As British Columbia prepares for the fall 2014 startup of Canada’s first civil resolution tribunal geared towards self-represented litigants and the use of technology to settle strata or small-claims disputes, there’s growing concern among lawyers about whether the individual’s legal rights may be fully represented.
Newly elected Canadian Bar Association B.C. branch president Dean Crawford says the Civil Resolution Tribunal Act restricts the ability of lawyers to go before the tribunal to represent clients unless they have permission. The act’s s. 20 allows for a lawyer acting for a child or person with impaired capacity or where the other party has permission to be represented by counsel.
Crawford says he believes the self-litigant tribunal is premised on the idea that it will speed up the dispute process. A B.C. government press release reflect that notion: “Resolving a dispute through the tribunal is expected to take about 60 days, compared to 12 to 18 months for Small Claims Court.”
Crawford says the exclusion of lawyers may have the reverse effect as they often act as a sounding board for the validity of a complaint or they can mediate a solution. “Their exclusion could bring more cases to the tribunal and prolong proceedings,” he says, adding that self-represented litigants haven’t shown they expedite the judicial system.
“We support early dispute resolution and the utilization of technology to facilitate access to justice,” says Crawford. The tribunal will use e-mail, phone, videoconferencing as well as in-person appearances to resolve disputes.
“But, we question the creation of a separate tribunal working in parallel to the court system,” says Crawford, who suggests the funds used to create the tribunal could have bolstered the provincial court system that already has a number of mediation and dispute-solution mechanisms in place in addition to a small claims process.
Typically, B.C. tribunals have reflected an expertise such as labor relations, employment standards, and human rights. “We would support the CRT for strata property claims,” says Crawford. But existing tribunals don’t restrict the claimant or defendant from having a lawyer.
The tribunal will deal with small claims up to a value of $25,000 for debts or damages, recovery of personal property, specific performance of an agreement relating to personal property or services or relief from opposing claims for personal property. It will also handle strata corporation and tenancy issues relating to 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; uneven, arbitrary or non-enforcement of strata bylaws; issues of financial responsibility for repairs and the choice of bids for services; irregularities in the conduct of meetings, voting, minutes or other matters; interpretation of the legislation, regulations or bylaws; and issues regarding the common property.
The act indicated that the process is voluntary; however, it does have an exception as it requires a strata corporation to participate if a strata member opts for the tribunal process.
After the tribunal’s announcement in spring 2012, a working group was struck that included, among other parties, the Law Society of British Columbia. Bruce LeRose, law society president at the time, said: “The right to counsel is a crucial right in a free and democratic society, and the law society recognizes and fully supports that right.”
Vancouver lawyer Shawn Smith, who specializes in strata law, says the question that arises for strata corporations is who will take the responsibility of appearing before the tribunal. “Is it going to be the strata management doing the practice of law? I am not sure that the strata manager will be keen on doing that. I sometimes spend two or three days going through affidavits. Not every strata dispute is simple.”
As well, a judgement against a corporation might result in costly repairs. Smith says a judicial review of a decision “might be extremely difficult” as the process of moving through intermediate mediation steps such as telephone conversations may not lend itself to providing the documentation needed for the court process.
Smith says he likes the tribunal’s mediation aspect and the attempt by governments to find a low-cost solution to resolving disputes. But he says the part about not allowing lawyers at tribunal hearings is a drawback of the systems. He’s doubtful it will reduce cases as the web site provides an easy place to vent frustrations rather than waiting and considering whether to take a matter to a lawyer.
While the Trial Lawyers Association of British Columbia sees the tribunal as helpful “in the right circumstances,” president Dennis Hori says “the exclusion of legal representative was the biggest issue.”
Hori, though, is one of several B.C. lawyers who are working on specific committees with the tribunal to provide rules formulation and implementation that will support the new act. As such, he says, he plays a role in attempting to ensure that the rules are fair to all parties appearing before the tribunal. Currently, inequities can happen. “It is not a level playing field,” he says. “One party can have more potential experience and knowledge than the other.” For example, a large corporation that’s repeatedly dealing with small-claims issues may over time have individuals who develop an expertise in appearing before the tribunal.
“I think it is designed to allow access to a resolution process that is less costly to the participants. That is an admirable goal. But we have to make sure that we do not sacrifice fairness in the process,” he says.
Strata lawyer Jamie Bleay is on two tribunal subcommittees, one dealing with stratas and a second with the web-based tool that will provide a number of steps for those attempting to resolve issues. There will be a self-help section plus a further option to ask questions. If that step fails, a case manager can be assigned to mediate a resolution. The final step, failing a mediation agreement, is a tribunal hearing.
“There is still lots of opportunity for lawyers to provide legal advice up to the point where the parties go into the hearing room,” said Bleay, who acts mainly for strata corporations.“I know it is a problem,” he says of the exclusion of lawyers. “But I am optimistic that the tribunal will allow lawyers more often than not.”
