Canada’s access to justice crisis is well-known. One element of British Columbia’s efforts to address this crisis is the Civil Resolution Tribunal (CRT), Canada’s first online tribunal. The CRT is presently able to resolve a variety of disputes, including motor vehicle injury disputes up to $50,000; small claims disputes up to $5,000; and strata property (condominium), society, and cooperative association disputes of any amount. The CRT’s stated goal is to “help you resolve your dispute quickly and affordably” through a “collaborative approach to dispute resolution.”
One of the ways the CRT seeks to make dispute resolution more timely and affordable is by requiring the parties are to represent themselves, unless the Tribunal gives permission to allow the party to be represented by a lawyer or if the claim involves a motor vehicle accident (section 20 of the Civil Resolution Tribunal Act (the “Act”)). Notably, the Act does not prevent parties from obtaining legal advice about their dispute or even having a lawyer help write their submissions; it merely prevents them from being “represented” by a lawyer unless “the tribunal, in the interests of justice and fairness, permits the party to be represented.”
The Owners, Strata Plan NW 2575 v. Booth, 2020 BCCA 153
The British Columbia Court of Appeal recently considered the issue of legal representation before the CRT in The Owners, Strata Plan NW 2575 v. Booth, 2020 BCCA 153. Two condominium owners, Verna and George Booth (the “Booths”), filed a dispute against their Strata Corporation in June 2017. The dispute involved the maintenance of a sunroom attached to their strata unit. The Booths claimed $700 for repairs to the sunroom, $300 for costs incurred in the CRT process, and $25,000 for “loss of enjoyment of life, threats, abuse and stress.” They said that the Strata Corporation had been “dishonest, oppressive and [had] not acted in good faith,” and claimed physical, emotional and verbal abuse over a 6 year timeframe.
The Strata Corporation had a directors’ and officers’ liability insurance policy that provided it with defence coverage for the dispute. Accordingly, the insurance company retained legal counsel to defend the Strata Corporation, and the lawyer applied to the CRT for permission to represent the Strata Corporation in the Tribunal proceedings. The Booths objected to this request, saying that having a lawyer on the other side “would tilt the scales of justice” against them.
The CRT refused the Strata Corporation’s request for legal representation. Importantly, the CRT said that “there is nothing exceptionally unusual or complex about the subject-matter of the dispute,” which it characterized as “the authorization and maintenance of a sunroom.” This was, the CRT said, “a common dispute type within the tribunal’s strata jurisdiction.”
The Strata Corporation sought judicial review of the CRT’s decision to deny it legal representation, but the chambers judge held that the CRT’s decision was reasonable and declined to interfere with it. The Strata Corporation appealed.
The BC Court of Appeal held that the CRT’s decision failed to account for the complexity of the Booths’ claim against the Strata Corporation. In the Court’s view, the dispute went far beyond the “typical” dispute about “the authorization and maintenance of a sunroom.” Indeed, the majority of the claim – $25,000 out of $26,000 – was for alleged wrongful personal conduct of a serious nature. By failing to address or even acknowledge a major reason the Strata Corporation sought legal representation, the CRT acted unreasonably. Accordingly, the Court quashed the CRT decision and returned the matter to the CRT for fresh consideration.
Notably, the Court of Appeal expressly did not comment on the constitutionality of the Act‘s general limitation on representation by a lawyer. Since the Supreme Court of Canada has been ambivalent on whether such a right exists in the Canadian Charter of Rights and Freedoms, we can expect that the Court will be asked to weigh in on this issue in the near future.
Several take-aways can be found in this decision:
- The restriction on the use of lawyers at the CRTl is not absolute, and the CRT must consider the specific facts of the case and the reasons why a party might need legal representation. Claims of unusual scale or complexity are more likely to warrant representation by a lawyer.
- Parties with insurance policies that include a duty to defend claims will need to consider the possibility that the CRT may not permit their insurance-provided lawyer to formally represent them in the proceedings. In such cases, they can still receive legal advice on the dispute and help preparing documents.
- The Supreme Court of Canada’s revised approach to judicial review in Vavilov (see our blog posts here and here) places a heightened burden on decision-makers to justify their decisions by showing that they properly considered the arguments made by the parties and applicable legal considerations. Failure to do so could give rise to a basis for judicial review.
To see a copy of the decision, please see here.