Replaced by Mr. Bean in an Office Without AC? That’s Constructive Dismissal
Fentanyl trafficking sentences in BC just got a major overhaul. The BC Court of Appeal has mapped out clearer sentencing guidelines, creating a three-tier system that reflects the devastating impact of the deadly opioid crisis. Street-level dealers now face 18 months to 3 years, mid-level traffickers 4-7 years, and wholesale distributors 8-15 years behind bars. The Court emphasized this framework still allows judges to tailor sentences to individual circumstances, but makes clear that the gravity of fentanyl trafficking demands serious consequences. With over 14,500 British Columbians having lost their lives to toxic drugs in just eight years, the justice system is responding with a structured approach to punishment.
At Simon Fraser University, academic freedom and freedom of association collided when faculty members challenged their own Faculty Association’s resolutions on Gaza. The controversial statements narrowly passed but sparked a legal battle under the Societies Act. The case highlights a fascinating tension – what happens when you’re required to belong to an organization that takes political positions you fundamentally oppose? The court ultimately allowed the Faculty Association broad latitude in its activities, continuing a precedent that permits professional associations to venture beyond their core employment-related purposes. This ruling affects anyone in Canada who must maintain membership in unions or professional organizations.
We wrap up with a constructive dismissal case that seems straight out of a comedy sketch – except it was all too real for the employee involved. A 63-year-old comptroller was given notice of termination but required to keep working for eight months while being gradually replaced by someone actually named “Mr. Bean.” Adding insult to injury, the employee was relocated to an interior office without air conditioning (at an air conditioning company!). The court recognized these cumulative actions created an intolerable work environment, awarding 15 months’ severance and confirming employers cannot circumvent termination obligations by making work conditions unbearable.
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Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking Sep 4, 2025
Adam Stirling [00:00:00] Time for our regular segment with barrister and solicitor with Mulligan Defence Lawyers. It’s Legally Speaking on CFAX 1070 with Michael Mulligan. Afternoon Michael how we doing?
Michael T. Mulligan [00:00:09] Hey, good afternoon I’m doing great always good to be here.
Adam Stirling [00:00:12] Some interesting topics on the agenda today off the top it says the BC Court of Appeal provides further guidance with respect to sentences for fentanyl trafficking what’s the story?
Michael T. Mulligan [00:00:23] Well, first thing about this is it gives some insight into how judges come up with sentences and how do we try to make sure that they’re similar, that kind of thing. And of course, the justice system in Canada is a hierarchy, right, lower-level judges have to listen to what higher court judges have to say. And so in BC, the BC Court of Appeal will in some circumstances provide guidance for trial judges about what sort of range of sentence might be appropriate for a particular type of offence. The idea, or one of the ideas there, of course, is that we want to have some consistency. So you don’t wind up with completely arbitrary outcomes in different cases for different people with similar fact patterns, right?
Adam Stirling [00:01:08] Yeah.
Michael T. Mulligan [00:01:08] Now, the next thing to know is that the court of appeal doesn’t lightly interfere with decisions made by trial judges. And one of the things which in the case i’m going to talk about which is this new case dealing with fentanyl sentencing the court of appeal is at pains to say in more than one place in the judgement. Nothing being said there should be interpreted as taking away from the all-important individualization of the sentencing process. so we don’t have in canada grids or Other than a few rare circumstances required sentences because human affairs are so infinitely variable, trial judges have a wide range of discretion. And so, when the Crown or Defence appeals a sentence imposed by a judge following a conviction or guilty plea, the Court of Appeal can only interfere with it if they find that the sentence imposed is what’s called demonstrably unfit, which means that the sentenced must unreasonably depart from a principles of proportionality, must be manifestly excessive or inadequate, and cannot reasonably be seen as proportionate to the gravity of the offence and the personal responsibility of the offender. So now this particular case involving involved a man who was convicted of possession of drugs for the purpose of trafficking, including 834 fentanyl pills and 35.13 grams of MDMA. He had The Evidence was that the quantity of drugs he had all told, totaled added up to about two hundred fifty thousand dollars with worth. He wasIt was originally a crime stoppers tip that led to surveillance and eventually a search warrant for the person’s bedroom and Those things are found along with other significant items including a scale, kilogram kilo wrappers, a kilo press, a thousand small baggies, and on and on it went. So it was clear that what was here was more than just a personal use amount and the judge that sentenced the man took into account a number of considerations including the fact that he was had no criminal record, he was the sole caregiver of a vulnerable teenage daughter who didn’t get along with her mother, so it would have major impacts if went to prison. And Various other mitigating factors and the judge of this case imposed a two-year conditional sentence which was on house arrest. Followed by three years of probation and that got appealed by the crown to the court of appeal who ultimately concluded Taking into account A consideration of the Harms caused by fentanyl which was there was evidence of that presented at the sentencing hearing, including evidence from the BC Corners services which as of 2024, concluded that over the preceding eight years, 14,582 people in British Columbia had died from toxic drug use and fentanyl continues to be the primary driver of those deaths, right?
Adam Stirling [00:04:19] Yeah.
Michael T. Mulligan [00:04:19] Now, I should say there for a moment, that language that sometimes is cropped up of toxic drug use seems to sort of imply that. Somehow the fentanyl was doctored to make it unsafe. But of course, it is always unsafe, right?
Adam Stirling [00:04:32] Yeah.
Michael T. Mulligan [00:04:32] The taking fentanyls is deadly. And so here the court of appeal found that the sentence imposed despite the mitigating circumstances and impact on the man’s daughter and so on, was demonstrably unfit. And so determined that they were able to interfere with the sentence. And in so doing, they laid out sort of guidelines, starting point, ranges, For those for three different categories of offender. The first category is described as a street level Person who was trafficking in it you know on the corner of Pandora Avenue or something and for that category of person and the starting point or the range would ordinarily be something between eighteen months and three years in Prison. They then they describe what’s been referred to as a mid-level range for people who are sort of mid- level traffickers and they concluded that this man in this case was in that category of being more than just a street trafficker, sort of addict person, and for that category they indicated that the ordinary range would be somewhere between four and seven years. They did point out examples of cases where that is departed from, bearing in mind what I indicated at the outset here, that it’s an individualised process and nothing the Court of Appeal is saying means that a judge cannot depart from the range. They pointed to, for example, cases where there were what are referred to as Gladue factors.
Adam Stirling [00:06:06] Yes.
Michael T. Mulligan [00:06:06] Where you’ve got an Indigenous person who’s being sentenced and the sentence that might otherwise be appropriate might be reduced, taking those into account. And so they gave examples of those as where there might be a departure, and then, indicated, and this comes from a Supreme Court of Canada case a few years ago that for high level dealers at the wholesale level sort of suggests Costco, would be something in the order of 8 to 15 years in prison and so again, none of those are hard and fast rules. There is discretion where there are particularly salient, sort of human factors or Gladue factors or other things that might, justify a departure from the range. but, it is some guidance from the court of appeal about what might be expected, and it will be interesting to see again, you know, sentencing are intended to achieve a variety of things, including rehabilitation, some element of retribution, dedunciation, deterrence in some general way, like both for the person and here, interestingly, this man had no previous record and it took some time for the case to be concluded. He hadn’t committed any other offences in several years, but with these sort of things, I guess more so perhaps at the sort of high wholesale level or sort of mid level, of the activity, as opposed to the person who’s the, you know, street level addicted drug seller, trying to get money to buy their next hit of fentanyl.
[00:07:34] Yeah.
[00:07:34] perhaps there is some, chance that general deterrence would have some impact if somebody says, Oh my goodness, I could go to prison for 15 years, if I carry on with my Costco level distribution of fentanyl, maybe there’ll be some consideration there. I must say, I rather doubt the drug addicted street level trafficker who’s selling drugs in order to, you know, feed their habit who’s already, of course, risking death by their use of the drugs is likely to be reading or deterred by what the court of appeal is saying but, maybe there would be some impact, at the higher level, if there’s a bit more sophistication and the people, might be listening to this or, you know, aware of, what’s happening. Unlike I think it is unlikely to be the case with people who are, you know, street and entrenched drug addicted people who were selling some small amount to the next addicted person next to them.
Adam Stirling [00:08:28] Yeah.
Michael T. Mulligan [00:08:29] I’m hard-pressed to know how that person is going to look at the Court of Appeal decision and say, gee whiz, I think I better give this up. That seems very, very troubled, troubling. So that’s latest from the Court of Appeal, and that’s the range of sentences that would be expected, except in cases that are out of the ordinary for possession for the purpose of trafficking fentanyl in British Columbia.
Adam Stirling [00:08:48] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking continues right after this.
[00:08:52] COMMERCIAL.
Adam Stirling [00:08:52] Back to Legally speaking on CFAXS 1070 as we continue our conversation with Michael Mulligen from Mulligan defence lawyers. Michael, up next on the agenda I’m reading here, challenge to faculty association of Simon Fraser University resolutions on Gaza dismissed. What happened?
Michael T. Mulligan [00:09:08] Well, quite a bit, actually. So the particular court case was brought under the Societies Act, and in particular, Section 104 of the Societies Act, which is a provision that allows there to be a judicial challenge to activity by a society which is inconsistent with its purposes. So that’s the legal basis for this case getting into court.
Adam Stirling [00:09:38] mm hmm.
Michael T. Mulligan [00:09:38] The activity in question was a challenge brought by a whole bunch of professors from Simon Fraser University who were challenging the legality of resolutions that were passed by the Faculty Association. Now, the Faculty Association is a society, its primary function is to act as the equivalent of the union for the faculty members of Simon Fraser University, so would like negotiate contracts and whatnot, and collect dues and so forth. But some members of the Faculty Association brought This Long resolution which had as many of these things do, perhaps more so in academia, a whole series of whereas provisions dealing with the what’s going on between the Palestinians and Israelis. And so for example the long list of whereas provisions and things like whereas canadian universities including SFU are complicit in the israel project to of occupation and apartheid through their partnership with Israeli universities. That’s just give you a flavour what’s Sort of stuff that was included in this motion…
Adam Stirling [00:10:53] I see.
Michael T. Mulligan [00:10:53] or this resolution and, it, eventually this series of resolutions just kind of squeaked through, like, the general resolution passed a hundred or 333 to 326, so it sort of squeaked through with 41 people abstaining. Unfortunately, maybe they should have voted. So a squeak through, but it included, uh a couple of provisions or that were specifically challenged. Both of the provisions are provisions which have the language of calling on Simon Fraser University to do various things. Like for example, the faculty association as a result of the resolution was required to call on the Simon Fraser University to take certain positions with respect to Gaza and call on the university to divest corporate engagement in military arms production and so on. So anytime you see a resolution with the term call on, it actually for me calls to mind of if you remember the episode of the office where Michael Scott comes into the office and then after it leaves the lunchroom it comes in and yells out that he declares bankruptcy.
Adam Stirling [00:11:57] Yes.
Michael T. Mulligan [00:11:58] That’s not quite how it works. So anytime give a resolution that calls on somebody to do something else is an that you’re pushing on a rather limp rope. But, nonetheless, I think it’s perhaps understandable why this group of professors was not happy with these call-on resolutions with that series of whereas provisions. Now, one of the things that that interestingly brings to mind is the issue of compelled membership in things like unions and other organisations, right?
Adam Stirling [00:12:31] Yeah.
Michael T. Mulligan [00:12:31] We have in Canada a constitutional right to freedom of association and freedom of association generally includes a freedom not to associate with other people. If you, you know, the starting point would be if there’s some organisation that you don’t like, that they’re passing resolutions, calling on people to do this or that, ordinarily, you wouldn’t be forced to be a member of them. But here these people couldn’t get out because the contract with the Simon Fraser University requires all faculty members to be members of the faculty association. So they can’t just get out of this by saying, I quit, I’m not interested in calling on these things. And there’s a Supreme Court of Canada case that dates all the way back to 1991. That deals with the issue of, in that case, a community college teacher back in Ontario who was required to pay union dues and that person’s union was doing various things, including making donations to the NDP party. And the person wasn’t a supporter of the NDP. And so their position was, I don’t want to be forced to pay union dues so the union can then pass those along to the NDP. That’s not fair. And in that particular case, there was a provision that sometimes exists called the RAND formula in Canada, the idea is that you could opt out of being a member of the Union, but you have to still pay the union dues. So it’s a bit of a symbolic opting out if you still have to pay for it. And that fact pattern ultimately all the way to the Supreme Court of Canada, who at that point it’s a split decision so it survived narrowly on different legal interpretations as to how that should be assessed whether that should, be a section one limitation on the Freedom Association or whether the requiring people to pay and donate money to something they don’t want to support, whether that interferes with it. But it survived and so we have the state of affairs where you could be forced to be in a you know union or professional association or faculty association that’s doing, and you can imagine what might be going on even if you think, great I love the NDP I want to give them lots of money, what happens when your union starts giving money to the you know anti-abortion group or the pro-abotion group or how about some religious group you like or don’t like, right? And so I think there is a real live issue about, you know, how far should we go in forcing people to be members of organisations that are doing things like this, right.
Adam Stirling [00:15:01] Yeah.
Michael T. Mulligan [00:15:01] The argument for that concept that you might have to pay union dues, even if you don’t want to be part of the union, the justification for that would be, well, you’re getting the benefit of being in the union and maybe a higher salary or more vacation or shorter hours or something. So, we shouldn’t allow you to just be a free rider by saying, I don’t want to pay my dues. I just want the longer vacation time or whatever the union managed to get in terms of a contract. But the rub comes with these sort of activities, and in this case, the members of the faculty association that didn’t support this resolution, which was just almost half of them.
Adam Stirling [00:15:39] Yeah.
Michael T. Mulligan [00:15:40] Although not all of them brought the challenge. They were arguing that when doing the Section 104 analysis, their argument was, well, there should be a narrow interpretation put on what this kind of association is permitted to do and whether resolutions are inconsistent with the society’s purpose. Their argument was hold on, this is like a society dealing with Simon Fraser University and negotiating contracts. What on earth is going on with this society passing resolutions forming judgments about what’s going on with gaza and the palestinians and so on? whereas the faculty association was arguing no no no there should be really broad interpretation of all of that because the resolution did include various whereas clauses claiming Things like A number of universities Were damaged or destroyed by the fighting. Or arguing, things of this sort so they were saying it should be really broad interpretation And ultimately the the judge looked at all that looked at the reasons and looked at a number of cases including Cases where unions are doing various things and found that the proper interpretation of that section 104 was to permit a broad Rather than a restrictive approach or interpretation to it. You know pointing out that for example some union might Argue that well we think the best way to get bigger contracts for our members is to make large donations to the NDP or something.
Adam Stirling [00:17:14] Yeah.
Michael T. Mulligan [00:17:14] I think well you know court shouldn’t get into that, That’s just going to be the way it is And so while at the end of the day the court carefully pointed out They were not Determining whether this resolution was advisable or whether the contents of the preamble or views expressed were justified or right or any of those things. Ultimately The judge concluded that Broad interpretation liberal interpretation as it were of that section 104 is appropriate, and so even though this Collection of Professors was none too happy with what passed. They are stuck with it And they can’t get out, now, you know, as I said, that last Supreme court of Canada case for us from 1991, and this particular case wasn’t a charter challenge, it was a challenge under the society’s act to determine whether this was allowed, but this is the sort of decision with the kind of controversial resolution that may lead to revisiting of things, right? You have a different fact pattern. Do you have a different result? Just like if somebody’s union started donating to the anti or pro-abortion group, you might have a different analysis than what happened in 1991 on that split decision about NDP donations by the Union. So that’s the latest from the BC Supreme Court on the Gaza and Simon Fraser Faculty Association.
Adam Stirling [00:18:33] Alright, we have two minutes remaining.
Michael T. Mulligan [00:18:36] So final case on the agenda is a case that comes out of it deals with an issue of constructive dismissal and the fact pattern involved a man who had been for a number of years the comptroller of an air conditioning company and the air conditioning company wanted to no longer employ him. A person is entitled, and an employer can do that particularly in a non-unionised environment, but there’s implied terms in employment contracts that would allow for either notice that you’re being terminated without cause or payment in lieu of notice. And here the employer tried to go with the notice provision rather than payment in lieu of the notice. And so they gave this comptroller notice that he was going to be, he was fired in eight months, but he was required to keep working. That he would be paid, he would get a letter of reference, but he’d be terminated at that point. Now, as you might imagine, that doesn’t lead to the happiest of work circumstances. And shortly after the letter was delivered, and this is almost unbelievable, the person they hired to replace him, his name was Mr. Bean, which of course causes both in terms of being countered for those of us that might watch a bit of popular culture. So you’re being replaced by Mr. Bean. And then, over a period of time, the company starts transferring responsibilities from this guy to Mr. Bean and so he’s doing less and less of his job. And then the final straw is that they transfer him to an internal office, which also hilariously, in addition to being replaced, I’m sure not hilariously for him being replaced by Mr. Bean, the interior office also had no air conditioning, which was a point of gripe given it was an air conditioning company, I guess it was additional, unhappiness. So, his argument was that this amounted to a constructive dismissal. And as the judge pointed out, there are two kinds of constructive dismissals. You can have a single thing that causes you to be constructively dismissed or a collection of things that cumulatively add up to that. And here, the argument was made, and it accepted that what went on was the transfer of duties to Mr. Bean combined with the interior office with no air conditioning all eventually added up to a constructive dismissal. And so the net result is that the employer wasn’t able to have this fellow continuing to work there and they were required ultimately to pay him for 15 months of notice taking into account things including the fact that he was 63 years of age and had worked there for eight years when he was terminated and 66 by the time he got to trial, and taking into account is particularly hard for a senior person at that age potentially to get another job and he hadn’t succeeded despite trying. That’s the latest on Mr. Bean, no air conditioning and constructive dismissal.
Adam Stirling [00:21:24] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Thank you so much.
Michael T. Mulligan [00:21:31] Thanks so much, always great to be here.
Adam Stirling [00:21:32] Alright, we’ll talk to you later. Quick break, news is next.
Automatically Transcribed on September 9, 2025 – MULLIGAN DEFENCE LAWYERS