Civil Resolution Tribunal

It is unclear to unrepresented self-litigants how to navigate or interface with the CRT model to be able to experience procedural fairness. Many users do not realize the differences between the Strata Property Act, Strata Property Regulations and the Civil Resolution Tribunal Act (CRTA) or what may be important between the two laws, in order to participate as meaningfully as possible.

If a user is vulnerable or unsophisticated it may be impossible. When the stakes are high—in the case of shelter—the results can be devastating, as an invalid claim may be brought against a compliant owner who may lose their property as they could not illuminate truthful representations in the face of misrepresentations or omissions in records.

See Civil Resolution Tribunal Act s. 20

Parties are generally required to represent themselves, with few exceptions. Strata corporations are required to be represented by a council member. The parties can apply for approval to have a legal representative, but few approvals are provided.

Parties to a dispute are allowed to have ‘helpers’ which may be a lawyer. Strata corporations are therefore able to use strata corporation funds to hire a lawyer as a helper.

A high degree of literacy and understanding of case law and the nuances of law are required to be successful at the CRT. Those with low English literacy skills are severely disadvantaged.

In 2020, the BC Court of Appeal approved an appeal of the CRT’s refusal to allow legal representation and sent the case back to the CRT to reconsider. The reasoning of the appeal success was that the CRT had not meaningfully accounted for the central issue of the dispute when it refused the legal representation. The CRT has not published any reconsideration of Booth, so there has been no change to the CRT’s requirement that dispute parties must represent themselves.

The Owners, Strata Plan NW 2575 v. Booth

From Slaw.ca No Trivial Matter by Sean Vanderfluit:

“As a result, the court found the CRT’s decision to deny the strata corporation legal representation in the proceeding without addressing that complexity was unreasonable. The court quashed the decision and remitted it back to the CRT for fresh consideration.

“The outcome of the case is significant. Clearly, Booth does not require the CRT to allow all requests; otherwise, the court would not have remitted the matter back to the CRT. The court expressly noted that it was not considering the validity of s. 20. Thus, a party who wants their representative to act for them in the CRT must still meet one of those exceptions or must obtain the permission of the CRT. The starting point under s. 20(1) of the Act remains the same – parties must represent themselves in CRT proceedings, subject to the exceptions set out in sections 20(2) through (4).

“Booth simply mandates that the CRT – like any other tribunal – must meaningfully account for the central issues raised by the parties when it issues reasons. As noted in Vavalov, this is rooted in the duty of procedural fairness rooted in the right to be heard. There is nothing trivial about that.”

Also in Booth, the BCCA did not approve of the CRT’s sanctioning of a party circumventing a refusal to approve legal representation:  “In those reasons, the CRT said the bar to representation in the proceeding did not bar a party from getting legal advice and assistance in the course of a CRT proceeding. The court did not approve of this “suggested circumvention” and that it was “irregular” for the CRT to sanction a “way around” its own decision.”

Generally unbeknownst to users, the CRT cannot enforce Tribunal decisions. To have a CRT order enforced, users have to go to the BC Supreme Court or Provincial Court—another process requiring specialized knowledge and skills. The CRT Simply states they cannot enforce strata decisions and provides no further meaningful assistance regarding the required procedures.

Significantly, CRT does not track whether there is compliance after their decisions.

Generally unbeknownst to users, the CRT hearing phase produces non-binding decisions. This means a CRT Tribunal member may or may not rely on a previous CRT decision, ignoring precedence at will. 

In its decisions, the CRT has conflated laws, created legal issues where there were none, applied incorrect laws, chosen selective case law generally erroneously to take decisions and so on.

In, Dhanji v. The Owners, Strata Plan LMS 2472, 2021 BCSC 284, Justice Saunders stated;

[37] In creating an issue where none had existed, the Member arrogated to himself the framing of the dispute. That was a matter for the parties, not the Member. His reasoning, and the basis on which he ultimately made his order, were fundamentally different than the issues he was responsible for adjudicating. To have decided the parties’ dispute on a matter of interpretation on which the parties had not joined issue, and to have given a ruling on the interpretation of the Strata Bylaws that neither party sought, without having forewarned the parties of the Member’s views and giving them the opportunity to make submissions, was a breach of the principles of natural justice, and manifestly unfair.
[38]  I order that the Decision be set aside, and that the Dispute Notice and Counterclaim be remitted to the CRT. Given that the Member made up his mind as to an issue without having sought the parties’ views, having the matter reconsidered by the Member would risk bias, and I therefore order that there be a re-hearing before a different adjudicator. Many rulings aren’t following the SPA or law. In Time Share Section of The Owners, Strata Plan N 50 v. Residential Section of The Owners, Strata Plan N 50, 2021 BCSC 486, Justice Gropper found;[119] I find that the CRT erred in law by applying SB6.
[120] I find that the CRT lacked jurisdiction to consider whether the Time Share Section’s actions were significantly unfair under s. 164 of the SPA and that the CRT erred in law in its application of the test of significantly unfair as set out in Dollan.

What various tribunal adjudicators count or don’t count varies significantly—e.g., case law, law, expert evidence, hearsay and plain evidence, then it uses its own previous decisions to inform other decisions. CRT decides some cases one way and decides the opposite in some cases. Users have no way to ascertain when CRT will decide one way or the other—or on what.

There are many variations of how the CRT applies SPA s. 26. Sometimes, CRT orders that it’s okay for a strata not to act; other times, the strata was penalized for not acting (e.g., Curtain compared to Hunter). The CRT is not obliged to take decisions based on the Strata Property Act/Regulations or use verifiable evidence.

There is no publicized, standard review of all CRT decisions to ensure they do not regularly breach laws.

The CRT has been assigned exclusive jurisdiction for sections of laws with authority to create the rules (procedures) used—whether these reflect established standards or not. Most changes to the CRT Rules have expanded CRT authority and created ease for itself while removing users’ Constitutional and Charter rights and protections.

The CRT claims one individual—the Tribunal Chair—sets the CRT Rules, contrary to the Civil Resolution Tribunal Act. The CRTA does not assign the authority to create or change Rules to the chair:

• Rules of practice and procedure for tribunal proceedings
  (1) The tribunal may make rules respecting practice and procedure in tribunal proceedings to facilitate the resolution of disputes before it in accordance with its mandate.

The Civil Resolution Tribunal Act states the chair may issue Practice Directives, not set Rules:

• Practice directives
  63 (1) The chair may issue practice directives consistent with this Act, the rules and the regulations.
  (2) The tribunal is not bound by the practice directives in the exercise of its powers or the performance of its duties.

» In the CRT’s own words on December 31, 2019, announcing changes to the Rules effective the next day;

“The CRT Rules are set by the Tribunal Chair.”
“We think long, complicated rules are just too confusing for most people to use. “
“How will people use the CRT Rules? If we’re being totally honest – we hope people using the CRT don’t actually have to read the CRT Rules.

Changes to CRT Rules have been steady—13 changes to legal rules in four years.

One of the most egregious and misleading instructions for strata owners when completing the dispute application is the statement, ‘Your application is meant to be a summary of the claims and requested remedies.‘  in a video entitled “‘Tips for owners or tenants filing a claim against a Strata Corporation or Section‘.

Applicants are advised to be ‘brief’ and it is not disclosed that the summary application actually serves as the full basis for the claim(s). The Tribunal will restrict their decision to whatever is stated in the ‘summary’. If a point or issue is not mentioned in the application ‘summary’, it cannot be included in the claim or requested orders. You can be defeated in your dispute at this very first step if you submit a ‘summary’ instead of full and specific details in your application!

The CRT conducts in-person hearings only in extraordinary circumstances. What they call negotiation/facilitation come first. Either party can refuse to negotiate. Moving to the adjudication stage, users are not alerted to the significance of legal summation, case law or applicable evidence and how to argue it.

Since the CRT is billed as a system where you don’t need a lawyer, people are unprepared when their issue gets to the adjudication phase and frequently don’t have the legal knowledge to be successful, since legal summation and case law make a pivotal difference to an outcome. The CRT provides no resources for owners representing themselves (self-litigants).

CRT strata users lost the right to appeal on January 1, 2019, when the legislation was changed to only allow users to go to the BC Supreme Court to ask for a judicial review. Yet, CRT is the only legal option on sections it has exclusive jurisdiction for. Users without significant resources have no pathway to have errors in law of CRT decisions reconsidered and corrected.

In August 2021, the CRT changed the standard of review  of their decisions to ‘patently unreasonable’—the highest standard to meet.

From the Community Legal Assistance Society:

Another important thing to understand is that the standard of patent unreasonableness actually allows a decision maker to be wrong in their decision. Patent unreasonableness applies what is called “deference” to the decision being reviewed. The idea of deference is that administrative tribunals are given the job of deciding certain cases, and judges should not lightly overturn those decisions. Realistically, this means that the judge hearing your case can agree with you that the decision is wrong, and still not overturn it, because he or she does not think the decision is wrong enough, or wrong in the right ways, to set it aside.

What does a “patently unreasonable” decision look like? The case law tells us to look for decisions that “border on the absurd”, are “clearly irrational”, or cannot justifiably be allowed to stand.

Here’s some instances where the ‘patently unreasonable’ standard will not apply, so the decision will stand:

• The decision maker believed the other side instead of you – decision makers have a lot of power to decide who they will believe or not believe, and these conclusions are rarely overturned by judges.
• You have found new evidence that affects the case – new evidence cannot make a decision patently unreasonable. However, many tribunals allow a party to apply to have the tribunal reconsider the decision on the basis of new evidence that was not available at the time of the hearing.
• The other side (or one of their witnesses) knowingly gave false evidence – like new evidence not available at the time of the hearing, many tribunals allow a party to request reconsideration of their decision on the basis that they can prove that the other side gave intentionally false evidence that affected the outcome. However, this usually is not an accepted basis for judicial review.
• The tribunal process was unfair – problems with the process of the hearing are a separate ground for judicial review called “procedural fairness”, but usually do not qualify as a patently unreasonable error.

When CRT gets it wrong, it is extremely difficult to achieve a fair review or correction without extensive resources or an association with the Trial Lawyers Association. However, the TLA is only addressing a narrow aspect of the CRT (ICBC).

Because CRT has discretion over its own procedures, it can accept and admit any evidence it considers necessary and is not bound by the rules of evidence (CRTA s. 42). For example, the CRT accepts hearsay.

The CRTA says it’s an offence to provide false or misleading information to the CRT; however, in practice, the CRT turns people away when they inquire about a breach. CRT adjudicators routinely use unverified assertions in hearsay evidence to make decisions.

Significantly, the CRT and Attorney General publicly refer to these CRT decisions as impartial and fair and the CRT reuses them to inform future cases. A concern is that, in time, the court system may rely on these decisions—arrived at improperly and unfairly—as a body of law or precedent.

CRT disregards contempt for the law during Tribunals. To date, it appears CRT has not issued any penalties for perjury, suppression, obstruction, misrepresentations or abuse of process. It will not exercise CRTA s. 92, perhaps because hearsay is legitimate under the CRTA.

Offence for providing false or misleading information
92 (1) A person who provides false or misleading evidence or other information in a tribunal proceeding commits an offence and is liable on conviction to a fine of $10 000 or imprisonment for term not longer than 6 months, or both.

If a fake record is conjured, or, if a genuine record is suppressed, there is no penalty, though actions such as these can have huge impacts on the outcome of a dispute. All of these Rules are said to be held up in the name of expeditiousness and economy but are without consideration for judiciousness or charter rights. An owner who wishes to pursue issues would have to pursue it on their own through civil litigation.

The CRTA enables the bypassing of established standard legal procedures and processes through:

1. Not allowing appeals for strata property disputes
2. No recusal, no conflict of interest policy
3. No injunctive option when urgency is needed