In recent years, the Provincial Court has been seeking solutions to deal with the challenge of a high volume of court actions and an increasing number of self-represented litigants. The legislature seems to think the solution lies in creating alternate streams of dispute resolution procedures outside the formal court system. In May of 2012 the Province passed Bill 44, the Civil Resolution Tribunal Act. The Act is not yet in force, but is anticipated to become law later this year. Earlier this week, the legislature introduced some tweaks and changes to the proposed Act with Bill 19. Local governments may find themselves parties to the dispute resolution process under the Act.
The general idea behind the Civil Resolution Tribunal (the “CRT”) is to create a user-friendly accessible alternative to Small Claim Court. An excerpt from the Civil Resolution Tribunal website at http://www.civilresolutionbc.ca, sums it up like this:
“A legal question or problem is one more thing in your already busy life. We want to make resolving your problem something that fits into your schedule, whether you are an early bird or a night owl. By using the CRT to resolve your dispute, you can avoid the time, cost, and stress of going to court.”
Unlike a traditional Small Claims action, that requires attendance in court and is considered to be an adversarial process, parties to a CRT participate in a dispute resolution process online, which is designed to foster a voluntary settlement of the claim in its early stages. If early resolution cannot be reached the claim will go to case management, then will be heard before an online tribunal for a binding decision. The decision of the tribunal has the same effect as a decision of the B.C. Provincial Court or Supreme Court. The end result is that the parties get what is essentially a judgment without appearing in person and in court before a judge.
Section 3.1 of Bill 19 sets out the kind of claims that can be dealt with by the CRT as follows:
- debt or damages;
- recovery of personal property;
- specific performance of an agreement relating to personal property or services;
- relief from opposing claims to personal property;
- Strata Property claims, as set out in the Act.
The Act allows for imposing a monetary maximum amount on claims by regulation, which is expected to be $10,000.
Under the proposed Act, not all claims can be dealt with by the CRT. Claims that cannot be dealt with by the CRT include the following:
- libel, slander or malicious prosecution,
- claims for or against the government, or
- a claim in a class of claims prescribed by regulation as being excluded from the jurisdiction of the tribunal.
Section 3.7 of Bill 19 provides that the tribunal does not have jurisdiction over a constitutional question or a question of a conflict between the Human Rights Code and other legislation. Note that there is no definition of “government” in the proposed Act but the Interpretation Act would limit “government” to the provincial government. Accordingly, it appears that local governments may be parties to a CRT proceeding, unless the Province decides to exclude claims against local government from the tribunal’s jurisdiction by regulation.
Under Bill 44 the CRT process was voluntary and required the consent of both parties. If both parties did not consent, the claim could be initiated in Small Claims Court instead. Recent changes with Bill 19 have introduced a mandatory component, where claims under $10,000 and minor strata property disputes will have to be commenced by CRT, rather than in Small Claims Court. It is anticipated that the mandatory requirement will come into force in 2016, but until then, the process will be voluntary.
In the proposed Act, if a party disagrees with a final tribunal decision there is recourse to the Provincial Court by filing a notice of objection, or commencing an appeal of the decision. A notice of objection must be filed within 28 days of the final decision. Once filed, the decision of the CRT is not binding on the parties and the claim can then proceed in Provincial Court. An appeal of the decision would be heard by the Provincial Court as a judicial review. If the appeal is successful, the claim would be remitted back to the CRT panel for reconsideration.
Increasing access to justice and making resolution of legal claims easier, cheaper, and less intimidating is a laudable goal. However, we wonder whether reducing the barriers to commence a claim may increase the number of spontaneous or unmeritorious claims that are advanced through the system. Even unmeritorious claims require a response and take time and resources for the defendant to address. Additionally, parties in the CRT process are generally not permitted to be represented by a lawyer, though there is certainly nothing that would prevent a party from consulting with a lawyer on the claim. In our experience, small claims disputes can sometimes raise legal issues that are just as complicated to address as matters in superior courts.
It is not yet clear to what extent the tribunal will have the capacity to address complicated questions of law, but if it is limited in this regard, it may render more complex issues inappropriate for the CRT process. The proposed Act does address this to some extent, and provides that once the mandatory provisions are in effect, a party may seek an order of the Provincial Court that a particular claim be exempt from the CRT process.
The Provincial Small Claims process currently has a number of dispute resolution steps as part of its process, and critics of the CRT process say that the money used to implement the CRT could be better spent in improving the Provincial Court system rather than dividing the resources into parallel systems. Like we saw with the introduction of Bylaw Notice Adjudication, as an alternate system of dealing with municipal tickets outside the provincial court system, the Province is again sending a clear message that it does not want court resources to be occupied with matters that can be dealt with by quasi-judicial tribunals or adjudicators. Whether this will actually result in cost-reduction and greater efficiencies in the court system remains to be seen.