Sunroom fight warrants legal advice
Dispute over sunroom repairs sophisticated enough to warrant legal expertise, Court of Appeal says
B.C.’s top court has slammed the province’s celebrated online dispute adjudicator for refusing to let a litigant use a lawyer in a complicated strata-building case.
In a stinging decision that undercuts one of the key tenets of the Civil Resolution Tribunal, the Court of Appeal said the legal issues in a dispute over $700 in sunroom repairs were sophisticated and being represented by counsel was a reasonable request.
“In my view, the tribunal, by referring to this claim as involving ‘the authorization and maintenance of a sunroom’ in saying there is ‘nothing exceptionally unusual or complex about the subject-matter of the dispute,’ and in describing the claim as ‘a common dispute’ and ‘typical,’ without accounting for the complexity inherent to the claim itself, rendered an unreasonable decision,” Justice Mary Saunders said, supported by colleagues Mary Newbury and Gail Dickson.
The decision cast a cloud on Attorney General David Eby’s decision to expand the tribunal’s mandate to deal with small claims and strata disputes by moving personal injury suits into its bailiwick in the hope of eliminating hundreds of millions in ICBC legal fees.
Eby downplayed the ruling. “First, the issues are completely different because on motor vehicle claims people are allowed to bring lawyers if they want to,” Eby said. “Secondly, tribunals and courts get reviewed all the time and they get overturned on different issues all the way up to the Supreme Court of Canada — our Court of Appeal has been overturned a number of times, it doesn’t mean that the Court of Appeal is not a valid place to go and have disputes determined.”
The Trial Lawyers Association of B.C., however, which has constitutionally challenged the change in how minor injuries are handled, insisted the ruling underscores the main frailty of the tribunal — its lack of legal expertise.
“This is of significant concern to the legal community because it is the (tribunal) to whom the government has granted exclusive jurisdiction to adjudicate disputes relating to car accidents, including the determination of whether an injury is ‘minor’ or not,” explained Vancouver lawyer John Rice, president of the group representing about 1,500 lawyers.
“The (tribunal) is staffed by the government with tribunal members appointed to fixed terms who will be constantly making rulings about government conduct. It is the equivalent of one hockey team hiring or firing the game’s referee.”
The justices unanimously concluded the tribunal’s decision was flawed and absent meaningful consideration of significant issues.
“The issues raised include allegations of the commission of torts, vicarious liability for torts, issues of personal and corporate reputation and, potentially, jurisdiction,” Saunders wrote.
The dispute involved Verna and George Booth, who asked the tribunal in June 2017 to order their Strata Corp. — a 28-unit Surrey building called Tiffany Lane — to reimburse them for repairs and pay $25,000 in damages for misconduct, plus $300 in costs.
Saunders said they complained of “physical and emotional abuse … inflicted on us for the past six years,” alleged “we have had to call for police protection from a council member (fearing physical attack),” and blamed the strata for “dishonest statements, oppressive acts and failure to act in good faith.”
After a 2018 judicial review, though, the B.C. Supreme Court refused to intervene.
Justice Nathan Smith concluded the tribunal was “undoubtedly correct that participation of counsel on one side could put the other side at a significant disadvantage.”
The strata appealed and the high bench said Smith was wrong and the seriousness of the tribunal’s misapprehension of the nature of the dispute made its decision unreasonable.
Saunders also thought it was “irregular for the tribunal to put its imprimatur on a ‘way around’ its own decision, setting up the unhappy appearance of ‘a wink and a nod,’” by suggesting the strata get legal help behind the scenes.
“The tribunal here intrudes remarkably into solicitor and client arrangements and disrespects the work product of the person in the background by prohibiting recognition for that person,” the justice scolded.
“Second, and more seriously, the circumvention fosters fiction. Nor does the approach suggested by the tribunal relate in any way to keeping the playing field level. It misses the fundamental notion that it is not the identity of the spokesperson that wins the day before an objective and independent decision-maker, but rather the substance of the positions advanced and the cogency of the parties’ submissions.”
Parties using the tribunal are generally required to represent themselves, but can ask to be represented by a lawyer.
Nevertheless, the tribunal established in 2016 has an institutional bias against lawyers to maintain its “accessible, speedy, economical, informal and flexible” regime.
The appeal panel quashed its decision and remitted the case for fresh consideration.
“The takeaway from this Court of Appeal decision is just how vital a robust judicial review is needed to keep administrative bodies such as the (tribunal) in check,” lawyer Rice said.
The Booths could not be reached for comment, but argued that allowing the strata to have a lawyer “would tilt the scales of justice against us.”
A tribunal spokesperson said it does not comment on the outcome of judicial reviews or other court decisions.
Eby said he would study the ruling.
“I can understand why (the lawyers) are making the argument that the current system is successful and necessary and important even though multiple provinces operate much more affordable and better systems for drivers without these processes they are so enthusiastic about. We just have different perspectives.”