of the show:
Legally Speaking May 7, 2020
Adam Stirling [00:00:00] It’s time for Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, as we review interesting cases and developments in legal affairs over the last week. Michael, good morning. Thank you for being here.
Michael T. Mulligan [00:00:11] Good morning. Thanks very much for having me.
Adam Stirling [00:00:13] Some interesting questions today. I get started with the question of when a city could be liable for burns suffered when someone throws, does this say, motor oil on a fire?
Michael T. Mulligan [00:00:23] Indeed, motor oil on fire.
Adam Stirling [00:00:27] Alright, let’s set this one up.
Michael T. Mulligan [00:00:28] You would think that a reasonable person would realize that throwing motor oil on a fire might be a terrible idea. And indeed, it was. The background here is there is a couple who rented a home from the city, Burnaby, and they had rented the home there for some time, back and started back in 2005. After a couple of years, they decided to install, what was described as a, fire pit, in the, sounds like the backyard of the house. And I thought it was a fantastic description by the Court of Appeal of how this was done. The fire pit apparently involved a used tire rim, which the Court of Appeal described as the fire pit was affixed to the ground by gravity.
Adam Stirling [00:01:15] So as most things are,
Michael T. Mulligan [00:01:17] As most things are so similar if they threw a tire rim in the backyard and commenced having regular fires. Now back in, this is important, back in 2008, they apparently had a completely out of control fire with flames shooting 20 feet in the air producing neighbour complaints. The Burnaby, the fire department from the city showing up and having to douse the fire. However, the city didn’t do anything else. They just put out the fire. There was a complaint about it. They continue to have fires in the tire rim affixed to the ground by gravity. And then sadly, in 2014, it sounds like there was a sort of party in the back yard of the bunch of people sitting around the fire pit, and the husband, Mr. Bottomley, of the couple who rented the home, without warning, went over and picked up a bucket of used motor oil and threw it onto the fire, which not surprisingly, I think to most people, exploded and shot out flaming motor oil over all manner of people, including most unfortunate guests to this gathering in the backyard. The guests tried to roll around on the ground to put out the flaming motor oil that exploded, but very sadly for her, she became entangled in a goalie net, according to the reasons and suffered very serious burns.
Adam Stirling [00:02:41] That’s a terrible, terrible image that comes to one’s mind describing that.
Michael T. Mulligan [00:02:46] Yes. And the terrible Canadian image, if I might say.
Adam Stirling [00:02:49] Indeed.
Michael T. Mulligan [00:02:49] Now, So the poor person who was tangled in the goalie net and badly burned sued both the Bottomley’s and as well, the city of Burnaby. And the theory and the suing the city of Burnaby was, hey, you had some duty here to prevent this hazard, right. It was your home owned by the city of Burnaby, rented to these people. The city of Burnaby Fire Department had to show up on a previous occasion for an enormous out of control fire. There’d been more than one complaint, but the city did nothing to stop them or take away the rim of affixed by gravity to the ground, and so these fires kept going on until this incident happened. And so, the original trial was a jury trial, and the jury divided up the responsibility for this tragic accident. In the following way, the jury found that Mr. Bottomley, the guy who thought it was a great idea to throw material on the fire, was 66% responsible. Mrs. Bottomley was 5% on the hook, and the city for not doing having done anything was 29% responsible. That was the jury’s finding. No. The city appealed, saying, hey, you know, we shouldn’t have been found to be responsible here. And as well, sounds like Mr. Bottomley appealed. Mr. Bottomley, the argument one of them was that it was not reasonably foreseeable that throwing material on a fire would cause this kind of problem. The Court of Appeal didn’t have too much trouble dismissing that suggestion, concluding that a reasonable person would know that motor oil is flammable and gives off fumes and that pouring it on a fire would create a significant risk. But they also found that the jury hadn’t made any error in finding that the city was partially to blame for not having done anything over many years despite having been advised of the risk. And here’s why this, I think this is important to the principal for people.
Adam Stirling [00:04:49] mmhmm.
Michael T. Mulligan [00:04:49] And it’s something the jury wouldn’t be told. But this is how it works. If there are multiple people who are together responsible for an accident, all doing something careless, which caused an accident to happen. Which is what the jury found here.
Adam Stirling [00:05:04] mmhmm.
Michael T. Mulligan [00:05:04] As long as the person who’s suing wasn’t themselves partially to blame as well. And they found that this person wasn’t partially to blame, she was just sitting there with no warning, this person threw the material on the fire. Then the person who’s injured can collect damages from any of the people who are responsible. And it’s up to them to sort it out between themselves. You know, who should have to pay each other back. And so, here’s how this probably played out. This is the subtext for it.
Adam Stirling [00:05:34] Mmhmm
Michael T. Mulligan [00:05:35] The Bottomley’s were 66% and 5% respectively responsible for the injury caused to this person the city 29%. But and the person who was injured, not responsible at all. Now the city is going to have money. The Bottomley’s may have none.
Adam Stirling [00:05:52] Yes.
Michael T. Mulligan [00:05:52] What this will mean is that the injured person can collect all of the money from the city for her injuries, and then the city will have to go after the Bottomley’s used to try and recover the 66% and 5% that each of them would be responsible for. And the legal theory underlying that would be, well, look, if somebody is to be short changed, right, because, you know, there’s no money to pay a claim, for example, better it be somebody who is, you know, partially responsible as opposed to the injured person who’s not responsible at all. Right. And so, the idea, the policy underlying that proposition is that you can collect it from any of the people who are responsible is really premised on that. So, I think that’s an important takeaway for people. And there’s also, I think, a lesson in this for individuals, other than cities, who might be landlords.
Adam Stirling [00:06:41] Yes.
Michael T. Mulligan [00:06:41] And if you have units who you know to be engaging in dangerous activity on your property, you can’t just, you know, turn a blind eye to it and hope nothing comes of it. You know, I think this result would have been the same result if you had a private landlord who was aware of the same sort of dangerous, you know, fires out of control in the back yard.
Adam Stirling [00:07:00] Yes.
Michael T. Mulligan [00:07:00] You can’t just say, well, you know, that’s my tenant and hope for the best. You may find yourself at least partially on the hook. And if your tenants don’t have any money to pay for the damage they cause, you might wind up paying for it.
Adam Stirling [00:07:13] So I find that fascinating. Is there a minimum Quantum that must be established? For example, if we imagine a scenario where another party was, say, added to a civil action if found to be one% responsible, and yet they’re the one with the deep pockets. Could they end up paying for all of it because of that?
Michael T. Mulligan [00:07:28] Indeed they could.
Adam Stirling [00:07:28] Wow.
Michael T. Mulligan [00:07:29] And they would have to go after the other person who was 99% responsible for it. However, if the person who’s injured. Right. If that person was partially responsible, right. Then that wouldn’t apply. And then you can only collect from each person the amount that they were, in fact, liable for. So, the fact that the injured person wasn’t on the hook here, it wasn’t negligent at all. Ultimately, it’s going to be very important. And I think probably the net result here is going to be the City of Burnaby is likely to pay for the very serious injuries suffered by the woman who became entangled in the goalie net. And good luck to the City of Burnaby trying to collect the money from the Bottomley’s who, you know, probably said something that they are, you know, throwing a tire in their backyard and pouring used mortar motor oil on it with large groups of people around it, claiming that who would know that that would be dangerous. So that’s really the practical outcome here. But I think that is an important lesson for somebody. If you’re renting a property and you know that your tenants are doing something dangerous in it. Don’t just ignore it. You may at least partially be on the hook for it.
Adam Stirling [00:08:36] Indeed. Let’s say our first break Michael Mulligan will continue offering us the benefit of his analysis and insight. Coming up next, a provincial court hearing more cases using Microsoft Teams. And he’s issued a guide with advice for etiquette. We’ll get into that right after this.
[00:08:52] COMMERCIAL BREAK.
Adam Stirling [00:08:52] We continue our weekly conversation, Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers, the provincial court. Michael is hearing more cases using Microsoft Teams and has accordingly issued a guide that includes advice on etiquette. What do we know at this point?
Michael T. Mulligan [00:09:07] Yes, indeed. So, the Court of Appeal has gone with Zoom and the provincial court has decided to go with Microsoft Teams. Fair enough. So, the provincial court just issued a guideline both in terms of how people are to use that, because people without lawyers who are appearing would be expected to use it as well for applications they might be making. And in so doing, I thought this was great, they issued a guide for remote procedure, Remote Proceedings Etiquette. And no doubt this is the product of some experience they’ve had with the system so far. And some of the procedures that, you know, you might take for granted in court may not be apparent to people. It would seem that when they are appearing by video remotely. So, the etiquette guide includes helpful tips, including this: no food or drink as in a courtroom do not eat or drink anything but water during the proceedings. I’ve got this image of somebody sitting at home with their glass of wine on video in their family court. (laughter)
Adam Stirling [00:10:08] With they’re very crinkly bag of chips that they keep reaching into it in opportune times.
Michael T. Mulligan [00:10:13] Yes. So that’s, not on, dressing appropriately. This is good. The guide actually has a link on how to dress for court, sadly, the link is broken, so if the provincial court is listening, they might want to fix that. (laughter).
Adam Stirling [00:10:24] Ohno. Oh.
Michael T. Mulligan [00:10:26] the information. Here’s the court. Here’s the original court’s advice in terms of inappropriate clothing generally. No short shorts, no tank tops, no muscle shirts, no belly shirts or bare feet, no clothing with disrespectful slogans or pictures. And I should say on that front, once in a while, you would see somebody showing up in court with a T-shirt turned inside out or on backwards, which was the product of their lawyer telling somebody, you just cannot wear that shirt into court.
Michael T. Mulligan [00:10:54] Oh, interesting.
Adam Stirling [00:10:55] Right.
Michael T. Mulligan [00:10:56] Wear my sunglasses, no chewing gum, baseball caps or other hats. Religious headwear is accepted. I usually tell people, along these lines, dress, if you’re going to court dressed in a way you might dress if you were going for a job interview or, you know, maybe you were going out for a nice dinner or going to church on the weekend, something like that.
Adam Stirling [00:11:16] Yes.
Michael T. Mulligan [00:11:16] People don’t have to show up in a tuxedo, but don’t show up in short shorts with bare feet. I don’t think you’re going to get too far and that still applies of your appearing by video.
Adam Stirling [00:11:26] Very true.
Michael T. Mulligan [00:11:27] Another interesting one was in court, the usual practice would be if you’re going to speak, you would other than a witness, if you were counsel, you would stand up, right. When you’re speaking, you don’t sit in your chair when making submissions in court. However, that doesn’t work with video camera. They would then be, I guess, that image of your hit chest or something rather than your head.
Adam Stirling [00:11:49] Yes.
Michael T. Mulligan [00:11:50] And so they’ve expressly said that sitting is expected. And they’ve also, for video appearances, have done away with bowing from people that don’t know, as usual, practice to use or go into a courtroom to make a slight bow to the court when going in or out, but not necessary for video conference proceedings. So, you know, don’t show up with your bathrobe, oh the other one was, have a neutral background and try to find a quiet area. So again, I have this image, of you know, someone not only with a glass of wine wearing their housecoat with the kids running around in the background, throwing things, eating chips, trying to make an application or something. Don’t do it. And make sure you put your hand up before you speak.
Adam Stirling [00:12:32] Absolutely. How all good advice. That’s that I think any person should be able to intuitively expect to be given and get narratives in writing in case anyone was unsure.
Michael T. Mulligan [00:12:42] Yes, indeed. The etiquette guide for online appearances is it’s all in writing.
Adam Stirling [00:12:46] You know, we had this substantial portion of British Columbia’s reopening plan described for the first time to the public yesterday. You have some thoughts on BC’s plan, as well as the Public Health Act and the Emergency Powers Act.
Michael T. Mulligan [00:12:58] Yes, indeed. And the is a really interesting announcement to watch the other day. And the large part of it, I think, as you’ve described it, the sort of trusting people to act in a reasonable, safe fashion. Right.
Adam Stirling [00:13:10] Mmhmm
Michael T. Mulligan [00:13:10] And that may, in fact, be why we’ve done so well, particularly on Vancouver Island. People just being responsible for their own conduct, is that really ultimately is what is required. That concept is actually set out in the Public Health Act. Right. That’s the act that Dr. Bonnie Henry has been utilizing to issue orders and so on and of various types. And in particular, people should bear in mind, Section 15 of that act, which is something which is in place at all times and requires no order. In fact, it probably shouldn’t require a section in the act any more than we should have to tell you. Don’t show up in court with bare feet and short shorts on. But here it is. It says this “A person must not willingly cause a health hazard or act in a manner that the person knows or ought to know will cause a health hazard”. Right. Really, that’s the key point right that’s how people have to conduct themselves. And we’ve actually set that out in legislation. Now, the other thing, which is going to be very interesting to watch, particularly in the context of how those two acts you mentioned work. The Public Health Act and the Emergency Program Act is that both of those acts contemplate dealing with different parts of the province in a different fashion. It is not a requirement that orders under either of those acts apply in a uniform way everywhere. So, for example, in the Emergency Program Act, Section 5 says the minister may by ordered to one or more of the following: “a) divide British Columbia into various subdivisions for the purpose of organizing integrated plans and programs in relation to emergency preparedness, response and recovery.” And there’s a similar concept in the Public Health Act and in fact, in ordinary times, decisions and orders under that act would be made by the person in charge of the particular health authority. Right. We’ve heard lots about those things.
Adam Stirling [00:15:11] Yes.
Michael T. Mulligan [00:15:11] Like Vancouver Island and the Interior, Fraser and so forth. It’s only it’s the exception, in fact, that you would have province wide orders made. Section 67 of the Public Health Act does permit Dr. Henry to make orders that are beyond simply a particular health region where it’s necessary to, for example, co-ordinate action. Right. And so pretty clearly that’s, I think, been a sensible thing to do and has been working well in British Columbia. But looking carefully at how things have played out. Thanks to all of the efforts people have been making.
Adam Stirling [00:15:50] Yes.
Michael T. Mulligan [00:15:51] It’s clear that there are different outcomes, profoundly different outcomes in different parts of the province.
Adam Stirling [00:15:58] Yes.
Michael T. Mulligan [00:15:59] And there’s excellent information provided by the British Columbia Centre for Disease Control. And you can go there, and you can look at these statistical information for those different regions of the province. And we’ve been very fortunate on Vancouver Island for more than fortunate. I think it’s a function of the effort people have been putting in to not get other people sick. Right.
Adam Stirling [00:16:20] Yes.
Michael T. Mulligan [00:16:20] It’s worked. The current state of affairs on Vancouver Island or the Vancouver Island Health Region, which covers slightly more than Vancouver Island itself, where island itself is that at this point there are remaining only 2people in all of Vancouver Island who are in hospital with COVID-19.
Adam Stirling [00:16:37] Remarkable.
Michael T. Mulligan [00:16:38] And there are only 18 people in total, including those 2 that have not fully recovered. Sadly, 5 people in total have died. But we’re down to and there’ve been no new cases, at least for the past two days as I’ve been watching those statistics. Now, that’s in contrast with places like, for example, the Fraser Health Authority, where there were 15 cases reported yesterday. 38 people are in hospital. 10 people are in the ICU. On Vancouver Island there are no people in the intensive period that 0 and only 2 people in hospital and no new cases being reported. Now, if that trend continues, we may have a circumstance where in Vancouver Island the number of people in hospital is zero. And in fact, the number of people that have been identified has been infected could reach zero. And if state of affairs occurs and that’s what will happen if the current trend continues and people carry on with the efforts, they’ve been making for a little bit longer.
Adam Stirling [00:17:38] Yes
Michael T. Mulligan [00:17:39] You could well have a circumstance where it would be reasonable to look at the provisions in the Public Health Act and as well the Emergency Program Act. And it may well be that different degrees of opening and contact could be appropriate, for example, on Vancouver Island, that would be inappropriate in the Fraser region, for example, or in central or the Vancouver region.
Adam Stirling [00:18:06] Yes.
Michael T. Mulligan [00:18:06] Where there are much higher rates of infection, many more people in the hospital and people are continuing to get infected.
Adam Stirling [00:18:12] Yes.
Michael T. Mulligan [00:18:13] And that could raise interesting questions about what should be done to preserve that. And these acts would permit things like if you wanted to have testing or other things required if people are travelling between regions. Those are the kind of things which would be permitted by these acts and both acts permit those different treatments and different policies in different areas and in fact, in some cases presumed that’s how policies will be made. No, that, of course, may have other unintended consequences. If you announce to the world there are, you know, no or very few cases remaining.
Adam Stirling [00:18:52] Yeah.
Michael T. Mulligan [00:18:52] On Vancouver Island, you wouldn’t want to, you know, for example, encourage everyone to load their, you know, bicycle’s on top of their Winnebago and head over here from the Fraser region for example.
Adam Stirling [00:19:02] Because they will bring more cases with them. Exactly.
Michael T. Mulligan [00:19:04] So you’d have to be careful about how that was managed. But I think that is going to be a live question and a real policy question and is one you can tell that is not being, some of those statistics are not emphasized, perhaps when there are government announcements about these things, not wanting to encourage unintended consequences.
Adam Stirling [00:19:28] Yeah.
Michael T. Mulligan [00:19:28] But, you know, people need to know what the actual statistical information is. I think people are can be counted on to act in a responsible way. But we’ve done particularly well on Vancouver Island. You know, we have numbers and things that appear to be less than what you would look at in a place like New Zealand.
Adam Stirling [00:19:49] Yes.
Michael T. Mulligan [00:19:49] Which has been reported, as you know, they’ve got this thing, you know, completely under control, the state of affairs on Vancouver Island, you know, we’ve got a population of about 870,000.
Adam Stirling [00:20:01] That’s correct. Yes.
Michael T. Mulligan [00:20:03] And when you look at that and you compare our numbers to New Zealand and the fact that we’re now having multiple days with no new cases, the number of people in hospital is approaching well, too. You know, we’re getting to a very good spot. And so, you know, I think we’re going to need to turn our minds to how do we maintain that and whether policies that could be appropriate in one place, whether they remain appropriate in others. Because on Vancouver Island, for example, if you had a sustained period of time with no new cases and no one infected the appropriate public health advice, might be quite different from the public health advice, that would be appropriate if you were in the Fraser region where many people are still each day.
Adam Stirling [00:20:53] Yeah.
Michael T. Mulligan [00:20:53] Testing positive for it. So, appreciating that there may be frictions and concern about unintended consequences, I think the takeaway messages we’ve done very well here that we need to continue with that. But if the current trend continues, at least on Vancouver Island, it looks like there’s a realistic prospect we may get to zero. And then there will need to be some consideration given to how do we maintain that and how should policies in that context differ here as opposed to on the mainland?
Michael T. Mulligan [00:21:21] It’s remarkable to say it out loud. Vancouver Island, 870,000 souls, 2 of them are currently in hospital, zero of which are in intensive care, only 18 known active cases of COVID-19. Given the fact that we’re approximately 100 kilometers north of what was described as ground zero for infections in the continental United States of America, that is Washington state. We, I would suspect, have one of the most effective responses probably of any jurisdiction on this planet. When one weighs all the factors, Michael, a remarkable achievement by the people here.
Michael T. Mulligan [00:21:55] I think that’s true. And I think that is a function of people taking it seriously and acting in a responsible fashion. And I was pleased to see that that is, I think, going to be the sort of approach in the medium term is trusting people to make appropriate decisions. Bearing in mind, you know, people are entitled things necessarily turning to Section 15 of the Public Health Act to decide whether they should engage in behaviour that would be hazardous. I just think that it may be something that’s even more so in a smaller community like Vancouver Island or Victoria. You know, I think people are legitimately looking out for their friends, relatives, the neighbours, and making sure that they do what’s required. And we’re getting very, very close here.
Adam Stirling [00:22:38] Michael Mulligan, thank you as always, for the benefit of your analysis and insight. It is greatly appreciated.
Michael T. Mulligan [00:22:43] Thank you very much for having me.
Adam Stirling [00:22:44] Have a great day. Take care. Bye now.
Automatically Transcribed on May 7, 2020 – MULLIGAN DEFENCE LAWYERS