A No-Nuisance CAT – Expanding the Condominium Authority Tribunal’s Jurisdiction to Include Nuisance-Related Disputes

Being a relative newcomer, the Condominium Authority Tribunal (CAT) has had a limited scope of jurisdiction since beginning its operations in November of 2017. As of January 1st, 2022 the CAT will have jurisdiction to hear a wider array of disputes related to nuisance with the new changes to section 117(2) of the Condominium Act.  
 
First, amendments to O. Reg. 48/01 sets out a list of prescribed nuisances, annoyances, or disruptions for the purposes of the new clause 117(2)(b) of the Condominium Act, as discussed below. This list will allow the CAT to hear cases on the following if they are unreasonable: Odour; Smoke; Vapour; Light; and Vibration. 

Second, it will also allow for the CAT’s jurisdiction on provisions in a condo’s governing documents to prohibit, restrict, or otherwise govern, the activities described in subsection 117(2) of the Condo Act or in O. Reg. 48/01, for any other type of nuisance, annoyance, or disruption to individuals in a condo corporation. 

Lastly, it will allow for the CAT to hear matters related to the indemnification of the corporation and owners in these sorts of disputes. 

With this widening of jurisdiction for the CAT comes changes to section 117 which deal with potentially dangerous conditions and activities within the units or the common elements of a condo, as well as trying to tackle these issues of nuisance. The changes to 117 set out the prohibitions against: 

  1. causing, through an act or omission, conditions or activities in the condominium units, common elements or assets that are likely to damage the property or the assets or cause an injury or an illness to an individual; 
  1. carrying on or permitting activities in the units, common elements, or assets if the activity(ies) results in the creation or the continuation of; 
    (a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets or; 
    (b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets. 

New to the Condominium Way of Life: Part 2

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This is our second Q-and-A-style blog post for those who may be new to the condominium way of life or are contemplating moving into one.

In this post we focus on how and where issues that arise within condominiums get resolved with a focus on the Condominium Authority Tribunal and the mediation and arbitration processes required by the Condominium Act, 1998.

Q. What is the CAT?

A. The CAT is the Condominium Authority Tribunal. The CAT is a tribunal that has been created to hear certain types of condominium disputes involving owners and condominiums. A purchaser of a unit or a condominium manager may also apply to the CAT with respect to certain disputes in rare situations.  

Q. When does the CAT get involved?

A. The CAT can only become involved in disputes if it has jurisdiction in the area. The CAT’s jurisdiction is described in a regulation made under the Act and currently includes:

  1. Record disputes related to a request made by an owner or purchaser of a unit to examine records or obtain copies of them, including disputes over the applicable fees for examining the record or obtaining copies of them, the condominium’s reasons for refusing the record, and the penalty for the condominium’s improper refusal.
  1. Compliance disputes about the declaration, by-laws or rules related to any of the following:
    1. Pets or animals
    2. Vehicles
    3. Parking and storage
    4. Indemnification claims for costs related to (a) to (c).

The CAT does not have jurisdiction over a dispute, even if it fits within the list above, if it also relates to section 117 of the Act (an activity or condition that is likely to cause damage to the property or injury to persons), a section 98 agreement (where an owner makes changes to the common elements), or an agreement under s.24.6(3) of O.Reg. 48/01 (where an owner installs an electric vehicle charging station on the common elements).

Q. What are the other types of available dispute resolution processes for condo disputes?

A. If the CAT does not have jurisdiction over a dispute, it does not mean the parties should run off to court. The Condominium Act, 1998, requires mediation and arbitration of certain types of condominium disputes about agreements between:

  1. A declarant and a condominium, including a dispute about a first-year budget deficit under section 75 or a budget statement under subsect 72(6),
  2. Two or more condominiums, such as disputes about the use of shared facilities or the cost sharing obligations for the shared facilities,
  3. A condominium and a unit owner about a section 98 agreement (changes to common elements made by owners), and
  4. A condominium and its condominium manager.

In addition, every declaration is deemed to contain a provision that requires condominiums and owners to submit disagreements about the declaration, by-laws or rules to mediation and arbitration as well. This has been broadly interpreted to cover disagreements about the validity, interpretation, application, or non-application of the declaration, by-laws and rules, as well as damages claimed by an owner or the condominium related to the disagreement.

The mediation and arbitration provision does not apply to disputes involving tenants but a condominium and owner could agree to attempt to resolve the dispute without court by voluntarily using mediation and arbitration.

Some “pure” enforcement issues may proceed to court without mediation or arbitration as there is no disagreement in these cases. The owner simply refuses to comply with their obligations or ignores requests to comply.

There are many situations where court is the most appropriate option, such as a power of sale process to enforce a lien to collect arrears owed by a unit owner. It is important for condominiums and owners to seek legal advice before choosing the forum for their dispute as the improper forum could cause delays and additional costs, and in some cases, act as a bar against proceedings in the proper forum.

Have a question you think new owners need to know? Send it to us and you may see it in a future post.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

Spring Break Reading: The CAT Edition

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The Condominium Authority Tribunal (CAT) has been busy so far in 2021. As of April 13, 2021, the CAT has released 30 decisions. Many of the decisions still relate to record requests, but there have been a few about other issues that it now has jurisdiction to hear, like pets and parking. Some cases were about procedural matters, like the application of the CAT rules. Some cases were about the jurisdiction of the CAT when other courts or tribunals also have jurisdiction over the dispute.

2021 ONCAT 27 : the CAT heard two motions from a condominium requesting the CAT dismiss or merge four cases and rule that the conduct of the applicants was vexatious. The CAT did not dismiss the cases, but the CAT ordered the applicants to choose which of their cases would proceed. The CAT also found that one of the representatives had repeatedly violated the CAT’s rules. He was not qualified to be a representative because he was not a lawyer, paralegal, or condo manager, and the CAT was not convinced he was a “friend” of the corporate applicants. Despite a ruling by the CAT that he was not qualified, he continued to monitor email, reply for the applicants, and submit documents for them. The CAT ordered the applicants to change their representative and provide updated email addresses to the CAT that the “friend” could not access.

2021 ONCAT 25: The CAT merged three cases brought by an owner against his condominium to provide the most fair, focused, and efficient process for both parties. The three cases related to: 1) parking rules; 2) pet rules; and 3) a record request for pet rules.

2021 ONCAT24: An owner requested two contracts from the condominium, which the condominium refused to provide because of the owner’s history of making complaints about the manager. The CAT found that complaining about your manager is not a valid reason for a condominium to refuse a valid request for records. The CAT awarded the owner $200 in costs and a penalty of $2,000.

2021 ONCAT 21: An owner filed a case against their condominium and a neighbour regarding a basketball net placed by the neighbour on their driveway. The condominium claimed it was not a violation of the rules and the owner asked permission to place the net on the driveway. The CAT found the basketball net was not contrary to the declaration or rules, but awarded the applicant $200 for filing fees because it was a novel issue within a new area of jurisdiction for the CAT.

2021 ONCAT 20: The owner brought a motion to defer the CAT case because they had already filed an application with the Human Rights Tribunal of Ontario (HRTO). The condominium was aware of the HRTO case when it filed the CAT case. The condominium acknowledged that it had a duty to accommodate the owner because of her disability. The condominium sought to require the dog to wear a muzzle in common areas. The CAT found the dispute was about the application and exemption of the condominium’s rules. The CAT dismissed the motion as it had jurisdiction to hear the dispute.

2021 ONCAT 18: The owner filed a case against her condominium and a neighbouring condominium about parking. The two condominiums shared a visitor’s parking area, which the owner sought to use. The case was dismissed as the time for filing the case had expired. She failed to bring an application within 2 years after the dispute arose, namely when she was denied permission to use the visitor parking area. The CAT did not rule on whether a claim by the owner for accommodation due to a disability would also be out of time under other legislation.

Summer Reading: Condominium Authority Tribunal (CAT) 2020

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The courts might have slowed down because of the pandemic, but the Condominium Authority Tribunal (CAT) appears to be unaffected by the pandemic. The CAT is predominantly online with less rigid rules than traditional courts, so this makes a lot of sense. It is relatively easy for online processes to continue in most cases. Here are some of the highlights from the CAT this summer. Continue reading

Can Unit Owners Examine Opinions or Invoices from the Condominium’s Lawyer?

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Owners are entitled to examine records of the condominium. Subsection 55(3) of the Condominium Act, 1998, gives owners the right to examine or obtain copies of the condominium’s records, subject to certain limits described in subsection 55(4). Subsection 55(4) excludes certain records, including records related to other owners or units and records “relating to actual or contemplated litigation”. These provisions are designed to balance the competing interests of the owners and protect the condominium’s interests. Continue reading

CAT Says Being Self-Managed is Not an Excuse

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In a recent decision the Condominium Authority Tribunal (CAT) was asked to rule on an owner’s request for records. The owner requested several records, including audited financial statements, budgets, board meeting minutes, AGM minutes, the most recent PIC, by-laws, employment agreements with any directors, and management contract. The condominium suggested that many of the issues raised by the owner were due to the condominium being self-managed. Spoiler: this was not a reasonable excuse for not providing records. Continue reading

Condo Ignores Condo Authority Tribunal (CAT) Requests to Join Case

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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

Summer Reading: Condo Authority Tribunal (CAT) Edition

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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

Ready, Set, Action: Are In-Camera Minutes a Record of the Condo?

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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