The Condo Authority Tribunal’s decision in Rahman v. PSCC 779 is the first of its kind under the Tribunal’s expanded jurisdiction.  The case provides a strong warning against condos seeking to unilaterally impose costs against unit owners.

The Tribunal held that it had authority to hear this matter – a dispute concerning parking and indemnification – pursuant to the Condo Act’s newly instituted Regulations.

In this case, the condo sought to prevent an owner from using the condo’s outdoor “handicap” (i.e., accessible) parking space.  The condo argued that this parking location was meant for visitor parking only.  The condo also argued that the owner’s “Accessible Parking Permit” from the province did not qualify him to use the “handicap” space.

The owner argued that he was entitled to park in the condo’s “handicap” parking space (which was distinct from visitor parking), as he suffered a disability impeding him from accessing his own parking units, as evidenced by his “Accessible Parking Permit”.  The owner also argued that the condo’s compliance enforcement amounted to harassment.

The Tribunal held that to conflate the “handicap” parking with the visitor parking would deny condo owners any accessible parking.  The owner was parking in a “handicap” parking space as opposed to a visitor parking space.  The “Accessible Parking Permit” demonstrated a disability-related need to use the “handicap” parking.  In assessing the owner’s disability, the Tribunal favoured the owner’s doctor’s letter over the condo’s photographs of the owner, which provided no context or medical opinion.  The owner was complying with the condo’s declaration when using the “handicap” parking.  The condo was not entitled to rely on the indemnification provisions in its declaration to recover its enforcement costs.  Based on Amlani v. YCC 473, it was improper for the condo to attempt to collect its legal costs and fees by way of lien and notice of sale (without a court order).

Therefore, the Tribunal found that the owner was entitled to use the “handicap” parking space and that the condo’s compliance enforcement costs were invalid.  The Tribunal ordered the condo to: 1) provide the owner an accounting of its indemnification costs (including for legal fees); 2) immediately cease its compliance enforcement efforts (including the continued lien registration and notice of sale); 3) reimburse the owner, as the successful party, his $200 filing costs; and 4) pay the owner $1,500 as recompense for the time, trouble and expense it caused him.

Lozano v. TSCC 1765 was one of our Top 10 cases for 2020 because it reaffirmed that a higher negligence threshold is not applicable for s.105 chargebacks. You can read a summary of the case in our newsletter, Condo Alert!, Winter 2020

 Lozano’s insurer (who paid the insurance deductible) appealed the 2020 decision, asking the Divisional Court to re-write s.105 of the Condo Act and adopt a “robust” negligence test for liability under that section. The court rejected this proposal and dismissed the appeal a few days ago. 

Continue Reading Never mind the ballcocks, here’s the shut-off valve 

Unit owners occasionally request records about past and current litigation.  This can happen in the context of a condo’s AGM, a debate with management or a seemingly benign records request.  When is it okay to provide such records?

The CAT recently clarified that when litigation is settled or fully concluded and the record is not solicitor-client/settlement privileged, a record may be examined and produced:  the fact that the record relates to litigation is not a reason to refuse access.

Continue Reading Condo litigation records may be produced after litigation ends

The 60-day limitation period on giving notice of snow/ice injury referred to in s. 6 of the Occupiers’ Liability Act has now come into force, as of January 29, 2021.

The notice of such an injury must include the date, time and location of the occurrence and it must be personally served or sent by registered mail to the applicable occupier and/or the independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period when the injury occurred.  An occupier who receives that notice must also serve the notice on any other relevant occupiers and the snow removal contractor.

Failure by an injured person to give that notice to at least one occupier on time will cause that injured person to lose rights to recover recompense in most cases.

See our January 19, 2021 post for further details.

We recently blogged about the mandatory registration for short-term rental operators in the City of Toronto. You can read it about it here 

You can now report short-term rental addresses that are operating without registration, not used as a principal residence, unsafe, causing a nuisance or for other non-emergencies, using 311’s online complaint form.

While short-term rentals are currently prohibited under the provincial declaration of emergency (except for short-term rentals provided to individuals who need housing), condos should be diligent in reporting any non-compliant rentals to the city as a first step in its enforcement This online form makes it easier and quicker than calling into 311 so there’s no excuse.  

The CAT’s decision in Abou El Naaj v. Peel Standard Condominium Corporation No. 935 reflects a problematic trend of condos failing or refusing to participate in Tribunal proceedings. We do not recommend ignoring a CAT application…  Just like real live cats, they don’t go away by simply ignoring them.

We understand why condos might not want to spend the time and money defending a CAT application: we often hear some version of “not wanting to pay to defend a frivolous application from a nuisance unit owner”. And while the fear of a penalty might otherwise compel condos to respond to a CAT Application, it’s important to point out that in Abou El Naaj v. PSCC 935, the Tribunal noted, “the Act does not provide for the assessment of a penalty for failure to participate in a Tribunal proceeding”.

I’ll be the first to say the CAT  needs  reform.  In most cases, owners are self-represented whereas condos  turn to their lawyers:  all of this comes with a price and it’s usually the condo footing the bill.  Despite the burden involved with a CAT application – or any legal proceeding for that matter – the inherent value of the process is that it can bring a resolution.  Ignoring or not participating in a proceeding from the outset closes the door on that possibility and it could lead to a worse result for the condo – in some cases, it may embolden difficult owners which only escalates tensions. Think twice before ignoring a CAT application.

A brand-new Occupiers Liability Act provision requires Notice to be given by a person injured by ice or snow on privately-owned property, within 60 days after the date of injury.

That Snow/Ice Injury Notice must describe in writing the location, date, time and circumstances giving rise to the injury.  The Notice must either be sent by registered mail or else personally served upon an owner or occupier of the property (presumably including the manager, a director or officer of a condo).  When applicable, such a Notice should be given to an independent contractor and any particular owner or resident of a unit when involved with removing snow or ice on the property.

These new Snow/Ice Injury Notice requirements received Royal Assent on December 8, 2020 but will not come into effect until proclaimed into law by the Lieutenant Governor.  Since an injury caused by snow or ice is the only criteria to invoke this type of occupier’s liability claim, any kind of injury caused by snow or ice could be applicable – whether caused by a skidding automobile, falling ice or a slip and fall scenario.

If any owner, resident or guest serves a Snow/Ice Injury Notice upon your Corporation, consider whether you should in turn serve such a Notice upon your snow removal provider or other parties as a precaution (although, once the first Snow/Ice Injury Notice has been provided to any one of the parties, that 60-day limitation period restriction ceases to apply to any other party involved in a subsequent lawsuit).

If an injured party fails to give that Notice within the 60-day limitation period, they could expect to lose their legal right to recovery of monetary damages.  However, that limitation period does not apply if the injured person were to die because of the injury.  Also, a person demonstrating a reasonable excuse for failing to provide the Notice on time might be able to extend the limitation period where there was no adverse effect upon the defendant parties.

But watch out – in the case of a snow or ice “slip and fall” occurring upon municipal property, the right to sue the municipality is lost if the applicable Notice is not served upon the municipality within the 10-day limitation period after the date of the injury.

The courts kicked-off the year with the release of a decision discussing condominium arbitrations and the importance of explicit appeal rights in arbitration agreements.

This case involved a unit owner, who operated a legal cannabis store at the condominium building. The condo   believed this breached a rule prohibiting cannabis sale at the property. Through an arbitration proceeding, the unit owner was found to be in breach of the rule and section 119 of the Condominium Act (the “Act”). After the arbitration decision was given, the unit owner asked the court to grant leave to appeal the arbitration decision.

The arbitration agreement between parties sets out the four corners of an arbitrator’s jurisdiction and any appeal rights. Unless the agreement provides otherwise, the standard appeal provisions of the Arbitration Act apply, which allow parties to appeal a decision only on “questions of law” with the court’s leave (among other requirements).  “Questions of law” are errors in the arbitrator’s application of the law.

In this case, the court analyzed the arbitration decision and the parties’ arguments and concluded that the arbitrator had considered more than just an application of law but had also applied facts to the law. This meant the court was being asked to review a question of “mixed fact and law”, and not a pure question of law. Since the arbitration agreement between these parties didn’t expressly provide for appeal of questions of mixed fact and law, the court had to deny leave to appeal to the unit owner under the narrow appeal rights of the Arbitration Act.

The court also highlighted that an arbitrator’s decision in a private arbitration proceeding should be reviewed with deference, acknowledging the jurisdiction of an arbitrator as a decision maker freely appointed and chosen by the parties.

It is important that arbitration agreements are carefully reviewed to reflect the parties’ wishes because the agreement defines the relationships and rights of the parties even after the end of the arbitration proceeding.

The latest issue of our newsletter Condo Alert! Winter 2020 features our Top 10 condo cases of 2020.

We hope your holidays were restful.  We wish you a fresh start, health and happiness in 2021.

A reminder of our fresh start –   we’ve moved up – one floor – at 390 Bay Street, Toronto.  Our new suite is 1400.  The opportunity presented itself to shift to flex-hotel offices in the same building, which lets us work remotely or on site seamlessly.   Our phone number (416) 363-2614,  phone extensions, email addresses and fax number (416) 363-8451 stay the same.

All the best in the new year,

Andrea

 

The Condominium Authority Tribunal recently granted an order under Rule 4.5 of its Rules of Practice for the first time since its inception. Rule 4.5 states:

If the CAT finds that a Party has filed a vexatious Application or has participated in a CAT Case in a vexatious manner, the CAT can find that Party to be a vexatious litigant and dismiss the proceeding as an abuse of the CAT’s process. The CAT may also require that a Party found to be vexatious to obtain permission from the CAT to file any future Cases or continue to participate in an active Case.

In Yeung v. MTCC 1136, the Tribunal dismissed two Applications and considered whether an order under Rule 4.5 was warranted. In coming to its decision, the Tribunal considered the history of the Applicant’s conduct and noted:

  • The Applicant submitted several cases where it was obvious he could not succeed. This was exemplified by multiple cases where he requested a penalty that the Tribunal had no authority to impose.
  • The Applicant brought Applications that are brought for purposes other than the assertion of legitimate rights. This included recent applications for minor or clerical issues (for which the corporation should be afforded a legitimate amount of tolerance without rendering the records inadequate) and requests for substantial penalties that have no basis of success.
  • The Applications rolled forward grounds and issues from prior cases, either by submitting Applications for the same records with slightly altered grounds or by identifying minor errors in different records.
  • The frequency of new Applications increased in 2020. The Applicant filed a record-setting eight cases since the Tribunal was created: one in 2018, two in 2019, and six cases in 2020.

The Tribunal concluded:

…I find that there has been a pattern of conduct by the Applicant that creates a burden on the Tribunal, and unfairly requires the Respondent to participate in cases with little merit. I conclude that there is sufficient reason to believe that without intervention, this would continue. Therefore, I grant the Respondent’s motion to require the Applicant to obtain permission from the Tribunal before filing any future applications.

The Condominium Act, 1998 is intended to be consumer-protection legislation and as a creature of that statute, the Tribunal was created for owners to resolve specific disputes in a cost-effective and accessible manner. Evidently, the Tribunal did not come to this decision lightly: it recognized that the order would “limit the Applicant’s right to access the Tribunal” and “remove the opportunity to resolve disputes informally in the Tribunal’s negotiation stage”. However, access to the Tribunal is not an absolute right. A fine balance must be struck between allowing owners to redress legitimate concerns and preventing Applicants from misusing the Tribunal’s process at the expense of other owners.