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Dispute Resolution of the Future: 24 Hour Access, No Set Dress Code

Forget the business attire, forget the hearing room, and forget regular business hours. The future may even be dispute resolution in your pyjamas. Necessity being the mother of invention, an increasing need for better access to justice and the means for delivering it means that your home computer, laptop, or mobile device can serve as the place where disputes are resolved.

In Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854 at para. 10, Lamer CJ noted that the rise of the administrative state has been marked by the creation of institutions other than the courts. While Lamer CJ may have been pointing out the obvious more than a hundred years after the fact, his observation goes beyond the rise of the administrative state.

The fact of the administrative state is predicated by the fact that parliament (both federal and provincial) and the courts cannot possibly apply and administer the myriad of rules that govern day to day life or settle the thousands of disputes that arise under the endless statutes and regulations. Superimposed on this are the modern problems of access to justice and a high-tech world in which more services are offered on line. As noted by former BC Attorney General Geoff Plant at a BC Council of Administrative Tribunals conference many years ago, it was no surprise that long and expensive legal proceedings (both in the courts and at administrative tribunals) and the cost of legal advice had resulted in the emergence of private on-line legal services that offered alternative means of settling disputes.

British Columbia is now at the forefront of delivering public dispute resolution services on-line. Mentioned previously on Slaw only once (Online Courts: Using Technology to Promote Access to Justice, August 23, 2016), the BC Civil Resolution Tribunal (CRT) (civilresolutionbc.ca) is now up and running. The aim of the CRT is to significantly reduce the cost, delay, and complexity of resolving disputes. It is the first tribunal of its kind in Canada, established under the authority of the Civil Resolution Tribunal Act, SBC 2012 (the Act).

The previous Slaw article focused on the CRT’s quasi-inferior court function, as a diversion for small claims actions for amounts below $5,000. That aspect of the CRT’s function came into force on June 1, 2017. What I want to focus on in this article is its function as a body that is more in keeping with a traditional administrative tribunal.

In that regard, the CRT has had jurisdiction over a number strata property matters since the fall of 2016. This followed a period of beta testing that started in 2015, in which the public was able to use its “Solution Explorer” to test-drive the system and get an idea of how the CRT might assist in resolving stata property disputes. The CRT also invited public input into its rules and fee structure, making significant use of social media promote this consultation.[1] The CRT has also garnered a significant amount of on-line and print media attention, both in mass media and legal publications. Since her appointment, the CRT Chair, Shannon Salter, has made numerous appearances at a wide variety of forums, legal and non-legal, to speak about the CRT.[2]

Section 3.6(1) of the Act sets out the scope of the CRT’s jurisdiction in strata property matters. It encompasses the following matters:

  • Non-payment of monthly strata fees or fines
  • Unfair actions by the strata corporation or by people owning more than half of the strata lots in a complex
  • Unfair, arbitrary or non-enforcement of strata bylaws, such as noise, pets, parking, rentals
  • A strata’s failure to enforce its bylaws
  • Financial responsibility for repairs
  • Irregularities in meetings, voting, minutes or other governance issues
  • Interpretation of the legislation, regulations or bylaws
  • Issues about common property

Reading section 3.6(1) alone, it may not appear that the Act grants the CRT exclusive jurisdiction over these matters. However, the CRT has exclusive jurisdiction over the matters expressly set out in section 3.6(1), unless the BC Supreme Court grants an exemption under section 12.3. Otherwise, parties may still seek redress in the court as permitted under the Strata Property Act, SBC 1998, c. 43. In fact, section 3.6(2) sets out a lengthy list of specific strata property matters that the CRT does not have jurisdiction to determine. Those matters must be determined in the manner set out in the Strata Property Act. Effectively, there is no change in the forum or manner in which disputes are settled in relation to the express list of matters set out in 3.6(2).

While the CRT may determine both strata property matters and a limited range of small claims matters[3], its enabling statute also permits it to determine matters that might be assigned to it by other statues. As of yet, there are no such matters assigned by other statutes. Regardless of the type of dispute, the CRT has a single set of rules that apply to all matters that come before it.[4] As well, the CRT is designed to minimize the involvement of lawyers. Under section 20 of the Act, the general rule is that parties are to represent themselves. Section 20 sets out limited circumstances in which counsel may act in a CRT proceeding. There is no prohibition against a party seeking legal advice in advancing or defending a matter before the CRT, but unless one of the described circumstances apply, the party will have to act on their own behalf in their dealings with the CRT.

While not yet available on sources such as CanLII[5], the CRT posts all its decisions on its website. The CRT issued its first decision on November 24, 2016, Owners, Strata Plan LMS 2900 v. Mathew Hardy, 2017 CRTBC 1.[6] That case involved the owner’s contravention of the strata corporation’s no-smoking bylaw and did not involve any monetary amount.

In relation to strata property disputes, s. 56.5 of the Act permits appeals of final decisions of the CRT to the BC Supreme Court. An appeal must be filed within 28 days of the CRT’s decision. A party may only appeal if all parties consent or by leave of the court, based upon criteria set out in 56.5(5). This appeal process will not apply to those matters that may come before the CRT in the future under the authority of statues other than the Act. Rather, section 3.7(2) of the Act indicates that those matters are subject to judicial review. The Act itself contains no privative clause in regards to those matters.

As is still early days, at present there is but one BCSC decision relating to appeals from the CRT. That case, The Owners, Strata Plan BCS 1721 v. Watson, 2017 BCSC 763, is important because it sets the procedures for the court to follow in determining an application for leave to appeal, on which the Act is silent. In granting leave to appeal, Kent J. adopted a modified form of the process set out in the court’s practice directive governing small claims appeals. No doubt a similar process will apply for appeals of CRT decisions made under its function as an alternative to small claims matters.

Once the 28 day appeal period has passed, a party may file a CRT decision with the BC Supreme Court. Upon filing, the CRT decision will have the same force and effect as an order of that court and can be enforced in the same manner as any other BCSC order. A validated copy of an order relating to financial compensation or return of personal property may also be filed in the BC Provincial Court if those matters are within the monetary limit for small claims actions.

While BC remains the only jurisdiction in Canada with an operating on-line dispute resolution tribunal, should the BC CRT be as successful as its architects hope it will be, there is likely little doubt that similar tribunals will be established across the country. Furthermore, success with strata property and small claims matters may mean future expansion of the scope of the CRT’s jurisdiction. Whatever those tribunals may be, one’s shirt or shoes will not determine the level of service.

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[1] The CRT has a Twitter account, @CivResTribunal. At present, its account consists of a single tweet; however, its chair, Shannon Salter, has made significant use of her Twitter account (@shannonsalter) to promote the CRT, invite public input, and provide the latest information on developments within the CRT.

[2] Upcoming presentations are posted on the CRT website.

[3] The key limitations relate to the value of a claim (i.e. at first, the CRT will be limited to claims up to $5,000) and that the CRT cannot decide claims against the provincial and federal governments.

[4] According to its blog on its website, the CRT intends to review its rules on a regular basis, about every six months. The latest changes took effect June 1, 2017, in conjunction of the expansion of its service to include small claims matters.

[5] CRT decisions should be available on CanLII by September 2017, if not sooner.

[6] While this decision was originally posted on the CRT cite, as of the date of this article it no longer appears there. All subsequent CRT decisions appear to be on its website.

Comments

  1. Sean Vanderfluit

    A quick follow-up. Whatever technical difficulties I may have had trying to find the first CRT decision (Owners, Strata Plan LMS 2900 v. Mathew Hardy, 2017 CRTBC 1) have been resolved. The decision can be found here:

    http://decisions.civilresolutionbc.ca/crt/crtd/en/item/229774/index.do

    As well, in the time since I finished this article, the CRT has become more active on Twitter, particularly around the time in which it began to adjudicate small claims matters.

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