Let the CAT out of the Bag

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The Condominium Authority Tribunal (CAT) has been up and running for a little over a year now. It has released 14 decisions so far, but it has handled hundreds of claims based on the last statistics disclosed at the ACMO/CCI-T Conference in November. Despite being a popular topic at condominium industry events, I am regularly asked about the CAT’s jurisdiction to hear disputes. The CAT’s jurisdiction is limited by O.Reg. 179/17 to:

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In layman’s terms, the CAT only has jurisdiction with respect to most disputes over  condominium records. It is primarily for owners and condominiums, but purchasers of units and property managers have limited rights to refer disputes to the CAT as well.

A couple of decisions have provided further insight into the types of record disputes that the CAT will hear.

In one case, the CAT ruled that the condominium had failed to provide a record despite the fact that the record did not exist. The owner requested minutes of a meeting. The condominium said it never produced minutes because it was an information session. The condominium provided a summary of the discussion, but not minutes. The CAT found that the condominium refused to provide the minutes without reasonable excuse. The condominium was ordered to pay the owner $500 as a penalty.

For the Tribunal to conclude that there is no lack of compliance with a request for records when the corporation fails to keep the record that it ought to have kept, would open the door to a corporation intentionally not maintaining a record so as to avoid its disclosure obligations under the Act. While I am not suggesting any such intention on the facts before me, I do find that there was no credible rationale for not creating and distributing the minutes, at least in response to the Applicant’s request to do so, which, in effect, gives rise to a refusal to produce the record.

In another case, the CAT ruled that it was not within its jurisdiction to rule on whether the records were accurate or complete, or whether the condominium had an obligation to create a record (a title search of a unit) when one did not exist:

The remaining factor is the merits of the appeal. The mediation successfully resolved most of the records requested. The respondent provided the records requested, however, the applicant expressed concern regarding the accuracy and completeness of some of the records. The applicant also requested that a record be created. The accuracy of the records, and the request to create a record would be the issues in Stage 3. The request to create a record, and the issue of whether the record which has been produced is accurate are matters that are outside the current mandate of the Tribunal to decide.

While these decisions may appear contradictory in that the failure to provide a record that did not exist was contrary to the condominium’s obligations in one case, but not the other, there is a reasonable explanation. The difference between the two cases is that minutes are required to be kept for owners’ meetings (see e.g. s.55(1)(2) and the by-laws of many condominiums) whereas condominiums do not generally have an obligation to complete title searches on the unit owners (unless the by-laws require such).

I, for one, would welcome the expansion of the CAT’s jurisdiction. The decisions have been clear, concise, and useful. The jurisdiction should be expanded to include matters such as requisitions, proxies, and other meeting issues, as well as common expense issues like deductibles and other chargebacks. These issues tend to end up in court and cost condominiums tens of thousands of dollars. These issues are not generally complex issues, but they can be emotionally charged.  These disputes end up in court because the parties are too involved to see clearly and work together to resolve the dispute without a neutral third party making a decision for them.

While we wait for the CAT’s jurisdiction to be expanded to include these types of disputes, owners and condominiums should consider other dispute resolution options, such as retaining an independent lawyer or professional to provide an opinion that all parties agree to be bound by, hiring a mediator to assist the parties in crafting a settlement, or participating in binding arbitration. All of these alternatives are quicker and more cost-effective than an application to the Superior Court, which should be a remedy of last resort. These alternatives also permit the parties to guarantee that a subject-matter expert will render the decision by choosing a professional with condominium law knowledge and experience. Not all judges have the same level of expertise when it comes to condominium disputes.