The Civil Resolution Tribunal (“CRT”) was designed with the lay person in mind, to the extent that parties are required to represent themselves (except in exceptional cases). However, that does not mean there is not a 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, one may ask? The answer lies in s.56.5 of the Civil Resolution Tribunal Act (the “CRTA”). That section sets out the criteria for appealing a decision of the CRT. It contains two important provisions with respect to bringing an appeal. The first is that an appeal can only be brought on a question of law. The second is that a party must receive leave (permission) of the court in order to bring an appeal.
Limiting appeals to questions of law narrows the number of decisions which can be appealed. A question of law revolves around whether the Tribunal member applied the right legal principles. This means that an appeal cannot be allowed where the Tribunal member made an error with respect to the facts. For example, if a Tribunal member determined that the source of a water leak arose from outside a strata lot, yet the evidence showed that its source was in fact from within in the strata lot, an appeal could not be brought on that point.
Section 56.5 of the CRTA permits the court to grant a party leave to bring an appeal where the court “determines that it is in the interests of justice and fairness to do so”. The legislation then sets out various factors to be considered when leave to appeal is sought, including:
(a) whether an issue raised by the claim or dispute that is the subject of the appeal is of such importance that it would benefit from being resolved by the Supreme Court to establish a precedent;
(b) whether an issue raised by the claim or dispute relates to the constitution or the Human Rights Code;
(c) the importance of the issue to the parties, or to a class of persons of which one of the parties is a member; and
(d) the principle of proportionality.
In Allard v. The Owners, Strata Plan VIS 692, 2018 BCSC 1066, the court discussed the criteria underlying the ‘justice and fairness’ requirement of s.56.5 and agreed with the decision in McKnight v. Borque 2017 BCSC 2280 that the correct approach also involves an analysis of whether the case to be made on appeal has arguable merit. An argument which is weak in relation to the factors set out in s.56.5 might be saved by its merit. (A lack of “arguable merit” has been equated with having no reasonable prospect of success.)
Based on the test in Allard, a claim with no arguable merit cannot be saved. In the words of the court, a case which is unlikely to be resolved in the applicant’s favour is unlikely to engage general concerns re justice and fairness. A case in which live and important issues are raised, thereby engaging the factors in s.56.5, will usually have sufficient merit to meet the test. In the end, the type of appeals which will likely be allowed are those involving legal issues that have not yet been considered by the court and matter of governance involving the whole strata corporation (so long as they are founded on a reasonable argument.) However, they will almost certainly be denied on less significant matters such as fines; the proportionality factor outweighing all else.
If the party seeking to appeal the decision is fortunate enough to get over the hurdle presented by the leave test, it must then convince the court that the decision reached was wrong. That is also not an easy task. 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 to the CRT’s decisions is one of reasonableness; as opposed to the more stringent correctness standard. In its decision, the court made the following observations when discussing the reasonableness standard:
• Reasonableness is a deferential standard (start from the position the Tribunal got it right);
• The concern is whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
• The standard of reasonableness does not require perfection. Not every flaw in a tribunal’s reasoning will attract judicial intervention.
What can be taken from the test set out in s. 56.5 and the decisions in Watson and Allard is that in most cases parties to a CRT claim will only get one “kick at the can.” They can either fail on the test for leave or fail to prove the decision is outside the realm of reasonable outcomes. A second “kick at the can” can also prove extremely expensive as it requires two court applications; the leave application and the appeal itself.
All this means that 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. Leaving it to the Tribunal member to identify those means risking 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 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 email@example.com. He can be followed on Twitter @stratashawn.