DOES THE NOTICE OF OBJECTION MECHANISM AVAILABLE TO CIVIL RESOLUTION TRIBUNAL SMALL CLAIMS PARTIES ENHANCE ACCESS TO JUSTICE?

• Author: Dickson, Rebecca

1. INTRODUCTION

   This paper attempts to evaluate whether the Notice of Objection (NoO) mechanism available to Civil Resolution Tribunal (CRT) small claims parties is a justice enhancing mechanism. The NoO provides a means for a party to a CRT small claims dispute to object to the decision for any reason and void the CRT ruling. The dispute must either end there, or start again in provincial court. First, I give background on the CRT, what specifically the NoO is, and then define the concepts of "justice" that will be used to evaluate whether the NoO is a justice-enhancing mechanism. Section III summarizes the methods I used to empirically investigate whether the NoO enhances access to justice, and then summarizes my findings. Finally, I connect these findings to those concepts of "justice" outlined earlier, and then provide recommendations regarding the existence of the NoO.

2. BACKGROUND

   This section provides readers with the relevant information required to understand the context surrounding the NoO mechanism. Section 11(A) discusses problems that exist in our traditional justice system. Next, a brief outline of online dispute resolution (ODR) as a potential solution to some of those problems is provided, followed by a detailed description of the CRT. In section 11(D), I outline the NoO mechanism that is available to CRT small claims litigants, before finally outlining the definitions of "justice" that are used in this paper to evaluate whether that NoO mechanism is justice-enhancing.

   1. PROBLEMS WITH TRADITIONAL JUSTICE SYSTEM

      Our justice system has been criticized as being "too complex, too slow and too expensive." (1) In Canada, approximately 65% of people do not know how to handle legal problems, are afraid to use the legal system, think nothing can be done, or believe that seeking justice will cost too much money or take too much time. (2) A survey done by the Canadian Forum on Civil Justice found that almost half of Canadians will experience a legal problem within a three-year period. (3) Less than seven percent of Canadians who experienced a legal problem in that three year period used the formal legal system--such as a court or tribunal--to solve the dispute, and under 20% contacted a lawyer. (4) Of the participants who had resolved their legal dispute by the time the survey ended (around 70%), almost half of them felt that the result was unfair. Such a combination of statistics illustrates the access to justice crisis in Canada. In summary, the justice system is inaccessible to the average Canadian, and is "incapable of producing just outcomes that are proportional to the problems brought to it." (5)

      Our legal tradition is built on a foundation of precedent. It tends to prefer what has been done before over some "uncertain future innovation". (6) This tradition has upheld procedural fairness as principle of fundamental justice in Canada. (7) However, one of the identified causes for this access to justice crisis is the procedural requirements of the justice system itself, which stem from this requirement for procedural fairness. (8) As articulated by Madame Justice Rosalie Abella before her appointment to the Supreme Court of Canada:

      We have become so completely seduced by the notion [...] that process ensures justice, that we have come to believe that process is justice. Yet to members of the public who find themselves mired for years in the civil justice system's process, process may be the obstacle to justice. (9) In response to these procedural barriers, the Action Committee on Civil and Family Justice called for the justice system to put the public first. (10) The focus of the justice system should be to provide justice to its users, "not just in the form of fair and just process, but also in the form of fair and just outcomes." (11)

   2. ODR

      The changing needs of the justice system and its users have resulted in an increase in global interest in ODR, a form of alternative dispute resolution that includes the use of technology. (12) It has the potential to improve access to justice by "removing barriers like cost, time, and information asymmetry." (13) With the COVID-19 pandemic, the value of a justice system that can be delivered in an online format became very clear, as physical courthouses across the world were forced to shut down. Another major benefit of ODR is that it allows for asynchronous communication, unlike more traditional models of dispute resolution. (14) Asynchronous communication--which means that parties have time and space to think about how to respond, and can respond at a time that works best for them--helps to alleviate some of the burdens associated with our traditional justice system. While ODR has many potential benefits, there are also some concerns about it. For example, the ODR experience has been criticized for being impersonal, (15) and also raises greater confidentiality concerns than the traditional justice system does. (16)

      Additionally, there is a concern that ODR based justice may be more focused on objectives like efficiency and convenience than producing the most "just" outcome for the parties involved. (17)

      The CRT is an example of ODR being used to attempt to improve access to justice in Canada. The next section provides a detailed description of the history of the CRT and how it compares to the traditional justice system.

   3. THE CRT

      The CRT is an administrative tribunal in British Columbia (BC) created by the legislature, and is governed by the Civil Resolution Tribunal Act. (18) It began operating as part of the BC justice system in 2016 as a voluntary (non-mandatory) tribunal available for certain strata property claims. (19) It quickly became mandatory for certain strata property disputes, and expanded its jurisdiction to include small claims under $5000 in 2017. (20) In 2019, the CRT's jurisdiction was expanded to include some motor vehicle claims (under $50,000) and claims relating to societies and cooperative associations. (21) In early 2020, the Province of BC announced that more legislative changes are coming which will expand the jurisdiction to cover almost all motor vehicle personal injury claims. (22)

      The CRT is the first fully ODR system integrated into a public justice system in the world. (23) It aims to provide an end-to-end dispute resolution process with a focus on early resolution. (24) End-to-end design means that all the steps of dispute resolution occur within the CRT platform, and are meant to work together seamlessly--from initial online exploration through to the final adjudication process if necessary. (25) The CRT's mandate includes providing dispute resolution services in a way that is accessible, speedy, economical. (26) This attempts to strike a balance between the goals of efficiency, proportionality, and fairness that are included in the overarching concept of justice. (27) This user-focused design can be contrasted with initiatives in the traditional justice system that simply add a collaborative process onto the existing adversarial processes. These initiatives, while potentially beneficial, lack the seamless, gradual increase of time and resources that the CRT provides. (28) Without the benefit of user-focused end-to-end design, these collaborative processes can end up acting as an extra step in the overall adversarial process, and an additional barrier to accessing justice. (29)

      Another way that the CRT can be contrasted with the traditional justice system is the role that lawyers are allowed to play in the process. The CRT website states that parties are welcome to have someone--a friend or family member, or a lawyer--help them during any phase of the CRT process. However, they must be there to speak for themselves in the dispute. (30) If a person feels that they need a lawyer to represent them, they may apply to the CRT for an exception to this rule, and the CRT will make a decision about whether or not a lawyer is allowed to represent them on a case-by-case basis. This exclusion of lawyers from their traditional role in a dispute is the source of one of the main critiques of the CRT. (31) The CBA suggests that, even in small claims disputes where the monetary value of the claim is low, lawyers provide a valuable service to clients by helping them narrow down the legal issues and understand the law. They suggest that the claimant (and not the CRT) should decide whether or not they require a lawyer. (32) This critique does not address the fact that a lawyer is always allowed to help a party to a CRT claim. Section 20 of the CRT Act only requires that the individual represent themselves during the tribunal proceeding. This is not a rule that prevents a lawyer from providing legal advice--it just prevents a lawyer from speaking on their client's behalf.

      Finally, the actual user experience at the CRT is designed to be different than that of the traditional justice system. There are four stages of the CRT. These stages are designed to promote dispute resolution as early as possible, with as little effort and cost as necessary. (33) If, at the end of each stage, the dispute is not resolved, the user proceeds to the next stage.

      The first stage is the solution explorer--a web-based expert system that helps a user understand what their dispute (legal issue) is, and what might be required to resolve it. (34) The solution explorer is free to use and is designed to help the user "... actively manage or attempt to resolve the problem" without needing to engage in a formal dispute resolution process. (35) To do this, the solution explorer asks the user questions using plain language to narrow the scope of the user's problem as much as possible. (36) This narrowed scope allows the solution explorer to provide targeted information and self-help tools to the user, such as letter templates, designed to allow the user to attempt to actively manage the situation before it escalates to a point requiring formal intervention. (37)

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