This week on Legally Speaking with Michael Mulligan:
The BC Court of Appeal allowed an appeal by Teal Cedar extending an injection against people attempting to physically prevent the company from logging.
The original interim injunction was not renewed by a judge because of concerns with respect to how the RCMP was enforcing the injunction and the fact that the conduct of the people attempting to physically prevent logging also constituted criminal offences that could be prosecuted without an injunction.
In allowing the appeal, the BC Court of Appeal held that the fact conduct may also constitute a criminal offence is not a reason to deny an injunction application. The reason for this conclusion was that someone who is applying for an injunction to prevent unlawful conduct does not have control over whether the police or provincial Attorney General will exercise their discretion to arrest and prosecute.
The court pointed out that, in the past, the BC Attorney General adopted a policy not to prosecute people who were unlawfully obstructing logging. The availability of an injunction permits a remedy that is not subject to political or other considerations.
Injunctions also permit more specific prohibitions, such as exclusion zones, that are not available pursuant to the criminal law except in the form of release conditions for people already charged with a criminal offence.
With respect to concern over the conduct of the RCMP when enforcing the injunction, the decision makes clear that the RCMP and the court are separate entities. Issues with respect to RCMP conduct can be raised while defending a charge of criminal contempt and are not a basis for denying an injunction.
Finally, the BC Court of Appeal made clear that courts do not determine if the public policy with respect to logging is appropriate and that the protesters who were attempting to impose their will by force were abandoning the democratic process:
-  It is not tenable in a democracy for a group to abandon the democratic process and impose their will on others by force. In a complex, pluralistic society, the democratically-elected government makes laws, and the courts interpret and uphold them. Barring constitutional overreach, the laws and decisions flowing from them are to be respected and enforced.
Also, on the show, a dispute between a strata corporation and a property developer concerning payment for a shared electric car is discussed.
As a proposed amenity for the building, a shared electric BMW was offered. To facilitate this the property developer leased the car and had the strata corporation take over responsibility for the lease.
At the time this was arranged the developer also controlled the strata corporation as the units in the building hadn’t been sold yet.
Once the new owners of the units took over management of the strata corporation they objected to having to pay for the car. They raised various unsuccessful arguments about not having been told about the arrangement, and not having voted on it.
Ultimately, the strata corporation was ordered to pay the developer for the costs associated with terminating the lease for the BMW.
An automated transcript of the show:
Legally Speaking Jan 27, 2022
Adam Stirling [00:00:00] Michael, good morning, a pleasure, as always.
Michael T. Mulligan [00:00:02] Good morning. Always great to be here.
Adam Stirling [00:00:04] Lots of discussion about a recent finding by the B.C. Court of Appeal. I am very interested to hear your take on all this.
Michael T. Mulligan [00:00:11] And it’s a really interesting case that deals with some fundamental issues about the role of the court and when an injunction should be granted. And so, I really do, I agree, I think it’s worth spending some time talking about some of the foundational issues and clarifications of the law that we’ve received from the Court of Appeal, in the appeal of the decision about the injunction prohibiting conduct with respect to Teal Cedar products.
Adam Stirling [00:00:41] Yes.
Michael T. Mulligan [00:00:41] And so the first part of it, I think, is really important that the court sets so sort of a fundamental constitutional division between the court and the provincial government and who has the responsibility to decide what. And I think, while there should be something that people should come out of an understanding of when they graduate from high school or something. There appears to be an ongoing misunderstanding about what the role of the court is and what discretion they’ve got in deciding some of these issues.
Adam Stirling [00:01:15] Yeah.
Michael T. Mulligan [00:01:16] And the court begins with that. At the second paragraph of their judgement, they indicate this is a this “case is not about the wisdom of government forest policy. This is decidedly not about the Court’s views and whether and where old-growth logging should occur in the province, or even in the context of climate change. In an injunction application, those matters are outside of the constitutional competence of the courts and exclusively within the constitutional purview of the government elected by the citizens of British Columbia.” And so, this is, I think, just fundamental to what’s going on.
Adam Stirling [00:01:53] Yeah.
Michael T. Mulligan [00:01:53] Right. There is no circumstance in which, no matter how compelling you think a particular issue like this might be, you know, whether there should be logging in a particular place, for example, whereby you’re going to be able to succeed in making your argument in court. Those are policy decisions. Those are decisions for the government.
Adam Stirling [00:02:15] Yes.
Michael T. Mulligan [00:02:16] And you’re not going to get anywhere breaching orders or going to court to argue about whether there should be old-growth logging or not. That is squarely within the purview of the elected government. That’s why we elect people.
Adam Stirling [00:02:29] Yes.
Michael T. Mulligan [00:02:30] And the court then goes on to say “This case is, rather, about the principles that apply when a court is asked to enjoin significant and persistent unlawful conduct by those who choose to abandon the democratic process and impose their will on others by force. That is the nature of the conduct sought to be addressed by the injunction, not peaceful protests that occur within the law. There is a clear demarcation between the type of conduct displayed in this case and the actions of lawful protesters who use peaceful means to persuade the government to change policy.” And that’s how the court is analyzing everything else here.
Adam Stirling [00:03:12] Okay.
Michael T. Mulligan [00:03:13] This is also interesting, right? The court goes on to say, Look, the unlawful “conduct in the Teal Cedar seeks to enjoin is not in dispute,” and this was really at the core of the appeal. The respondents, right the rainforest flying squad.
Adam Stirling [00:03:30] Yes.
Michael T. Mulligan [00:03:30] Made up of unknown persons. The respondents argued that the injunction was not required because the conduct is criminal in nature and can be dealt with under the Criminal Code. And then they cite the various things that the respondents agree are criminal: damaging property, rendering property dangerous, obstructing, or interfering with the use of property, mischief that causes actual danger to life and blocking or obstructing a highway. And then they list all of the sections dealing with that. And at the core of the way the case was analyzed by the judge that didn’t renew the injunction was this idea that look, because the conduct is criminal, it’s not necessary for there to be an injunction put in place. And the judge in fact, talked about how they thought, the trial judge talked about how he thought, well, this is just going to be dealt with by way of the police enforcing the criminal law.
Adam Stirling [00:04:25] Yeah.
Michael T. Mulligan [00:04:25] And the Court of Appeal carefully analyzed that approach and found that at its core, one of the two serious areas that the judge made and not renewing the injunction was that the judge considered the availability of criminal charges as a reason not to grant the injunction.
Adam Stirling [00:04:46] Yes.
Michael T. Mulligan [00:04:47] And in that regard, the Court of Appeal looked at both the principle and the actual history of that, and there is authority dealing with that concept, and there’s history of that in the province of British Columbia. And first of all, the court pointed out that, of course, back dealing with MacMillan Bloedel and the Clayoquot protests at that time, for example?
Adam Stirling [00:05:11] mm-hmm.
Michael T. Mulligan [00:05:11] The B.C. Attorney General had a specific policy not to lay criminal charges with respect to conduct that might be criminal, concerning environmental groups, and instead left it to parties to seek injunctive relief. And so, there’s an actual history of the there being an official policy, oh we’re just going to leave this to individuals. But the core legal point that the Court of Appeal made clear.
Adam Stirling [00:05:37] mm-hmm.
Michael T. Mulligan [00:05:37] Is that when you have a private party like the Teal Cedar products, who is being prevented from engaging in lawful conduct by people who are doing things that are criminal, right,.
Adam Stirling [00:05:52] Yes.
Michael T. Mulligan [00:05:52] Destroying the road and so forth.
Adam Stirling [00:05:53] Yes, that that that Teal Cedar doesn’t have any control over whether the police are going to enforce the criminal law or indeed whether the provincial attorney general is going to prosecute people.
Adam Stirling [00:06:11] Interesting.
Michael T. Mulligan [00:06:11] And for example, in the MacMillan Bloedel circumstance,, the province had a policy, we’re not going to prosecute these people.
Adam Stirling [00:06:17] Mm-Hmm.
Michael T. Mulligan [00:06:17] And so it cannot be that in a place governed by the rule of law, the provincial government for various political reasons, right? Or the police, for whatever reasons they might have given their broad general discretion, can prevent somebody from enforcing their lawful rights such that you’re left to the, you know, mob ruling about.
Adam Stirling [00:06:43] Yeah.
Michael T. Mulligan [00:06:43] Whether you’re permitted to do something or not.
Adam Stirling [00:06:44] Well, that’s why we have separate courts to keep those who write the legislation separate from those who interpret it.
Michael T. Mulligan [00:06:50] That’s right. They’re separate. And they also made the point, of course, that the conduct of the police is separate from the conduct of the court.
Adam Stirling [00:06:57] Yes.
Michael T. Mulligan [00:06:57] Police are an arm of the court. Ultimately, they are answerable to the executive, right?
Adam Stirling [00:07:04] hmm, Interesting.
Michael T. Mulligan [00:07:04] You can have correction in terms of what they’re doing. So that’s not the court. But the point is that the fact that the conduct might also be criminal and the fact that in some cases the police might choose to enforce the criminal law or that the province might choose to prosecute people, is not a reason why a party can’t come to the court and say, look, I want an injunction stopping this mob of people from engaging in conduct which is unlawful and preventing us from doing what we are lawfully permitted to do. That is not an appropriate approach. And so, the Court of Appeal has made clear that that argument that there must be some sort of gap that has to be filled in.
Adam Stirling [00:07:47] Yeah in the enforcement gap. Yeah.
Michael T. Mulligan [00:07:48] Right. That’s not an appropriate consideration when deciding whether an injunction should be granted right.
Adam Stirling [00:07:55] Okay.
Michael T. Mulligan [00:07:55] The fact that the police might choose to enforce some criminal conduct in the conduct might also be criminal. In the fact that the Crown might choose to prosecute that criminal conduct, is not an answer when somebody comes and says, look, I’m being prevented from engaging in lawful activity here by a mob of people that are blocking the road, the judge is not, should not, the Court of Appeals made clear use the fact that, well, the conduct that the fact that the conduct is also criminal is not a reason to avoid granting the injunction to prohibit the conduct. And the Court of Appeal made clear that the criminal law can be slow and can be a blunt instrument and injunctive relief can provide sort of a specific conditions, for example, things like an exclusion zone stay away from some area, not allow…
Adam Stirling [00:08:50] Yeah.
Michael T. Mulligan [00:08:50] ..People to walk right up to the road with the pitchfork or explosives or whatever they’ve got. You don’t have to wait. You could have a conditions put in place designed to prevent the problem before it happens. And this was really the core of it. Right?
Adam Stirling [00:09:05] Yeah.
Michael T. Mulligan [00:09:05] The Court of Appeal says, “It is not tenable in a democracy for a group to abandon the democratic process and impose their will on others by force.”
Adam Stirling [00:09:16] Yep.
Michael T. Mulligan [00:09:16] “In a complex, pluralistic society, the democratically elected government makes laws, and the courts interpret and uphold them. Barring constitutional overreach, the laws and decisions flowing from them are to be respected and enforced.” Protesters, “Protest are part of a healthy democracy; criminal conduct is not. In the circumstances of this case, the injunction is all that stands between Teal Cedar and a highly organized group of individuals who are intent on breaking the law to get their way. That the criminal law may be used in such circumstances remains a possibility but is within the control of Teal Cedar nor the courts to compel the police, or the BC Prosecution Service to charge and prosecute offenders under the Criminal Code.” And so that is one of the other reasons why an injunction like this can be granted right.
Adam Stirling [00:10:10] Yeah.
Michael T. Mulligan [00:10:10] When your rights are being trampled upon by people who have decided to ignore the law because they feel strongly about something, you are not compelled to hope that the police will exercise their discretion to enforce the law or indeed that the provincial government, the attorney general, will exercise their discretion to prosecute those people. Right. Those are decisions that are beyond your control. And in some cases, as we’ve seen in BC, the Provincial Prosecution Service has exercised their discretion not to prosecute people. That may be for political reasons. It may be because they think it will be helpful for reconciliation. There could be a wide range of reasons why the Prosecution Service might simply decline to prosecute people even where they are engaged in activity that is manifestly criminal.
Adam Stirling [00:11:02] Yes.
Michael T. Mulligan [00:11:02] And we’ve seen this tension develop there between the B.C. Supreme Court and the Provincial Prosecution Service, the Attorney General, effectively over decisions to not prosecute even criminal contempt allegations.
Adam Stirling [00:11:20] Yes.
Michael T. Mulligan [00:11:21] And so the point the court is making is that at the end of the day, the court does not make the decision about policy. They don’t decide whether, you know, Teal Cedar products is going to be permitted to engage in logging. Right. That’s a decision, that’s a provincial political decision, right? But the court will make sure that that law is enforced and so you will not get anywhere in court going and arguing about the merits of logging policy. You’re in the wrong forum. Right? You’re at the wrong building. There’s a building for that. It’s full of people who we’ve elected to make those decisions. You’re not going to make that argument successfully in court. Right? Go to the Legislature.
Adam Stirling [00:12:06] Yeah.
Michael T. Mulligan [00:12:06] Work for the next election, protest, whatever you want to do over there, those are the people making the policy decision. But the court will ensure that the law is upheld and respected and there will not be a circumstance, the Court of Appeal is made clear, where a private person or party or corporation, or whatever it might be, is going to be just run over by a group of people who have decided they don’t like the democratic decision that’s been made.
Adam Stirling [00:12:36] yeah.
Michael T. Mulligan [00:12:36] Because they feel strongly about something. And it’s not going to be a matter of saying, well, it’s also criminal, so you better hope the police decide to enforce the law and you better hope that the attorney general decides to prosecute the people. And if they don’t, you’re simply out of luck. If that were so, right, it would be the rule by mob.
Adam Stirling [00:12:54] Well, and that’s what they’re trending towards. You know it. Teal Cedar wouldn’t be the end. You know, I’d be targeted, others would be targeted. Anybody who opposes them. You get a Bunch of people together and you decide by force try to stop them from doing what they have the lawful right to do. Society breaks down pretty quick.
Michael T. Mulligan [00:13:09] Yes. And we’ve also seen, of course, protests that involve parties other than the person you’re unhappy with.
Adam Stirling [00:13:14] Yep.
Michael T. Mulligan [00:13:15] Of the cases where there’s been real friction about the attorney general not prosecuting people. Was a circumstance where protesters over a gas pipeline decided they were going to block the Port of Vancouver.
Adam Stirling [00:13:26] Yep.
Michael T. Mulligan [00:13:26] Who had nothing to do with the gas pipeline. They just thought they could get some attention by doing that.
Adam Stirling [00:13:32] Yeah.
Michael T. Mulligan [00:13:32] Right. Or, for example, the people that have decided that they’re going to Krazy Glue themselves to the Trans-Canada Highway to try to draw attention to, you know, a topic they think is just really important.
Adam Stirling [00:13:43] Yep.
Michael T. Mulligan [00:13:43] The people who are being obstructed by the Krazy Glued individuals or in the Port of Vancouver that’s obstructed by people blocking them have nothing to do with the dispute. They’re just being used as a way to try to get attention. And the court has made crystal clear that private individuals are free to seek injunctions to ensure that their rights are being trampled upon by people who are engaged in that kind of conduct. And you are not helplessly required to wait to see whether the attorney general thinks it’s politically expedient to prosecute the people, or whether they think that that might interfere with the reconciliation efforts or whatever other various valid political considerations the provincial government might have. You can go to court. You don’t need to have a physical fight with the people who are gluing themselves to the ground or trying to block your access to your business. Right.
Adam Stirling [00:14:41] Yep.
Michael T. Mulligan [00:14:41] We have a legal remedy for it, and it’s not going to be an answer that the conduct might also be criminal. And so those fundamental principles are just really important. The judgement is worth reading. And also, for those just things you would expect people to know, but apparently people are unaware of just in terms of how these decisions are made.
Adam Stirling [00:15:06] Yeah.
Michael T. Mulligan [00:15:06] The policy decision is not made by the court. The judge doesn’t decide whether logging is going to be permitted. But once the law has been passed, permitting the logging, the court is going to make sure that that’s going to be enforced right. Otherwise, the wheels of just come completely off the bus. Right. And we are all at the mercy of the strong, right, or the people who are prepared to glue themselves to something because they really want something to happen.
Adam Stirling [00:15:36] Yeah.
Michael T. Mulligan [00:15:36] That’s not how it works. And so, it’s I think it’s a judgement that is worth reading.
Adam Stirling [00:15:44] Yep.
Michael T. Mulligan [00:15:44] It’s not that legally complicated. It’s one that I think people would find interesting, right? Because it deals with these just important public policy issues, but informative as well so that when people do feel strongly about a particular topic or a desired outcome, the point themselves in the right direction you were pointed in the wrong direction. If you think that you’re going to get a remedy for your problem by digging up the road, hanging from a tree, and hoping you’re going to go to court and persuade, some judge that all those things are fine. That’s not how it works. It will never work. If you, if you have…
Adam Stirling [00:16:22] I’m sorry…
Michael T. Mulligan [00:16:22] …If you have something you feel strongly about, make sure that you direct your policy arguments to the people who make the policy decisions. That’s not the judge. The judge, and the courts will make sure that laws enforced. They will do that. And if you feel strongly about something, direct your legitimate concerns to the people who make the policy decisions. You’re in the wrong place, if you think you’re going to sort it out by blowing up the road or something and then having a legal dispute with the forest company, you’re just in the wrong place and you’re pointed in the wrong direction. And so, there are big and important issues here, and it is a judgement which I would urge people to have a read of. It’s not that long. It’s not that complicated, and the principles in there are really important and they affect all of us.
Adam Stirling [00:17:13] Michael Mulligan. Legally Speaking on CFAX 1070, folks. He’s the lawyer. Listen to him. He’s absolutely correct. Quick break back after this.
[00:17:22] All right back on the air here. Legally Speaking with Michael Mulligan for Mulligan Defence Lawyers, we have four minutes and 15 seconds left in today’s segment, Michael.
Michael T. Mulligan [00:17:30] Sure. Well, I think we can end on a bit of a lighter note with a dispute that’s been sorted out concerning a luxury condominium development in Victoria called the black and white. So that particular development is up on Fort Street apparently, I think I’ve driven past it, and the building was marketed as the height of luxury, including various things like access to a right sizing consultant to help you eliminate your junk when you move from a house into the condominium, a sommelier on call, and a promise of a luxury BMW electric car for use by all the people living in the building. Things with respect to the electric car went off the rails and wound up in court. The issue being that the developer had lease the car and had assigned the responsibility to pay the lease to the Strata Corporation before the Strata Corporation was turned over to the owners who eventually purchased the building, and building sold out, apparently so that people seemed to like that idea.
Adam Stirling [00:18:28] mm-hmm.
Michael T. Mulligan [00:18:28] But the Strata Corporation decided that they didn’t want to have to pay for the car, and so didn’t that, resulting in the developer cancelling the lease and suing the strata corporation over the cost of paying for the car.
Adam Stirling [00:18:44] hmm.
Michael T. Mulligan [00:18:44] The cost of the lease and the case wound up in court, where the Strata Corporation made various arguments like we weren’t told about the lease of the car or. But we didn’t have a vote about the lease of the car, none of which got any traction. Because the way it works is that when a developer develops a property, they would incorporate the Strata Corporation. They’re in control of both entities. And while they were controlling both companies, the Strata Corporation entered into the agreement to take over the responsibility to pay for the lease of the electric car, for all the people in the building to use is just
Adam Stirling [00:19:21] It’s just one. I’m sorry I misunderstood this. I thought it was a car per suite or something. This is over one car.
Michael T. Mulligan [00:19:27] just over one car.
Adam Stirling [00:19:28] Okay.
Michael T. Mulligan [00:19:28] Well, there’s no car because Strata wouldn’t to pay for it.
Adam Stirling [00:19:31] Okay.
Michael T. Mulligan [00:19:31] so the car got returned and now the Strata Corporation, they’re going to, it’s going to be responsible for the $15,000 some odd dollars in costs that incurred. On the upside for all the people that are enjoying their Sommelier services and right sizing consultant. It doesn’t look like there’s any dispute over the women’s style electric bike with very low seat on it that also is displayed on the promotional material. And so there will be it looks like an electric bike available, which would be suitable for anyone who’s decided that they want to wear a long dress while riding the electric bike as long as they’re not too tall. So, no electric car but an electric bike and the, I guess particularly, legal message is that there can be legal obligations that a Strata Corporation has undertaken, and you can’t get out of them by simply saying that I didn’t know about them, or I don’t want them, or we didn’t vote on them. And so, if you’re buying into a new property, you’d be well advised to look carefully at what all the various elements and accoutrements might be. And in this case, one of those accoutrements was supposed to be a shared electric BMW, but given the litigation, there’s no car. And so, I guess there’s an extra parking spot, maybe a place to put the electric bike.
Adam Stirling [00:20:57] The communal bike,
Michael T. Mulligan [00:20:58] the communal bike.
Adam Stirling [00:20:59] All right.
Michael T. Mulligan [00:21:00] Yes, that’s it. So.
Adam Stirling [00:21:01] Very well.
Michael T. Mulligan [00:21:02] Black and white. Enjoy your wine, but no car
Adam Stirling [00:21:06] Michael Mulligan for Mulligan Defence Lawyers. I learn new things every single week on Legally Speaking. Michael, thank you for the benefit of your insight analysis, as always.
Michael T. Mulligan [00:21:15] Thank you so much. Always great to be here.
Adam Stirling [00:21:16] All right. Have a great day. Bye now.
Automatically Transcribed on January 31, 2022 – MULLIGAN DEFENCE LAWYERS