Reasonable Doubt: Not all legal disputes go to court
Going to trial is often prohibitively expensive. You need to pay your own lawyer’s fees, which can easily be tens of thousands of dollars. If you lose at trial, then you need to pay a portion of the other parties’ legal costs, which are usually thousands of dollars if not tens of thousands of dollars. Legal aid is available for an increasingly small number of legal problems.
Many common legal disputes do not go through the court system. Instead, they go through tribunals.
Tribunals are adjudicative bodies that decide disputes in what is usually a quicker, cheaper, less formal fashion. They are a form of “quick justice”.
Tribunals typically exist where there are common legal disputes between parties where there is both a power imbalance and smaller sums of money involved, such as workers/employers and landlords/tenants.
Attending a tribunal costs less because you do not need to hire a lawyer. Tribunals use simpler procedures so that you can represent yourself. They usually offer information booklets to help guide you through the hearing process.
Most people who make their way through the tribunal system do not have a lawyer. They are common folk who gather evidence and piece together legal arguments through their own research and ingenuity.
If you lose at the tribunal hearing, then you usually do not need to pay a portion of the other parties’ legal costs.
Tribunal hearings take less time than court cases. For instance, most residential tenancy hearings are done over the telephone for an hour or less. The exact same dispute could last days if it were brought in the Supreme Court.
Tribunal adjudicators are not judges. When I was working at the B.C. residential tenancy branch, I was surprised how few adjudicators had any legal background whatsoever. This means that adjudicators typically focus less on technical legal arguments.
It is still important to do legal research if you plan on attending a tribunal. The tribunal is governed by one or more statutes that set out the tribunal procedures and laws surrounding your area of dispute. You can find these statutes on the tribunal’s website.
Tribunal websites also generally have a search engine to find past decisions. Before you attend a tribunal, it can be important to search for past decisions that have similar facts to your problem.
Using past decisions lends credibility to the argument that you are making: if the tribunal has supported your position in the past, then you are probably not completely out to lunch. You can also pattern your arguments off of a past tribunal decisions.
The residential tenancy tribunal deals with the vast majority of disputes between landlords and tenants. If your landlord won’t fix your plumbing, is entering your home without giving you 24 hours notice, or won’t give you your damage deposit back, then you can take the matter to the residential tenancy tribunal. The tribunal can order your landlord to smarten up or pay you money.
The human rights tribunal deals with complaints of discrimination. If you have been discriminated against in the workplace or by your current or prospective landlord, then you can start a claim through the tribunal. The tribunal can order the offender to pay you money for the injury to your dignity or to compensate for other losses.
Some tribunals have exclusive jurisdiction over your dispute. This means that you can only bring your legal problem to the tribunal. The courts will not hear it. For instance, the courts will not hear most residential tenancy or human rights disputes.
In some situations, you will have the choice of whether to bring your dispute to a tribunal or tribunal-like body or the courts. For example, if your employer fires you because of a long-standing back injury, then you have a choice:
• You can bring your dispute to the human rights tribunal because you were discriminated against based on a disability.
• You can file a complaint with the director of employment standards saying that you were wrongfully dismissed.
• You can start a court case saying that you were wrongfully dismissed.
When deciding whether to bring your case to a tribunal or the courts, it is important to keep the purposes of a tribunal in mind. The tribunal will be cheaper, less formal, and likely quicker. You may not need a lawyer. You will need to try out your best Jack McCoy impersonation.
Small claims court deals with lawsuits that are worth less than $25,000. Small claims court is more formal than other tribunals, but is still relatively friendly for people who do not have lawyers.
If your dispute involves a larger sum of money (over $25,000) or involves complex legal issues, then it may be best to hire the real McCoy and start an action in the Supreme Court. If you win, then the other party will have to pay a portion of your legal bill.
In the following weeks of the civil litigation section of Reasonable Doubt, we will focus in on practical tips for residential tenancy and human rights disputes.
Joseph Fearon is a civil litigation lawyer at Stevens Virgin practising in the areas of personal injury and commercial litigation. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at firstname.lastname@example.org.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.