Tribunal still dealing with records cases only

Ontario’s new Condominium Authority Tribunal has proven its usefulness in just over a year of existence in its limited capacity to deal with disputes over records, say lawyers.

Tribunal still dealing with records cases only
Deborah Howden says a recent Condominium Authority Tribunal decision ‘confirms that privacy and confidentiality of the [condominium] voting process is still protected under the legislation.’

Ontario’s new Condominium Authority Tribunal has proven its usefulness in just over a year of existence in its limited capacity to deal with disputes over records, say lawyers.

But there remains a concern that its lack of ability to award costs may make it more vulnerable to abuse, say lawyers.

“What’s distinctive about the CAT is this is a new tribunal in Ontario and it’s a designated authority and there’s only a handful of such authorities in the province,” says Deborah Howden, a partner with Shibley Righton LLP in Toronto.

“[I]t’s our first and only online adjudication body.”

The tribunal currently only deals with the issue of access to records, which she says is the single-most prevalent area of dispute between owners and condo corporations.

Prior to the amendments to the Ontario Condominium Act, an owner had to have a reason for access to a particular record and it had to be connected to a bona fide issue related to the corporation, she says.

A reason is no longer required if the person requesting it is a condo owner, purchaser or mortgagee of a unit.

The exception, adds Howden, is if it relates to personal information or is related to pending litigation or an insurance investigation.

She points to Janet Cangiano v. Metropolitan Toronto Condominium Corporation No. 962, in which a unit owner requested legible and unaltered copies of proxy forms used in an annual general meeting to challenge election results. The board refused to grant access to un-redacted proxies on the basis that a portion of each proxy form identified unit numbers and is therefore exempt from production under the Condominium Act.

“It confirmed that with respect to proxies, even if you’re challenging election results, you still don’t get to see identifying information,” she says. “It’s a decision that confirms that privacy and confidentiality of the voting process is still protected under the legislation.”

In Cangiano, the unit owner argued a narrow interpretation of the legislation would restrict a proper audit of the results and that she was entitled to challenge the results, which required legible and unaltered copies of the proxies.

In the July 2018 decision, the tribunal found that owners have alternative methods to verify the proxies and instructions. They can requisition an owners’ meeting to discuss irregularities and they can request the registration sheet at the meeting, adds Howden.

“It helps as these decisions come out, they’re not earth-shattering, but they tend to reinforce what we’ve known all along,” she says, pointing to another case, Robert Remillard v. Frontenac Condominium Corporation No. 18, where the owner requested legal invoices for a small claims court case that had already settled.

The owner argued that litigation was no longer privileged because the case had settled. But Howden points out the legislation doesn’t distinguish between current and past litigation. The owner was denied production of the records.

Rodrigue Escayola, a partner with Gowling WLG (Canada) LLP in Ottawa, likes that the tribunal is entirely online and lays out a clear process, exhausting conciliation and mediation options before a hearing is held.

“It’s on the outer edge of technology and I really like where this is going,” he says, hoping to see its limited scope expanded so that it can deal with other condo-related disputes beyond simply its current mandate of dealing with records.

“It was going to be the tribunal that would take over pretty much all the condominium disputes. It was going to be a cheaper, faster, easier process,” he says. “It was going to take disputes out of court.”

He has found in an early analysis he did of the decisions made during the first year of the tribunal that, in most of the claims, the condo corporations were found to have disclosed what they were supposed to, which he finds refreshing. Escayola says given that there is now direction from the tribunal, at least as it pertains to records and what the obligations of condo boards are, he’s hoping that there will be fewer records-related disputes.

Escayola points out that so far, the tribunal has upheld its position to award costs only in exceptional circumstances.

James Davidson, a partner at Davidson Houle Allen LLP, thinks the tribunal process can be abused by bothersome or vexatious litigants who want to “unreasonably bother the corporation,” something he has seen occur in the past.

Given that the mandate of the tribunal clearly indicates that costs won’t be awarded with the exception of unusual circumstances, those involved in disputes must bear any related costs, he adds. His concern is that some cases can be complex and could require the condo corporations to seek legal advice. Cases can also be time consuming for condo management, he adds. That too, he says, puts an extra financial burden on condo corporations, and, in turn, unit owners.

Greater access to justice through the process and the ability for individual condo owners to get the records they seek is clearly a benefit, he says. But his concern is whether that is balanced by the burdens and costs borne by condo corporations and board members.

“I don’t think there’s any denying that it’s an added burden for condominium boards, condominium directors — we’re talking volunteers here — and an added cost to condominium corporations,” says Davidson.

Just the same, he is encouraged by the creation of the CAT.

“I think it’s definitely serving a useful function,” he says, allowing for access to records in an inexpensive way for condo owner.

“I’m just worried about the burden that that places on the condominium corporations,” he says. “But, I’m recognizing that [the CAT] is a valuable process.”

Matteo Guinci, a spokesman for the provincial Ministry of Government and Consumer Services, says the Condo Act “gives the [tribunal] authority to make rules, including about orders for costs.”

“The Condominium Authority Tribunal has authority to dismiss applications without a hearing if it believes the subject matter of the application is frivolous or vexatious or that the application has not been initiated in good faith or discloses no reasonable cause of action,” said a prepared statement provided by Guinci.

“Most disputes relating to condo corporation records must go to the tribunal for resolution. The CAT hears certain disputes primarily between condo owners and condo corporations and is intended to help resolve certain disputes in a cost-effective manner.”

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