BC’s Civil Resolution Tribunal: A Case for Expanding Online Dispute Resolution in Canada

Each year, the University of Saskatchewan welcomes visiting speakers from around the country to lecture at the College of Law. As a student, the lectures have been an enriching supplement to my legal education. The recent lecture given by adjunct professor Shannon Salter from the University of British Columbia (“UBC”) Allard School of Law was exceptionally engaging and presented an innovative form of settling disputes online via British Columbia’s (“BC”) new Civil Resolution Tribunal (“CRT”).¹

The CRT is Canada’s first online tribunal, where individuals can easily access legal information and can resolve strata property claims online.² The CRT will begin accepting small claims in June 2017.³ At first, curious of its efficacy, I was captivated by the tribunal’s ease of use and potential application to dispute resolution. The CRT can be accessed twenty-four hours a day, seven days a week, and provides a flexible, collaborative approach to dispute resolution. Although there are many aspects of BC’s CRT to explore, this discussion will focus on the CRT’s prospective success in promulgating the changes that can be made to improve access to legal services.

The CRT is a form of online dispute resolution that has a multitude of potential benefits. The ability to access the CRT at any time and from anywhere, along with its user-friendly interface and low fees,⁴ make it particularly accessible. The ability to resolve disputes online will provide individuals in northern communities access to dispute resolution without incurring the expense of travelling to a larger center. Additionally, the ability to access the CRT at any time allows individuals to resolve their disputes without having to take time off of work to do so. As Professor Richard Susskind put it, “[t]he great social benefit of [online dispute resolution]…will be in offering access to the inexpensive and simple resolution of disputes that parties would otherwise not feel able to take to the courts.”⁵ The efficiency of the CRT and its focus on early resolution has ancillary benefits as well, including reducing stress that can accompany involvement in civil litigation.⁶

Making a claim through the CRT has four distinct stages: (1) information, problem diagnosis, and self-help; (2) party-to-party negotiation; (3) case management: facilitated alternative dispute resolution (“ADR”) and hearing preparation; and (4) adjudication.

The first stage is the “solution explorer” stage, where individuals can anonymously access free information online. During Professor Salter’s lecture, she invited us to pull out our smart phones to explore this stage through a simulated condominium strata law dispute. I was impressed by the simplicity of the process, which involved interactive questions and provided answers, tools, resources, and even a template letter to send to a strata board.

If the dispute cannot be resolved at this stage, the user can start a CRT claim, which takes him or her to the second stage, negotiation. At this stage, parties are connected and encouraged to negotiate a settlement. If the claim is not resolved through negotiation, it will move to the third stage, where a dispute resolution expert is introduced to facilitate the process and assist the parties. What is unique about this stage of the process is its flexibility. It can be synchronous or asynchronous, meaning that the parties can utilize the facilitator to have a conversation at the same time (synchronous), or can utilize the facilitator to relay information between each other at different times if they are unable to, or prefer not to, meet at the same time. The facilitators take an evaluative approach to the problem, providing parties with clear, honest feedback.⁷ Professor Salter indicated that the majority of disputes are settled at this stage. However, if the dispute is not resolved, it advances to the fourth step, adjudication, where it is “heard” by a tribunal. Hearings are usually done through written submissions, although some may be via telephone or video conferencing. Once the tribunal has made a decision, written reasons are provided to the parties. They are enforceable as court orders.

It is noteworthy that through the entire process, pursuant to s. 20 of the Civil Resolution Tribunal Act, the parties must represent themselves, subject to several exceptions.⁸ This rule promotes access to justice initiatives, and seeks to account for potential power imbalances that can arise in disputes, particularly as between an individual and a strata corporation. This is a feature unique to the CRT, and is not a requirement in other dispute resolution processes. Although the role of the lawyer in providing legal services has changed in the past few decades⁹ due to the rising use of dispute resolution processes such as negotiation and mediation, lawyers are nevertheless involved in the settlement of their clients’ disputes. If online dispute resolution gains popularity and follows the CRT’s self-representation rule, what will happen to the role of the lawyer in these disputes? This question offers an opportunity to question the traditional approach to civil justice, and whether the status quo is in fact the best approach.

BC’s innovative new online tribunal has resulted in some hesitation from lawyers.¹⁰ In a media release by the Canadian Bar Association, British Columbia Branch (“CBABC”), the President of the CBABC stated the following: “[T]he government plans to launch the Civil Resolution Tribunal, where the role of lawyer representation may be severely restricted. The CBABC will be vigilant in ensuring that the interest of the legal profession and the public is well-represented in these areas.”¹¹

On the other hand, lawyers have voiced concern over the lengthy court delays faced in civil trials, and the “financial losses, difficulty working, family troubles, and physical and mental health issues” that can arise while parties wait for their case to get to court.¹² Despite lawyers’ concern around exclusion from representing clients in CRT claims, law societies are guided by the Federation of Law Societies of Canada’s Model Code of Professional Conduct to regulate lawyers in a manner that considers “[a]dvances in technology [and] changes in the culture of those accessing legal services.”¹³ In addition, importantly, “[r]ules…should assist, not hinder, lawyers in providing legal services to the public in a way that ensures the public interest is protected.”¹⁴ This guidance is in line with the Supreme Court of Canada’s statement in Hryniak v. Mauldin¹⁵ that “[o]ur civil justice system is premised upon the value that the process of adjudication must be fair and just.”¹⁶ Justice Karakatsanis also stated the following:

However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes…The cost and delay associated with the traditional process means that…the trial process denies ordinary people the opportunity to have adjudication. And while going to trial has long been seen as a last resort, other dispute resolution mechanisms…are more likely to produce fair and just results when adjudication remains a realistic alternative.¹⁷

With this guidance in mind, perhaps we should be comfortable with the idea that the status quo of the legal profession and the adjudication of civil disputes may change. There has been an emergent interest in online dispute resolution for settling disputes, particularly in the context of e-commerce.¹⁸ While lawyers may be concerned with their exclusion from these procedures, online dispute resolution may attract individuals who would not (or could not) otherwise access the legal system to settle their disputes, thus liberating “a latent market—people and organizations, who have not felt able to take action in the past.”¹⁹ The role of the lawyer may continue to shift if we are to meet societal changes and needs. I am hopeful for the adoption of online dispute resolution in other jurisdictions, and for its expansion to include other areas of law.

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^* JD Candidate (University of Saskatchewan).

¹ Shannon Salter, “Dispute Resolution in the Digital Age” (McKercher Lecture Series lecture delivered at the College of Law, University of Saskatchewan, 11 January 2017). See CRT’s website for further details (online: Civil Resolution Tribunal, <https://www.civilresolutionbc.ca>).

² BC’s Civil Resolution Tribunal Act establishes the CRT and its jurisdiction to resolve strata property claims (SBC 2012, c 25, ss 2(1), 3.6(1) [CRT Act]).

³ See “Small Claims Solution Explorer”, online: <https://www.civilresolutionbc.ca/how-the-crt-works/getting-started/small-claims-solution-explorer>, archived: <https://perma.cc/WJ9Q-NJ32>.

⁴ “Civil Resolution Tribunal Fees”, online: <https://www.civilresolutionbc.ca/resources/crt-fees>, archived:<https://perma.cc/2UCM-8869>.

⁵ Richard Susskind, The End of Lawyers?: Rethinking the Nature of Legal Services (Oxford: Oxford University Press, 2008) at 224.

⁶ For a discussion of the emotional consequences associated with involvement in litigation, see Vincent Cardi, “Litigation as Violence” (2014) 49:3 Wake Forest L Rev 677 at 679-80. Professor Salter estimated the average claim only takes approximately sixty to ninety days to process.

⁷ Evaluative mediation has been defined as “[helping] the parties to understand the strengths and weaknesses of their positions and the likely outcome of litigation or whatever other process they will use if they fail to reach a resolution in mediation” (E Patrick MacDermott & Ruth Obar, “‘What’s Going On’ in Mediation: An Empirical Analysis of the Influence of a Mediator’s Style on Party Satisfaction and Monetary Benefit” (2004) 9 Harv Negot L Rev 75 at 85-86, citing Leonard L Riskin, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1 Harv Negot L Rev 7 at 26).

⁸ CRT Act, supra note 3. According to s. 20(2)(a), a party may be represented by a lawyer or another individual with authority to bind the party if the party is a child (a person under 19 years of age; see ibid, s. 1) or a person with impaired capacity. The tribunal also has discretion under s. 20(2)(c) to permit a party to be represented “in the interests of justice and fairness” (ibid).

⁹ Julie MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law, Law and Society Series (Vancouver: University of British Columbia Press, 2008) at 7-9.

¹⁰ See e.g. Jean Sorensen, “B.C. Lawyers Worried About Exclusion From New Civil Resolution Tribunal” (2 September 2013), Legal Feeds (blog), online:<http://www.canadianlawyermag.com/legalfeeds/1653/bc-lawyers-worried-about-exclusion-from-new-civil-resolution-tribunal.html>, archived: <https://perma.cc/5UUT-HQPM>.

¹¹ The Canadian Bar Association, Media Release, “Dean Crawford Named President of the Canadian Bar Association, BC Branch” (20 August 2013), online: <http://www.cbabc.org/getattachment/News-Media/Media-Releases/2013/Dean-Crawford-named-President-of-the-Canadian-Bar/Media_Release_CBABC_082013_Dean_Crawford.pdf>, archived: <https://perma.cc/4XTE-3YLE>.

¹² Jacques Gallant, “Ontario Lawyers Warn Civil Court Delays a Worsening ‘Disaster’”, Toronto Star (23 January 2017), online: <https://www.thestar.com/news/gta/2017/01/23/ontario-lawyers-warn-civil-court-delays-a-worsening-disaster.html>, archived: <https://perma.cc/9DGP-N5ER>.

¹³ Ottawa: Federation of Law Societies of Canada, 2017, Preface [the “Model Code”].

¹⁴ Ibid. Further, the Model Code sets out that “[a] lawyer should consider the use of [ADR] when appropriate, inform the client of ADR options and, if so instructed, take steps to pursue those options” (ibid, rule 3.2-4, commentary [1]). Although the Law Society of British Columbia had not adopted this particular rule, the Law Society of Saskatchewan Code of Professional Conduct adopts the Model Code’s rule (The Law Society of Saskatchewan, Code of Professional Conduct, Regina: Law Society of Saskatchewan, 2016, rule 3.2-4, commentary [1]).

¹⁵ 2014 SCC 7, [2014] 1 SCR 87 [Hryniak].

¹⁶ Ibid at para 23.

¹⁷ Ibid at para 24.

¹⁸ Maxime Hanriot, “Online Dispute Resolution (ODR) as a Solution to Cross Border Consumer Disputes: The Enforcement of Outcomes” (2015-2016) 2 McGill J Dispute Resolution 1 at 2. Hanriot refers specifically to the eBay/Paypal online dispute resolution procedure, which has seen immense success.

¹⁹ Susskind, supra note 5 at 223.