The Civil Resolution Tribunal

An imperfect system that needs to evolve


The Civil Resolution Tribunal

Distinctive disputes should be determined by specialized adjudicators. Additional procedural tools should be afforded to parties where the issues to be determined are more complex.

During my pre-law years, the Ontario government began transferring the adjudication of accident benefits disputes from the Financial Services Commission of Ontario (“FSCO”) to the Licence Appeal Tribunal (“LAT”) — a tribunal that was also overseeing the issuing of licenses to liquor establishments and real estate brokers. In my view, this transition unnecessarily set aside years of valuable experience accumulated by FSCO mediators and arbitrators who had become very familiar with insurance policy wordings and regulatory interpretation. There are parallel comparisons between the LAT and the Civil Resolution Tribunal (“CRT”).

At the CRT, the categories of claims that the tribunal handles are distinctly diverse e.g., (1) disputes between a party involved in a motor vehicle collision and ICBC (i.e., over entitlement to Part 10 benefits or allocation of fault when determining vehicle damage coverage), (2) civil disputes below $5,000, and (3) strata property related claims.

As a practitioner who has provided coverage opinions on disputes with ICBC and acted as defence counsel for various strata corporations, it is my experience that these two entirely separate areas of law cannot be practically adjudicated in a manner that is “accessible, speedy, economical, informal and flexible” without specialized mediators and adjudicators.

A speedy and economical approach to resolving a dispute often comes at the cost of procedural fairness. The manner in which a $500 debt claim is determined should not be the same when adjudicating a $1 million strata related dispute.

Differences between the CRT and the Court system

At the CRT, there are limited ways a party can compel document disclosure, examine witnesses under oath, and anticipate deadlines to deliver expert reports.

In the court system, an expert witness has a duty to the court to be independent and not to be an advocate for any party. The expert’s evidence can be tested for its admissibility, reliability or weight based on assumed facts, methodology or qualification. By contrast, the filing of a report to the tribunal is done with one simple click of the mouse.

A less known difference (even among lawyers) is that most of the CRT decisions will be final in nature (see Dolnik v Strata Plan LMS 1350 re: patent unreasonableness standard). This means that strata related claims worth millions of dollars will generally be decided on a final basis by a tribunal at first instance, without the benefit of examinations for discovery and examinations of witnesses and experts.

Moving on to Part 10 benefits disputes, the method to calculate first party compensation depending on whether injuries are minor, non-catastrophic or catastrophic are entirely different and can be extremely confusing for even legal counsel to perform — let alone a self-represented litigant.

A “specialized tribunal” requires “specialized decision makers“ and “specialized tools”

By passing the Civil Resolution Tribunal Act, the B.C. Legislature granted the CRT exclusive jurisdiction to adjudicate certain categories of disputes and a high degree of deference in how it arrives at its decision.

Despite these powers, the issues to be determined by the CRT are not necessarily less complex than those before the courts, while the ability for parties to access legal representation, compel documentary disclosure, and test the reliability of evidence and testimony have been markedly reduced.

A way to offset this hurdle is for the CRT to have specialised tracks and decision-makers with greater specialized expertise. Another way is to expand the procedural tools available to the parties when the issues in dispute become more complicated / quantum of the dispute is comparatively high.