This week on Legally Speaking with Michael Mulligan:
In British Columbia, the Wills, Estates and Succession Act sets out requirements for a will to be valid. These include a requirement that a will be signed by the will-maker as well as two or more witnesses.
In a case discussed on the show, a 76-year-old woman was living in a care facility and provided instructions to her lawyer to draft a new will. Unfortunately, the appointment to sign the will was scheduled for March 20, 2020. The appointment was cancelled because the care home the woman was living at prohibited residents from leaving, or visitors from attending, because of COVID.
Sadly, the woman passed away before the will was signed. She had no children, and her husband had predeceased her.
In a previous will, from 2014, a large portion of the woman’s estate would have gone to the Kelowna General Hospital Foundation. In accordance with her instructions, the new will that was drafted, but not signed, did not include the Kelowna General Hospital Foundation but, instead, left most of the estate to the woman’s nephew and nice-in-law.
According to the correspondence with her lawyer, the woman was clear that she did not wish to leave any money to the Kelowna General Hospital Foundation because she had no connection to the organization. She indicated that this had been a suggestion by her late husband.
The Wills, Estates and Succession Act allows a court to “cure deficiencies” in a will that would otherwise be invalid. One of the things that a judge needs to be satisfied of in order to exercise this authority is that the will must represent the fixed and final intentions regarding the disposal of property upon death.
The Kelowna General Hospital Foundation argued that the unsigned will should not be relied upon because in a note to her lawyer, after reviewing the draft will the woman said, “no charities at this time.”
Despite this language, the judge hearing the case concluded that the unsigned will did represent the woman’s fixed and final intentions and found it to be valid even though it hadn’t been signed or witnessed.
Also on the show, the University of Victoria is resisting a proposed class action seeking refunds of parking pass fees for the period of March 16, 2020, to August 31, 2020. After selling the parking passes, the university closed the campus because of COVID. The legal arguments for a refund are based on the concept of the contract being frustrated.
The university was successful in an application to permit it to make an argument to have the claim dismissed, prior to a hearing to determine if the case should be certified as a class action. The practical implication of this is that the student acting as the proposed representative plaintiff could be ordered to pay thousands of dollars in costs if the university is successful. If a case is certified as a class action, the representative plaintiff is no longer at risk of being ordered to pay the costs of the defendant.
Finally, on the show, an unsuccessful judicial review of a Human Rights Tribunal decision is discussed. The case involved an academic advisor who was fired from his job at UBC because he was using gay dating apps to meet people, including students, at the university. UBC took the position that this was a conflict of interest. The academic advisor argued that this was discrimination based on sexual orientation.
The judge hearing the case found that while the evidence in the case could have supported inferences of discrimination, that this was not sufficient to overturn the decision of the Human Rights Tribunal. To reverse this kind of decision the judge would need to be satisfied that it was patently unreasonable.
Legally Speaking Aug 19, 2021
Adam Stirling [00:00:00] It’s time for our weekly conversation with respect to legal issues, Barrister and Solicitor with Mulligan Defence Lawyers here in the city of Victoria, we’re joined by Michael Mulligan, Legally Speaking, on CFAX 1070. Hey, Michael, how are you doing?
Michael T. Mulligan [00:00:13] I’m doing great. Always good to be here.
Adam Stirling [00:00:15] What is on the agenda for this week?
Michael T. Mulligan [00:00:18] Well, the first case on the agenda involves a will and Covid and how a potentially incomplete will can be recognized. The case involves a woman by the name of Mrs. Bishop. She was 76 years of age and back in March of 2020, she had been working with a lawyer to renew her will. She had a previous will from back in 2014 when her late husband was still alive, and that will, from back in 2014, named her now-deceased husband as a beneficiary and the balance of her estate to the Kelowna General Hospital Foundation. But between 2014 and 2020, Ms. Bishop wasn’t living in Kelowna, and she had developed a very good relationship with her nephew and niece-in-law. She didn’t have any children of her own, and her nephew and niece-in-law were very supportive of her, helping her with daily activities. She lived with them for a period of time, and they became very close. And so, Ms. Bishop had spent a period of time working with the lawyer to redraft a new will. Naming them as her beneficiaries. With some specific gifts to other extended family members. Unfortunately, she had an appointment to execute the will or sign it on March the 20th of 2020. Not an auspicious time to be scheduling an appointment with one’s lawyer.
Adam Stirling [00:02:07] No.
Michael T. Mulligan [00:02:08] She was by that time living in a care facility and the care facility had imposed conditions, not having to not have residents go out or anyone come in for fear of covid getting introduced into the care facility.
Adam Stirling [00:02:24] mhmm.
Michael T. Mulligan [00:02:24] And so she cancelled the appointment scheduled for March the 20th 2020. And so, what we are left with was a will from 2014 and then a will, which was drafted by the lawyer, and which was there’s correspondence to her making some minor changes to it, but it wasn’t signed. And in British Columbia, we’ve got an act called the Wills Estate and Succession Act, WESA, sometimes it’s called. And that act sets out three requirements for a will to be valid, and they include the will as to be in writing. It is to be signed at the end by the will maker, and it has to be signed by two other witnesses who witnessed the will maker signing the will. And the starting point under that act is that if any of those three elements are missing, it’s not valid. However, happily, there is a section in WESA, Section 58 that allows a court to cure a will which is defective in some respects. And here there were a number of defects, including the fact that it wasn’t signed at all.
Adam Stirling [00:03:34] Yes.
Michael T. Mulligan [00:03:34] This document from 2020y and there were no witnesses to it. But what there was before the court, it was an affidavit from the lawyer setting out the correspondence and what Ms. Bishop wished to do. And so that’s what the court was faced with. And the way the matter came to court is that the executor of the original will came to court and said, look, what should I do with this? Does the money go to the Kelowna Hospital foundation or is the new Will valid, in which case it goes to the nephew and niece. The Kelowna General Hospital Foundation, for its part, sent counsel and argued that the judge ought not to cure the defects in the will and the money ought to go to them. And their arguments included the fact that in order to cure the defects, the judge must be satisfied, not only that the document is authentic, which wasn’t really a controversy. Right. The lawyer who drafted it up and sent it to her and she made some minor changes to it, that wasn’t an issue. But there is an issue that the court needs to be satisfied that the document would represent the deliberate, fixed, and final intentions of the person.
Adam Stirling [00:04:49] mhm.
Michael T. Mulligan [00:04:49] Right.
Adam Stirling [00:04:50] Yes.
Michael T. Mulligan [00:04:50] And the hospital society relied on the fact that when Ms. Bishop had written back to the lawyer making some minor changes, she wrote no charities at this time.
Adam Stirling [00:05:01] At this time.
Michael T. Mulligan [00:05:03] correct, so the hospital foundation said, well, that means maybe she wasn’t decided yet.
Adam Stirling [00:05:07] Yeah.
Michael T. Mulligan [00:05:08] You know, maybe if you wish to do something else. But it was abundantly clear that she did not want to leave any money to the Kelowna General Hospital Foundation. The lawyer had her instructions saying she felt it was too far away. She had no connection to it. And it was her husband’s idea when he was still alive. And so, she definitely wasn’t interested in that. And so that’s the fact pattern the judge was left with and it was made slightly more challenging because of an issue whereby the affidavit or the evidence from the lawyer who drafted the will, one of the things in it was saying, you know, why did Ms. Bishop cancel her appointment on March the 20th? Right. And he said Well it was cancelled. And then he gave an explanation for why she said it was cancelled, but he didn’t receive that information directly. It was Ms. Bishop called his legal assistant who told him Ms. Bishop has cancelled the appointment for a reason which he put in his affidavit. But that was viewed as double hearsay. It wasn’t something the lawyer had heard. It was something his legal assistant had heard and told him about.
Adam Stirling [00:06:13] hmm.
Michael T. Mulligan [00:06:13] And so the hospital society said, well, you can’t take into account why she cancelled her appointment. Who knows why she cancelled her appointment on March the 20th, 2020. Maybe she was undecided. Right.
Adam Stirling [00:06:24] Yes.
Michael T. Mulligan [00:06:25] But the judge overcame that, taking into account the evidence which was admissible about the nature of the covid-19 pandemic, the fact that the care home Ms. Bishop was living in had a policy which was before the judge, that the residents couldn’t leave the care home and visitors weren’t allowed to come into the care home. And so that didn’t work. The hospital society then tried to argue that in May there was a policy put in place that allowed Wills to be executed remotely. That was a Kelowna hospital.. General Hospital Foundation, the next argument. But the judge found there was no evidence that Ms. Bishop was aware of that, and it didn’t constitute evidence that what her lawyer had drafted on her instructions wasn’t her final intention. And so, the result here was that the judge did cure the defects and the unsigned and executed will, will have effect. And so, the result will be that the niece and nephew or niece and nephew will be the beneficiaries rather than the Kelowna General Hospital Foundation. And so, I rather suspect this may not be the last piece of litigation coming out of this terrible state of affairs we’ve gone through.
Adam Stirling [00:07:42] Yeah.
Michael T. Mulligan [00:07:43] Because, of course, the virus has a disproportionate effect on the older people who are draughting wills of this kind. And so, I suspect this won’t be the last time a court is required to sort out what did the person actually intend and what is this person’s final and fix to a decision about what they wanted to happen. So, I think happily here, it seems clear that Ms. Bishop’s wishes have been honoured. And so, the despite the best efforts of the Kelowna hospital foundation, they’re not going to be the beneficiary of her estate.
Adam Stirling [00:08:20] Something I haven’t really given much thought to. But in hindsight, it makes sense. All the issues that arise from using contemporaneous memorandization to attempt to discern a person’s deliberate, fixed, and final intent because that person is going to keep living after that document is executed. And yet you cannot prove that their intent would not change at some point in the interim.
Michael T. Mulligan [00:08:40] That’s right. It’s not easy. And so, people should, you know, to the extent possible, be aware of those things that I mentioned in terms of the requirements in writing signed at the end by the wheel maker to witnesses who witnessed the winemaker signing it. Great people should, you know, do everything they can reasonably do to make sure those requirements are met so that this kind of an application doesn’t, it doesn’t become necessary. But I think it is a good thing that we do have this residual authority for judges to try to put things right. But as you’ve suggested, that may not always be possible and sometimes it may be ambiguous. Right. You know, we saw the argument that the hospital foundation made here about her comments about, you know, charities at this time arguing that somehow she wasn’t decided about what she was doing. And so, you know, this kind of a case on slightly different facts could have gone in another direction. Or, you know, for example, if the lawyer wasn’t available to give evidence about the correspondence or what she said in his view, that she appeared to be competent to make the will with all of those kinds of things, you could well imagine an unfortunate result where somebody’s wishes aren’t carried out. So, this isn’t a suggestion that people should count on judges to fix it after the fact. The real message here should be do your very best to make sure that the requirements are carried out or are met so that your wishes can be respected, but we do have this residual authority that allows a judge to try to fix things where some element is missing.
Adam Stirling [00:10:15] All right. Let’s take our first break, Legally Speaking, on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers continues right after this.
Adam Stirling [00:10:22] Back to legally speaking on CFAX 1070, Michael Mulligan from Mulligan Defence Lawyers. Michael, where were we?
Michael T. Mulligan [00:10:28] Where? Well, where we were at. The next case on the agenda involves a proposed class action against the University of Victoria, also dealing with the effects of it. And in this case, parking passes, parking, parking passes. So, the University of Victoria sold parking passes with an effective date between March 16th, 2020, and August 31st, 2020.
Adam Stirling [00:10:56] mhmm.
Michael T. Mulligan [00:10:56] The campus, of course, was closed in March of 2020 as a result of the pandemic. Everything went online. And so, some of the students there who had purchased parking passes wanted their money back. The argument was, look, this was the contract was frustrated, right? The idea that, look, you sold me parking passes, then you closed the university, what am I parking for?
Adam Stirling [00:11:20] Okay.
Adam Stirling [00:11:22] And the university refused to return the money. And so, there’s now a proposed class action trying to force the university to return the money.
Adam Stirling [00:11:32] hmm.
Michael T. Mulligan [00:11:32] And one of the early steps that would occur in a proposed class action, and we’ve talked about this before, is the concept of a thing called a certification hearing to determine.
Adam Stirling [00:11:42] yes.
Michael T. Mulligan [00:11:42] Is this an appropriate case for a class action or should all of the people who bought parking passes have to bring claims individually? Right. Now here, the university argued that the certification shouldn’t proceed until the university has a chance to try to cancel or succeed in getting rid of the entire claim, arguing various things, including a general provision of the University Act that shields universities from liability of various kinds. And another argument under the Public Health Act that is designed to prevent actions for damages flowing from people who are required to take action under the Public Health Act. And really, the rub is this. And you might wonder why does it matter what sort of order these things go in? Well, the reason it matters in class actions is that in B.C., once in action is certified as a class action, the person who’s the representative plaintiff is no longer personally responsible for legal costs if they don’t succeed. On the flip side, you don’t get legal costs, but when you’ve got a, you know, university student up against the university, those are very different considerations.
[00:13:01] And so that’s why these kinds of things get fought over. Even though it might seem like minutia, it has the real effect of this. Now, what you’ve got is this person who would have bought the parking pass and because the university had succeeded in their argument that they should go first in terms of trying to argue whether the claim can proceed at all before the certification, what it means is that that individual is potentially on the hook for, you know, tens of thousands of dollars in legal fees. And when you’re somebody who’s got potentially a few hundred dollars at stake over your parking pass, that may not be economically viable. And so that’s why this ordering decision will actually have a real impact in terms of how this matter will proceed.
Adam Stirling [00:13:49] hmm.
Michael T. Mulligan [00:13:49] And I must say, when I when I read it, sort of this case and it sort of ties in with that last one, we spoke about the, you know, involving the Kelowna General Hospital Foundation, trying to maintain its position as the beneficiary of Ms. Bishop’s will when it was clear that that wasn’t what she wanted as an outcome. But one of the things that struck me is that when public institutions are making decisions about what legal arguments to make, in my judgement, it shouldn’t always be the case that you make any and all possible arguments that one might make. Like, for example, the Kelowna General Hospital Foundation clearly had a legal argument about whether Ms. Bishop’s, you know, unsigned will should be recognized or not. Right.
Adam Stirling [00:14:38] yes.
Michael T. Mulligan [00:14:38] And certainly the University of Victoria had a successful legal argument about the ordering of these things.
Adam Stirling [00:14:43] Yes.
Michael T. Mulligan [00:14:43] But I would advocate for the idea that when you’re a public institution, the University of Victoria, or the Hospital Foundation, you shouldn’t be simply making any argument you might make that might advantage you in some way. There should be a, I think, sort of a broader consideration about, you know, what’s a fair outcome here? What is the long-term implications of some of these decisions, like, for example, the Kelowna General Hospital Foundation making arguments that would benefit it at the expense of the desire of the 76-year-old widow that has bigger implications than whether they get her estate or not? I would imagine that’s going to cause other people to look at it and say, gee whiz, do I want to be leaving money to the Kelowna General Hospital Foundation? If I change my mind, there might be litigation that doesn’t seem great.
Adam Stirling [00:15:39] Yeah.
Michael T. Mulligan [00:15:39] And in the case of the University of Victoria, it looks like indeed there appear to be various statutory arguments about, you know, whether they could limit their liability or avoid doing this. But when you look at the bigger picture here, you’ve got a whole bunch of students who have paid for parking passes, which had no purpose whatsoever. You know, would it not be a better approach if you were, you know, giving instructions to your lawyer and you’re acting for a public institution like the university or the hospital foundation to take the approach that, you know, try to make a fair decision? Right. If you’ve taken a few hundred dollars from a bunch of students for something that they couldn’t use because you shut down the university, might it not be better to approach it from the perspective of what would be a fair outcome rather than what arguments could we make that might have a financial benefit for us?
Adam Stirling [00:16:34] Yeah.
Michael T. Mulligan [00:16:34] And so that’s obviously a common thread, I think, of both of those cases. And I don’t know how it will play out. And maybe in the case of the parking passes, maybe the, you know, lawyers would do something to shield this, you know, student who would have bought the parking pass from potentially being on the hook for thousands of dollars, but otherwise you could have an unfortunate outcome, even if it’s legally successful. And so, I guess that would be my broad message on both of these cases, and it would be a similar message to other government entities, be it ICBC or the provincial government generally. You know, when you’re making decisions about how to deal with legal claims, I don’t know that it is always the best approach to make. You know, every argument you could make, even if you might, “win”, at the end of the day, because, you know, the University of Victoria’s, you know, doesn’t exist to be a profit maximizing entity and nor should the Kelowna General Hospital Foundation. You would hope that public entities like that would broadly take an approach to arrive at a fair result. And broadly, it seems to me it doesn’t it doesn’t seem particularly fair that a bunch of students have paid for parking between March and August of 2020 when plainly that couldn’t be used. So, you know, perhaps, perhaps that will be taken into account when they decide how to continue with that kind of litigation.
Adam Stirling [00:18:07] That’s interesting. Does it specify what the language may have been in the original purchase agreement for the parking pass in terms of whether or not it was usable?
Michael T. Mulligan [00:18:16] That’s a good question. The argument here wasn’t based on the argument being made, isn’t an argument based on the wording of the contract, it’s based on the concept of the frustration of a contract.
Adam Stirling [00:18:28] Okay.
Michael T. Mulligan [00:18:29] And the idea there is that if some intervening event, you know, just prevents a contract from proceeding, the idea is that it’s been frustrated.
Adam Stirling [00:18:37] Okay.
Michael T. Mulligan [00:18:37] You know, like there’s just some unforeseen event. Nobody foresaw the entire university being shut down and all classes being cancelled when they sold people parking passes starting on March the 16th. That just wasn’t contemplated. And then the plaintiffs are making an alternative argument, which is an equitable, equitable one based on the concept of unjust enrichment. And so, you know, we’ll see how the legal arguments play out and perhaps the, perhaps the university gets traction on one of its statutory defences. You know, my comments are going to aren’t designed to sort of be comments on whether those things have merit or not.
Adam Stirling [00:19:15] Okay.
Michael T. Mulligan [00:19:15] They may. But if at the end of the day, the result is you end up keeping a bunch of parking money from student’s park there, really? Is what we are doing? Why.
Michael T. Mulligan [00:19:23] Okay, Fair enough. All right.
Adam Stirling [00:19:26] Yeah. You know.
Michael T. Mulligan [00:19:27] Give it back, move on.
Adam Stirling [00:19:28] Well, you know, as a member of the legal profession, you know how much litigators enjoy winning when they’re engaged in litigation. But I suppose it’s always of benefit to take that step back and look at factors beyond those in the courtroom. So, I totally see your point. So, thank you.
Michael T. Mulligan [00:19:43] And the lawyers doing what they’re instructed to do. Right. You know.
Adam Stirling [00:19:47] Yes.
Michael T. Mulligan [00:19:47] It’s not the lawyer deciding those things. Tell your lawyer, hey, come to a fair resolution of this thing. You know, rather than fight tooth and nail over everything, one might fight over it. So really, it’s a decision for the client. But you would just hope a public institution would take a broader approach
Adam Stirling [00:20:02] another public institution in our next story, in this case, the University of British Columbia. Two and a half minutes remain in our segment today.
Michael T. Mulligan [00:20:10] Yeah, this is a very interesting one and one that may not be done. It’s a case of a fellow there who was an academic advisor at the University of British Columbia in the Faculty of Arts. And as an academic adviser, he would offer his support to undergraduate students working with their academic progress and other aspects of their lives. Now, he started using some dating apps over there that were location based, and they happened to be dating apps that were for gay men.
Adam Stirling [00:20:43] mhmm.
Michael T. Mulligan [00:20:43] And he wound up having as a result of using those liaisons with a number of people at the university, including 20 who were students at the university. And when the university found out about that, they fired him, arguing that he was in a conflict of interest between, you know, his personal relationships with the students and his obligations as an academic adviser. And that produced a human rights complaint by this fellow, by the human, by the academic advisor, arguing that he had been fired as a result of his sexual orientation. And he was arguing that, look, people who used the straight dating apps, there’s no indication they were being fired.
Adam Stirling [00:21:28] Interesting.
Michael T. Mulligan [00:21:28] And so his argument was, look, that’s why I’ve been terminated. But he didn’t succeed at the human rights tribunal. And so, he brought a judicial review to the B.C. Supreme Court. And where there’s a judicial review of a tribunal like that, they apply the standard of patent unreasonableness in order to overturn a decision. And so, the court decision that just came out again dismissed the claim of the academic adviser on the judicial review. And essentially the judge said, look, even though the academic advisors’ arguments could have supported, the inference is favourable to him, which is to say that he was fired because of his sexual orientation. The fact that the tribunal took a different view of it and didn’t draw that inference doesn’t make the decision patently unreasonable. And so, on that analysis, the decision of the Human Rights Tribunal to deny his claim will stand. And so, it is an interesting fact pattern. And this was in the B.C., the Supreme Court of B.C. It’ll be interesting to see whether anything more comes of that. But it’s an example that when you get an unfavourable decision in a tribunal like that, you don’t get to go to court and have a do over. You’ve got to show that there was some serious error made in terms of how the decision was arrived at. So, an interesting fact pattern and that may not be the end of that one.
Adam Stirling [00:22:59] Michael Mulligan, Legally Speaking, every week here during the second half of our second hour on Thursdays on CFAX. Thanks so much. Until next week.
Michael T. Mulligan [00:23:07] Thank you. Stay safe. Have a great day.
Adam Stirling [00:23:09] All right. You too.
Automatically Transcribed on August 20, 2021 – MULLIGAN DEFENCE LAWYERS