- British Columbia's Pioneering Civil Resolution Tribunal
- March 20, 2015 | Authors: Barbara Murray; Talya Nemetz-Sinchein
- Law Firm: Singleton Urquhart LLP - Vancouver Office
- In 2015, British Columbia will introduce a Civil Resolution Tribunal (CRT), the first on-line dispute resolution and adjudicative body in Canada. The CRT is designed to transform civil and administrative dispute resolution in B.C. from the current system to, as the provincial government’s White Paper on Justice Reform describes them, “simplified, user-friendly administrative processes that will focus on providing early resolution services, including on-line services.”
The government’s rationale for establishing the CRT is to modernize and reform the justice system. The changes will provide lay litigants with an alternative to the courts for disputes that currently fall within the jurisdiction of the Small Claims Court, as well as most strata property disagreements. The premise is that, by removing these cases from the courts, the CRT will resolve them more quickly and cheaply by utilizing on-line dispute resolution services through e-mails, telephone communications, and video conferencing. In-person meetings and hearings will be used only when necessary.
If disputing parties fail to resolve their differences by utilizing the early resolution services, the parties will proceed to a formal adjudicative process, which is the tribunal proceeding. This proceeding will have two phases: case management and tribunal hearing. In the case management phase, resolution by agreement between the parties will be facilitated by a third party. If this should fail, the dispute will progress to a hearing by a tribunal, which will make a final settlement ruling.
Once a tribunal hearing starts, no party to that proceeding may begin any other court or legally binding processes against another party concerning an issue that is to be addressed in a tribunal proceeding. Any prior proceeding that was commenced must be adjourned or suspended while a tribunal proceeding is ongoing.
Additionally, if a tribunal makes a final decision, a party to that proceeding cannot seek redress elsewhere and must discontinue any prior court or legally binding processes that it had started before the tribunal process.
While the government's efforts to improve access to justice are praiseworthy, we will not know for some time if it has succeeded in its aims. The resolution of disputes may be less expensive through the CRT, and the process itself more user-friendly for lay litigants, but a question immediately arises: will the CRT really provide access to justice for everyone or will it only work for a certain segment of the population?
The premise of the CRT is that users of this simplified adjudicative process must have access to a computer and be somewhat computer literate. However, those users who may most require the CRT’s processes—such as low-income individuals, the elderly, or the disabled—may be excluded if they cannot readily access a computer or do not have the skills to use one.
Another significant issue with the CRT is whether its processes will be able to consistently provide just resolutions, considering the breadth of the disputes that it has jurisdiction to handle. Other tribunals, such as the B.C. Human Rights Tribunal, Employment Standards Tribunal and the Residential Tenancy Branch, are effective precisely because they were created to deal with disputes involving specialized areas of the law.
In contrast, the CRT is not dealing with one area of law but many areas. Not only will the CRT have jurisdiction to hear a broad range of small claims disputes but it will also hear a myriad of strata property matters. These can include (and this list is far from exhaustive):
- non-payment of monthly strata fees or fines
- unfair actions by a strata corporation or by people owning more than half of the strata lots in a complex
- arbitrary or non-enforcement of strata bylaws
- issues of financial responsibility for repairs
- irregularities in the conduct of meetings, voting, or minutes
- interpretation of the legislation or bylaws
- issues regarding common property.
The CRT’s on-line dispute resolution services may well be able to effectively resolve some of the strata property matters that it can deal with, such as non-payment of monthly strata fees. However, there are concerns that on-line dispute resolution services may not be conducive to more complex issues, such as those involving numerous council members and owners in cases where there are allegations that a strata corporation has acted unfairly. Can such proceedings conducted by videoconferencing, for example, be as effective and credible as hearings held face-to-face in a courtroom?
In these types of cases credibility of the parties is key. If such matters proceed to a tribunal hearing, and the governing principle is expediency, will the tribunal be able to effectively assess the credibility of the parties and come to a just resolution of the dispute?
In addition to these issues, if the CRT is required to interpret legislation, how effective will the process be in enabling an adjudicator to make an informed decision?
These are only a few of many questions that will be raised about the CRT’s effectiveness. Whether the CRT will transform civil and administrative dispute resolution will not be known for some time. Its success or failure may well be dependent on how transparent, just, and accessible the process appears to users. That may be difficult to achieve given that this is the first attempt in Canada to settle these kinds of common disputes on-line rather than in a courtroom or a live, face-to-face, arbitration or mediation hearing.