A Pandora’s Box of Strata Disputes?

A revolutionary new dispute resolution mechanism with some notable imperfections

In July 2016, the long-awaited Civil Resolution Tribunal (CRT) opened its doors to the first wave of strata disputes. 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.  Given the problems plaguing our province’s justice system, this goal is commendable without a doubt.

Notably, this same platform, while starting with strata disputes, has expanded its jurisdiction to take over a large chunk of disputes currently resolved by Small Claims Courts. This is having a significant impact on British Columbia’s justice system as the monetary jurisdiction of Small Claims Courts has now increased to $35,000.00 with greater increases likely down the road.

Improved Access to Justice

While my goal is not to provide an exhaustive assessment of every facet of the CRT, I have had enough experience in resolving strata disputes in the pre-CRT era to acknowledge the fundamental change that the CRT has brought about. In short, 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. As such, many of these disputes simply remained unresolved. So, as far as increasing access to justice is concerned, the CRT gets my 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 to perhaps all but those who despise the role of the legal profession in helping resolve disputes. The Civil Resolution Tribunal Act and the CRT’s Rules provide a general mandatory self-representation rule for parties. In other words, unless one of a narrow list of exceptions applies (ex. a party is a minor or of impaired capacity), parties are generally required to represent themselves before the CRT.

This self-representation rule has the potential to cause headaches for both strata owners and strata council members. Despite having legitimate causes of action, home owners are often ill-equipped to determine the adequacy of evidence, to make legal arguments or to understand the nuances of the Strata Property Act. The same applies for strata council members who volunteer their time to participate in the governance of their strata corporation. I cannot imagine many of these council members would have run for council had they known they were going to be asked to represent their strata corporation before a dispute resolution tribunal.

In all fairness, I understand that involving lawyers can sometimes serve to complicate matters and actually delay the resolution of a dispute. However, it is important to keep in mind that this unfortunate outcome occurs in only a small minority of matters. More often than not, adjudicators of all stripes are thrilled when at least one lawyer is involved in the dispute resolution process as it tends to focus the process on legal issues instead of getting side-tracked by emotional aspects of housing disputes. By removing emotion, lawyers can often assist parties in settling a dispute earlier than otherwise possible.

I gather that the logic behind the self-representation rule was to ensure that parties actively involve themselves in the dispute resolution process rather than letting their legal representatives do all the heavy lifting for them. Without going any further, this goal can be achieved by simply mandating that parties remain actively involved throughout the process regardless of whether they are represented. In fact, it appears that this has already been accomplished with a procedural rule which states that a party who is represented “must be present, or otherwise fully informed and providing direct input, during facilitation, unless the facilitator excuses the party from doing so.”

Potential for Frivolous or Unfounded Claims

Another important consideration is that access to justice should have its limits (yes, you read that right). 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.

Addressing Concerns

In response to the first of these two issues, I suspect the founders of the CRT will 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, it remains to be seen what percentage of requests for representation will actually be approved. In any event, this roadblock may dissuade some home owners from applying to the CRT in the first place given the uncertainty as to whether their request for legal representation will be approved.

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 strata 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 ax to grind.