This week on Legally Speaking with Michael Mulligan:
Mr. Eisler was born in 1932. He left school at age 14 and started work as a farmer and shepherd. By age 18 he was working in the Alberta oil fields. By 22 he was a field supervisor and by age 31 he had started his first company.
At age 79 Mr. Eisler was fired by the board of directors of a mining company he started and had worked at for twenty-four years.
Mr. Eisler sued for wrongful dismissal but, sadly, died a few months before the wrongful dismissal trial. After he died, the company claimed that they had cause to fire Mr. Eisler because of events many years earlier.
As discussed on the show, while an employer is permitted to fire a non-union employee without cause, they are required to provide either notice or pay in lieu of notice. Typically, the amount of notice, or pay, would be calculated based on the provisions of the BC Employment Standards Act, or common law principles that would take into account the length and nature of the employment.
In Mr. Eisler’s case, however, he had a written agreement with respect to the terms of his employment that provided for payment if he was fired without cause. As a result, his estate received an award of $72,500 plus costs.
Also on the show, a Vancouver police officer sued for $1.5 million claiming that she was seriously injured in two car accidents.
The judge who heard the case did not believe the police officer. He examined photographs of the vehicles which showed very minor damage and took into account cross-examination of the police officer including on an application form for her job as a police officer where she described herself as “physically fit active with ability to work for long hours”.
In addition to finding the plaintiff police officer to not be a credible witness regarding the extent and longevity of her accident-related pain, the judge also disbelieved the plaintiff’s boyfriend. The judge described the boyfriend’s evidence as overly rehearsed and partisan and found that he plainly embellished the impact of the second accident. The boyfriend, as it turns out, had also been hired as a police officer in Vancouver.
The case demonstrates the importance of cross-examination and testing of claims. Having trials of issues like these with an independent judge is valuable not only for plaintiffs but for defendants, including ICBC.
Finally, on the show, a decision of the Civil Resolution Tribunal is found to be patently unreasonable on judicial review. The judge reviewing the decision concluded that the tribunal “exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts.”
The case involved a driver who was attempting to review ICBC’s decision that they were 100% responsible for an accident because this would result in their insurance rates increasing.
The Civil Resolution Tribunal adjudicator in the case misunderstand the nature of a civil claim being made by the other driver in the case and wrongly thought that this would resolve the issue of who was responsible for the accident.
Had the Civil Resolution Tribunal decision not been overturned the driver asking for a review would have been left with no way to challenge the ICBC decision concerning who was at fault.
An automated transcript of the show:
Legally Speaking Mar 18, 2021
Adam Stirling [00:00:00] It is time for Legally Speaking on CFAX 1070, joined by Michael Mulligan from Mulligan Defence Lawyers, Good morning, Michael. How are you?
Michael T. Mulligan [00:00:07] I’m doing great. Thanks so much for having me.
Adam Stirling [00:00:09] Lots to talk about on the agenda today. Where shall we get started?
Michael T. Mulligan [00:00:13] I think the place to start this morning would be with respect to a claim made by Mr. Eisler, who I think has a great background.
Adam Stirling [00:00:22] mhmm.
Michael T. Mulligan [00:00:22] He’s a fellow who was born on March 3rd, 1932. He’s somebody who left school at age 14 and began working as a farmer, then as a shepherd, for those of you of a certain age, you may recall perhaps, fletch being the last I heard, indicating they had he had a job as a shepherd. Then at age 18, he moved into working in the oil field and eventually as a roughneck and a field superintendent. And then after a few years, he started his own business, moved to B.C., and had a business which he incorporated to do resource exploration.
Adam Stirling [00:01:00] mhmm.
Michael T. Mulligan [00:01:01] And so it went for a number of years. Eventually, the company was successful. It went, it went public. But sadly, in 2011, he had a dispute with the board of directors of this company that he had started himself over how money was to be raised for further expansion. And the board of directors fired him, and they didn’t give any notice or pay him any anything in lieu of notice. He was 79 years of age at the time. He was fired by the board of directors of the company that he had started. And so, he sued the company for wrongful dismissal.
Adam Stirling [00:01:44] mhmm.
Michael T. Mulligan [00:01:45] And we’ve spoken before about how that can play out. And I think one of the elements of wrongful dismissal claims that is surprising to most people, is that an employer is actually permitted at any time in common law, to fire an employee, just like the employee is free to quit if they don’t like working somewhere.
Adam Stirling [00:02:05] Yes,.
Michael T. Mulligan [00:02:05] But what somebody would be entitled to would be either notice of that or pay in lieu of notice. Now, there can be some special circumstances that arise, including if somebody is in a union, they can actually have some special protection where they could even be reinstated into their job. And I think we’ve seen that play out in a public way. For example, in the case of that conservation officer who refused the order to kill the bear, he was actually ordered back into his employment. And that’s an ongoing issue in that case
Adam Stirling [00:02:38] for the firefighter that we mentioned recently, but perhaps shouldn’t get too far into, yeah.
Michael T. Mulligan [00:02:43] That’s right. Yes, exactly. So that could happen in the union context. But if you’re not in a union, ordinarily, what you’re going to be entitled to would be notice or pay in lieu of notice based on common law principles, the bottom, the four of which would be settled in the Employment Standards Act. But here, this is a good thing for people to be aware of. You can have circumstances like Mr. Eisler, happily did, where he had a contract of employment which set out what is to be paid in terms of notice or pay in lieu of notice if he was dismissed. And so that’s the upside. The bad side for Mr. Eisler is a very sadly, shortly before the trial was to commence, he passed away.
Adam Stirling [00:03:33] hmm.
Michael T. Mulligan [00:03:33] But he is a state carried on with the claim. The company then tried to allege that he had engaged in misconduct and they had cause to fire him. Those claims were made, according to the Court of Appeal, late in the day after he had died. Perhaps the company thought, oh, hey, here’s an opportunity to explain to me why we fired him. So, the the ultimate outcome was that because he had a contract that set out the terms of employment, ultimately his estate was awarded some $72,000 in compensation for him being dismissed. Having found that the company’s late in the day, claims that he’d done things improperly, didn’t have any merit. So, I thought it was a good place to start. I liked it because not only do you have somebody who started as a shepherd and worked his way up to the be the president of this successful company, but it’s also an example of how somebody, who is an employee can wind up with some additional protection if they had a contract in place that would set out what would happen in the unfortunate event that they are fired. So, a very successful life for Mr. Eisler. And it was, I must say, a nice read, concluding that at the end of all that there was some recognition of what he had done for many years in establishing from the ground up this, this company, so there it is.
Adam Stirling [00:05:01] All right,.
Michael T. Mulligan [00:05:02] Make sure you’ve got an employment contract. If you could negotiate one and you’re not in a union.
Adam Stirling [00:05:07] Absolutely. Our next story is very interesting. Vancouver police officer, it says here, makes a claim for 1.5 million dollars with respect to injuries suffered in two car accidents. That was not the size of the damages awarded, though, Michael. Not even close. What happened?
Michael T. Mulligan [00:05:23] Not at all. And I must say, this is an example of why there is just no substitute for having trials in court and having witnesses cross-examined. Sometimes I think that’s now thought of to be sort of an expensive luxury as we see moves towards things like the no fault system.
Adam Stirling [00:05:44] Yes.
Michael T. Mulligan [00:05:45] But this case is a great example of how having a proper trial in front of a judge who knows what they’re doing is a protection both for people who might be hurt, but also, I must say, for members of the public, given that ICBC is, of course, a publicly owned company. This case involved a woman, Ms. Johal, or Constable Johal, who is a police officer with the city of Vancouver. And indeed, she made a claim for one and a half million dollars, claiming that she was very seriously injured as a result of two car accidents. But, at trial, the judge not only looked at the evidence, including physical evidence or photographic evidence sorry, of the vehicles involved. The judge described the damage from the first rear end accident as two or three barely visible scuff marks on the bumper of the car and a similar description to the second accident as being very minor. The first one involved a 79-year-old retired taxi driver, who he testified he rolled forward and bumped into the back of the car being driven by the now police officer. And despite that physical evidence of there being very minor damage caused, the now police officer testified that the accident caused her to be in shock, described as a big thud and crash and then claimed to have suffered ongoing pain that continued for years as a result of these two apparently minor car accidents.
Adam Stirling [00:07:34] hmm.
Michael T. Mulligan [00:07:34] She was cross-examined, pointing out various things, including the fact that when she applied for the Vancouver police department, she indicated that she was physically fit, active, and able to work for long hours. That is after the two accidents occurred.
Adam Stirling [00:07:48] Oh, no,.
Michael T. Mulligan [00:07:49] She did, she passed through physical, physical fitness.
Adam Stirling [00:07:52] Oh, no.
Michael T. Mulligan [00:07:54] with police. And so, it, I think, became quite apparent to the judge after all of that, that she was just not to be relied upon. The other troubling aspect of this is that she had she called evidence from her boyfriend, Prince, who testified in a way that supported her claims. The judge rejected Prince’s evidence, troublingly as well, Prince has also just been hired by the Vancouver Police Department and is set to start training in May of this year.
Adam Stirling [00:08:29] Hmm.
Michael T. Mulligan [00:08:29] So there’s a, I guess there are a few layers to this; first of all, we’re fortunate that there was a proper trial here and she was effectively cross-examined, and the judge was able to come to the conclusion that the judge did about these claims, just not having merit. The judge concluded ultimately that both the plaintiff and her boyfriend were not to be believed, rejected the evidence that each of them gave, rejected, the virtually, all of what was being claimed, and the other significant impact of that as well, is that when you’ve got somebody who is working in that capacity and indeed the recently hired Prince, the boyfriend, and I’m not quite sure how these either of these two individuals can continue to, or could function as police officers in a circumstance where or in any circumstance where they could be called upon to testify in court.
Adam Stirling [00:09:30] Hmm.
Michael T. Mulligan [00:09:30] Right. You’ve got this finding by the B.C. Supreme Court that they were unreliable, rejecting the evidence that each of them had given. And you can imagine what some future cross-examination of either of these two people would look like if they were called upon to come to court and testify about a criminal case that they might have investigated. So, we’re lucky as a public to have this process, you know, rather than paying out a million and a half dollars, ultimately, the judge awarded $46,137. And so, the real benefit to the public and here, I suspect there’s going to be significant implications, not only in terms of that unsuccessful claim, but in terms of the capacity of these two people to function as police officers, given the finding of the trial judge that their evidence wasn’t to be believed or relied upon at the trial.
Adam Stirling [00:10:31] How does that work? And that’s something that I’m honestly ignorant to. If a finding is made with respect to the credibility of a person by the court, can that be then referenced and relied upon in all future legal proceedings?
Michael T. Mulligan [00:10:44] That’s really interesting. You can certainly imagine that they would be cross-examined about that. So, you can imagine what that might do to their credibility.
Adam Stirling [00:10:53] mhmm
Michael T. Mulligan [00:10:53] There’s also a requirement now that the Crown disclose the disciplinary history or relevant disciplinary history of police officers. So, if you had a police officer who was, you know, found to have conducted himself improperly in a professional capacity, that’s going to be disclosed to the defence as part of the process.
Adam Stirling [00:11:14] mhmm.
Michael T. Mulligan [00:11:14] And so you can imagine what impact that might have as well. Right. But when you’ve got a person like in this case, through this detailed description of all the various things that she had claimed and detailed analysis as to why those things were not to be believed or relied upon, at least by this trial judge.
Adam Stirling [00:11:33] mhmm.
Michael T. Mulligan [00:11:33] You can well imagine how that would seriously undermine the person’s credibility if they were showing up to testify about some other matter that was in any way contentious. And so, yes, you would certainly expect this to have some future implication in terms of whether they were able to do that, do that job. I mean, think about that, if you just hired the person as a police officer who just showed up in court and a judge found to have testified in a misleading and unreliable way.
Adam Stirling [00:12:04] Yes.
Michael T. Mulligan [00:12:05] You know, you think, well, hold on maybe that maybe that wasn’t the best hire for a job that involves honesty and coming to court and testifying truthfully about things that you saw and did.
Adam Stirling [00:12:15] Indeed. I want to take a quick break, Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking will continue in just a moment here on CFAX 1070.
Adam Stirling [00:12:23] Legally Speaking, continues here on CFAX 1070 with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers and an opportunity recently, Michael, to have a conversation with the Attorney General of British Columbia, David Eby, who is an extremely busy fellow these days. Among the files that he is currently working on are the housing issues here in Victoria, as well as ICBC, the proverbial dumpster fire, a term that he himself coined in popular parlance, the Civil Resolution Tribunal. Now, this is a this is a change that you and others warned could come with potential complications. You’ve any number of times, I think, very articulately and persuasively argued about how having an independent judge with both the experience dealing with the law as well as any number of other factors is necessary to have a just outcome. In many cases, Civil Resolution Tribunal, not always able to replicate that potentially. What are we seeing?
Michael T. Mulligan [00:13:20] Well, I must say this would be a decision that just came from the B.C. Supreme Court that could be described as nothing but a terrible, awful, very bad day for the Civil Resolution Tribunal.
Adam Stirling [00:13:30] Oh, dear.
Michael T. Mulligan [00:13:32] You’ve had a couple of those lately, exposed maybe in a different way a couple of weeks ago where the Chief Justice found that they didn’t have jurisdiction to do some of the things the province had tried to delegate them. But the particular case that just came out involved a finding, ultimately, by the judge reviewing a decision by the Civil Resolution Tribunal that involved ICBC. The judge concluded, ultimately, given the above, I find the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and or non-existent facts. That’s not a good conclusion
Adam Stirling [00:14:09] and or non-existent, facts, isn’t a nonexistent fact, the false fact. Like what?
Michael T. Mulligan [00:14:15] That would be the kindest way to describe it.
Adam Stirling [00:14:17] Okay.
Michael T. Mulligan [00:14:17] And here’s the background and it describes it should give you some idea of why it’s important to have people who are well-trained making these kind of decisions. The particular fact pattern involved in a car accident but occurred back in 2017. There were two of two drivers. The person who was the petitioner in this case claimed that he was stopped at a pedestrian crossing when another vehicle hit him. The other vehicle driver claimed that this person was making a left-hand turn at the time of the collision. So just a factual dispute about how this car accident happened. But what happened is by process, that’s not transparent, ICBC decided to accept the version of events by driver number two, claiming that there was a left-hand turn being made rather than the person sitting unmoving at a pedestrian crossing.
Adam Stirling [00:15:10] hmm.
Michael T. Mulligan [00:15:11] The person who claimed that he wasn’t moving and was parked appealed the decision that he was 100% responsible for the accident to the Civil Resolution Tribunal, because that’s how the legislation is set up now. That’s where you have to go if you want to take issue with an ICBC finding in that regard. And the reason he was doing that is that if you’re found to be at fault for an accident, your insurance premiums would go up and you would be required to pay a deductible to get your car fixed. So that’s what he was concerned about. Hey, my rates are going up, right, I didn’t cause this. He was trying to appeal it to the Civil Resolution Tribunal.
Adam Stirling [00:15:52] mhmm.
Michael T. Mulligan [00:15:53] The person who was the person who claimed it was a left-hand turn being made was suing for damages, I guess, claiming he was injured or fix his car, whatever it might be. And so, what happened is when the case got to the Civil Resolution Tribunal, the adjudicator there decided that they weren’t going to hear the appeal by the man who was saying that he was stopped and not moving. And they did so saying, oh, this will get sorted out when the B.C. Supreme Court case is heard involving the person who claims it was a left-hand turn who was suing for damages.
Adam Stirling [00:16:36] hmm.
Michael T. Mulligan [00:16:36] Now, the reason why that was simply, wrong. Is this and it was a little bit of understanding as to how it works when somebody is in a car accident and you’re insured by ICBC.
Adam Stirling [00:16:50] mhmm.
Michael T. Mulligan [00:16:50] When you’re in a car accident and somebody is suing, claiming for damages, hey, my back hurts. ICBC would appoint a lawyer to defend the claim and once they’ve done that, that lawyers and ICBC are going to have conduct of how the case is defended, because ultimately, at the end of the day, it’s going to be ICBC paying the other person out, if they are found to have been injured or their car damaged, whatever it might be. And the just fundamental misunderstanding that the adjudicator had in this case was that, somehow that process would resolve the issue of whether the person who says he was stopped was, in fact stopped, as he claimed, because he would play no particular part in that trial for the injury claim made by the person who claimed that a left-hand turn was going on. In fact, it’s not uncommon for ICBC to say because they’ve determined somebody was 100%at fault, say, look, we’re not even taking issue with who was at fault here. We’re just here to discuss how much the damage award should be. That was the case, for example, in the decision we just talked about with the now police officer who got bumped into on two occasions.
Adam Stirling [00:18:11] yes.
Michael T. Mulligan [00:18:11] Right. Nobody took issue with the fact the car got bumped into from behind. It was just a matter of is this a million and a half dollars in damages or $40,000, right.
Adam Stirling [00:18:20] Yeah.
Michael T. Mulligan [00:18:20] And the same was true in the case that the Civil Resolution Tribunal was dealing with. And so, the adjudicator, at the Civil Resolution Tribunal, just fundamentally misunderstood how that case would proceed, what control, if any, this person would have over it. The person who claims he was stopped.
Adam Stirling [00:18:37] Yes.
Michael T. Mulligan [00:18:38] And because he just completely misunderstood how all of that would proceed and what the person’s role would be. His decision was, and the judge ultimately concluded just patently unreasonable. He just described it, a judge described it as a seemingly honest but mistaken understanding of civil procedure, insurance litigation and just what would happen at the trial. The eventual trial that might happen over the injury claim by the person who claimed he was turning left, is not going to resolve the issue that the person who says he wasn’t moving at all has with ICBC. His argument is, I didn’t cause this accident. I’m not responsible for it. My rates shouldn’t go up.
Adam Stirling [00:19:25] Hmm.
Michael T. Mulligan [00:19:25] That is a very different issue from, how much is the, you know, how badly injured was the other person who was involved in the accident?
Adam Stirling [00:19:34] Yeah.
Michael T. Mulligan [00:19:35] That decision, which may be the only thing decided at trial. How much are the injured and how much compensation are they due? Doesn’t answer the question, who’s responsible for the accident? Right.
Adam Stirling [00:19:46] Yeah, exactly.
Michael T. Mulligan [00:19:46] And I was speaking to ICBC was taking the position that the person who was complaining was entirely responsible for it. And so that’s likely the position the lawyer is going to take come trial. There won’t be a decision about who caused it. It’ll just be about how much were you injured? And so, the adjudicator in this case, at the Civil Resolution Tribunal just to have a complete misunderstanding about what was happening.
Adam Stirling [00:20:12] mhmm.
Michael T. Mulligan [00:20:12] And so that’s where this case that just came out arose. And the judge who reviewed that found that the decision of the adjudicator was patently unreasonable, which is a very high threshold. That’s the statutory threshold to have a judge overturn a decision of the Civil Resolution Tribunal.
Adam Stirling [00:20:33] Yes.
Michael T. Mulligan [00:20:34] A very high threshold. And so indeed, that’s what was found to have occurred here. Interestingly as well, the judge ordered costs against a Civil Resolution Tribunal. That’s not common with that kind of a body. And so, as I said, this, I think can only fairly be described as a terrible, awful, very bad day when you have a judge describing the outcome of a quasi-judicial tribunal as being made on irrelevant, non-existent facts and with a mistaken understanding of how the process operates. And so, it’s an example of why some of these things are genuinely important. And we really do need a decision maker who is fundamentally independent of the parties. That I think.
Adam Stirling [00:21:26] Yeah.
Michael T. Mulligan [00:21:27] Really at the core of all of this, you just should not have people like this adjudicator who would be a contracted, short term employee of the provincial government deciding disputes involving the government owned insurance company. So, one more, one more bad swing and a miss for the Civil Resolution Tribunal again this week.
Adam Stirling [00:21:47] Now, will this have implications in any other applications for judicial review with respect to the Civil Resolution Tribunal? Could this be referenced, or does it work that way?
Michael T. Mulligan [00:21:58] Well, I would certainly hope that the case would serve as a reminder to people in the Civil Resolution Tribunal just how exactly these things work the way they were. Previous decisions that the judge in this case referenced, that made clear that, that issue as to who’s responsible for the accident and should your insurance rates go up as a result. That’s a dispute between the insured and ICBC.
Adam Stirling [00:22:26] Yeah.
Michael T. Mulligan [00:22:27] And it’s a completely separate issue from a claim being made by another driver claiming that they were injured. And the resolution of that second, were you injured, and if so, how badly? Does not answer the question as to, you know, who caused this, and should your insurance rates go up? And that’s important and it needs to be addressed. There needs to be some way to remedy it. And if this decision stood, what you would effectively have is the person who claimed that he didn’t cause the accident would have no remedy at all. He wouldn’t participate in the trial about the person claiming he was injured. Yeah, the legislation says you can only go to the Civil Resolution Tribunal. And so, he would just be stuck with no ability to have that decision reviewed. Sorry, there we are to go back and try again.
Adam Stirling [00:23:16] All right. Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking here on CFAX 1070. Thanks so much. Until next week.
Michael T. Mulligan [00:23:22] Thank you. Stay safe. Have a great week.
Adam Stirling [00:23:24] All right. Bye now.
Automatically Transcribed on March 18, 2021 – MULLIGAN DEFENCE LAWYERS