There have been several parking cases at the CAT since its jurisdiction was originally expanded. In many cases the owners denied that they were improperly parking on the property and argued the rule was unenforceable. In some cases the CAT members felt there was insufficient evidence to support the condominium’s allegations against the owners. In other cases the conduct was not contrary to the rules.
In a recent case a condominium argued that three owners were parking in the visitor parking spaces, which was prohibited by the rules. The owners admitted that they were parking in the spots. They argued they had been doing so for many years without incident, so they should be entitled to continue doing so. They argued the rules were inconsistently enforced and no longer served their condominium community.
The CAT member reviewed the governing documents, including Rule 2.18 that stated the parking lots at the front and rear of the building were “reserved for visitors and guests only”. The rule stated that the owners must use the designated spots in the underground parking garage. The owners parked in visitor spaces because their vehicles were too large to fit in the underground parking garage.
The owners argued that they should be able to continue to parking in the spots because they had been doing so for several years. They also argued that they were being targeted for enforcement while others were violating the rules. They also argued the rule was unreasonable as it had not changed in 30 years. In response, the condominium stated it was prompted to enforce the rules after receiving several complaints about misuse of the visitor parking. The condominium admitted that the rules were not enforced in the past, but the current board had given owners ample notice of their intention to enforce the rules. The CAT member was not persuaded that the condominium’s enforcement was unfair.
The CAT member also disagreed with the owners regarding the reasonableness of the rule. While large vehicles may be more popular now than when the rule was created 30 years ago, that did not render the rule unreasonable. The owners ought to have investigated the designated parking space for their unit before purchasing it. “If they owned or chose to purchase a vehicle that did not fit into the spot, this was their choice”.
Lastly, the owners argued that the condominium had acted improperly in not accepting any of their proposed solutions. The CAT member disagreed. “While I commend the parties for their attempts to resolve this matter through discussion and negotiation, the fact that a resolution was not reached is not evidence of wrongdoing by either party.”
The CAT member gave the owners 90 days to remove their vehicles from the visitor parking lots. After the 90 days the condominium could continue its efforts for enforcement.
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:
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.
Compliance disputes about the declaration, by-laws or rules related to any of the following:
Pets or animals
Parking and storage
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:
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),
Two or more condominiums, such as disputes about the use of shared facilities or the cost sharing obligations for the shared facilities,
A condominium and a unit owner about a section 98 agreement (changes to common elements made by owners), and
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!
The Condominium Authority Tribunal (CAT) has released a few decisions related to parking issues in condominiums in the last six months. We summarized one of the previous decisions in post last month. The CAT has released another one this month that is interesting in what is says about rule enforcement, delays in enforcing by condominiums, and the available remedies to condominiums.
In a recent case the tenant was parking a motorcycle beside the parking space where he parked his car. The space where he parked the motorcycle was not a parking space. The condominium informed him that he was prohibited from parking in the area as it was contrary to the rules, but the tenant refused to move the motorcycle. The condominium started a case with the CAT. The tenant did not participate, but the landlord did participate.
The CAT first reviewed the rules to determine if there was a violation, and if so, if there were any reasons it should not be enforced in the case.
The condominium had a rule that prohibited owners from placing, locating, keeping, installing, or maintaining any item on the common elemens. The rule authorized the condominium to remove any item left on the common elements by an owner and store the items at the owner’s expense. The CAT determined that the tenant violated the rules by parking the motorcycle on the common elements. The landlord did not dispute the tenant was violating the rules by parking his motorcycle in the area next to his car.
The tenant argued that parking his motorcycle in the spot did not violate a fire safety rule, contravene the by-laws, or impede access to the property, so he should be able to continue parking the motorcycle in the space. The landlord supported the tenant’s position. The condominium conceded that it was not a fire safety issue and did not impede access. The condominium argued the tenant parking his motorcycle in the space was a violation of the rules.
The tenant and landlord also argued that the tenant should be able to park in the space as he had been doing so for many years. They argued that the rule was unreasonable and should not be enforced. They also argued that the condominium’s failure to enforce the rule for many years prevented it from doing so now. The CAT disagreed. The rule was not, on its face, unreasonable:
The fact that [the tenant’s] use of the space is not interfering with any critical infrastructure is not persuasive evidence that a prohibition of his use of that space is unreasonable. The Rule is not aimed at that corner of the parking garage or at him personally. The Rule appears to fall within a range of what is reasonable. I conclude that the Rule is not unreasonable.
The CAT found that there was some unexplained delay in enforcing the rule by the previous manager, but there was no evidence the condominium acquiesced in the tenant’s parking arrangements or led him to believe that he was parking in a permitted space. The CAT said “The lapse in enforcing the Rules might require some additional notice of the change in policy but this was provided by the numerous notices during the fall of 2020.”
The condominium had several parking spaces for rent for motorcycles, but all spaces were being used at the time of the hearing so the only option was for the tenant to remove the motorcycle from the parking garage. The CAT gave the tenant 21 days to remove the motorcycle from its location. If the tenant fails to do so, the condominium is entitled to take any lawful action available to it to enforce its rules against the landlord and tenant and it will be entitled to charge those expenses to the owner or tenant, or both.
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.
On March 18, 2021, the CAT released a decision on a motion made by a condominium to dismiss a case without a hearing. The owner made a record request for minutes of a board meeting and another document regarding a motion that was apparently made by a former director at the meeting for an investigation under the governance and ethics by-law. The condominium provided a copy of the minutes, but the minutes did not refer to the motion that was made by the former board member. The minutes provided by the condominium differed from the version received from the former board member who made the motion as the minutes did not include a reference to the motion. Both versions of the minutes were signed by the board.
Rule 17.1 of the CAT’s Rules allows the CAT to dismiss a case at any time in certain situations, including where the case is about issues that are so minor that it would be unfair to make the responding party go through the CAT process. The condominium made a motion to have the CAT do so in this case.
The owner argued that the official minutes should include reference to the motion and the supporting documents prepared by the former director regarding the motion should be attached. He argued the minutes were not adequate as they did not record “all proceedings and motions” even the ones that failed. The condominium argued that the issue was so minor that it would be unfair to the condominium to continue with the hearing because the owner was already in possession of both copies of the minutes, as well as the supporting documents that he wanted attached to the minutes.
The CAT’s member reviewed the requirement for the condominium to keep “adequate records” and noted the term “adequate” is not defined in the Act. The member referred to previous case law where the term was found to mean the records must permit the condominium to fulfill its duties and obligations. The accuracy of a record is a component of its adequacy.
The CAT member concluded that the minutes did not need to refer to a motion that was not seconded or discussed as no business was transacted by the Board:
There is no basis on which to conclude that a background document for an item that was not on the board’s agenda…was not discussed and therefore was not accepted by the board, should either form part of the minutes or be retained as a corporate record.
The member further stated:
If the motion in question had been seconded and discussed…the issue of accuracy and therefore the adequacy of the “official” version of the minutes provided to the Applicant by the Respondent would merit hearing evidence. However, in this case, no business was transacted and I conclude that the substance of the difference between the two versions, that is the recording of a motion that was not seconded, comprises a minor issue which does not warrant making the Respondent go through the hearing process. Whether every item raised at a board meeting that results in no transaction of business and no decision on any action should be recorded in its minutes is a decision for the board to make. Therefore, I dismiss this case.
Notwithstanding the member’s decision to dismiss the case, she advised the condominium to rectify the issue by amending the minutes to say that an amendment was made to them.
Interesting case. It is not clear how there came to be two separate sets of minutes, but is sounds like the minutes were distributed to the board and former director for review prior to their approval at a meeting. The draft minutes were then provided by the former director to the owner requesting the minutes. The minutes were later amended to remove the motion made by the former director. This is purely speculation as I was not involved in this case. That said, I have seen similar issues with draft minutes being circulated before they are amended and approved. One way to avoid this situation would be to add a “draft” watermark to the minutes and not sign them until they are approved at a board meeting. If the minutes are later amended a note should be added to show the amendment that was made and the date it was made.
2020 has been an eventful year, to say the least. With everything else going on in the world, who has time to stay on top of changes in condominium law? We do! And so to help you out, we’ve prepared a list of 10 changes and decisions in condominium law in 2020 that you won’t want to miss.
The Condominium Authority Tribunal (the “Tribunal”) expanded its authority
Starting on October 1, 2020, the Tribunal’s jurisdiction expanded to include hearing disputes based on provisions in a condominium’s declaration, by-laws, or rules regarding: (a) pets, (b) vehicles, (c) parking/storage, and (d) indemnification/compensation related to the disputes in (a)-(c). This means that disputes in these categories can now be heard using the Tribunal’s streamlined dispute resolution process instead of going to court.
The new Condo Guide for pre-construction and newly-built residential condo purchasers
The Condominium Authority of Ontario released a new Condominium Guide which, starting January 1, 2021, must be delivered to all potential purchasers of pre-construction and newly-built residential condominium units. The Guide will give these purchasers more information on condominium construction and condominium living. For more information on the Condominium Guide, see our previous post here: https://rcllp.ca/condo/?p=499
“Adequate” condo records need not be perfect
Condominiums are required to keep adequate records. The Tribunal confirmed that “adequate” means the records must allow the condominium to fulfill its duties under the Condominium Act, 1998 (the “Act”). To do so, “adequate” records must be accurate but need not be perfect. The level of accuracy required for a record to be “adequate” may vary depending on the record in question. For example, minutes of board meetings are held to a high standard because they look back on facts which should be certain and known, and they serve the important purpose of making the board’s affairs open to the owners. Read the full case here: https://www.canlii.org/en/on/oncat/doc/2020/2020oncat33/2020oncat33.html?resultIndex=1
A condominium cannot impose conditions before releasing records to owners
The Tribunal determined that a condominium cannot impose conditions before providing requested records to an owner. If the records are properly requested by the owner, the condominium must either provide them or refuse to provide them (with a reasonable excuse for the refusal). By imposing conditions, the condominium effectively refused to provide the records. Read the full case here: https://www.canlii.org/en/on/oncat/doc/2020/2020oncat2/2020oncat2.html?resultIndex=1
Comply with Tribunal orders or face cost consequences in court
The Tribunal ordered the condominium to provide records to the owner within 30 days. The condominium did not comply, so the owner took the matter to court. The condominium provided the records to the owner before the court hearing date, yet because the condo had still breached the Tribunal’s order, the court ordered the condominium to pay the owner’s legal fees and disbursements totalling $14,716.91. This serves as a reminder that timelines in Tribunal orders must be complied with, and that Tribunal orders may be enforced in court. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc189/2020onsc189.html?resultIndex=1
Condominium directors not held personally liable for board decisions
A declarant claimed that the condominium’s directors acted oppressively toward the declarant. The court determined that the claims could not succeed against the directors personally. The directors’ decisions in question were decisions relating to day-to-day activities of the condominium without personal gain, and therefore even if the directors made the wrong decisions, this did not justify a personal order against them. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc6445/2020onsc6445.html?resultIndex=1
Significant cost consequences of acting unreasonably
After succeeding in a case against his condominium, an owner sought a court order for the condominium to cover the costs he had incurred. The court ordered the condominium to pay $83,340 in costs to the owner. The court granted this unusually high costs award because the owner had acted reasonably throughout the matter whereas the condominium was unreasonable and aggressive. Let this serve as a reminder and a warning that unreasonable, aggressive behaviour from a condominium may have significant cost implications. [Note: the decision was unsuccessfully appealed by the condominium, resulting in another $30,000 costs order payable to the owner]. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1190/2020onsc1190.html?resultIndex=1
As 2020 approaches I find myself reflecting on the most important news, cases, and events from this past year. There were several notable decisions released this year and a few that I’m sure we would all like to forget! The hardest part of these lists is selecting only ten to speak about. Here is my list of the top ten condo lessons for 2019:
Counting Isn’t as Easy as 1, 2, 3
The Court confirmed the 10 day notice requirement for liens can be calculated by excluding the date the notice of lien is mailed and including the date of registration. Sending the notice of lien on January 21 and registering the lien on January 31 was acceptable. (Note: this is the minimum; more time is generally better). See CCC 476 v. Wong (2019). 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 →
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
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 →