A recent CAT decision serves as a good reminder to condominiums of the consequences for refusing to participate in the process.
The owner requested various records from the condominium twice. The condominium had its lawyer respond indicating that it had no obligation to respond because the owner had not used the mandatory form. The lawyer provided a copy of the request form with the letter and indicated that they would respond to the request once it was submitted on the proper form. The owner completed the form and sent a copy via fax to the lawyer and manager. The condominium did not respond so the owner filed a case with the Condominium Authority Tribunal (the “CAT”).
The owner provided notice of the CAT case by courier to the condominium at the management office. The CAT clerk even contacted the condominium twice to ensure they received the notice. The condominium still did not join the case. The condominium did not participate at any point and the process continued without it.
There is an interesting discussion of records requested by the owner that related to a civil action commenced by the condominium against the builder and developer. The action was funded by a special assessment and eventually settled with a payment to the condominium of $1.7 million. The owner was concerned because there was apparently a discrepancy between the settlement amount and the amount received by the condominium ($700,000) so the owner sought an accounting of the amount as well as the settlement agreement. After reviewing sections 55 and 23 of the Act, the CAT member found the owner was entitled to see the settlement agreement.
The CAT ordered the condominium to provide all of the records requested by the owner and pay a penalty of $3,000 for its refusal to provide the records without reasonable excuse. The CAT also awarded the owner costs of $150 (the filing fees paid to the CAT by the owner).
While $3,000 is a significant penalty for many condominiums, I wonder if it is enough incentive for some of the larger condominiums with multi-million dollar budgets. Clearly some are still choosing to ignore record requests by owners (and apparently direct contact from the CAT clerk). What will it take to get them to respond? $10,000? Personal liability on the directors? A summons? Fortunately, most condominiums comply with their obligations when records are requested.
The full case is available on CanLii: https://www.canlii.org/en/on/oncat/doc/2019/2019oncat44/2019oncat44.pdf
There is a new proposal to have the CAO assume responsibility for 19 forms under the Condominium Act, 1998 and its regulations. The idea is that the proposed changes would “support the condominium community in being able to more easily access and use certain forms under the Condominium Act, 1998.” The proposal is for 17 forms to be delegated to the CAO on January 1, 2020 and 2 additional forms on July 1, 2020. Continue reading
On April 11, 2019, I wrote about some of the Condo Authority Tribunal (CAT) decisions so far. Some of the highlights include the dismissal of claims that were vexatious, the adoption of the “open book” principle enumerated in previous case law, and confirmation that owners may access the list of owners. You can read the post here. The CAT has been busy since my previous post, releasing another 16 decisions in the last four months! Here are some of the highlights for these recent cases: Continue reading
Many condominiums have private sessions during board meetings where they discuss more sensitive issues involving unit owners, employees, or litigation. These are often referred to as “in-camera” sessions. Owners, apart from the directors and officers, would not be eligible to attend these portions of the meetings. Are owners entitled to access the minutes from in-camera sessions of the meetings of the board? A recent CAT decision answers the question. Continue reading
Can owners request copies of emails between directors? Can the condominium refuse a record request because the owner’s reason for requesting the records is apparently unrelated to their ownership interests? Must the owner prove their reason is related to their ownership interest, or is the onus on the condominium to prove the reason is unrelated to the owner’s interests? These are only a few of the questions recently answered by the Condominium Authority Tribunal (CAT).
Kai Sin Yeung v. Metropolitan Toronto Condominium Coporation No. 1136
An owner requested emails related to the renewal of a gas contract referenced in board meeting minutes. The owner wanted a penalty and costs of the hearing. The condominium claimed that the emails do not exist, but even if they existed the owner would not be entitled to them. Continue reading
The CAT released a decision confirming that owners are not entitled to receive email addresses provided by owners and mortgagees to the corporation. The case includes an interesting review of the relevant provisions of the Act and regulations related to the record of owners and mortgages and the exceptions to the right to examine records. The full case can be found on CanLii: https://www.canlii.org/en/on/oncat/doc/2019/2019oncat9/2019oncat9.html?resultIndex=3
Some highlights include: Continue reading
On April 5, 2019 I attended the ACMO / CCI 1-day Conference in Kitchener. I was asked to speak during the round table discussions and on the legal panel. My topic for the round table discussion was the Condominium Authority Tribunal (CAT). Today I thought that I would share some of the lessons that we have learned so far from the CAT’s first twenty or so decisions. Continue reading
Overall, people seem to be pleased with the CAT. The process is generally much quicker, easier, and cost-effective than Small Claims Court, which was the typical way of resolving record disputes before the CAT. Voluntary mediation was an option to resolve record disputes, but few used the process (despite its many advantages over court).
Many would like to see the CAT’s jurisdiction expanded in the near future to take on other matters, such as proxy and ballot disputes, requisitions, and liens. Unfortunately, the current government has not provided any details about its plans for the CAT. It could expand the jurisdiction, leave it as it is, or eliminate the CAT (the third option seems unlikely). We don’t know at this point. Continue reading
Its already that time of year again! Mark your calendars for the upcoming filing deadline for annual returns, which is only one month away. The filing deadline is March 31st, 2019.
Each year, condominium corporations are required to file an annual return with the Condominium Authority of Ontario (“CAO”). Annual returns must include the following information about the corporation:
- the date of registration;
- the corporation’s legal name;
- the type of corporation;
- the address for service;
- the municipal address, if one is contained in the declaration;
- the total number of units (if not a common element condominium corporation);
- the total number of eligible voting units (i.e. excluding parking/storage units pursuant to section 49(3) of the Act);
- the maximum number of votes that could be counted at a meeting of owners (if a common element condominium corporation);
- the name of each director and date of election or appointment;
- the name and address for service of the management company, if any;
- the start and end date of the fiscal year;
- a statement of whether there has been an inspector appointed pursuant to the Act (and the name and business address of the inspector and the date of appointment, if applicable); and,
- the date of the last annual general meeting.
An annual return may also include an electronic mail address for the corporation if one is available.
For any condominium corporations created on or after January 1, 2019, annual returns must be filed within 90 days of the date the corporation was created. For all other condominium corporations, annual returns must be filed by no later than March 31st, 2019. All returns can be filed online through the CAO’s website.
This year, the CAO will be imposing a $200.00 late filing fee on all overdue returns, effective April 1st, 2019.
So don’t miss this deadline-mark your calendars for the week before March 31st, 2019 to avoid any late filing fees!
The CAT has been busy this month releasing three new decisions. Obviously, the issues relate to record requests. All three cases have some interesting commentary on the circumstances when the CAT will award legal costs and penalties.
Lahrkamp v. Metropolitan Toronto Condominium Corporation No.
932, 2019 ONCAT 4
The owner filed a claim with the CAT for records. Previously, the condominium obtained an order from the Superior Court of Justice to declare the owner a vexatious litigant. The CAT member found the owner’s claim vexatious and dismissed it. That was not the end of it. The condominium sought over $12,000 for costs of its involvement in the CAT hearing and $22,000 after further submissions were made! Continue reading