Who decides how and when unlawful protesters are removed and ICBC’s finances: dumpster fire or a political excuse?

 

Who decides if, how, and when, protesters who are blocking rail lines, ferries, driveways, or bridges are to be removed?

Both protesters, and politicians, have suggested that either the Premier of BC, or the Prime Minister of Canada should, or should not, remove protesters who are obstructing transportation infrastructure or natural gas pipeline construction. In many cases, these suggestions demonstrate a fundamental misunderstanding of how such decisions are made.

Neither the Premier of BC, or the Prime Minister of Canada, has the authority to direct the police to enforce, or not enforce, Criminal Code provision that prohibits the interference with property, or blocking of highways. They also have no authority with respect to the enforcement of court orders.

It would be completely undesirable for politicians to have authority over the conduct of police operations.

Police are permitted to arrest people, without a warrant or court order, if they commit a criminal offence. When protesters blocked the Premier’s driveway, for example, the police simply attended and arrested those involved for the criminal offence of mischief.

With respect to protesters who were physically obstructing the construction of the natural gas pipeline, the company involved obtained an order from a judge which directs the police to arrest anyone engaged in this activity. Political leaders have no authority to prevent this order from being carried out or direct how this should be done. Public Safety Minister Bill Blair recognized this and confirmed that it was for the RCMP to decide how the court order was to be enforced.

Similarly, despite various political debates, CN Rail has been obtaining injunctions in other provinces to compel the removal of protestors who are blocking rail lines. The Prime Minister has no control over this process.

The second topic discussed on the show are the finances of ICBC, in the context of the recent claims by the provincial government that dire financial circumstances at ICBC require a move to a monopoly no-fault insurance system. While such a change would leave injured people with less compensation and would eliminate independent review of ICBC decisions, it would, conveniently for the government, permit refund cheques to be mailed out to people shortly before the next provincial election.

In this context, ICBC’s finances are discussed. A review of ICBC’s financial statements reveals that, between March 31, 2018, and March 31, 2019, ICBC’s assets actually increased by $1.8 billion. This is more than the amount of money taken out of ICBC to balance the budget by the last provincial government.

The large increase in ICBC’s attests were a result of it paying out much less than it took in over this period of time.

Despite this result, in this same one-year period, ICBC avoided showing a large surplus by substantially increased it’s “provision for unpaid claims”. It increased this figure from $11.9 billion to $14.29 billion in one year. This amount is supposed to be an estimate of how much future claims could cost. The large change, in one year, is a cause for skepticism.

The politically convenient outcome of the proposed change: refund cheques before an election, is a good reason to look very carefully at the financial rationale for a proposal that would leave accident victims with less compensation and eliminate the ability of courts to independently review ICBC decisions.

 

Automated transcript of Legally Speaking with Michael Mulligan Feb. 20, 2020:

Adam Stirling [00:00:00] All right. I’m not a lawyer is all of you know, I’m a journalist. Michael Mulligan is a lawyer with Mulligan Defence Lawyers. Legally Speaking, on CFAX 1070, where we seek to better understand the law and how it pertains to current events and matters of public importance. Michael, good morning. Thank you for your time, as always.

Michael T. Mulligan [00:00:15] Great to be here. Now, you do appreciate we all eventually go to law school at some point. It’s just a matter of time.

Adam Stirling [00:00:20] I was going to say following current events, it feels like we all need to these days.

Michael T. Mulligan [00:00:25] So, I mean, the one that is beginning just so much discussion is sort of the issue of, you know, what’s to be done with these people blockading rail lines across the country. Right.

Adam Stirling [00:00:35] Yes.

Michael T. Mulligan [00:00:36] And one of the things I found fascinating watching the debate about that, is just how much clear misunderstanding there is about who has authority to do what. And some of that misunderstanding is probably just that, misunderstanding. But there are others engaged in the debate, literally in parliament, that may be portraying something intentionally misleading about who has authority to do what. And this is what I mean by that: there’s been much handwaving and posturing about things like suggesting that the Prime Minister, Mr. Trudeau, or somehow the Premier ought to do things like, remove the RCMP from the Wet’suwet’en land or order the RCMP to go and clear the protesters off the rail lines and you see this on both sides. You see the conservative leader saying, Mr. Scheer, saying, well, you know, we should go in and clear these people off right now. And the Prime Minister’s suggesting some other approach would be appropriate. The reality of it is that in our system.

Adam Stirling [00:01:46] Yes,

Michael T. Mulligan [00:01:46] The Prime Minister and the Premier, neither of them has the authority to direct how the RCMP or the police are going to carry out their operations. And we are much better for it. In places where politicians and can order the police to go and do things or not do things; little good comes of that. There are many counterexamples. Right. If you’re in the Philippines or you’re in China and the politicians take a dislike to you, some phone calls going to go out of the police are going to show up and arrest you or do whatever they see fit.

Adam Stirling [00:02:22] Or at the very least sit down for tea.

Michael T. Mulligan [00:02:23] Yeah, that’s not good. And it is not our system. And so, both those that are calling on those politicians to do, or not do things, in terms of clearing blockades or arresting people or repositioning the police, know not about what they speak. And furthermore, the politicians that are, you know, variously calling on one another or suggesting alternative approaches are. I would expect do know what they’re talking about but may be a little disingenuous about all of that.

Adam Stirling [00:02:55] There are a lot of law degrees in the House of Commons. I’m just going to point that out.

Michael T. Mulligan [00:02:58] Yeah. And one of the comments which I thought was should be focused on was there is a, it’s been played on CFAX this morning were the comments of Bill Blair, the Minister of Public Safety. And he was speaking about this offer by the RCMP to reposition the location of their encampment or whatever you would want to call it, their station.

Adam Stirling [00:03:21] Yes.

Michael T. Mulligan [00:03:22] And he quite correctly, if you listen carefully to what he had to say, indicated properly that this is of course, completely up to the RCMP. He, Bill Blair or the Prime Minister do not have the authority to tell the RCMP where and how they should set up their detachment or where and how they should go and enforce this order. The order is an order of Madam Justice Church. And this is important to know as well. There’s been a reference to the judge’s reasons, which set out all of how it is the evidence she considered when making her order?

Adam Stirling [00:03:57] Yes.

Michael T. Mulligan [00:03:58] But then at the end of court application like that, there is a thing produced called the order, and it is literally the order of the court specifying what exactly is to be done and not done.

Adam Stirling [00:04:11] He’s holding this hand.

Michael T. Mulligan [00:04:12] That’s a separate thing from the rationale for how the judge came to the order. But then there is the order is going to stamp for the British Columbia Supreme Court at the top of it, and it is entitled Order Made After Application The Honourable Madam Justice Church. And what happens following an application like this in court and the judge makes her decision and gives her reasons. The lawyer who is successful would draft the order, the lawyer for the other side would review it and sign off on it in terms of form and go back to the court to sign. And it becomes the order. And the order is clear. The order is this” THE COURT FURTHER ORDERS that any peace officer be and is hereby ordered to enforce the injunction order set out in paragraph 1 and 2 above, and in furtherance of the same:” so what they are to do? And that is what directs the RCMP to do what they’re doing in terms of removing people that are obstructing the construction of the natural gas pipeline. Now here, the judge did grant the RCMP discretion in terms of the timing and manner of enforcement. So, the police retain that operational discretion, but that is discretion for the RCMP. It is not discretion for the Prime Minister, is not discretion for the Premier. Those people are not part of the process in our system of government. They don’t get to tell the police where and how to operate. Bill Blair has it quite right, and you would expect he would. He’s the former chief of police from Toronto. He understands fully that policing in Canada is not directed by politicians. They are free to enforce the law. They have a fair bit of discretion in terms of how they do that. And that’s healthy as well. Right. The, not in every case, would there be a necessity of a court order directing the police to do something? And we saw that, for example, with the protesters laying down in front of the Premier’s home the other day, the police simply showed up and decided to enforce the criminal code provisions against mischief. And so, arrest of the people and off they went. But in other cases, there can be a specific direction to the police to do something. And that’s what’s occurred here. And so, well, the Prime Minister, or others, might make suggestions or might have some moral suasion or might try to encourage people to do or not do things; they do not have control over how the police are enforcing this order and the police are directed to do this. It’s not up to them either. So, to those who suggest that while the RCMP should do this or the RCMP should do that, or you’ve got all this provocative language about how the RCMP are behaving, they are obliged to do this. And if you conclude that Madam Justice Church has made an error in her decision, there’s a remedy for that. The remedy for that is an appeal.

Adam Stirling [00:07:10] Yes.

Michael T. Mulligan [00:07:11] File the appeal. You don’t if you don’t like a judge’s order, appeal to the Premier. You don’t appeal to the Prime Minister. It’s not up to the leader of the official opposition. If you take issue with the order of a court, we have a remedy for it. The remedy is an appeal. File one. And so, to all of those that are calling on various people to do things or not do things, they should think carefully about who actually has the authority to do and not do things. And as I see it, many of those people are either completely misinformed about who has authority to do or not do anything or are saying and not saying things for various political advantages. Like when the leader of the opposition stands up and says things like, you know, why isn’t the Prime Minister clearing the people off the rail life people out of work? Well, the Prime Minister has no authority to clear people off the rail lines. But what is happening is all of these people are saying and doing things is that CN Rail is, one province at a time, going to court and obtaining injunctions to remove the people from the rail lines. One was granted in Alberta; I think was just the day before yesterday.

Adam Stirling [00:08:25] Yes.

Michael T. Mulligan [00:08:26] And so the police are out now dutifully enforcing the order and removing the people from the rail lines. The Prime Minister has no input into that, whether he like it or not. That’s what is simply occurring and that’s how the system should operate. You don’t want these decisions being made on the basis of some political calculation. You don’t want police enforcement actions being done because they would be popular or unpopular. The people with whose rights are being interfered with, the company CN Rail, right, is going to go to court, obtain orders, and you would expect the police to do their duty, enforce the orders and remove the people from the tracks. And that has nothing to do with the political calculation on either side of the aisle.

Adam Stirling [00:09:09] In fact, it could take place without parliament ever even knowing about it. They need not be involved at all.

Michael T. Mulligan [00:09:15] That’s true. And as it should be.

Adam Stirling [00:09:18] Yeah.

Michael T. Mulligan [00:09:18] Right. I mean, when they have these sort of you know, when you have these reports of like, well, there’s an emergency cabinet meeting where people are debating what should be done. There are, there are some things, of course, which could be done politically. Like we saw, for example, with the Trans Mountain pipeline, we’re going to buy the whole thing.

Adam Stirling [00:09:36] We’re going to buy it, Yeah.

Michael T. Mulligan [00:09:36] So fair enough. There are other interventions which could be made. Right. You could do things like, well, offer to buy the entire multi-billion-dollar project. That would be an available option. But the politicians, it is not an available option to them, to tell the police what to do or how to do it or whether to enforce the order or not. And to be perfectly blunt, they’re not even a part of the litigation. Like neither the provincial government nor the federal government are a part of the litigation involving the order that the protesters stop blocking the physical construction of the natural gas pipeline. That litigation is with respect to it’s the Coastal Gasoline Pipeline Limited versus various John, Jane Doe’s and various named people who are the people who are obstructing the pipeline. The neither level of government has anything to do with that litigation. And they have, frankly, no input into it. And people should understand that before they start laying down in front of the wrong car or calling on people to do or not do various things who simply have no authority to do or not do them.

Adam Stirling [00:10:47] Michael, thank you for explaining that to us. I think it benefits all of the public and know parliament puts words on paper that apply to everyone. Generally, courts interpret those words on paper in individual situations and make orders where appropriate and police enforce those orders where appropriate.

Michael T. Mulligan [00:11:01] Right. And it’s important that they continue to do so independent of political influence. All right. That is an important value. You do not want to live in a country where politicians are sending the police in or not sending the police in based on various political calculations. And happily, there is no authority to do that. So, people should stop suggesting otherwise or waving their arms around or demanding that they do or do not do something which they have simply no capacity to do.

Adam Stirling [00:11:31] All right. Quick break, Legally Speaking, continues after this.

[00:11:34] COMMERCIAL.

Adam Stirling [00:11:34] All right. We’re back on the air here. CFAX 1070, legally speaking. Michael Morgan from Mulligan Defence Lawyers helping us understand a number of legal matters. I know you’ve been following the issue with ICBC and its proposed restructuring very closely, Michael.

Michael T. Mulligan [00:11:47] I have been. Yes, we’ve talked about that. The proposed move to a no-fault system. And one of the elements about that proposal that certainly caught my attention and caused me some significant concern was the announcement that this proposed change, which is premised on the great description from Mr. Eby of ICBC being a financial dumpster fire. So, an emergency. That’s the premise of this proposal, or the need for this proposal. This proposed change is conveniently for the government supposed to produce refund checks being mailed out to people shortly before the next provincial election. Anytime that kind of proposals made I think it calls on some of us to, carefully, scrutinize why it is that there is an emergency that would produce such a politically interesting and potentially helpful result to the provincial government. Is that, is the justification for that crass political announcement, justified? And so probably the, I can’t imagine this is a exactly a overwhelmed internet site, but I took the time to download the consolidated financial statements of the Insurance Corporation of British Columbia to try to assess what kind of a financial dumpster fire might be dealing with.

Michael T. Mulligan [00:13:17] And is that a great analogy, a legitimate justification for the proposed political decision to send people money back before they go and vote, their own money of course. And when I did that, looking carefully at the numbers, there is, I think, real cause for concern about whether the suggested emergency exists at all. Here’s why.

Adam Stirling [00:13:45] Why?

Michael T. Mulligan [00:13:45] So let’s look at the financial statement. Here is for the period March 31, 2018 to March 31,2019. Now in the asset column for ICBC, it lists all the various assets held by the company, including financial investments. This would be the the pool of money that the previous government took from in order to help balance their budget. They took out I think 1.2 billion. Well for the period of March 31, 2018 to March 31, 2019, ICBC assets, including principally those financial assets, grew by $1.8 billion dollars. So, the assets of the Corporation of British, Insurance Corporation of British Columbia for that one-year period of time, increased by significantly more than the amount of money that the previous government took out to help balance their budget. And you might ask, how were they then justifying increasing ICBC rates for everyone when the amount of money they are taking in vastly exceeds the amount of money that they are paying out? Because that is what occurred to that period of over that period of time to the tune of 1.8 billion dollars, here is the answer? In the liability’s column, one of the things listed is this: It’s entitled ‘Provision for unpaid claims’.

Adam Stirling [00:15:09] Yes.

Michael T. Mulligan [00:15:09] And that figure, which is associated with this massive financial note in the financial statement, is a judgment call. An actuarial judgment call, trying to predict how much the corporation might in the future have to pay out for current claims, liabilities

Adam Stirling [00:15:30] These are the unpaid liability claims. Correct.

Michael T. Mulligan [00:15:32] Correct.

Adam Stirling [00:15:33] Yeah.

Michael T. Mulligan [00:15:33] So what they did, you see in the same period of time where there is a $1.8 billion increase in assets, is that they adjusted in one year, this provision for unpaid claims upwards by $2.39 billion.

Adam Stirling [00:15:51] Is the current amount, 14.3 Billion.

Michael T. Mulligan [00:15:54] 14.28. Yes.

Adam Stirling [00:15:55] Correct. Yeah. Rick McCandless has written about this as well. He talks about the UCL balanced by premium and other revenues that’s invested assets pending the settlement draw down. He says the float produces investment income used to lower premiums.

Michael T. Mulligan [00:16:07] Correct. that’s correct. But it’s an absolute sharp turn to the right between 2018 and 2019. In 2018, they estimated that their liabilities were $11.895 billion. And in one year, they just increased that estimate to $14.287, that’s how they’re justifying the fact that their assets are growing enormously. Such because the amount they’re actually paying out is less than the amount of money they’re taking in. And they’re justifying that, saying we’ve just reassessed what we think we might in the future have to pay out. And there’s a long explanation for sort of the judgment calls and different ways that might be arrived at. But we should view it be with real skepticism. And the reason we should be so skeptical is when you have an organization that is making a suggestion, the move to no-fault, which from its perspective helps entrench it as a monopoly insurance provider, allows it to make decisions which would not be reviewable by an independent court and instead rely on things like a resolution tribunal where the government appoints, temporarily, all the people making the decisions, and where the proposal would lead to rebate checks being mailed out right before the election. There should, I should not be one of the few people downloading the consolidated financial statements of ICBC and looking carefully at whether the government’s claim of emergency, generally, genuinely, justifies what it is they’re proposing. Because what they’re proposing, not only has the effect of entrenching this company and maintaining its monopoly position, but it has the real potential to cause unfair treatment of a large number of people. And in a way which would be politically beneficial to the current government by producing these rebates. The chair of the board of directors, by the way, has Joy MacPhail.

Adam Stirling [00:18:10] I know, I interviewed her the other day.

Michael T. Mulligan [00:18:12] So we ought to think and look at that very carefully and there ought to be some careful questions asked. When you have a company, whose assets are ballooning over a very short period of time, when the government is claiming that it is a financial dumpster fire and unsustainable. We ought to look carefully at that and ask some probing questions about whether these assessments and assumptions are accurate and whether proposals coming out of this company, that would be beneficial to the current government, are accurate and well-founded, because it may be that without careful examination, people have just bought into a short, pithy description of the company without bearing down on what, in fact, is going on over there.

Adam Stirling [00:18:55] Now, Rick McCandless wrote to me earlier this week and produced an analysis that I think aligns with much of what you said. I love your thoughts. He wrote this starting in May of 2021. There will be next to no accruing of lump sum payouts, as you and I have noted, and the current UCL balance will decline as the old tort type injury claims are settled. He says the average time period for that occurring is 40 months for a given claim, because instead, the new injury cases will be paid on the pay as you go basis. But, he writes, ICBC will still accrue a liability for each claimant file in order to estimate its liabilities, right. So, in essence, there’s no difference. He writes the money for future payouts, whether one time or monthly will still exist. He argues that where the savings will occur, the $400 per month is because of the elimination of pain and suffering payments and the elimination of most of ICBC’s legal costs and disbursements for both sides, including expert reports, et cetera. Your thoughts?

Michael T. Mulligan [00:19:47] Well, I guess I would just say approach this with a very healthy degree of skepticism.

Adam Stirling [00:19:51] Indeed.

Michael T. Mulligan [00:19:51] If you have a government-controlled entity which is making a proposal which would be advantageous for it and disadvantageous for the people of BC, while, at the same time, producing a refund check right before an election. We ought to be very skeptical about claims they’re making in terms of whether this is a genuine emergency that calls for those steps, because the steps proposed just happened to be very appealing if you are ICBC and very appealing if you are the government. Right, if somebody comes to you with a proposal saying, hey, how do you like the idea of this? That sounds great. And I think it just behooves us all to look carefully at whether those claims are accurate and true, particularly when the numbers tell us their assets are increasing very substantially over a very short period of time.

Adam Stirling [00:20:47] Yes.

Michael T. Mulligan [00:20:48] And what is proposed is an offsetting figure for that, is very much an exercise of judgment, which has changed radically in a one-year period of time. Those two facts ought to cause you to be skeptical about what is being claimed.

Adam Stirling [00:21:04] Indeed. Michael Mulligan, thank you, as always, for your knowledge and analysis. Legally Speaking, during the second half hour, second hour every Thursday here on CFAX 1070.

Automatically Transcribed on February 20, 2020 – MULLIGAN DEFENCE LAWYERS