At its September meeting, the CBA’s COVID-19 task force received an object lesson in the limitations of technology, as about 20 highly educated, newly minted Zoom experts from across the country tried in vain to connect to audio for the meeting.
After 15 minutes of in-Zoom messaging, leaving the meeting and rejoining, frantic discussions with IT support and watching the blue circle of death that accompanied the “connecting to computer audio” message, the problem was resolved and the meeting went ahead as scheduled.
Coincidentally, the September guest speaker was CBA-BC President Jennifer Brun, who was discussing that province’s Civil Resolution Tribunal and the lessons we can learn from it as we lean more on technology to provide access to justice.
For those unfamiliar, B.C. passed legislation in 2012 establishing the CRT – the country’s first online dispute resolution tribunal – aimed at creating an affordable, 24/7 option to resolve some legal disputes. It started hearing strata property disputes in 2016 and small claims disputes under $5,000 in 2017. Recent amendments added three new areas of jurisdiction: motor vehicle disputes over liability and damages under $50,000, minor injury determinations and entitlement to accident benefits, and unlimited claims under the Societies Act and the Cooperative Associations Act.
It is fully online – it has no physical location and participants never come together, even by phone or videoconference (with some exceptions). A guided process takes participants through the steps of pre-filing negotiation, filing the dispute and negotiation. A third-party facilitator is appointed only if the initial stage fails to reach a resolution. A hearing is held – with evidence and argument presented in writing – only if parties can’t come to an agreement through the facilitator. There is no right of appeal of CRT decisions. The Supreme Court of British Columbia may judicially review the CRT’s decisions, but deference is paid to the tribunal’s “specialist” knowledge.
In a 2018 position paper CBA-BC said it supports using facilitated settlement discussions and mediation to resolve disputes, using technology to increase access to justice outside of regular court hours, and the CRT’s emphasis on using plain language, which makes it more accessible.
The CBA has been monitoring and offering suggestions to improve the CRT since the beginning, Brun said. The Branch has three primary concerns:
- Restrictions on legal representation
- Some concerns about accessibility
- Lack of independence from government.
The CRT was created without input from the bench or the bar, says Brun. Legal professionals could have provided some important insight.
While people seeking resolution through the CRT are allowed to have someone help them, the legislation establishing the tribunal specifically excludes lawyers without special permission from the CRT. There has been an exception made to permit lawyers to represent those in the motor vehicle dispute since the government-run insurer has a lawyer.
Ostensibly, excluding lawyers is meant to reduce costs but it can result in people getting “access to resolution, but not access to justice,” says Brun. “For many, resolution is enough, but in complex matters with more important consequences, justice can have more value.” The Branch has asked that the restriction on lawyer participation be removed for all matters.
Accessibility concerns arise from the fact that not everybody can use online platforms, and command of the language can be a “significant variable” when negotiation, facilitation and hearings are all carried out in writing, says Brun. It’s not always enough to have a helper. Claimants who don’t have a computer or access to the internet can go to one of Service BC’s 60 locations, where someone would be available to help them, but that person wouldn’t necessarily be in the best position to help.
Lack of independence comes from the fact that there is no security of tenure: tribunal members are hired, paid and fired by the same government that appointed them and that can be party to certain claims. This problem could be resolved by transferring the CRT to the judicial branch, which would remove the conflict.
Brun enumerated other concerns, including:
- Lack of substantive review of the CRT’s decisions, and the deference paid to the CRT even though it is not, in the Branch’s estimation, a “specialist tribunal” since it hears a wide variety of cases
- Expanding jurisdiction of the CRT
- Evidence is unsworn and untested, there is no rigorous cross-examination. The tribunal member reads the argument and evidence to reach a decision.
- Complex disputes involving counter-claims aren’t easily incorporated and there’s no easy way to transfer such matters to a court
- Open-court principle – there’s no public or media access to a CRT “hearing”