Two new British Columbia Court of Appeal decisions are discussed on the show this week.
When can you sue a municipality for an injury caused by poorly cleared snow?
The Court of Appeal provided some clarity in a recent case against the City of Nelson. The plaintiff suffered a serious leg injury after stepping into a snowbank trying to get from an angled parking spot to the sidewalk.
While a municipality is not liable for injuries caused by policy decisions, such as whether to clear the snow or not, they can be liable when a policy decision is poorly implemented, and this causes a hazard. The legal distinction is between “policy” and “operation”.
The second case discussed involved a 14-year-old who was diagnosed with gender dysphoria and wished to undertake hormone therapy following a social transition from female to male at age 12.
The child’s parents had been separated for several years and, while the child’s mother supported the treatment, the father opposed it.
Various court application ensued and an order was made against the father declaring that his references to the child as a girl, whether directly or to third parties, was a form of “family violence” pursuant a definition of this term in the Family Law Act that includes things like “psychological or emotional abuse of a family member.”
The father was ordered not to attempt to persuade the child to abandon the treatment, not to refer to the child by his birth name, and not to refer to the child as a girl or with female pronouns to the child, or any third parties.
The unfortunate language used in the Family Law Act, which defines “psychological or emotional abuse” as “violence” seems to have made this dispute worse, as the language is inconsistent with any ordinary meaning of the term “violence”.
While the conduct of the father, in refusing to accept the child’s chosen gender, and to refuse to address him by the name he had chosen was found to be disrespectful and hurtful, the Court of Appeal found that, despite the incongruent definition in the Family Law Act, this should not have been characterized as family violence.
The Court of Appeal also modified the lower court order which prohibited the father from discussing the matter with the child or expressing his opinion to the friends or family members.
The hormone therapy continued, without the approval of the father, because section 17 of the Infants Act permits minors to consent to their own medical treatment.
Legally Speaking with Victoria Lawyer Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Adam Stirling [00:00:00] Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers Michael, how are you? Good morning.
Michael T. Mulligan [00:00:06] I’m doing great. Didn’t slip or slide, I’m here in one piece, it’s all good.
Adam Stirling [00:00:09] Absolutely. We all want to make sure that we fulfill our common law duties to one another in times such as this, especially if we are a municipality. Question one when can you sue a municipality for not clearing the snow is that something can happen.
Michael T. Mulligan [00:00:23] You certainly can. And a timely and informative answer from the Court of Appeal just came out trying to clarify once again when you can do exactly that. When can you sue the municipality? And this is a case that came out of Nelson from 2015. Least that’s where it started,
[00:00:41] For poor Miss, I think it’s, Marchi, probably mispronouncing that terribly. In any case, she in a snowy day drove her car to downtown Nelson, parked in an angled spot and then could see no other way to get to the sidewalk, that was clear. So she marched on, stepped into a giant pile of snow, it sounds like perhaps it had been pushed there in the snow clearing efforts, and much to her misfortune, wound up having her foot twisted back, stuck in the snow and wound up with a serious injury to her leg. And so, she sued the city of Nelson. Well, that wound up at trial, and she was unsuccessful suing the city of Nelson, which is what precipitated this appeal to the Court of Appeal, and this brand new decision clarifying once again for all of us when you can and when you can’t sue a municipality for not clearing the snow. And the Court of Appeal clarified once again for all of us, and this comes out of the Supreme Court of Canada case from back in 1989, a good case is called Just vs, British Columbia. So, a good case to try to set up what’s just or fair. OK. And the essential division is this. You can successfully sue the government, including the municipality, for negligence in an operational decision; however, you cannot successfully sue for a policy decision. So, for example, if the City of Victoria decided as a matter of policy to save money, maybe to fund the police department, all they’re going to do is clear the bike lanes. That’s it. And they give clear direction…
Adam Stirling [00:02:22] This is getting a little too close to home…
Michael T. Mulligan [00:02:23] …so if you give clear direction, the city council says, look, we’re saving money. City workers only clear the bike lanes and in fact, feel free to push the rest of the snow into the rest of the road to form a blockage. It’ll be good for, you know, climate change, whatever. That’s our policy decision.
Michael T. Mulligan [00:02:41] Okay.
Adam Stirling [00:02:41] If you crash your car into the heap of snow, put in the middle of the road by virtual that policy decision, you are out of luck. You don’t have any ability to sue for those sort of government policy decisions or other things, for example, in the close to home front, if somebody says, hey, look, I was robbed and nobody showed up there for the police department for 45 minutes, you know, I need more protection. Essentially, you’re out of luck. There, a government is free to make whatever decisions they deem fit in terms of those policy issues. However, once you make the decision to do something, like in this case the city of Nelson, and you say we are going to clear the streets of snow and then workers from the city of Nelson go out and start doing that, the way they do it would be an operational thing rather than a policy decision. So, once you decide we’re clearing the snow from the sidewalks, if the crews are hired to do that, clear them in a way that creates a hazard. Right. Let’s say they, you know, don’t put salt down or decide to for fun only salt every second intersection or something. And a person wipe, wipes out and gets injured as a result of the poorly implemented decision. Those things would be operational, and you can sue for them and sue them successfully. And the problem in this case from Nelson and the reason why the Court of Appeal sent it back, is originally the trial judge, I think, appeared to have accepted submissions from the city that talked about there being insulation from a civil suit for policy decisions and didn’t do anything to try to sort out what in some cases can be tricky, trying to sort out, you know, was this a policy decision or was this an operational decision? Because in some cases, that can be a fine line. And, you know, you’re trying to sort it out, you know, how far down the level of minutia do you go? You know, when the, you know, manager for the snow clearing efforts tells everyone, you know, make sure you clear away anything that’s more than a foot thick or something, you know, is that a policy decision or is that an operational decision? So, there can be real issues there to be sorted out. But the point is, the courts need to sort them out and judges aren’t there to make decisions about, you know, how many police officers should we have. Or should we or should we not put salt down on the roads. They are, however, in a position to assess whether those things were done in a careful fashion or whether there was negligence, which is always the threshold; carelessness in how the thing was done. And so, in this case, the poor person with her injured leg from the pile of snow on the side of the road with no clear way from the angle parking spot to the sidewalk, will have an opportunity to go back and try again. And a judge will have to determine whether that decision or that implementation of the decision, which of those two things it was. And if it was a poor implementation of a decision essentially to clear the snow and that was negligent and caused this injury to her leg, she’ll be successful. But if, on the other hand, there was a it turned out that that was just a policy decision, not to spend more money on snow clearing or, you know, send everyone home at 9:00 and not have an overtime shift or whatever decision might be made. The government’s immune from getting sued for that.
Adam Stirling [00:06:19] It seems to me and please, correct me if I’m wrong, at the larger guiding principle at work here is that policy decisions and disagreements are political matters best dealt with through political elections, whereas legal issues are best dealt with by the courts. So, if you don’t like a decision a politician makes, you vote them out of office. But in terms of following the law, that’s where the courts need to be a ….
Michael T. Mulligan [00:06:41] Yeah, that’s right. I mean, courts aren’t, you know, suited to make decisions about things like, you know, how much salt should the city buy or, you know, should they work overtime or how thick should the plough blade be or various things. Those are decisions that are political ones. That’s what city council should be spending their time on. The other interesting background people should be aware of is the starting point was that governments the crown used to be completely immune to being sued at all. It wasn’t that long ago that you simply couldn’t sue the crown. They enjoyed immunity, and it’s only by virtue of deciding to permit themselves to be sued that we’re now in a position to go there and bring these sort of claims at all, I should say; however, of course, we have in Canada now constitutional protections which don’t rely upon the goodwill of the government to continue to permit themselves to be sued. But these other general principles about when you can sue the crown for these sorts of things are all subject to the government imposing various limitations on them. Like, for example, if you’re trying to sue a municipality, they are very short limitation periods. You’ve got to give notice to the municipality, about wanting to do that, and if you don’t do it, you’re simply out of luck. And so that would be an example of how the government has control over when and how you can sue. But given the legislation currently in place, the broad consideration is, was the thing which you alleged to have created the hazard. Was that a policy decision or was that an operational decision? And you’re only going to have success if it’s the latter.
Adam Stirling [00:08:21] What about, say, the Victoria plastic bag issue? Plastic Bag Association brought an action against the municipality of Victoria, went to the B.C. Court of Appeal. They ended up prevailing three nothing decision. That was clearly a policy decision, but it was still struck down somehow. How does that work?
Michael T. Mulligan [00:08:36] Yeah. The other issue, the other way you can wind up in court, particularly for decisions of, well, I suppose any level of government. But the municipality we need to remember is just a delegated, all its authority is delegated by the province of British Columbia. And so, when you look at any bylaw that the municipality passes, one of the first things you would need to look at would be, hey, is this within the delegated jurisdiction of that municipal government? And if not, the municipality has no authority to do those things at all. Like if the municipality came along and said, you know, we’re going to make it a municipal bylaw offence to, you know, assault somebody and say, hold on, let’s have a look at the legislation. No, that doesn’t fall within the range of things that have been delegated, therefore, the municipality can’t do that.
Adam Stirling [00:09:31] Okay.
Michael T. Mulligan [00:09:31] Therefore, that has no application. The other level that in Canada we need to assess, of course, is that this used to be what all constitutional litigation really surrounded prior to the charter, is the issue of division of powers. Right. And in the Constitution Act, you’ve got setting out what powers are provincial, what powers are federal. And so, there can be arguments about, hey, did that level of government have the authority to do something. and in the case of a municipality, of course, because it really only is receiving delegated authority from the province, the first level of analysis has to be: hey did the province have any authority to do that? If not, they sure can’t delegate it.
Adam Stirling [00:10:10] Yeah.
Michael T. Mulligan [00:10:11] And then if they did have constitutional authority over that area, then you have to look at did they delegated? So that’s how the plastic bag issue would have wound up off in court judges and sorting out whether plastic bags are good or bad, the judge would only be charged with sorting out, hey are they allowed to do this? And then if so, well, fine. Fair enough. That’s what they’re paid the big bucks for.
Adam Stirling [00:10:34] So governments are immune from being sued when making political decisions within the range of decisions they are allowed to make. So, if they venture outside that, then you can get the courts involved. But as long as it’s within that range where they’re permitted to make a valid political decision, then they can’t be sued.
Michael T. Mulligan [00:10:50] Yeah, or the language used his policy. So if you’re making a policy decision and you’ve got the authority to do it, delegated from the province in the case of a municipality or in the case of the federal or provincial governments, you need to look at how powers are constitutionally divided between those two levels of government. And so, you have to ask yourself, did they have authority to do it delegated or constitutional? And then if so, you’d have to ask yourself, is that question a policy decision or an operational one? And you’re only going to be successful in suing for damages like this if you could establish that the negligence was a function of a failed operation, not a terrible policy decision. Even if a government makes a terrible policy decision, you’re not going to get any remedy going to court. Your remedy is go and vote for somebody else.
Adam Stirling [00:11:43] Interesting. Thank you for that. I think that’s very helpful. And understanding how it all fits together, legally speaking, continues in just a moment. Stay with us.
Adam Stirling [00:11:50] Legally Speaking continues with Michael Mulligan from Mulligan Defence Lawyers. Michael, Family Law, I have been told any number of times can often be among the most difficult to practice and engage with because it’s families who love each other. These then they’re often arise disagreements on, let’s say, for example, the best path forward for raising a child or for matters such as that. I’ve been watching this story very carefully about the conduct of a father and about medical treatment for gender dysphoria and both the term family violence and about but what that means, set this up for us.
Michael T. Mulligan [00:12:23] Yeah, I must say your comments are apt to both sort of think the practice of it. And I I am thankful that I don’t practice in that area. One of the nice things about criminal law is you’ve got a distinct problem. I may or may not be able to help you with it, but at least it’s a defined problem. In family law often the underlying issue is your spouse doesn’t love you anymore and I’m not quite sure what application I might make in court that’s going to fix that.
Adam Stirling [00:12:46] Indeed.
Michael T. Mulligan [00:12:47] But you’re quite right. This is a really challenging case that’s been now working its way through the court system in B.C. And it’s probably some proof that the Court of Appeal has snow tires because nothing has stopped them from coming to this decision. So, the underlying case involves a young person who is now 14, I think just about to turn 15. And he was diagnosed with gender dysphoria and wished to use, wish to undertake hormone treatment in order to transition to male. And so, he lived as a socially, as a male for a couple of years, went to school, changed his name, and then ultimately went to see a psychiatrist who diagnosed him with gender dysphoria and referred him to the children’s hospital. The doctors at the children’s hospital concluded that he would be a good candidate for hormone treatment. And the this is where things started to get rocky. Unfortunately for this young man, his parents had been separated for a few years and his mother was supportive of this decision and signed off, giving her consent to it. And ultimately, the young person also he consented to it having been described what the risks and benefits and so on of that would be. Now, the trouble came because his father, when the doctors realized that the father wasn’t aware of this proposed course of treatment, wrote to the father and said, well, hey, this is what’s being proposed. Do you have any what do you have to say about that? And the father wrote back saying, I am opposed to that and do not provide my consent in any way, shape or form. There were then efforts over a number of months between August and December of 2018 by a social worker to try to get the father to come in and meet with the doctors at Children’s Hospital to discuss the course of treatment, the pros and cons, but he he refused. The father refused to show up at any of those meetings and instead of that all of this then wound up in court with various applications being made by various people. The father tried to stop the treatment. He was successful in delaying it for a couple of months. Applications by others to try and restrict the father’s efforts. Now, that’s when we wound up engaging, amongst other acts, the Family Law Act in British Columbia, which is relatively new piece of legislation, is only a few years old. And unfortunately, in this case, it looks like some of the language used by that act made things markedly worse because the that act, the Family Law Act defines in Section 1 the concept of, quote, family violence, which I think to most people if you said well, what is family violence, most people would have some ordinary understanding of what that might entail. The definition, however, in the Family Law Act is extremely broad and family violence is defined to include psychological or emotional abuse of a family member, including as a whole bunch of things, including things like unreasonable restrictions or preventing a family member’s financial or personal autonomy. That’s violence according to the act. And so a court determined that the father’s comments to the young person, his son, about hormone therapy and also the father insisting on using female pronouns and insisting upon referring to him by the original name, before his name change, constituted family violence and then made a number of orders pursuant to that conclusion that that was violence. Ordering, for example, prohibiting the father from using female pronouns, referring to his son, using his birth name and ordering the father not to have discussions with this about anyone, media, other people, essentially a complete gag order. Now, that, of course, precipitated even more litigation, temperatures went up even higher. It looks like, according to the Court of Appeal, in part because of this language or labeling around family violence, you can imagine how somebody, even where their conduct is very poor and harmful and the Court of Appeal doesn’t pull any punches about that. Discussing how the comments made by the father, in this case, could result in or potentially were harmful and might be inappropriate and shouldn’t be doing those things. And they’re very clear about that. One of the things which I think turned the temperature all up here was labeling it, violence.
Adam Stirling [00:18:01] Yes.
Michael T. Mulligan [00:18:01] And so the much litigation ensued with various applications being made and charter arguments being had and eventually, this entire mess, winds up in the Court of Appeal. And you look at this thing and the list of interveners, it goes on for two pages, and it turned into a major piece of litigation surrounding all of these issues. The father, father making arguments, including I have a constitutional arguments, saying, hey, you can’t restrict my ability to talk to the press or speak to other people or speak to his son like he was prohibited from speaking to his son about this treatment. And there are a few interesting conclusions the Court of Appeal reached. One, they pointed out, quite rightly, that constitutional arguments don’t apply to disputes between private parties.
Adam Stirling [00:18:52] Yeah.
Michael T. Mulligan [00:18:52] And that actually comes out of one of the very original charter cases called Dolphin Delivery. So, unless you’re challenging the legislation itself, the charter doesn’t apply between two individuals who are having some dispute.
Adam Stirling [00:19:04] Ya, the charter protects people from the state…
Michael T. Mulligan [00:19:05] …not people from each other.
Adam Stirling [00:19:07] Yes.
Michael T. Mulligan [00:19:07] So the father wasn’t arguing the Family Law Act was unconstitutional. Therefore, you don’t get to argue that your charter rights insist upon some particular conclusion in private litigation between two people.
Adam Stirling [00:19:19] Okay.
Michael T. Mulligan [00:19:19] So the Court of Appeal, I think you’re quite sensibly did a number of things. They talked about how courts should be very slow to use this concept of family violence for things that aren’t, in fact, violent in the ordinary English term of the word.
Adam Stirling [00:19:36] No one strikes anyone else.
Michael T. Mulligan [00:19:37] Right. They didn’t say they didn’t find that to be unconstitutional. There was no argument about that, although it seems clear they’re concluding that was not perhaps a good policy choice to use that language. And so, they concluded that the father should be permitted to have discussions with friends and others about his view of these things, although not the media, because that could cause harm to his son. Further found that father should be permitted to have his just have discussions with his son about his view about these things and whether it’s wise or unwise because that sort of a function of parenting and found that, while, his comments may well have been harmful and poorly thought out, there he should be permitted to at least have discussions with his son because they conclude, look, the son is reasonably mature for his age. He is capable of taking different views into consideration when deciding whether to proceed with this treatment. The Court of Appeal also points out that we have an act in British Columbia that permits young people to make medical decisions for themselves.
Adam Stirling [00:20:41] Yes.
Michael T. Mulligan [00:20:42] This does not require parents to consent to it as long as they are mature enough to do that and there’s medical support for doing it. So, the upshot of all of this is that the young man will be permitted to carry on with his treatment. The father will be permitted to talk to his son about it and talk to friends about it, but not go and talk to the media, that could have some impact on his son’s well-being. And the Court of Appeal found that this should not be categorized as family violence. Which I think was at the core of how this thing got much worse than it could have been, had cooler heads prevailed, and perhaps that might have been assisted by using some different language in the act. You can easily imagine how he could use language like unhelpful conduct or conduct out in the interests of your family. Something of that sort. Rather than defining everything as violence, which just precipitated unnecessary and potentially harmful litigation.
Adam Stirling [00:21:38] A complicated case with implications going forward in terms of public policy and other similar cases that may occur in the future. Michael Mulligan. Thanks for helping us understand it.
Michael T. Mulligan [00:21:46] Thank you.
Adam Stirling [00:21:46] Appreciate it. Legally Speaking, every Thursday here on CFAX 1070 in the second half of our second hour, Michael Mulligan with Mulligan Defence Lawyers.
Automatically Transcribed on January 16, 2020 – MULLIGAN DEFENCE LAWYERS