No Trivial Matter

I am a big fan of trivia. I am pretty much undefeated in any game of Trivial Pursuit since the mid-1980s[1]. One night years ago my family thought they might defeat me playing a DVD-video based version of the game. My victory that night has become family legend.[2]

A piece of trivia I recently learned was that the Audi automobile company takes its name from the legal maxim, audi alteram partem. The founder, August Horch, could not use his surname as it was part of the trademark of his former company. “Horch” in German means “hear”. His son, who was studying a Latin text while his father was trying to brainstorm a new company name, read the maxim aloud and suggested “Audi”, which means “listen”.

The right to be heard is a cornerstone principle of the law and procedural fairness. Over time this principle has come to include the right or opportunity to have representation at a legal hearing, including some administrative proceedings.

A recent case that caught my eye touched on this principle, The Owners, Strata Plan NW 2575 v. Booth, 2020 BCCA 153 (“Booth”). The reasons do not expressly describe it as such, but this case relates to a matter of procedural fairness, being a party’s entitlement to legal representation. Booth arose from a dispute over s. 20(1) of the Civil Resolution Tribunal Act (“Act”), which requires parties in a Civil Resolution Tribunal (“CRT”) proceeding to represent themselves. As with almost all matters of law, there are exceptions, which are set out in sections 20(2) through (4).

One of these provisions, section 20(2)(c), grants the CRT the discretion to allow a party to have representation “in the interests of justice and fairness”. Section 20(3) sets out factors the CRT may consider when deciding whether to allow representation. These are when the other side is represented and where the other side has agreed to the representation. Section 20(4) requires the representative to be a lawyer, unless the CRT rules permit or the CRT is satisfied that the proposed representative is appropriate. Rule 36 of the CRT rules expanded on the criteria under the Act.[3]

In Booth, the owners of a unit in a strata complex initiated a CRT proceeding relating to the maintenance and repair of a sunroom attached to their unit. In addition to the cost of those items, which amounted to about $700, the Booths sought $25,000 for “loss of enjoyment of life, threats, abuse and stress.” The Booths only pursued the amount of the claim that was within the CRT’s monetary limit.

The strata corporation’s directors’ and officers’ liability insurance provided coverage for legal representation and was providing this coverage in this dispute. The strata corporation asked the CRT to allow its legal counsel to represent it in the proceeding. In addition to arguing that it should be entitled to the benefits of its insurance coverage, the strata corporation said that the nature of the dispute was more complex than a repair and maintenance issue. The Booths objected on the basis that it would “tilt the scales of justice” against them.

The CRT denied the request. In addition to the fact the Booths were unrepresented and did not agree to the strata corporation having representation, the CRT determined that there was nothing exceptionally unusual or complex about the subject-matter of the dispute. Rather, the CRT characterized the matter as a common dispute, of a type within the tribunal’s strata jurisdiction under the Act. The strata corporation applied to the BC Supreme Court for judicial review. The chambers judge dismissed the petition; the strata corporation appealed.

What is interesting about Booth is that neither party questioned the CRT’s jurisdiction to decide an issue founded in tort (subject to the CRT’s monetary limit). Of equal interest is that there was no constitutional or Charter challenge to the limitations imposed on legal representation under the Act and CRT rules. The BCCA noted both of these points in its decision. The only question under consideration was the substance of the CRT’s decision to not allow legal representation, on a review standard of reasonableness.

Of note, at the outset of its analysis, the BCCA stated that in cases that did not involve final determination of a case that originated before the SCC issued Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, such as the case at bar, the test for the standard of review in Vavilov applies retroactively.

Before turning to the grounds of appeal, the BCCA addressed a passage in the CRT’s reasons for denying the request for representation. In those reasons, the CRT said the bar to representation in the proceeding did not bar a party from getting legal advice and assistance in the course of a CRT proceeding. The court did not approve of this “suggested circumvention” and that it was “irregular” for the CRT to sanction a “way around” its own decision. If being able to use counsel in the background or outside of the proceeding itself might not fully mitigate the inability to have a legal representative act in the proceeding, it would be interesting to consider where this reasoning might have led if the validity of s. 20 was in dispute.

On the reasonableness of the CRT’s decision itself, the BCCA observed that the chambers judge correctly described the primary issue in dispute in the CRT proceeding: damages for alleged threats, abuse, and loss of enjoyment of life. The BCCA said that the scale and basis of the claim went far beyond the repairs and maintenance of the sunroom, into a more complex area of legal issues. The court found that this was critical to the strata corporation’s submissions to the CRT when it requested permission for representation, and that the CRT failed to address this key element of the strata corporation’s request. Citing Vavilov, the court said that the failure of a tribunal’s reasons to account meaningfully for a central issue or concern of a party could fatally undermine the reasonableness of a decision.

As a result, the court found the CRT’s decision to deny the strata corporation legal representation in the proceeding without addressing that complexity was unreasonable. The court quashed the decision and remitted it back to the CRT for fresh consideration.

The outcome of the case is significant. Clearly, Booth does not require the CRT to allow all requests; otherwise, the court would not have remitted the matter back to the CRT. The court expressly noted that it was not considering the validity of s. 20. Thus, a party who wants their representative to act for them in the CRT must still meet one of those exceptions or must obtain the permission of the CRT. The starting point under s. 20(1) of the Act remains the same – parties must represent themselves in CRT proceedings, subject to the exceptions set out in sections 20(2) through (4).

Booth simply mandates that the CRT – like any other tribunal – must meaningfully account for the central issues raised by the parties when it issues reasons. As noted in Vavalov, this is rooted in the duty of procedural fairness rooted in the right to be heard. There is nothing trivial about that.

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[1] This is not an invitation for challengers.

[2] They doubted that anyone like me would have a clue as to the membership of the Wu-Tang Clan.

[3] The CRT Rules have been revised and renumbered in the time since it decided the question of representation in Booth.