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The Condominium Authority Tribunal (CAT) - First Decisions - Part 2
By: Annie Bailey
and Stephanie Sutherland
| Aug 13, 2018
Written with the assistance of Annie Bailey, articling student
In Part 1 of this blog post, we reviewed the first four decisions released by the Condominium Authority Tribunal. In Part 2, we review decisions five to seven of the CAT, which brings us up to the end of July 2018.
1. Joe Micielli v Toronto Standard Condominium Corporation No 1753, 2018 ONCAT 5 (CanLII)
Decision Date: June 25, 2018
Facts: Mr. Micielli requested audited financial statements from 2016-17 and 2017-18, and bank statements from 2015-17. Toronto Standard Condominium Corporation No. 1753 (the “Condominium”) agreed to provide such documents, but did not immediately comply with the request for the following reasons:
- The Condominium was having trouble obtaining the 2016-17 audited statements from a previous property manager;
- The Act did not require disclosure of the 2017-18 audited statements until the upcoming AGM in August 2018; and
- The complete bank statements were not yet ready but would be available shortly.
The Condominium provided unaudited statements while taking efforts to acquire the audited statements for 2016-17, and it stated that the 2017-18 records would be ready by the AGM. It also requested the bank statements from the bank, showing it was taking reasonable steps to obtain these as soon as possible.
Issues and Decision: Is the Condominium’s delay in providing these records a breach of the Act? No. The Condominium’s actions show its intention to be transparent with unit owners, so as long as the Condominium continues to take reasonable action to acquire the records and provide them to Mr. Micielli as soon as reasonably possible or as soon as the Act requires, its actions are sufficient to comply with the Act.
Take-away: A condominium cannot provide its owners with information that it does not have, so the CAT will grant a condominium leeway where it shows reasonable efforts to comply with the Act, such as providing a satisfactory alternative document while in the process of obtaining the proper records.
Also, a condominium is not required to provide records to owners earlier than the Act requires such disclosure. This is similar to the take-away in Jeff Berman v York Condominium Corporation No 99, discussed in Part of this blog post, and together these cases send a clear message that owner requests do not trump the Act’s requirements.
2. Mara Bossio v Metro Toronto Condominium Corporation No 965, 2018 ONCAT 6 (CanLII)
Decision Date: July 6, 2018
Facts: The Applicant unit owner, Ms. Bossio, requested records from Metro Toronto Condominium Corporation No. 965 (the “Condominium”) for the purpose of pursuing disputes she had against the Condominium. The Condominium refused to produce the records, claiming the s. 55(4)(b) exemption for records that relate to actual or contemplated litigation. Ms. Bossio said this exemption does not apply because she intends to pursue her claims by mediation and, if necessary, arbitration – not litigation. But given her long list of claims (including harassment and mental pain and suffering), the Condominium believed that litigation is very likely.
Issues and Decision: Can the Condominium withhold the requested records using the s. 55(4)(b) exemption? Yes. Ms. Bossio intends to use the records to pursue claims against the Condominium that, in the CAT’s opinion, will likely lead to litigation. This fits the definition of “actual or contemplated litigation.”
Is the Condominium entitled to partial payment of its legal costs from Ms. Bossio? No. Under the CAT’s rule 30.1, legal costs are only recoverable if there are exceptional reasons for it, and no such reasons exist here.
Take-away: Where a condominium reasonably believes that a record request will lead to litigation against the condominium, the s. 55(4)(b) exemption allows the Condominium to withhold the requested records.
This case also shows another distinction between the CAT and courts: where the Superior Court’s default is to awards costs to the successful party, the CAT’s default is to not award costs.
3. Janet Cangiano v Metropolitan Toronto Condominium Corporation No 962, 2018 ONCAT 7 (CanLII)
Decision Date: July 19, 2018
Facts: The Applicant, Ms. Cangiano, sought unredacted copies of the proxy forms submitted at the AGM for Metropolitan Toronto Condominium Corporation No 962 (the “Condominium”). The Condominium offered her redacted copies only, relying on s. 55(4)(d) of the Act and O. Reg. 48/01 s. 13.11(2), which exempt the Condominium from disclosing proxy forms with identifying information about units and owners. Ms. Cangiano was not satisfied with redacted copies, so she filed with the CAT.
Issues and Decision: Is Ms. Cangiano entitled to unredacted copies of the proxy forms? No. The Act clearly prohibits the disclosure of proxy forms with identifying information, so the Condominium must release redacted copies only.
Take-away: Where the language in the Act is clear and specific, it is the CAT’s job to uphold that clear meaning – it cannot import a broader interpretation.
Overall Themes of the CAT’s Decisions
A couple of themes emerge from these early CAT cases. Most significantly, the language of the Act is vital to the CAT’s decisions. Where a provision of the Act permits a broad interpretation, the CAT will interpret it broadly. For example, Mara Bossio and Robert Remillard show that the s. 55(4)(b) exemption applies broadly to protect records related to both potential litigation and completed litigation. In contrast, where the Act is specific, the CAT will not sway from its clear meaning. We saw this in Janet Cangiano and the cases where an owner requested records that the Act does not require the condominium to disclose (Joe Micielli and Jeff Berman).
Finally, the CAT is a tribunal (not a court) with its own rules on costs and process, as seen in Mara Bossio, Manorama Sennek, and Shaheed Mohamed. This means parties should familiarize themselves with how the CAT operates to avoid unexpected results.