Changing how condominium disputes are resolved
By Melinda Andrews
The condominium industry has undergone some notable changes over the past decade. As a condominium lawyer, one of the biggest and most impactful changes I have experienced came with the introduction of the Condominium Authority Tribunal (CAT).
Launched in November 2017, the CAT was introduced to help unit owners and condominium corporations resolve certain types of condo-related disputes in a manner that is faster, and less costly than traditional court processes or mediation/arbitration. It remains Ontario’s first fully online tribunal and is a convenient option for parties looking to efficiently resolve some of the more common disputes that occur in condominium communities.
Jurisdiction
The CAT’s jurisdiction is still evolving given that the tribunal is still in its early years. Currently, it accepts applications for disputes relating to:
- Condominium records;
- Unreasonable nuisances related to noise, odour, light, vibrations, smoke and vapour;
- Compliance issues related to pets/animals, vehicles, parking and storage; and
- Chargebacks related to the issues noted above.
One of the biggest changes that have come since the CAT’s inception is that it has exclusive jurisdiction for matters within its mandate. So, assuming you are not dealing with any complicating factors that might make your matter urgent, if your dispute falls within the CAT’s jurisdiction, you must bring your dispute to the CAT now, rather than court. Urgent matters or matters falling outside of the CAT’s jurisdiction are still resolved via the traditional methods like court or mediation/arbitration.
A three-stage process
The CAT offers a three-stage process for dispute resolution. At the first stage the parties have the option to negotiate a resolution between themselves without any outside assistance. The negotiation takes place in writing via the CAT’s online dispute-resolution system. If the matter isn’t resolved, the parties can proceed to stage two, which is mediation. Here the CAT will assign one of their adjudicators to mediate the matter between the parties. The mediations typically also take place in writing.
If the matter still has not been resolved, the parties can opt to proceed to stage three, where a different CAT member will adjudicate the matter. Typically, the hearings take place in writing with each party submitting their evidence in written statements. The CAT member then makes their decision and writes a final order. Like a court order, CAT orders are binding on the parties and must be followed. If not, the opposing party can take steps in court to enforce the order against the non-compliant party, which is quite a strong remedy to have available.
While the underlying principles of the CAT are certainly well meaning, one of the main issues our firm has encountered is that its Rules of Practice do not allow the successful party to recover its legal fees and disbursements (“costs”) incurred to pursue the matter from the opposing party, the point being that they do not want costs to be a deterrent to a party pursuing their matter.
The difficulty with this approach, however, is that where a condominium corporation has been successful against a non-compliant owner, for example, it often leaves the other innocent unit owners “on the hook” for the condominium’s legal fees, which is not all that fair. This said, some recent decisions from the CAT indicate that the Tribunal is becoming more willing to at least partially compensate parties for their costs, but instances where parties are awarded 100% of their legal costs remain a rarity.
Ultimately, the CAT has been a welcome change in the condominium industry. Given that it is still in its early years we anticipate that the CAT will continue to undergo changes to expand its jurisdiction–to deal with more types of disputes–and (hopefully) revamp its costs regime to expand the circumstances in which successful parties might recover a greater proportion of their legal costs.