Court Clarifies Standards For Challenging Civil Resolution Tribunal Decisions
Alex J. Chang, Associate
Phone: 604-685-1255
Email: ajc@lmlaw.ca
The Supreme Court of BC has set a relatively high threshold for appealing the numerous decisions that the Civil Resolution Tribunal (CRT) is now speedily releasing.
Appeals must be filed within 28 days of receiving the CRT’s decision.
Section 56.5 of the CRT Act provides that CRT decisions involving strata matters may be appealed to the Supreme Court on questions of law. However, the court clarified in McKnight v Bourque that an appeal can be brought on “questions that are predominantly, if not exclusively, issues of law.” This gives some limited room to appeal evidentiary findings. However, the court in McKnight v Bourque did not grant leave to appeal on any grounds related to the evidentiary foundation of certain findings by the CRT.
In order to be granted an appeal hearing all parties to the dispute must consent or the court must grant leave. The court will decide whether it is in the interests of justice and fairness to grant leave based on the following factors under s. 56.5(5) of the CRT Act:
- whether an issue raised by the claim or dispute that is the subject of the appeal is of such importance that it would benefit from being resolved by the Supreme Court to establish a precedent;
- whether an issue raised by the claim or dispute relates to the constitution or the Human Rights Code;
- the importance of the issue to the parties, or to a class of persons of which one of the parties is a member; and
- the principle of proportionality.
The court McKnight v Bourque also clarified that these factors are not exhaustive and may be added to depending on the individual circumstances of the case.
The court has also clarified that its main focus is on whether the appeal has “arguable merit” from a holistic perspective. This means that a merely arguable case may be sufficient where other factors pull in favour of granting leave such as the amount of money involved or importance of the case, whereas a case may need a very high level of merit where other factors are weak or absent.
The first application for a leave to appeal was in the case of Strata Plan BCS 1721 v Watson which involved a dispute between a tenant and strata corporation over the payment of $200 in move-in fees. The strata had sought the payment of the fees by disabling the FOB system. The fees were paid but the tenant applied to the CRT for their return. The CRT decided that a $100 fee for a move in without furniture was unreasonable and contravened the Strata Property Regulation. The CRT also found that the way the fees were collected was significantly unfair pursuant to s. 164 of the Strata Property Act.
In Strata Plan BCS 1721 v Watson, the court noted that while it was arguable that the CRT had committed errors of law, the court would not have normally granted leave to appeal because the claim involving $200 was proportionally small and the decision that the fees were extracted in a significantly unfair way was likely justified. In other words, the appeal would normally have been too small and lacked merit to justify the court’s attention.
However, the court considered the importance that this was the first case appealing a CRT decision and that it would be helpful for the court to clarify for the CRT how to apply s. 164 and the Strata Property Regulation. Thus, leave to appeal was granted.
At the actual appeal, the court in Watson clarified that it would apply a reasonableness standard to the CRT’s decision. In other words, the court will defer to the CRT so long as its overall decisions fall within a range of reasonable outcomes. The court in Watson then concluded that the CRT decision was reasonable and dismissed the appeal.
In the more recent application for leave to appeal in McKnight v Bourque, the court granted leave to appeal where the CRT arguably failed to follow its own rules regarding how expert opinion evidence was admitted and exceeded its authority by in effect appoint an administrator to govern future dealings of the strata.
These cases give much needed guidance to strata corporations, owners and tenants regarding whether they can appeal a decision of the CRT. The courts will generally grant leave to appeal on a primarily legal ground of arguable merit but will not ultimately grant the appeal itself if the CRT’s ultimate decision falls within a range of reasonable outcomes.
This sets a relatively high burden on parties seeking to overturn CRT decisions. Losing an appeal may result in liability for the other party’s costs. Thus, it is advisable for parties to seek legal advice early regarding their chances on appealing a CRT decision.
WHAT WE DO: Lesperance Mendes advises clients on all aspects of CRT proceedings and strata disputes. If you need help with a CRT or strata matter, contact Paul G. Mendes, Partner, at 604-685-4894 or by email at pgm@lmlaw.ca or contact Alex J. Chang, Associate, at 604-685-1255 or by email at ajc@lmlaw.ca.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on upon without independent legal advice.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
604-685-3567