A new frontier in access to justice in British Columbia
In July 2016, the long-awaited Civil Resolution Tribunal (CRT) opened its doors to the first wave of strata disputes. More recently, in June 2017, this same tribunal expanded its jurisdiction to include small claims of $5000 and under.
The CRT’s goals are ambitious, to say the least. It is the world’s first online dispute resolution tribunal of its kind and it aims to increase access to justice for thousands of British Columbians. So, how has the CRT fared thus far in resolving strata property matters?
Improved Access to Justice
Those lawyers who have had enough experience in resolving strata disputes in the pre-CRT era will acknowledge the fundamental change that the CRT has brought about in such matters. Prior to the CRT’s existence, strata home owners had virtually no cost-effective or easily-accessible options to resolve their disputes with their strata corporations. So, as far as increasing access to justice is concerned, the CRT deserves resounding approval.
Limits of Self-Representation
Like any system, the CRT is imperfect and at least one design flaw was obvious from the very beginning. The Civil Resolution Tribunal Act and the CRT’s Rules provide a general mandatory self-representation rule for parties.
This self-representation rule can cause headaches for both strata owners and strata council members. Despite having legitimate causes of action, home owners and strata council members are often ill-equipped to determine the adequacy of evidence, to make legal arguments or to understand the nuances of the Strata Property Act. Moreover, it is hard to imagine that many strata council members (who are volunteers) are keen to take on the role of representing their strata corporation in legal proceedings.
Potential for Frivolous or Unfounded Claims
Another important consideration is that access to justice should have certain limits. A fundamental problem occurs when a self-represented party (or otherwise a party that does not have to undertake any real cost-benefit analysis before launching legal action) decides to bring a frivolous, vexatious or unfounded complaint against another party. The end result is a waste of the other party’s and the justice system’s resources – in terms of both time and money.
In response to the first of these two issues, the founders of the CRT may point out that the CRT’s Rules contain a broad provision allowing its tribunal members to grant requests for representation when it is “in the interest of justice and fairness.” While the CRT’s founders have indicated that this rule will be applied liberally, there has been a lack of consistency in dealing with such requests thus far. This uncertainty may dissuade some home owners from applying to the CRT in the first place.
Finally, in response to the second issue, the first phase of the CRT dispute resolution process features the “Solutions Explorer” – a web-based self-help tool for home owners to assess the merits of their dispute before undertaking further action. This tool can clearly benefit those who would otherwise not be able to afford a consultation with a lawyer. However, given the ability to simply click “next” and to breeze through the process, it is unlikely this web application will act as a sufficient deterrent for a party with a frivolous or unfounded case and an axe to grind.
Oscar Miklos is a lawyer at Haddock & Company in North Vancouver. He regularly advises strata owners, strata council members, property managers and residential and commercial landlords and tenants in all aspects of housing disputes. Oscar is also the editor of HousingGuide.ca and StrataLaw.ca, free online references for home owners in British Columbia.