May 7, 2018

Christopher J. Bakker

Established under the Civil Resolution Tribunal Act (the “Act”), the Civil Resolution Tribunal or CRT is the first online tribunal in Canada and was limited to strata disputes.  Since June 1, 2017, the CRT’s jurisdiction has been expanded to encompass most claims for damages of $5,000 or less that would otherwise be heard within the Small Claims Provincial Court process.  Strata disputes, however, still occupy the majority of the CRT’s resources.  I will deal only with strata disputes here.

Under the Act, the CRT has the jurisdiction to adjudicate the following strata property matters:

  • non-payment of monthly strata fees or fines
  • unfair actions by the strata corporation or by people owning more than half of the strata lots in a complex
  • unfair, arbitrary or non-enforcement of strata bylaws, such as noise, pets, parking, rentals
  • a strata’s failure to enforce its bylaws
  • financial responsibility for repairs
  • irregularities in meetings, voting, minutes or other governance issues
  • interpretation of the legislation, regulations or bylaws
  • issues about common property.

The Act does not prescribe a maximum monetary amount within the scope of the CRT, which means that, while the non-payment of strata fees or fines is contemplated under the Act, the actual amount in dispute may be over $5,000.  As the amounts in dispute increase, so, too, does the complexity.  This may become significant when its gets to the adjudication phase, as the CRT’s guidelines and procedures do not afford an opportunity to advance oral arguments or to challenge the evidence relied upon by an opposing party, as would normally occur under a traditional adversarial process.

The Act permits an appeal to the BC Supreme Court within 28 days of the CRT’s final decision if all parties consent or by leave of the court.  Pursuant to s. 56.5 of the Act, an appeal is only available on a question of law arising out of a CRT decision, and leave is only granted if it is in the interests of justice and fairness to permit the appeal to proceed.  While the criteria are clearly outlined within the Act, the process and likely consideration of the Court have been a mystery until now.  The two-step appeal process entails the following:

  1. an applicant must seek leave to appeal; and
  2. if leave is granted, a separate hearing will be scheduled for the appeal itself.

The first successful application for leave to appeal a CRT decision in a strata dispute occurred in the recent BC Supreme Court case, The Owners, Strata Plan BCS 1721 v. Watson.  The decision provides an insightful summary of the factors considered and how those factors will be weighed.

There were two issues before the CRT in Watson: first, whether the strata bylaw relating to moving fees was reasonable; and second, whether the manner in which the strata enforced the moving fees was “significantly unfair” to the claimant.  The CRT held that the strata moving fees were not reasonable, and that the manner in which the fees were levied was unfair.  The CRT ordered that the claimant be reimbursed for the moving fees ($200) and that the strata pay the cost of the CRT application and decision fees (an additional $225).

In granting leave to appeal the questions of law, BC Supreme Court Justice Kent reviewed some of the factors listed in the Act to be used in determining whether an appeal is in the interests of justice and fairness.  These include:

  1. whether the issue under appeal is of such importance that it would benefit from being resolved by the BC Supreme Court in order to establish a precedent;
  2. whether an issue raised by the claim relates to the Constitution or to the Human Rights Code;
  3. the importance of the issues to the parties or to a class of persons of which one of the parties is a member;
  4. the principle of proportionality.

Mr. Justice Kent was quick to note that the principle of proportionality loomed large as the sums in dispute were modest.  Despite this, however, he concluded that it was in the interests of justice and fairness to allow the appeal to proceed.  In particular, he identified a number of areas in which the CRT member may have made reversible errors in her application of the law.  Further, he observed that both parties agreed that the decision had important precedential value and that the questions at issue would likely arise again in future CRT proceedings.  (At the time of writing this article, the appeal has not yet been heard.)