BC Court of Appeal Harshly Criticizes Civil Resolution Tribunal for “Flawed” and “Unreasonable” Decision Refusing Right To Counsel

Reasons for judgement were published today by the BC Court of Appeal criticizing BC’s Civil Resolution Tribunal for an “unreasonable” and “flawed” analysis when reviewing a party’s request to be represented by a lawyer.

In today’s case (The Owners, Strata Plan NW 2575 v. Booth) the owners of a strata unit filed a dispute against their Strata Corporation asking for some repair costs to be paid. They filed their claim in BC’s Civil Resolution Tribunal (“CRT”) under their jurisdiction to resolve strata property disputes.  The applicants then tagged on a claim seeking a further $25,000 in damages for “loss of enjoyment of life, threats, abuse, and stress” despite the CRT only having Small Claims authority of up to $5,000.

The Strata Corporation had insurance in place which would pay for a lawyer to represent them in the dispute.  The CRT limits the use of lawyers and the CRT’s permission is required for a party to be represented in most cases.  When the Strata asked for permission to be represented by lawyer this was denied with the CRT stating there was nothing ‘complex’ about the dispute giving rise to the ‘exceptional’ circumstances warranting a lawyer’s involvement.  The CRT noted that the Strata could simply get legal advice behind the scenes instead of formally being represented by a lawyer.

The BC Court of Appeal overturned this decision finding the CRT flawed in their characterization of this dispute and their suggestion that legal advice only be utilized behind the scenes.  The court noted there were complexities including issues as to whether the CRT could even hear such a dispute and hinted that Charter and Constitutional issues could be in play as well. In sending the matter back for a fresh determination the Court provided the following reasons:

[24]       It seems to me to be irregular for the Tribunal to put its imprimatur on a “way around” its own decision, setting up the unhappy appearance of “a wink and a nod”. Such details of the arrangements between counsel and client concern the scope of the retainer and the strategy agreed, both matters of privilege. Of course the retainer may include collaboration between counsel and client, through what may be described in modern parlance as a limited retainer, creating documents submitted by the client that have been heavily influenced, if not authored, by counsel. Such is normal and acceptable. However, the Tribunal here intrudes remarkably into solicitor and client arrangements and disrespects the work product of the person in the background by prohibiting recognition for that person. Second, and more seriously, the circumvention fosters fiction. Nor does the approach suggested by the Tribunal relate in any way to keeping the playing field level; it misses the fundamental notion that it is not the identity of the spokesperson that wins the day before an objective and independent decision maker, but rather the substance of the positions advanced and the cogency of the parties’ submissions. In my view, it is not a viable answer to its own decision for the Tribunal to say that the Strata Corporation can only have the help it needs if it receives it anonymously and behind the scenes.

[25]       I turn to the first ground of appeal. I consider it should succeed. The judge correctly described the main theme of the claim: “The vast majority of the amount claimed by the Booths relates to damages for alleged threats, abuse and loss of enjoyment of life”. That claim is justified by Verna and George Booth (in their response to the request for representation) on the basis that they were the subjects of wrongful personal conduct of a serious nature by people associated with the Strata Corporation’s management. Yet neither the scale of the claim, nor the asserted basis for it, was considered by the Tribunal.

[26]       The scale and basis of the claim are material features of the request made by the Strata Corporation. It is clear to me that the scale and basis of the claim take it beyond the mere repairs referred to by the Tribunal, into a more complex zone of legal issues. In Vavilov, the majority explained that failure of the decision maker to account meaningfully, in the reasons provided, for central issues or concerns of the parties (or evidence) may be shortcomings that will fatally undermine the reasonableness of the decision:

[126]    … a reasonable decision is one that is justified in light of the facts: [citation omitted] … The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.

…

[127]    The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: [citation omitted]. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.

[Emphasis in original.]

[27]       The Tribunal contends that the appellant is challenging findings of fact, being the nature of the claim before it. If so, this case fits into Vavilov’s description in para. 126 because the primary matter of the claim, according to the originating document, is for damages for personal conduct, not the “authorization and maintenance of a sunroom”. I consider, however, that the appellant’s challenge to the decision is more properly characterized as resting on a failure of the Tribunal to consider a key submission by the Strata Corporation – that the substance of the claim against it takes the dispute far out of the usual or common complaint contemplated by s. 121 of the Civil Resolution Tribunal Act, and raises issues of complexity.

[28]       In my view, the Tribunal, by referring to this claim as involving “the authorization and maintenance of a sunroom”, in saying there is “nothing exceptionally unusual or complex about the subject‑matter of the dispute”, and in describing the claim as “a common dispute” and “typical”, without accounting for the complexity inherent to the claim itself, rendered an unreasonable decision. The issues raised include allegations of the commission of torts, vicarious liability for torts, issues of personal and corporate reputation and, potentially, jurisdiction. I conclude that absent meaningful consideration of these features, the Tribunal’s reasoning is flawed, and the decision is not reasonable.