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    Enter Bill 44 - Exit Legal Counsel
    Posted: 2012-06-21 05:46:28

    The B.C. Courts have recently been the subject matter of a number of government discussions. The ongoing debate typically involves the CourtÂ’s inefficiency, to which the Judiciary responds is the result of a significant lack of financial resources. The governmentÂ’s response to this tug-of-war between efficiency and resources is Bill 44.

    Bill 44 is the Civil Resolution Tribunal Act, which creates “Civil Resolution Tribunals” that run in parallel to the B.C. Courts. The jurisdiction of these Tribunals will typically include matters that fall within the ambit of B.C. Small Claims Court. According to their mandate, the Tribunals are intended to lessen the burden on an already financially-strapped Judiciary by being more “accessible, speedy, economical, informal and flexible”.

    B.C. Small Claims Court cases is usually informal, involves claims under $25,000, and allow individuals to represent themselves. Participants are typically self-represented; however, they are permitted to acquire the services of a lawyer. The Tribunals will operate in a similar fashion with one main exception—litigants cannot obtain legal representation.

    Bill 44 has received a considerable amount of criticism since its inception. Criticism of the Bill has focussed primarily on section 20, which forbids legal representation. Some feel that forcing parties to represent themselves might place some individuals at a disadvantage. This situation might arise when institutional litigants are involved or individuals whose first language is not English. In addition, section 9 which excludes the B.C. Government from proceedings, also does not sit well with critics. This may suggest that the government is not standing behind their proposed solution to judicial inefficiency. The composition of the Tribunals has also been criticized. Decisions are being made by individuals that are not judges and do not have the appropriate legal training to adjudicate such matters.

    Counter-arguments can be made to these aforementioned criticisms. Firstly, parties must consent to have their case heard by the Tribunal. If a litigant feels that he/she is at a disadvantage for whatever reason, they can opt for the Small Claims Court route. Secondly, Bill 44 is not preventing litigants from obtaining independent legal advice prior to their proceedings. Parties can discuss their case and strategy with counsel, so that they may be better prepared for hearings. Thirdly, if the unfairness that the critics speak of arises, section 20(2) permits a party to be represented by a lawyer if it is in the “interests of justice and fairness”. Fourthly, the B.C. Government excluding itself from being a party to a proceeding can also be seen as removing the potential burden of dealing with frivolous lawsuits. Governments must focus on governing and not on court matters. Fifthly, most administrative boards and tribunals are composed of individuals who have no formal legal training; however, these individuals have typically acquired the requisite knowledge to adjudicate appropriately through practical experience. Finally, the B.C. government will arguably privy itself to any injustices by not having included a privative clause in Bill 44, as well as the inclusion of section 54 which explicitly permits judicial review of Tribunal decisions.

    Whether or not the safeguards implemented by the B.C. Government in the Bill will counter-balance the shortcomings raised by critics remains to be determined.

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