The Civil Resolution Tribunal of British Columbia is one of the most world’s most advanced online dispute resolution projects within a formal court and tribunal structure. As such, it has attracted much interest and analysis – not least in previous posts here and here. The tribunal offers an online determination first of ‘strata disputes’ of rights within apartment blocks and, to come, of small claims generally. Lord Justice Briggs visited British Columbia before producing his final report and incorporated within it a discussion of the tribunal. The tribunal has now published its first decision, The Owners, Strata Plan LMS 2900 v Mathew Hardie ST-2016-00297. This is probably not the decision that Its promoters would have chosen to be the first to show its wares and it is interesting to look at it a little further.
The case related to complaints from four occupants of a block of apartments that they were adversely affected by Mr Hardy’s smoking of tobacco and marijuana in his flat. At issue were three points – one of fact (was adequate notice served on Mr Hardy) and two of law or mixed fact and law (had he broken the strata’s bylaws and, even if so, could the complaint be discriminatory on the grounds of Mr Hardy’s alleged medical need to smoke dope to alleviate chronic pain.) On the first, there was factual evidence of service which was accepted by the judge. On the second and third, there was medical evidence from Mr Hardy which was rejected. The judge found that Mr Hardy suffered from chronic pain such that smoking marijuana might relieve it but also that ‘there is no persuasive evidence before me that smoking marijuana, rather than ingesting it in another form, is necessary to accommodate his disability.’
So, Mr Hardy had no defence for smoking the fags and he could have taken the dope in cookies. In law and across jurisdictions, I would have thought this an exemplary 58 paragraph decision.
The interesting point is that there is nothing in the determination that relates to the innovative aspect of the CRT procedure. The judgement is a conventional one given on reasoned grounds on the papers (even if digital) with the assistance of a facilitator on the service point by a physical judge on a matter where the online potential of the CRT has, effectively, been irrelevant. Equivalent conventional tribunals will have been deciding cases like this all over the world.
There are two opposing lessons that we might draw. On the one hand, when the chips are down, ODR determinations will, in practice, differ very little from conventional judicial decision-making. The process is online but not materially different: we are a long way from determination by machine learning – judges will rule on matters of factual and legal dispute. The issue then becomes how sensitively online procedures can handle disputes of fact. On the other, the CRT has been a bit unlucky in the nature of its first decision which has not really demonstrated the potential revolutionary nature of the new online world. This case does not give us much clue except as a reminder that underneath the all the publicity for the new system lay a bunch of owners whose ardent desire was that ‘Matt stops smoking in his unit’. Let’s hope he does.