B.C.’s Civil Resolution Tribunal

Shannon Salter
Chair, Civil Resolution Tribunal

Introduction

Put the public first.  This is the appeal from the Action Committee on Civil and Family Justice (“Action Committee”), led by Justice Cromwell of the Supreme Court of Canada.[1]  It is a deceptively simple concept, and one with which we, as lawyers, would intuitively agree.  In my experience, if there is a unifying theme in our profession, it is a common desire to help our clients.

However, we must also acknowledge that our profession has a deeply entrenched resistance to change.  Our common law tradition is built on the notion that precedent, or what came before, is inherently better and more trustworthy than some uncertain future innovation.  Our preference for past over present, while key to the development and refinement of the principles of justice that strengthen our legal system, has also become an impediment to adopting procedural changes to our legal system which would greatly improve access to justice for the public we are meant to serve.

Truly putting the public first in civil matters would require us to examine intensely the structure of our legal system, and to ask ourselves, to whom does the justice system really belong?   As the Action Committee’s report argues, “court processes — language, location, operating times, administrative systems, paper and filing requirements, etc. — typically make sense and work for lawyers, judges and court staff.  They often do not make sense or do not work for litigants.”[2] 

The Action Committee’s report concluded that the civil and family justice system is too complex, slow, and expensive to produce, “just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve.”[3]

The transformative potential of the Civil Resolution Tribunal (“CRT”) is that it starts from the principle of putting the public first, while also giving effect to the time-honoured tenets of fundamental justice that are foundational to our legal system.  Using these principles, the CRT envisions a dispute resolution process that empowers people to become actively engaged participants in their justice system. 

This paper will provide a brief overview of the CRT; why it has come to be, where we are now, and what the future will look like, for the CRT, and more broadly, for British Columbia’s administrative justice system.

Why the CRT?

In 2012, the British Columbia government passed the Civil Resolution Tribunal Act[4] (“Act”) with the goal of using technology and alternative dispute resolution to increase access to justice for British Columbians with small claims and strata property disputes. 

As the Action Committee makes clear, Canadian court processes have become increasingly onerous.  Civil court matters require citizens to finance court and legal fees, take time off work, and pay for additional childcare.   British Columbians in remote communities often have to travel great distances to a courthouse, burdening them with additional costs.

No matter where you live or who you are, navigating the civil justice system, even small claims court, is stressful and overwhelming, and there is little support available to help with the process.  Fully 90% of parties in British Columbia’s Small Claims Court are self-represented.[5]

This stress is compounded by increasing delay in the system; small claims cases in British Columbia can take up to 16 months to be heard,[6] while strata disputes in the B.C. Supreme Court may take even longer.  These delays are costly, not just in terms of time and money, but also in their effects on the health and emotional well-being of participants[7] and the public’s confidence in the administration of justice.

Moreover, the high cost of accessing civil justice services is not proportionate with their outcome.  After all the time and money expended on a court case, less than 3% of B.C. Supreme Court civil cases actually go to trial.[8]  When trials do occur, they are heard by generalist decision-makers using one-size-fits-all processes, with little mediation or case management applied to resolve disputes early.

In the context of strata matters, early and collaborative dispute resolution is essential to cultivate a respectful and positive communal living environment.  Yet many strata disputes must be heard in the B.C. Supreme Court, which requires the parties to spend years investing financially and emotionally in disputes with neighbours who share their common living space.

To be clear, the identification of procedural problems with the resolution of civil disputes is not a critique of our conscientious and committed judiciary and court registry staff in British Columbia.  Access to justice issues are endemic to the larger Canadian civil justice system.  As George Strathy said on being sworn in as Chief Justice of Ontario last month, “[w]e have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect…"[9]

How will the CRT work?

The Action Committee has recommended that the civil and family justice system be reformed to avoid, manage, and resolve disputes in ways that are as timely, efficient, effective, proportional, and just as possible: 

This is exactly what the CRT will do when it becomes operational next year.  The CRT is Canada’s first online tribunal, allowing citizens to resolve their small claims and strata property disputes fairly, quickly, and affordably.  When the CRT opens, British Columbians will have access to interactive information pathways, tools, and a variety of dispute resolution methods including negotiation, facilitation and, if necessary, adjudication.  Ideally, participants will be able to use all of these dispute resolution services from a computer or mobile device at a time that is convenient for them.  For those who are unable or unwilling to use technology to resolve their dispute, the tribunal will still be able to provide paper- or telephone-based services.

Before beginning a claim with the CRT, a person with a dispute will have access to a free online solution explorer, using guided pathways to prepare for dispute resolution.  The solution explorer asks a series of questions about the dispute, and then provides information and resources tailored to that dispute.  For example, someone contesting a strata bylaw fine might be given information about the applicable provisions of the Strata Property Act, as well as a template letter to edit and send to their strata council.  At the end of the pathway, the solution explorer provides a summary of the person’s claims, as well as recommended resources and next steps. 

If a party decides to proceed with negotiation as a next step, the claimant could use the CRT platform to invite the other party to participate in the process, ideally by email.  If the other party agrees by email to participate, then the parties can avoid costly and time-consuming methods of personal service.   A key design feature of the CRT is that wherever possible, a user should only have to enter information once, and the system should carry this information forward to other stages of the CRT process.  Finally, the CRT platform will incorporate relevant parts of the tribunal’s rules on an as-needed, when-needed basis, to avoid overwhelming parties with inapplicable rules.

During the negotiation phase, the CRT platform will bring the parties together to attempt to resolve their dispute themselves.  While the parties will be given some resources to help them do this, this is a low intervention area for the tribunal.  The intention is to resolve a modest number of “easy” disputes very early and very inexpensively, so that the parties can move on with their lives. 

If negotiation is not successful, the parties will enter a case management phase where an expert facilitator will help the participants to reach a consensual agreement.  The case manager can use a variety of communications channels to work with the parties, including the CRT platform, email, text, phone, and mail.  The Act provides for an extremely flexible and responsive case management and facilitation phase, enabling the case manager to use a variety of tools to help the parties to settle their claims.  If the parties reach an agreement, the case manager can ask a tribunal member (adjudicator) to convert the agreement into a binding order of the tribunal, which can be enforced in court, without the parties having to sue for a breach of the agreement.

While we anticipate that the case management/facilitation phase could resolve up to 60% of disputes, in the event the parties are unable to reach an agreement, the facilitator’s role includes preparing the parties for adjudication by helping them to narrow issues and organize their claims.  The dispute is then transferred to a tribunal member with specialized expertise in small claims or strata property dispute matters who hears the parties’ arguments (usually in written form), considers the evidence, and then issues a binding decision of the tribunal, which is emailed to parties.  The CRT’s adjudicative process is very similar to that of other large administrative tribunals, and of course, tribunal members will be subject to the same procedural fairness requirements which govern administrative tribunals generally. 

From beginning to end, the CRT process is intended to take 60 days for most cases, and cost the parties an amount similar to the current filing fees for Small Claims Court.  However, many parties will pay less than at Small Claims Court because fees will be staged so that parties who resolve their disputes early pay less than those who require the full range of the CRT’s services.  Like the Small Claims Court, there will be fee exemptions for those experiencing financial hardship.

Where are we now?                                                   

Under the B.C. government’s Tribunal Transformation initiative, the administrative justice system, led by the CRT, will increasingly focus on using technology and early dispute resolution to increase access to justice for citizens.[11]

Together with other tribunals, we have done extensive design work for the CRT’s technology platform.  This process is similar to drafting blueprints for the construction of a building, and is necessary to enable our technology partner to create a solid, well-designed CRT platform.  The technology partner has recently been selected, and is expected to deliver the CRT platform in time for beta testing and launch in 2015.

Further, this winter the CRT will be hiring several staff members who will be tasked with establishing the myriad of systems and processes which help tribunals operate smoothly.  To the extent possible, tribunal staff and members will be delivering their services to users through the internet, telephone, and email.  This will enable staff and members to work from their offices or their homes, and allow us to attract diverse candidates for tribunal positions while also optimizing the tribunal’s available resources.

Finally, this fall I will be launching an implementation website for the CRT, which is intended to provide plain language information about how the CRT will work and keep citizens informed about our progress in implementing the CRT.  Equally important, the website will let citizens share their questions and comments with us.  We are committed to making the CRT as easy-to-use and accessible as possible, and the CRT implementation site is a key method by which we can find out how best to serve the needs of CRT participants.

Opportunities and Challenges

The combination of technology and early dispute resolution presents an exciting opportunity to rebuild the civil justice system around the needs of the public.  However, like any system, the CRT model presents challenges as well as opportunities.

Among British Columbians aged 18 to 34, smartphone ownership is nearly universal—93%, and 74% for those aged 35 to 54.[12]  Ninety-three percent of British Columbians have broadband connectivity.[13]  While the overwhelming majority of citizens have access to online technology, any truly accessible justice system must also consider and address the needs of the minority.  What about people who are unable or unwilling to use the CRT’s online platform? 

In such cases, the tribunal will assist a party with information and support in using the CRT online.  However, where a party has significant barriers to using the online platform, the CRT is able to provide telephone or paper-based services.  In this way, the CRT is also putting the public first, by assisting people to resolve their disputes using the communications method that best serves their needs.

The CRT is actively consulting and working with public legal education and information providers, as well as legal advocacy organizations to ensure that the CRT’s platform, language, forms, rules, and processes are as accessible as possible.  Part of this endeavour includes providing some information in video or audio format for those who have difficulty absorbing written information, and finding ways to support participants for whom English is not a first language. 

Another challenge is ensuring that the CRT is able to cope with the hiccups which are part of any new technology project.  The goal is to ensure that the CRT has strong risk mitigation strategies so that it can handle possible technology interruptions while still providing timely service to citizens.  A major risk mitigation strategy was deciding to build the CRT’s online services on the already well-established and widely-used Salesforce customer relationship management platform.  This platform has been used successfully by private and public organizations much larger than the CRT, and the scale of the platform means that support and updates will be readily available in the event of a problem.  Additional technology risk mitigation strategies include temporarily reverting to telephone or paper-based service, triaging claims, and escalating claims to adjudication if necessary to avoid a backlog.

Conclusion: What will the future look like?

Putting the public first is not a one-time endeavour; it is an enduring obligation.  One of the CRT’s guiding principles is a commitment to continually improve by regularly asking for, and incorporating, public feedback about the CRT’s processes.  Technology enables an agile response both to measuring and increasing public satisfaction with the tribunal’s services, which will let the CRT adapt quickly to serve the public better.

The CRT will transform small claims and strata property disputes by coupling skilled facilitators and adjudicators with new online tools to encourage accessible early dispute resolution.  This new model, featuring a seamless, service-driven, and guided multi-channel experience, can be leveraged by multiple organizations in the future.  In the coming years, these tools will be applied across the administrative justice system, tailored to each tribunal’s processes and jurisdiction. 

At its core, the CRT is intended to empower people to resolve their problems in a manner which respects their dignity, their autonomy, and their lived reality.[14]  By putting people at the centre of the dispute resolution process, rather than the periphery, the CRT will significantly increase access to justice for British Columbians and pioneer a new model for the delivery of civil justice services in Canada.