Concerns voiced over new condo tribunal

Lawyers are voicing concerns over the limited jurisdiction of the new tribunal being set up to handle condominium disputes when it opens its doors in November.

Concerns voiced over new condo tribunal
Rodrigue Escayola says practitioners and their clients might not want to wait to have their compliance matters heard by the Condominium Authority Tribunal at this point.

Lawyers are voicing concerns over the limited jurisdiction of the new tribunal being set up to handle condominium disputes when it opens its doors in November.

The Condo Authority Tribunal was set up as part of the provincial government’s overhaul of the Condominium Act and initially will only adjudicate disputes concerning access to condo records.

It is expected to widen its jurisdiction on certain issues, but some condo lawyers say it should be expanded to everything condo-related.

“If we are going to have a specialized tribunal, that tribunal should deal with everything and anything that is within the condominium world,” says Rodrigue Escayola, partner with Gowling WLG (Canada) LLP.

The provincial government has created the new tribunal in the hopes of getting condo disputes out of the courts and into a specialized tribunal that will make them faster and cheaper. Lawyers say the effectiveness of the tribunal will largely depend on how restrictive the tribunal’s authority will be going forward.

The government has also set up a new administrative authority called the Condominium Authority of Ontario, as well as a new regulator for condo managers called the Condominium Management Regulatory Authority of Ontario, which will handle complaints against managers.

The CAT is expected to be primarily an online dispute resolution platform and will make binding decisions about disputes under the Condo Act.

But new regulations that have been rolled out up to this point have only given the tribunal jurisdiction to handle records disputes.

While the act gives the tribunal a broad spectrum of issues with which it can deal, it is not clear what kinds of disputes future regulations will permit the tribunal to adjudicate. And there is some debate as to how wide the tribunal’s jurisdiction should expand. Escayola says it is unfortunate that the tribunal will not adjudicate disputes involving managers or builders, or Tarion, and that the issues the tribunal will only deal with are ones that would have been dealt with in Small Claims Court.

“You’ve removed the actual meat and potatoes of what I thought the tribunal would want to deal with,” he says. “So we haven’t lightened the load from the Superior Court of Justice.”

Escayola says practitioners and their clients might not want to wait to have their compliance matters heard by the tribunal, as it is not clear if and when its jurisdiction will widen.

Christy Allen, of Davidson Houle Allen LLP, says that while lawyers in Ontario are focusing their current concerns around the limited jurisdiction of the tribunal, future concerns will likely be whether the body can deal with the sheer volume it will likely see as it starts to adjudicate different types of matters. Lawyers say the condominium authority is looking to develop a format for the tribunal that will do away with the need for representation in an effort to make it an accessible forum.

But lawyers say this might not be realistic in an area of law that can be quite complex, especially with the long list of new regulations being implemented.

Allen says complainants might not necessarily need representation in some of the specific straightforward issues such as records.

However, if the regulations end up conferring the amount of authority given to the tribunal by the legislation, trying to make the tribunal accessible may be difficult in practice, she says.

“Once the issues that the tribunal starts to deal with become more complex, the more complex they are, the greater the need for legal representation, whether it’s a lawyer or a paralegal,” she says.

Allen says she also has concerns that the tribunal could eventually lead to a substantial increase in complaints being launched in this area.

“It opens the door to be more accessible, which is a good thing on one hand, but on the other hand, it means there’s a possibility of having an unmanageable volume of complaints being received by the tribunal,” she says.

Chris Jaglowitz, who sat on the working group that advocated for the tribunal, says the initial jurisdiction of the tribunal should be very narrow, as it needs to start with a manageable load. But he also fears the tribunal may be going online too early and too quickly.

The chairman of the tribunal was only just named, and lawyers say the condo authority has released little information about the platform or its rules.

“I have a sinking feeling that unless the tribunal is well prepared to hit the ground running when it opens its doors, it will bog down and fall way short of its potential,” says Jaglowitz, who is a condo lawyer with Gardiner Miller Arnold LLP.

He adds that given the CAT is funded largely by a levy paid by condo unit owners, the tribunal will have a lot to live up to and must be able to dsmonstrate good value very quickly or else may risk losing its clients’ confidence.

Priya Ramsingh, a spokeswoman for the Condominium Authority of Ontario, did not provide a timeline as to when the CAT’s jurisdiction will be expanded, but she said the tribunal will start accepting applications for records-related disputes on Nov. 1.

“It is expected that the types of disputes that can be heard by the CAT will expand over time as more is known about the priority areas to be added to its jurisdiction,” she said.

While the tribunal will likely play a growing role going forward, Jaglowitz says the tribunal’s importance will be secondary to the CAO’s principal mandate of providing information to condo stakeholders that they can use to resolve disputes early.

“If the information and education delivery is successful, there should be fewer disputes for the tribunal to handle,” he says.        

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