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The Condominium Authority Tribunal (CAT) - First Decisions
By: Annie Bailey
and Stephanie Sutherland
| Aug 9, 2018
Written with the assistance of Annie Bailey, articling student.
The Condominium Authority Tribunal (CAT) is a new, online tribunal designed to resolve disputes within Ontario condominiums. As a new body, the CAT’s jurisdiction is currently limited to hearing records disputes under s. 55 of the Condominium Act, 1998 (the “Act”). This jurisdiction will eventually expand to cover a broad range of disputes.
So far, the CAT has delivered decisions on seven cases. Parts 1 and 2 of this post will review those seven decision and the key points and themes emerging from the CAT so far.
1. Robert Remillard v Frontenac Condominium Corporation No 18, 2018 ONCAT 1 (CanLII)
Decision Date: May 4, 2018
Facts: The Applicant, Robert Remillard, owns a unit of Frontenac Condominium Corporation No. 18 (the “Condominium”). He requested records (Small Claims Court invoices) from the Condominium, and the Condominium provided him with redacted copies. In response to Mr. Remillard’s request for unredacted copies, the Condominium claimed that the redaction was permitted under s. 55(4)(b) of the Act, which allows a Condominium to withhold records relating to “actual or contemplated litigation.” In addition, the Condominium charged $168.75 for lawyer fees associated with producing the unredacted invoices.
Issues and Decision: Does the s. 55(4)(b) litigation exemption apply to the Small Claims Court invoices which relate to litigation that was already settled? Yes. The s. 55(4)(b) exemption applies and the redaction was permitted.
Was the $168.75 fee unreasonably high? Yes. An articling student could have done the work for a low fee, yet a senior lawyer completed the work and charged a fee substantially higher than an articling student’s would have been.
Take-away: The s. 55(4)(b) exemption from producing records related to litigation continues to apply after the relevant litigation is finished. On the topic of costs of producing records, a condominium cannot consider only what its costs of production would be, but must also look at what is reasonable to charge in the circumstances.
2. Jeff Berman v York Condominium Corporation No 99, 2018 ONCAT 2 (CanLII)
Decision Date: May 30, 2018
Facts: The Applicant unit owner, Jeff Berman, requested records from York Condominium Corporation No. 99 (the “Condominium”). He requested documents on reserve fund expenditures, and the Condominium provided Mr. Berman with documents related to its most recent reserve fund study in 2016. He also requested Board meeting minutes and/or other documents relating to the replacement of windows in his unit. In response, the Condominium provided minutes of those meetings with redactions, and a statement that no redacted portion of the minutes related to Mr. Berman’s unit.
Mr. Berman was not satisfied with this response and continued to request further documents until the Condominium advised him that there were no further documents that it could or must provide.
Issues and Decision: Is Mr. Berman entitled to any additional records? No. The Condominium provided Mr. Berman with all of the documents that it had in its possession that would answer his questions. In respect to the reserve fund, the Act only requires the Condominium to complete a Reserve Fund Study every three years, which the Condominium has done. Owner requests do not expedite the Act’s timelines, so he must wait until next study in 2019.
Is Mr. Berman entitled to costs for the Condominium’s delay? No. The Condominium did not intentionally mislead Mr. Berman or delay the matter.
Take-away: A condominium is not required to go out of its way to create documents for a unit owner. A unit owner only has a right to records that have already been created, or ought to have been created as required by the Act. If a condominium has provided the records requested in a timely manner, the CAT will not award costs to a unit owner who brings an application.
3. Shaheed Mohamed v York Condominium Corporation No 414, 2018 ONCAT 3 (CanLII)
Decision Date: June 7, 2018
Facts: This case can be broken down into three parts.
1) The Applicant unit owner, Shaheed Mohamed, requested a variety of records from York Condominium Corporation No. 414 (the “Condominium”), including the record of owners and mortgagees. The Condominium argued that it did not have to provide the record of owners and mortgagees because s. 55(4)(c) of the Act exempts the Condominium from providing owners with records that relate to other owners. Mr. Mohamed argued that ss. 46.1 and 55(5)(c) specifically permit the disclosure of records of owners and mortgagees.
2) The Condominium claimed to have already responded and prepared the requested records, so it claimed a fee for the records already prepared plus a fee for the new records. Mr. Mohamed said the Condominium did not respond or provide any records.
3) Mr. Mohamed requested a costs award and penalty in its favour in light of the Condominium’s non-compliance with his records request.
Issues and Decision:
1) Is Mr. Mohamed entitled to all the records he requested? Yes, even the record of owners and mortgagees, as permitted by ss. 46.1 and 55(5)(c) of the Act.
2) Does the Condominium’s demand for a fee comply with the law? The Condominium can demand a fee and can withhold the records until paid, but the fee it demanded here was too high.
3) Is Mr. Mohamed entitled to a costs award? Yes. The CAT awarded costs and a penalty in favour of Mr. Mohamed because the Condominium’s non-compliance was unreasonable.
1) Despite the general rule that owners are not entitled to records relating to other owners, unit owners are entitled to the record of owners and mortgagees.
2) A condominium may charge an owner for requested records, but ss. 55(3) and (3.1) of the Act and ss. 13.3(7)-(9) of O Reg 48/01 set strict limits on the permitted fees, which condominium boards and lawyers should be aware of.
3) The CAT has the authority to award costs and a penalty up to $5000, and they are not afraid to use this authority when a party acts unreasonably.
4. Manorama Sennek v Carleton Condominium Corporation No 116, 2018 ONCAT 4 (CanLII)
Decision Date: June 19, 2018
Facts: Ms. Sennek sought a penalty against Carleton Condominium Corporation No. 116 (the “Condominium”) for failing to maintain proper records for nearly 9 years. However, her claim was connected to a matter she previously pursued in Small Claims Court. Because of her behaviour in her earlier court proceeding, the judge had issued an order under s. 140 of the Courts of Justice Act declaring that she was a “vexatious litigant” and preventing her from pursuing further court action. The Court of Appeal upheld this order, at which point she filed her claim at the CAT.
The CAT viewed her submission as a “continuation of the same dispute” with the purpose “to circumvent the outcome of the prior court proceedings.” In light of this conclusion, the CAT dismissed her application as a vexatious action brought for an improper purpose under s. 1.41(1) of the Act.
Issues and Decision: Can the CAT hear a dispute where there is a court order declaring the applicant to be a vexatious litigant and forbidding further court proceedings? Yes. An order under s. 140 of the Courts of Justice Act finding a party to be a vexatious litigant does not apply to tribunals (which do not fit the narrow definition of “court”), but s 1.41 of the Act provides an alternative way to dismiss a matter as a vexatious action.
Take-away: As a tribunal, the CAT is different from a court and not all rules and/or orders apply equally to both bodies. However, the CAT is not a tool to evade unsatisfactory court orders, so it is important for applicants to consider which body is most appropriate to hear their dispute before they take action.
Stay tuned for Part 2 of this blog post, setting out decisions five to seven released by the CAT.