This week on Legally Speaking with Michael Mulligan:
To ensure their independence, Superior Court Judges hold office on good behavior, until age 75, and can only be removed by the Governor General on address of the Senate and House of Commons.
The point of this is that you don’t want judges to be fired when they made decisions that the government doesn’t like.
If you have a dispute with the government, you want to know that the judge hearing the case isn’t worried about being fired if they decide in your favour.
This protection would not be very meaningful if the government was able to transfer decision-making authorly to people who were not independent.
As a result section 96 of the Constitution Act, 1867 has been interpreted so as to restrict the ability of governments to transfer authority over the core jurisdiction of superior courts to other bodies.
As part of a plan to move to a mandatory a no-fault automobile insurance system, the province of British Columbia attempted to transfer authority over claims of up to $50,000, as well as the authority to determine if an injury was “minor”, so as to cap compensation, to a body called the Civil Resolution Tribunal.
Employees of the Civil Resolution Tribunal work on short-term contracts for the provincial government. They have none of the protections afforded judges and could be fired, or not have their contracts renewed if they made decisions which the government didn’t like.
From a fairness perspective, it’s not appropriate to have employees of one of the parties to a dispute making decisions about it.
From a legal perspective, Chief Justice Hinkson determined that the attempt to transfer authority over claims up to $50,000, and the power to determine if injuries were “minor” was unconstitutional because of section 96.
As a result, people who have a dispute about these matters with ICBC will be able to have a judge, rather than a Civil Resolution Tribunal employee, decide.
Also on the show: an example of where the Civil Resolution Tribunal is an appropriate forum to resolve small disputes between private parties: a family was able to avoid paying $4,998.54 for a return Air Canada flight from India which was canceled due to COVID-19. The adjudicator concluded that the contract with a travel agent was frustrated when the return flight was canceled and could not be rebooked in a reasonable period of time.
Finally, the BC Supreme Court dismissed an application for judicial review of a BC Human Rights Tribunal decision which refused to accept a complaint by a Pastafarian and member of the Church of the Flying Spaghetti Monster.
The Pastafarian wished to wear a pasta colander, or a three-cornered hat known as a pirate’s tricorn, for his driver’s licence photo on the basis that he claimed these to be religious headgear.
The BC Human Rights Tribunal refused the complaint on the basis that ICBC was not required to accommodate a practice satirizing religious practices.
The Pastafarian argued that the Church of the Flying Spaghetti Monster was a duly constituted society and in good standing in BC and that neither its constitution nor its bylaws mandate the mocking of religious beliefs or religious practices.
Automated transcript of the episode:
Legally Speaking Mar 4, 2021
Adam Stirling [00:00:00] Time for Legally Speaking with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, good morning, how are you?
Michael T. Mulligan [00:00:06] Good morning. Great to be here. Can’t complain at all.
Adam Stirling [00:00:09] Some interesting developments this week, Michael, on a story that you and I have been discussing for quite some time, the use of the Civil Resolution Tribunal to resolve some disputes with respect to motor vehicle collisions. What’s happened?
Michael T. Mulligan [00:00:23] Well, Chief Justice Hinkson has been busy. That would be the short of it. The decision which came out this week with respect to the Civil Resolution Tribunal, relates to the province’s effort to set up a no-fault system for ICBC and to try to shift disputes to this Civil Resolution Tribunal rather than having them heard in court. And we’ve spoken about that before in terms of the fairness of that arrangement, the principal concern being that unlike judges who are independent of government and can’t be fired if they make an unpopular decision.
Adam Stirling [00:01:04] Mhmm.
Michael T. Mulligan [00:01:05] The people who are deciding cases for the Civil Resolution Tribunal are just on short term contracts with the government. And that may be fine if the Civil Resolution Tribunal was doing what it was originally intended to do, which was to sort out things like small strata disputes over barbecues on the patio or eventually resolve very small, small claims actions. But it’s not particularly appropriate when one of the parties to a dispute is the provincial government. You just if you had a dispute with your neighbour, you wouldn’t want your neighbours employee deciding the outcome of the dispute.
Adam Stirling [00:01:51] Indeed. That wouldn’t you go well for me? No.
Michael T. Mulligan [00:01:53] No. So that’s the one of the key fairness concerns about having this tribunal decide ICBC claims. But the decision that came out from Chief Justice Hinkson this week about the province’s efforts dealt with an even more fundamental constitutional principle about whether it was permissible for the province to force some of these disputes into that forum. And the chief justice concluded that the province was not allowed to do that. And the analysis came under Section 96 of the Canadian Constitution. And Section 96, if you read it, speaks about the appointment of Superior Court judges and it grants that authority to the federal government. Subsequent sections in the Constitution provide some protections for judges, Superior Court judges like they can’t be removed except by the Governor General on joint address of the Senate and House of Commons. Right.
Adam Stirling [00:03:03] mhmm.
Michael T. Mulligan [00:03:03] Good idea. We should have a high threshold so we can’t just fire the judge. You don’t like their decision.
Adam Stirling [00:03:07] Indeed.
Michael T. Mulligan [00:03:08] Now, those protections and that provision in the Constitution would be rendered pretty meaningless if either level of government were permitted to just create some new kind of judge.
Adam Stirling [00:03:21] oh, I see.
Michael T. Mulligan [00:03:22] Or decision maker and just say, well, we’re going to call this person the Grand Poohbah and the Grand Poohbah shall decide all disputes and we just won’t have any more section 96 court judges who needs them. Because, of course, it’s great for us we can just fire the Grand Poohbah’s anytime we don’t like what they’re doing.
Adam Stirling [00:03:38] Interesting.
Michael T. Mulligan [00:03:38] That would render all of those protections pretty well meaningless. And so, the Supreme Court of Canada has interpreted Section 96, which when you look at it, just talks about the power to appoint superior court judges to mean more than just you can appoint them, it also means you can’t just transfer their powers to some person with a different name and thereby make all of those protections meaningless.
Adam Stirling [00:04:05] Interesting.
Michael T. Mulligan [00:04:06] And so the decision that came out this week was Chief Justice Hinkson hearing a challenge to the expanded jurisdiction of that Civil Resolution Tribunal. The provinces tried to transfer to it authority to decide claims of up to $50,000 dollars and also gave it the authority to decide if a person, if a car accident, personal injury claim was a “minor injury”, which would limit how much the person could receive in compensation. And Chief Justice Hinkson found that both of those things were unconstitutional. And the way that is analyzed is an interesting thing.
Adam Stirling [00:04:49] mhmm.
Michael T. Mulligan [00:04:49] And it comes from a case dealing with a residential tenancy arrangement,.
Adam Stirling [00:04:58] Hmm.
Michael T. Mulligan [00:04:58] And the first stage of that involves the court looking at what was the court jurisdiction of the superior courts in each of the four provinces at the time of Confederation. So, you actually have historical evidence, in this case a university professor, who came to give evidence about, you know, what was a superior court judge doing, what do they have an exclusive jurisdiction over in Ontario, Quebec, New Brunswick and Nova Scotia in 1867. And that’s the beginning of the enquiry. And indeed, the Chief Justice Hinkson found that properly construed those issues like over claims for personal injury, up to $50,000 was something which was within the jurisdiction, the exclusive jurisdiction of the superior court in those provinces at the time of Confederation. Interestingly, in order to try to avoid the problem, the Province of British Columbia tried to characterize what they were doing was rather than transferring authority over personal injury claims up to that amount, they tried to characterize it as something to the effect of claims with respect to motor vehicle, minor motor vehicle accidents. And of course, in 1867, you weren’t having a whole lot of motor vehicles because people were crashing their horses, falling off buggies.
Adam Stirling [00:06:22] Well, that’s true tactically.
Michael T. Mulligan [00:06:24] So that didn’t fly. And then the court went on to analyze circumstances in which there can be an exception, even if something is within the core judicial function of those superior courts at the time of Confederation. There are some limited circumstances where there would still be authority to transfer authority to some other decision-making body.
Adam Stirling [00:06:51] Interesting.
Michael T. Mulligan [00:06:51] And we’ve seen that, for example, with things like you’d have specialized bodies dealing with things like securities regulation, for example, or specialized bodies dealing with things like labour disputes. But here Chief Justice found that this particular effort didn’t meet the requirements to do that and looked at the legislative scheme and whether this would have the desired effect. And there was also some very interesting analysis with respect to whether this idea would, in fact, speed things up or save money at all.
Adam Stirling [00:07:28] mhmm.
Michael T. Mulligan [00:07:28] And there was some interesting evidence showing that, well, there’s a large number of ICBC civil claims that are filed every year. The overwhelming percentage of those, like % 99.5 of them settles before ever going to trial. There are only about 200 and some odd cases that ever get to trial because, of course, there’s that is the backstop. And if you don’t come to a fair decision, there’d be a judge there that’ll decide it, %99.5 of the cases, the people, lawyers, or the individuals, ICBC, they just resolve it.
Adam Stirling [00:08:05] mhmm.
Michael T. Mulligan [00:08:06] And so he found that this wasn’t some scheme that was likely to have broad other beneficial effects. And so, the result of it is that he found those provisions of the Civil Resolution Tribunal, legislation that gave them authority over claims up to $50,000 and to decide whether an injury was a minor injury. He found those to be unconstitutional because they violated Section 96 and those are areas of jurisdiction that are within the authority of the Superior Court of the province.
Adam Stirling [00:08:40] Interesting.
Michael T. Mulligan [00:08:40] The result as you can now continue to go to court, and you’re not stuck with if you have a dispute with ICBC having to go to this tribunal where all the people making the decisions are employed by the government on short term contracts. So, I think probably a very interesting constitutional decision. It goes on for more than 100 pages analyzing all of that history. But I also think a good outcome just in terms of broad fairness, because we just really should have somebody who’s not employed by one of the parties deciding these things. That’s just fair.
Adam Stirling [00:09:15] Now, I was I’m wondering I don’t know if this is addressing the decision I haven’t had a chance to do a close read of all 100 pages. Is the subject of Judicial Review and the Civil Resolution Tribunal being subject to Judicial Review by a superior court addressed?
Michael T. Mulligan [00:09:30] That wouldn’t answer the question.
Adam Stirling [00:09:32] Okay.
Michael T. Mulligan [00:09:32] Because on a on a Judicial Review, the authority is relatively narrow one and there would be an obligation to uphold the decision of an administrative nature unless it was found to be unreasonable.
Adam Stirling [00:09:48] Okay.
Michael T. Mulligan [00:09:48] Which is a very high threshold. And so, the fact that you could, and you can have a Judicial Review of an administrative decision, even if something like this is a Civil Resolution Tribunal.
Adam Stirling [00:09:59] Yes.
Michael T. Mulligan [00:10:01] That isn’t an answer to it, because on a Judicial Review, you could have a judge will say, well, I would not have made this decision. It seems quite unfair to me. But this is within the realm of possible reasonable decisions. You know, you just disbelieve the person when they say they were injured and granted them nothing. For example, I wouldn’t have come to that decision, but it was a possible decision here and so on, a Judicial Review that would be upheld. And the judge did find that it would be possible to go to the Civil Resolution Tribunal if both parties agree to it. And so, it leaves that isn’t available option. Just like you could have both parties in a claim agree to go to mediation, for example. And that’s probably not a bad thing, right. If you have two people that agree, look, we’ve got a dispute over the fence. You know, I appreciate the person you want to decide it works for you, but I think they seem fair. So, I’m happy to let them decide, OK, if that’s how you want to order your affairs that’s allowed. It just means that it’s not going to be a requirement now that you must go to the person who works for your neighbour to decide about the fence dispute, for example.
Adam Stirling [00:11:17] All right. Thanks for helping me understand that, Michael. It’s a complicated area, but I do have a better understanding of it now than before this conversation.
Michael T. Mulligan [00:11:24] Yeah, there’s no doubt about that. It certainly complicated and it goes on a long time, but the decision I mean, but the core of it is that this was within the core jurisdiction of the Superior Courts at the time of Confederation.
Adam Stirling [00:11:38] So there it will stay yeah.
Michael T. Mulligan [00:11:39] Can’t take it away. it will stay there.
Michael T. Mulligan [00:11:41] Perfect. All right. Let’s take a quick break. We’ll have more right after this.
[00:11:45] COMMERCIAL BREAK.
Adam Stirling [00:11:45] What’s next on our agenda today, Michael?
Michael T. Mulligan [00:11:47] Well, the next thing on the agenda is actually, I think the flip side of what the Civil Resolution Tribunal could be doing and an example of, I think, an appropriate use of that kind of a system to resolve disputes. The system, of course, involves an effort to resolve disputes using things like voice response telephone and filling out online forms and having evidence heard by telephone and this sort of thing. And, while it’s not an appropriate forum to resolve a significant dispute involving the government. It does have merit when you’re sorting out relatively minor civil disputes over money, which would be often uneconomic to proceed with in court. Even if somebody isn’t hiring a lawyer and trying to go to small claims, you’re still got to take time off work and go into the courthouse and so on. And for some claims, a person might say, hey, it’s just not worth the candle to do that.
Adam Stirling [00:12:49] mhmm.
Michael T. Mulligan [00:12:49] And so for small claims, really small claims, I think it is a good forum. And there was a decision which just came out, that’s an example of how it can be useful and what I think people should know about it, because it’s likely to affect quite a few people over the past year in the context of the pandemic.
Adam Stirling [00:13:08] Mhmm.
Michael T. Mulligan [00:13:09] And this was a decision involving a cancelled flight. And what happened as a family was in India in March, bad timing, and their flight home got cancelled. They wound up languishing for about two months there as another effort to rebook a flight got cancelled as well, and then they eventually had to take an emergency flight to get back to Canada. Well, what happened is that the family who had purchased the ticket through a travel agency called their credit card company and managed to get the credit card company to refund half of the cost of the ticket, the one they couldn’t use to come home because the flights were cancelled. They got home all right. But then the travel agency sued the family to recover the just short of five thousand dollars. They said, hey, you know, you didn’t pay for that return ticket. And so, the travel agent went to the Civil Resolution Tribunal and sued the family. But I should say this could equally work in the other direction. If somebody was unsuccessful in getting their credit card to refund them for a cancelled flight that they paid for, you could equally go to civil resolution tribunal and make a claim to try to recover the money and hear the decision which just came out. The adjudicator concluded that the travel agency was not entitled to the five thousand dollars or so for the ticket because the family wasn’t able to take the flight. And that was despite the fact that the travel agent argued that, well, Air Canada should have issued the family some kind of a voucher they might be able to use in the future. The adjudicator didn’t accept that, that was clear or so, and the net result is that the family was able to recover the five thousand dollars and wasn’t required to pay for it. And so that would be a good example of how that kind of scheme can be very helpful. And I would encourage people to consider using it. If, for example, you’re somebody who’s wound up in that spot, perhaps with travel arrangements cancelled and the adjudicator in this case looked at the concept of a frustrated contract, which would be a contract which is unable to be carried out as a result of unforeseen consequences, the fault of neither party, and found clearly that in this context, Covid and the inability to take a flight met that concept of being a frustrated contract. It wasn’t just a flight that got rearranged, it was cancelled.
Adam Stirling [00:15:54] yes.
Michael T. Mulligan [00:15:54] So the family already had to spend two months waiting around for an emergency flight. And so, people should be aware of that. And if you’re somebody who may have been, not had their travel plans or travel payments refunded, you might want to have a look at this decision. And you can go to the civil resolution website, civilresolutionbc.ca, and you can start a claim and you can do it all online. So, if you’re somebody who’s been left hanging as a result of a frustrated contract, having this kind of a scheme for that kind of a claim is a good one, because otherwise you might say, look, I just can’t go through the whole process to try to recover the few thousand dollars for my hotel or airline or whatever, got tickets that got cancelled. And this does provide, I think, a good avenue for fairness and that kind of a dispute. So, let have a look.
Adam Stirling [00:16:48] I’m sorry, I wasn’t laughing at the circumstances of any of the cases. I just pictured all these people with all this time on their hands and in Zoom fatigue with nothing to do figuring out how they can go to the Civil Resolution Tribunal and just start filing claims against people they don’t like. They need to be grounded. Of course, I would assume. And there are protections in place.
Michael T. Mulligan [00:17:05] Indeed. But you know, I imagine now that they’re not going to be sorting out large ICBC claims there may be a few people over at the Civil Resolution Tribunal with some time on their hands. So perhaps they should be well employed, start sorting out what may be a fair number of people who have been shortchanged as a result of frustrated travel contracts in the middle of the covid pandemic. So, don’t feel like you’re out of luck. There’s a there’s a potential solution to your problem right on your website. So, if you’re sitting at home and bored, maybe get some resolution.
Adam Stirling [00:17:38] Michael, one of the topics that we discussed from time to time is the protection that you have, that I have, that everyone has for Freedom of Religion under the Charter of Rights and Freedoms and where those limits and how far they extend in certain circumstances. And one of the scenarios that I often have put to me by people is, well, how do they know if I really believe something? What if I found a new religion and I say we don’t believe in speed limits? Do I have to obey speed limits anymore? Can I just get away with it that way? Obviously, the legal system has protections to accommodate or deal with such situations. But what about situations like a Pastafarian and whether or not they’re allowed to wear a pasta colander on their head as part of an ostensible religion?
Michael T. Mulligan [00:18:20] Yes, indeed. We have in BC and it’s apparently a properly registered society, a church called the Church of the Flying Spaghetti Monster. And people who are members refer to themselves as Pastafarian. And indeed, they indicate that their religion involves wearing a pasta colander on their head or a three-cornered hat known as a pirate’s tricorn, so I think it’s kind of like a folded black hat. that you know, Carol might have been wearing. And so, a member of the Church of the Flying Spaghetti Monster showed up at ICBC a little while ago saying he wanted to renew his driver’s licence but wanted to wear one of his religious hats in the photograph. ICBC refused him. And so, he brought a complaint to the human rights tribunal saying, hey, you failed to make provide adequate protection and accommodation for my religious beliefs. The Human Rights Tribunal refused to take his complaint, saying that you were a Pastafarian and member of the Church of the Flying Spaghetti Monster, which mocks religious beliefs and certain religious practices. Pastafarians wear colanders as religious headgear and refused to allow the complaint. And so, the Pastafarian sought a Judicial Review of the decision by the Human Rights Tribunal not to accept his complaint. And so, we just received the recent decision from the BC Supreme Court discussing whether that met the standard of reasonableness and indeed the judge found that, well, the Pastafarian made some very interesting submissions that were described as thought-provoking insights into the complexities of religion generally. Despite that, he found that the conclusions that the commission reached was not an unreasonable one and so upheld it. And so, the net result, at least at the moment, is that the Pastafarian is not able to where the spaghetti colander on his head for the purpose of getting a driver’s licence photo taken. Interestingly, if you Google it, some of the adherents to this, and apparently it’s international, have been making efforts to do exactly that. And there are people online posing with showing their driver’s licence with a upside down colander on their head and pasta. And so, it is, in fact, something that’s going on. And an interesting test of the limits of the sort of protections that we have both constitutionally and under provincial human rights legislation. At the same time, on a more serious note, right now is Chief Justice Hinkson, who made that Section 96 court decision, is currently hearing the constitutional argument from the churches and the Fraser Valley that are seeking a ruling that the limits on in-person services are unconstitutional. And another interesting development on that front is lots of Covid in religion going on, the government, I think, quite sensibly, granted an exemption for a from the Covid-19 restrictions to a synagogue in Victoria.
Adam Stirling [00:21:50] Yes.
Michael T. Mulligan [00:21:50] Where members were Orthodox Jews, and they were not permitted by virtue of their religion to use electronic devices on the Sabbath. And so, they said, look, we can’t just do this on Zoom, we’re not permitted to do that. And so, the Dr. Henry and the government agreed and came up with a special exemption that allows them to have in-person services as long as people are spaced out sufficiently and wearing masks and that small in number. And so, I think that’s a very interesting thing. And no doubt that kind of exemption will play a role in Justice Hinkson’s as assessment of the restrictions placed on churches in the Fraser Valley, where a similar argument isn’t likely to get the same kind of traction.
Adam Stirling [00:22:35] Michael Mulligan, thank you for the benefit of your insight and analysis into these matters. As always, it’s appreciated.
Michael T. Mulligan [00:22:40] Always a pleasure. Thanks so much for having me.
Automatically Transcribed on March 8, 2021 – MULLIGAN DEFENCE LAWYERS