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On May 7, 2012, the Ministry of Justice for British Columbia announced the introduction of Bill 44, the Civil Resolution Tribunal Act. If
enacted, British Columbia would become the first jurisdiction in
Canada to create a tribunal to provide on-line dispute resolution
services. Use of the tribunal's services would be voluntary,
except for strata corporations (condos).
Some things to note:
Lawyers aren't welcome. Parties are to
represent themselves unless they are a minor or a person with
impaired capacity. There are other exceptions such as if the rules
for the Tribunal (to be drafted) permit representation or the
tribunal finds it is in the interests of justice to permit the
party to be represented. The Trial Lawyers Association of British
Columbia has already responded negatively as has the Canadian Bar Association British
Columbia Branch.
Tribunal will vet its jurisdiction. A party
will make a request to the tribunal to resolve a dispute. The
tribunal's jurisdiction has not been fully described but it
appears to intended for simple legal matters involving small
claims. As a prerequisite, the tribunal may require the parties to
agree to on-line dispute resolution services.
Limitation period suspension. Making a request
for resolution by the tribunal will suspend the limitation period
until the tribunal decides to refuse to consider the case or the
parties agree to cease the process.
Not clear whether jurisdiction can be agreed to in
advance. Although the process is voluntary, it is not
clear whether the process can be agreed to in advance in a consumer
sales contract. Once agreed to, the process is mandatory unless the
tribunal dismisses the proceeding or the parties consent to the
termination of the process.
Staged process of dispute resolution. The
intention appears to be that each case would proceed through four
phases. The first phase would be self-help dispute resolution using
on-line, interactive tools. If that did not result in resolution,
the second phase would be on-line, supervised negotiations.
Assuming no resolution, the third phase would involve direct
intervention by a case manager to attempt to facilitate a
settlement. The final stage would be a tribunal hearing, which
could take place on-line.
Tribunal orders can be filed with the court.
Final decisions of the tribunal may be filed with the British
Columbia Supreme Court (or, in some cases the Provincial Court) and
enforced as court orders.
Limited judicial review. In its current form,
the Bill has limited scope for judicial review of tribunal
decisions. The Bill states that the standard of review is
correctness but then exempts from that standard findings of fact,
the exercise of discretion and the common law rules of natural
justice and procedural fairness. A finding of fact can only be set
aside if there is no evidence to support the finding or the finding
is otherwise unreasonable. Discretionary decisions can only be set
aside if the discretion is exercised arbitrarily or in bad faith,
is exercised for an improper purpose, is based entirely or
predominantly on irrelevant factors, or fails to take statutory
requirements into account. Issues of natural justice and procedural
fairness are to be reviewed taking into account the mandate of the
tribunal.
About Fraser Milner Casgrain LLP (FMC)
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firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
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of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
www.fmc-law.com
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