Resolving disputes online

B.C.’s new Civil Resolution Tribunal has had positive reviews and could have wide-ranging effects on litigation.

Last year, British Columbia launched the first civil resolution tribunal in Canada, intended to settle condominium (known as “strata”) and small claims disputes in the province. Initiated by then-attorney general Suzanne Anton, “Canada’s first online tribunal” had received more than 13,000 online “explorations” and completed and closed more than 300 disputes in its first year.

The Civil Resolution Tribunal is not only the first in Canada but “the first one in the world that we’re aware of,” says Shannon Salter, the CRT’s chairwoman. “It’s exciting — both the gift and the challenge of a blank site, to create something new, exciting and innovative.” At the same time, she notes, there is “no path to follow.”

Legislation to form the CRT was passed in 2012 and the CRT began its work in July 2016, starting with strata, followed by small claims disputes in the purchase and sale of goods and services; loans and debts; construction and renovations; employment (non-unionized); insurance disputes; personal injury, including motor vehicle injuries and accidents; and property.

Disputes are primarily resolved through settlements and consensual agreements, says Salter. A smaller number of disputes is being resolved through adjudication, with decisions then published on the CRT’s website and on CanLII. The initial “facilitation” stage is confidential, but once a decision is made by a CRT member, it is published.

Since its inception, the CRT has received inquiries from jurisdictions around the world about what it offers and how it works, and from provinces such as Alberta, Ontario, Saskatchewan and Manitoba. “In some ways, the interest from outside of Canada has been stronger than from within,” Salter notes.

Of note, she adds, is how many people have used the CRT website’s “solutions explorer,” which takes users through preliminary explanations of who might be entitled to use the category they have selected, then allows users to enter information online in order to register a complaint.

“We expected that most people would want to engage with the tribunal online, but what has been surprising is that over 99 per cent of people using the CRT are doing so online, and about 35 per cent are engaging with the tribunal outside of traditional court hours” on evenings and weekends, says Salter. “It reflects the fact that there’s a strong demand to engage with justice services where and when it’s convenient to them.”

This flexibility also makes the CRT a more affordable venue for pursuing justice, Salter says, as litigants don’t need to take time off work, arrange for childcare and more in order to line up at a court registry. “They can largely do things online, or through mail or telephone, whenever.”

Jamie Maclaren, executive director of Access Pro Bono, which provides legal advice to low-income clients throughout British Columbia, says his organization has received a positive response from clients who have used the tribunal (Access Pro Bono was also involved in the consultation and testing process for the CRT).

“The main benefit we’ve seen is access to justice for those with mobility issues, and for those who are outside of easy reach of the courthouses and courtrooms where they can go to file notices,” Maclaren says, identifying “accessibility and efficiency” — using a process that takes much less time than a traditional court-based system — as the key advantages to clients.

“We’ve seen them take small breach-of-contract disputes, consumer law, employment law disputes not covered through the Employment Standards Tribunal and small claims disputes. It hasn’t helped in the greatest area [of need] — family law — but on the civil litigation end of things, it seems to have done a good job in providing accessibility to people looking to resolve disputes,” Maclaren says.

But although technology is a great boon to the process, nuances of
non-verbal and non-oral behaviour are difficult to discern through the filter of technology, Maclaren notes. “Many people prefer to speak to a judge in person and to be able to speak and tell their story in a live environment, where direct communication is possible, and I think there’s something lost in bringing this communication into tech form.” Still, although imperfect, he says, “I think it’s generally very helpful for access to justice.”

Condo litigation

Alex Chang, who has a condominium law practice with Lesperance Mendes Lawyers in Vancouver, has provided advice to strata corporations that have received claims. Regarding the CRT’s impact on the strata litigation bar in B.C., Chang says, he doesn’t think practitioners are any less busy now than prior to the CRT’s establishment.

“The tribunal was started to help make it easier for parties to bring and resolve their claims,” he says. “That ultimately means more owners bringing claims against strata corporations. . . . More claims mean more work.”

However, although these litigators are now doing more CRT work, it’s behind the scenes. That’s because, with few exceptions, the CRT has “a presumption of self-representation,” as Salter puts it. “The general rule in the Civil Resolution Tribunal Act is that parties represent themselves.” Litigants before the CRT may hire lawyers to assist them behind the scenes but not to represent them.

“Instead of getting into court to argue the case on a client’s behalf,” says Chang, “now we’re in the background and drafting submissions going in under the name of some volunteer strata council member,” even though such documents will be drafted in such a way that they are obviously the submissions of a lawyer.

The downside of the CRT, as Chang sees it, is that there is a potential for decisions to be made by the CRT that do not result from “the fulsome submissions” from lawyers that have practised in this area and who know the law.

“There’s a potential for owners or council members to be in a facilitation/mediation phase and to enter into settlement agreements that just don’t make any sense,” says Chang, who surmises that there may be some strata decisions from the CRT that will be subject to judicial review as a result.

Also, Chang says, unlike small claims, which have a monetary limit of $5,000, strata claims can involve significant amounts of money. A strata council member may have no experience in legal matters, and not being permitted to be represented by a lawyer in front of the CRT may place an onerous burden on them.

In one recent CRT decision (Booth et al v. The Owners, Strata Plan NW2575), he notes, the CRT ruled against a strata corporation that had insurance defence coverage for a claim, including legal representation as an insurance benefit, being allowed to have the lawyer appointed by their insurer represent them in the claim. “In the case of insurance defence counsel defending strata corporations, it’s problematic,” says Chang, “because what they’re insured for is not matching up with the service and kind of defence” that counsel are able to provide through the CRT.

Application, costs and potential

At present, the CRT does not hear family law cases. “Online dispute resolution and a focus on early consensual dispute resolution are both tools that would have a lot of benefit for family litigants,” says Salter, “but there are no active plans to add that to the CRT.” That said, in time, he says, “the lessons we can learn from the CRT can tell us about other areas of the law” that may benefit from the CRT.

There is a fee for using the CRT, as there is for small claims court, but there is also a fee-waiver program for those who qualify. And although (not surprisingly) the CRT has not saved taxpayers any money during its implementation phase, Salter says that eventually it is expected to free up $2.5 million per year for the province. These savings can then be put toward the costs of criminal and family cases in the court system.

Maclaren believes that courts across Canada can learn a number of lessons from the use of technology by the CRT and can eventually integrate them into trial and appeal processes. One of the more positive and helpful aspects of this technology, he says, is the “solution explorer” that is used at the beginning of the CRT process, which “can help to organize litigants’ thoughts and thinking about alternative dispute resolution possibilities.

“There’s a great value to that,” he says. “When litigants get too far down the litigation road, [they] get fairly entrenched in their position.” The CRT tries to steer people toward more practical, non-adversarial ways to resolve disputes, Maclaren notes, and the solution explorer phase also directs litigants toward low-cost legal help. “That’s something that could definitely be imported into the eventual court processes.”

Chang advises litigants in strata cases, at least, to seek independent legal advice sooner rather than later, even if that lawyer will not be able to represent them before the CRT. A lawyer can nonetheless help a client determine what evidence they should be submitting and ensure their claim is being properly articulated, Chang says. This is especially important as it can be difficult to change the nature or scope of a claim at a later stage in the process.

Maclaren also sees a benefit in the CRT using simplified, plain language to explain the law and recourse to potential litigants. “That use of plain language can definitely be adopted by the courts.”

While it’s early days yet, the potential of this new CRT — and its possible adaption by other jurisdictions — is still being tested. Salter says the overall reaction to it has been very positive and it has enjoyed broad support from all quarters.

“We’ve done a lot of outreach and consultation with the legal community,” she says. “Lawyers are concerned with access to justice, and they recognize the tribunal is a step forward.”