Wait, You Mean There’s a Problem??
Litigation does not come cheap. Even for a claimant with a solid case and ample evidence in support, the legal process takes time, is complex and costs money. While various attempts have been made to streamline claims under $25,000 (for instance, by use of the small claims process), such measures are often overly restrictive where the amount of the claimed loss is at the lower end of the spectrum.
Tell Me You Have a Solution . . .
In answer to this problem, BC has announced that, effective June 1, 2017, the Civil Resolution Tribunal (“CRT”) will hear claims up to $5,000 involving issues such as breach of contract, debt recovery, personal injury, repossession of personal property and several other consumer issues within the mandate of the CRT. These claims will be moved to an online dispute management system aimed at bringing about faster, less complex and less expensive resolutions.
Not only is the CRT the world’s first online tribunal of its type, it is also a research and resource centre offering parties self-help tools used to gain a better understanding of particular dispute issues, thereby facilitating early resolution of disagreements. That the CRT has already been successfully tested for over a year resolving disputes under the Strata Property Act, is hopeful indication that injured parties with claims up to $5,000 will soon have an effective and cost-efficient tool at their disposal.
How Does It Work???
Three key aspects of the CRT are:
(a) it is almost entirely online;
(b) parties must be self-represented, in most cases; and
(c) it is mandatory, within the dispute areas covered by the CRT.
This means that a party seeking to commence an action covered under the authority of the CRT will have the matter referred to CRT’s online system regardless of whether they commenced their action at another level of court. The CRT process has four distinct phases: (1) Starting a Claim; (2) Negotiation; (3) Facilitation; and (4) Adjudication.
Starting a Claim
Before starting a claim, users first access the CRT’s dedicated Solution Explorer in order to determine things like required forms, limitation periods, drafting assistance, applicable costs and other related information. Once a user has gathered the necessary information and documentation, the next steps are:
1. to commence the dispute by:
(a) filling out the applicable form to inform the CRT of the details of the dispute; and
(b) paying the required filing fee;
2. the party against whom the claim is made will be contacted by the CRT, at which time they will fill out their applicable form and pay their required filing fee. Failure to file a reply in the time provided may result in a default order being entered; and
3. once all submissions and documents have been provided, the information will be reviewed by the CRT in preparation for the next phase, unless no reply is filed, in which case the matter will move directly to adjudication.
Unlike the adversarial court process traditionally followed in British Columbia, the CRT dispute resolution is designed to be collaborative, insomuch as the CRT actively involves itself in the dispute, with the aim of encouraging the parties to come to a mutually agreeable solution. To that end, the second step in the process is negotiation, and is intended to be a quick and informal meeting between the parties, either by phone or in person, without the help of a facilitator. If the parties are able resolve their dispute at this early phase of the process, the CRT encourages that the agreement be put in writing and signed by everyone. If there is a payment of money or certain actions that the parties have agreed to take, then the parties can contact the CRT and ask that one of their facilitators assist in turning the settlement agreement into a legally binding and enforceable consent order.
If no such resolution is forthcoming, a facilitator will be assigned to the matter, and the dispute moves on to the next phase in the process.
Like negotiation, facilitation is a collaborative process. However, unlike negotiation, the facilitation phase has a more structured process and places an onus on the parties to support their respective positions and claims. For instance, the facilitator has the authority to direct the process to be followed (including forms of communication to be used), steps to be taken and timelines adhered to. Moreover, because the CRT operates online, almost all submissions are in writing, and the facilitator has the authority to review and approve all communications made by either party before they are shared with the other. Thereafter, the facilitator may communicate privately with one party at a time. Where questions arise as to the accuracy or strength of a party’s allegation, the facilitator can direct that additional information, evidence or explanation be provided.
Once the facilitator has gathered and shared the relevant materials, they will review the materials with the parties in order to determine if and how the parties can come to a negotiated solution. While the facilitator’s role is almost always one of working together with the parties, two important exceptions exist.
In the first instance, the facilitator may, at their discretion, issue a non-binding evaluation that:
(a) makes observations as to the strength of the claims raised; or
(b) expresses the facilitator’s views on how the CRT would likely resolve the dispute during the adjudicative phase of the process.
In the second exception, and where the parties agree, the facilitator may issue a final, binding, decision. Regardless of whether the facilitator makes a decision, or the parties negotiate a resolution themselves, the facilitator can assist in turning resolutions into legally enforceable consent orders.
If the facilitator decides the parties cannot resolve their dispute by agreement, the facilitator will:
(a) advise the parties of such fact;
(b) request that the CRT decision fee be paid; and
(c) provided the fee is paid, prepare the parties for the final phase in the CRT dispute process, including completing a Tribunal Decision Plan, which lays out the information required of each party and identifies the steps and timelines required in order to prepare the dispute for the final adjudication phase.
Adjudication follows some of the same administrative principles of facilitation. However, whereas other phases of the CRT process are collaborative, the adjudicator’s job is necessarily adversarial: they consider the parties’ claims, responses and materials, weigh the evidence and render a legally enforceable and binding decision. Alternatively, the adjudicator may also send the matter back to facilitation.
Importantly, if a party does not comply with the Tribunal Decision Plan, the adjudicator does not need to seek any clarification or correction in deficient information submitted by a party, and can render a decision based only on the information and evidence that was properly provided. For this reason, attention to detail is critically important to a successful outcome. While the adjudicator will generally rely on just the information and materials provided in the Tribunal Decision Plan, they do have the authority to direct that the parties, either individually or jointly, obtain expert evidence to support their respective positions. Where expert evidence is required, the adjudicator must be satisfied the expert is qualified by education, training or experience.
Decisions of the adjudicator may be delivered either in writing or orally. Final orders that are within the adjudicator’s authority include:
(a) orders for payments of money; and
(b) directions to a party to do, or stop doing, something, such as deliver up property or cease improper trade practices.
In addition to monetary awards, the adjudicator may order that an unsuccessful party cover the CRT fees, and even fees and other expenses incurred by the successful party. The prospect of having to pay this money, given that the underlying dispute cannot be more than $5,000, may well be one of the most effective tools in pushing the parties to a negotiated solution in the earlier phases of the CRT dispute resolution process.
On June 1, 2017, the resolution of disputes having a value up to $5,000 will undergo a significant change in BC, moving from the current court procedure to an online portal. With assistance from CRT facilitators, parties will be encouraged to work towards mutually agreeable solutions. Where such goodwill is not forthcoming, adjudicators will decide on the merits of a dispute and render enforceable decisions, which may include charges for costs and fees. Given the comparatively small sums of money involved in the dispute, users of the CRT are well advised to put serious thought into reaching a negotiated solution, rather than be surprised by, not only an adverse ruling, but also the addition of unwelcome costs and fees.