British Columbia On-line Dispute Resolution

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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 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.