As the team wrote in the last blog post, it is helpful for people going through CRT disputes to have some assistance with the process. Dealing with legal problems is always hard. Our survey shows that for at least some CRT users the process can be confusing and difficult to navigate, even though it is designed to be user-friendly. That’s where an advisor could help a lot, by doing things like explaining the law, telling people what they can expect in a CRT proceeding, and helping them prepare their submissions.
On Thursday May 28, the BC Court of Appeal released a judgment about the CRT (The Owners, Strata Plan NW 2575 v. Booth, 2020 BCCA 153) that could have the unintended consequence of reducing ordinary people’s ability to get that kind of help.
This was a dispute between a strata corporation and a couple who owned a unit in the strata. The strata corporation had insurance that covered its legal costs. The corporation asked for permission to be represented by a lawyer in the proceeding before the CRT. The appeal is about the CRT’s decision to deny the corporation’s request for representation.
CRT proceedings are different from court in many ways. One of them is that under s. 20 of the CRT Act the parties aren’t allowed to be represented by a lawyer as of right – except in motor vehicle personal injury cases. If someone wants to be represented in a CRT dispute, they have to get permission from the CRT. The CRT has discretion to grant permission exceptionally if it is “in the interests of justice and fairness.”
In this case, the CRT originally said no to the strata corporation. The owners were not represented by a lawyer. They said that they could not afford one. They said it would be unfair for the corporation to be represented by a lawyer while they were unrepresented. This was an important factor for the CRT.
The CRT decided that it would not be in the interests of justice and fairness for only one side to be represented. This problem is exactly why s. 20 exists. Before the CRT opened, consultations with the public and community advocacy organizations highlighted that people were anxious about having to go through a dispute facing a lawyer on the other side when they couldn’t afford one. S. 20 is meant to make the process more balanced, equal and accessible for people who can’t pay for full legal representation (which means most of us).
Importantly, s. 20 only concerns parties’ ability to have a lawyer or another appropriate person represent them in the proceeding at the CRT. It doesn’t prevent anyone from getting any other kind of help – advice about the law, document preparation, drafting submissions for the CRT, guidance about what to expect in the process – really, anything at all apart from representation in the tribunal proceeding. S. 20 not only doesn’t prohibit any those other things; it doesn’t mention them at all.
Unbundling is a solution that works for some litigants who can’t afford to pay for full representation, but can afford, for example, a few hours of help with gathering and explaining case law, drafting submissions, legal coaching, or explanation of the process. The Law Society of British Columbia – the first law society in Canada to create a policy to facilitate unbundling – recommends it as “especially helpful to self-represented litigants, who often are not self-represented by choice, but are unable to afford to retain legal counsel.” An example of a lawyer offering unbundled services is described in this article in the Law Society of BC Benchers’ Bulletin. That lawyer article charged $250 an hour for helping with a legal proceeding, $150 an hour for coaching, and $75 for legal research. That’s much more affordable than a traditional full-service retainer.
Unbundling is a relatively new approach to providing legal services that more and more lawyers (and other professionals) are offering as a response to the access to justice crisis, because traditional full-service legal representation is unaffordable for most people. Unbundling is a fairly new thing, but there is nothing improper about it. It is endorsed by the Law Society and recognized under the Rules of Professional Conduct for BC lawyers (it’s called a “limited scope retainer”).
Nor would s. 20 prevent anyone from getting similar help from non-lawyer service providers, which might be more affordable than using a lawyer even for unbundled services. The most significant obstacle to that is not the CRT Act, but the exclusive right of lawyers under the Legal Profession Act to engage in the practice of law – which is very broadly defined, and includes giving advice and drafting documents “in any way relating to a proceeding.”
When the CRT decided not to agree to the strata corporation’s request to be represented, it pointed out that the corporation could still rely on its legal counsel in preparing for the proceeding. It noted that “a party is entitled to use a ‘helper’ throughout the tribunal process. There is nothing in the Act or the tribunal’s rules restricting a party’s ability to get legal advice, or help completing documents, preparing submissions, and organizing evidence, among other assistance.”
The BC Court of Appeal quashed this decision (that is, it cancelled it), and sent it back to the CRT for reconsideration. In its reasons for judgment, the BC Court of Appeal did not even address the fact that the owners couldn’t afford to be represented by a lawyer – the problem of unequal representation that was probably the most important factor in the CRT’s decision, and directly tied to the purpose of s. 20.
Of even more concern is what the Court said about the tribunal’s words confirming that the strata could still get legal advice and help.
What the CRT said on this point was, quite simply, a straightforward statement of what the statute says and doesn’t say. But the Court of Appeal described this in terms that make it sound as if the CRT was cheating, or doing something improper. It characterized the remarks as a “circumvention,” the CRT suggesting a “way around” its own decision, “irregular,” and “setting up the unhappy appearance of ‘a wink and a nod.’”
It is difficult to understand how the Court of Appeal could see it this way. There is nothing inconsistent between the tribunal’s decision not to permit the strata corporation to be represented and its reminder to the corporation that it could still get any other kind of legal help with the proceeding. One doesn’t undermine or detract from the other; it’s not a “way around” anything. The Court of Appeal’s approach suggests that people in disputes at the CRT can either seek and get permission to be represented by a lawyer, or get no legal help or advice at all.
Perhaps the Court of Appeal believes there is something improper about unbundling – that it is somehow illicit to obtain legal services like advice, document drafting and preparation if they aren’t packaged together with representation. Otherwise, it’s hard to see any logical reason why the Court would say that getting legal advice and help preparing for the proceeding is an “irregular way around” the CRT’s decision to deny representation. They are just different things.
This judgment could make it harder for people using the CRT to get help, if it discourages lawyers from providing unbundled services. If lawyers think that our province’s leading judges see unbundling as some kind of unsavoury or dubious practice, as this decision could be taken to suggest, then they might not be comfortable doing it. The Law Society Benchers’ Bulletin article noted that the biggest obstacle to getting this kind of legal service may be “outdated attitudes about law and the role of lawyers.” It is regrettable that the BC Court of Appeal may be perpetuating those outdated attitudes.
The judgment could also end up making it harder for ordinary people to go into CRT proceedings on a reasonably equal footing with corporations and wealthy parties who can afford to be represented by lawyers. This decision will go back to the CRT to reconsider. The CRT has to follow the directions of the Court of Appeal. The CRT could determine that it now it has to let the strata corporation have representation. Then the owners would have to represent themselves, facing off against an opponent represented by a lawyer. That was what s. 20 of the CRT Act was supposed to avoid.
It is certainly the prerogative of the Court to disagree with the CRT and to quash its decisions if it disagrees. Maybe the Court was right (although, obviously, I don’t think it was right in this case).
But, either way, it was not necessary to choose words implying that there was something sneaky or lacking integrity in the CRT’s decision – a “wink and a nod.” The tribunal member who wrote the original decision is the Chair of the CRT, Shannon Salter, who is an internationally respected leader in the field. It is regrettable to see BC’s highest court characterize the informed and careful decision of a fellow justice system leader in such an unbecoming way.
Find more information and resources about unbundled legal services here:
- BC Family Unbundling Roster
- The Law Society of BC on Self-representation and Unbundling Services
- The Nuts & Bolts of Unbundling: A NSRLP Resource for Lawyers Considering Offering Unbundled Legal Services
- Justices Speak Up for Unbundling: The Video
- The Canadian Bar Association on Unbundled Legal Services
- The BC Provincial Court: “Unbundling” – a new way to offer or obtain affordable legal services