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!

Caution: Reading this Post May Cause Nightmares About Indemnity Clauses

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A recent case involving the right of a condominium to charge legal fees to an owner for alleged non-compliance with a rule has the industry talking. The decision has divided the legal community, resulting in many interesting legal debates and a whole lot of uncertainty for condominiums going forward.

The case is Amlani v. York Condominium Corporation No. 473. The dispute was about smoking. Amlani smoked and the condominium received complaints about it. The condominium took some steps to improve the situation, such as sealing joints and penetrations between the units. The owner limited his smoking to one room and used air filters to reduce the smoke transmission to other units. Unfortunately, the condominium received further complaints. The owner was willing to meet and discuss potential solutions, but the condominium was unwilling to do so and demanded that he stop smoking in the unit as it was a nuisance. Continue reading