The Civil Resolution Tribunal (“CRT”) was designed with the lay person in mind, to the extent that the parties are required to represent themselves (except in exceptional cases). However, that does not mean there is no role for lawyers to play in the process. The most important service lawyers can provide in relation to the CRT is helping participants to properly present or defend their case. This can be done through providing assistance in drafting the claim or response and later in helping to assemble evidence, identifying applicable case law and presenting detailed and well laid out arguments.
Why is the help of a lawyer important? The answer lies in the difficulty of getting a decision made by the CRT set aside. The CRT cannot change a decision once rendered. The only option is to apply to the court for relief. For claims initiated prior to January 1, 2019 a party unhappy with the CRT’s decision in a strata property claim can either seek leave to appeal pursuant to s.56.5 of the Civil Resolution Tribunal Act (the “CRTA”) or apply for judicial review. For claims filed after January 1, 2019, only the judicial review option under s.56.6 of the CRTA. is available.
Appeal
With respect to appeals, s. 56.5 contained two important provisions, namely that an appeal could only be brought on a question of law and that a party was required to obtain leave (permission) of the court in order to bring an appeal. In addition, the court could only grant leave to appeal if it determined that it was “in the interests of justice and fairness to do so”. Based on the Court of Appeal’s decision in Allard v. The Owners, Strata Plan VIS962, 2019 BCCA 45, the test is a hard one to meet. Leave will not be granted in situations where the issue:
• serves no precedential value;
• affects only one owner out of a larger group; or
• consumes a disproportionate amount of time or money relative to the matter at hand.
If the party seeking to appeal is fortunate enough to get over the hurdle presented by the leave test, they must then convince the court that the decision reached was wrong. In The Owners, Strata Plan BCS1721 v. Watson 2018 BCSC 164 the British Columbia Supreme Court considered what the standard of review would be on an appeal from the CRT. The court held that the standard to be applied when reviewing the CRT’s decisions was reasonableness, as opposed to the more stringent correctness standard. Reasonableness is a deferential standard (so the review must start from the position the Tribunal got it right). The standard of reasonableness does not require perfection. Not every flaw in a tribunal’s reasoning will result in judicial intervention.
Judicial Review
The CRTA was amended to exclude the possibility of an appeal for claims made after January 1, 2019. The amendment also changed the applicable standard of review. By virtue of s. 56.7(1) of the CRTA, the CRT is considered an expert tribunal for matters within its exclusive jurisdiction (being those set out in s. 121 of the CRTA). Accordingly, a CRT finding of fact or of law or an exercise of discretion in these areas will be reviewed on a standard of patent unreasonableness. It is a highly deferential standard and as a result the court will only overturn the decision if it is so immediately and obviously defective on the face of the issued reasons that it requires no probing to see that it is wrong.
The court can only find a discretionary decision (i.e. what form of relief to grant) patently unreasonable where the CRT’s authority was exercised arbitrarily, in bad faith, or for an improper purpose, decisions based entirely or predominantly on irrelevant factors, and decisions where the CRT failed to take statutory requirements into account.
The practical effect of this change is that the vast majority of CRT decisions (good, bad or ugly) will be final decisions, binding on the parties.
Getting it Right
As can be seen, disputing a CRT decision regarding strata matters will be difficult. Practically speaking, there will only be one “kick at the can” to get the decision you want. Despite the less formal aspects of the CRT process, a great deal of care and attention must be taken in preparing or defending a CRT claim. One cannot assume the Tribunal member will interpret the evidence in the same way you do. It is also important to ensure the right evidence, in its most compelling form, is before the Tribunal. Compelling evidence will often carry the day.
Referencing the correct legal principles and relevant case law is important as well, as leaving it to the Tribunal member to identify those means taking a risk that a favourable argument or case will be missed.
Tying the evidence and the legal principles together in a coherent and compelling way is critical to a successful argument. Since there is no oral hearing in most cases, there will generally be no chance to explain a point that is unclear. Making a solid argument through a well written and organized submission increases the chances of a favourable and defensible decision.
While some may feel up to the task, most owners and particularly most strata council members will not. It is a heavy burden to place on the shoulders of a volunteer council member. That burden can be relieved by obtaining assistance with preparing and presenting the claim or defending against one.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
