The Condominium Authority Tribunal, Ontario’s first and only online adjudication body, celebrated its first anniversary on November 1, 2018.

Envisioned as a one-stop shop of expert mediators and adjudicators helping condo boards and unit owners resolve condo disputes across Ontario, all entirely online, the CAT began accepting cases in November 2017. CAT’s initial jurisdiction is presently limited to condo records, which isn’t sexy but is important to unit owners struggling to access important records from their condo corporation. It’s also important for managers and boards to have clarity as to when records should not be produced, to protect the corporation and its owners.

From May to August 2018, the CAT released its first 8 decisions, covering a variety of scenarios. We will summarize those first 8 cases then offer a few lessons and predictions.

Remillard v. Frontenac CC 18 – Owner requested legal invoices for a small claims court case that settled. Corporation refused, saying the invoices were covered by litigation privilege and exempt under s. 55(4)(b) of the Act. CAT held that the Act and regulations don’t distinguish between current and past litigation, so records related to “contemplated litigation” or “actual litigation” are exempt from production. FCC 18 was ultimately not ordered to produce these invoices. Owner also challenged the fee requested by the Corporation to produce other legal invoices requiring redaction by the Corporation’s lawyers. The CAT found the requested $169 fee for the lawyers to sanitize excluded portions was excessive and could be performed by articling students at a lower cost. The fee was reduced to $84 based on a student’s hourly rate.

Berman v. YCC 99 – Owner requested documents concerning expenditures from the reserve fund and was told that audited financial statements and other documents soon to be published would contain information that answers the Owner’s questions. Rather than wait, the Owner commenced a CAT proceeding. During the CAT case, the Owner was given various records as they were created plus other answers and information far beyond records alone. While the Owner questioned the sufficiency of what was given, the CAT found he had been given all the records he was entitled to.

Mohamed v. YCC 414 – Owner requested several records that were all produced except for the list of owners and mortgagees (the record under s. 46.1 of the Act). In the face of a clear obligation to produce it, YCC 414 argued that the owners list is an exempted record that relates to specific units or owners. This argument was quickly rejected and the owners list was ordered to be produced. For failing to produce the owners list when clearly obligated to do so and for not participating in the CAT’s dispute resolution process in a timely way, YCC 414 was ordered to pay costs of $125 and a $1,000 penalty.

Sennek v. Carleton CC 116 – An Owner labelled a “vexatious litigant” by the Superior Court for making several frivolous lawsuits against her condo corporation applied to CAT for a penalty against CCC 116 for failing to maintain certain records, which CAT has no power to order. While the CAT did not consider itself bound by the Superior Court “vexatious litigant” order, it summarily dismissed the application without a hearing because it raised the same issues decided in the court cases and was therefore vexatious.

Micieli v. TSCC 1753 – Owner requested various records that the Corporation agreed to provide but couldn’t because they were not yet available. The financial audit was delayed because some required documents were not transferred from a prior management firm, so the board gave the Owner draft statements and information, undertaking to deliver additional documents upon receipt. The CAT found the board was making good-faith efforts to comply with its obligations and made no production orders.

Bossio v. MTCC 965 – Owner requested records related to her ongoing disputes with the board that were heading towards mediation and arbitration. The board refused to produce the records, citing the litigation exemption in s. 55(4)(b) of the Act. The CAT found the “litigation” exemption to be broad enough to cover disputes being mediated and arbitrated and declined to order production. Despite paying its lawyer over $6,400 to win the case, the Corporation recovered no legal costs. The CAT’s general rule is to award no costs absent “exceptional circumstances” like where a party is grossly unreasonable, takes positions that unduly complicate the application, acts in bad faith or with malice. Costs awards will be rare. None ordered here.

Cangiano v. MTCC 962 – To validate election results, an Owner re-quested “legible and unaltered” copies of proxies used at an AGM. The board refused, citing new regulations that portions of ballots and proxies identifying specific units or owners are exempt from production. The Owner argued that a narrow interpretation would restrict proper audit of election results. The CAT disagreed, finding that the Act and regulations are crystal clear and that while the Act does not provide an election auditing process, this is an issue for the Legislature and not the CAT. Be-sides, owners have alternative methods to verify proxy grants and instruction, like going door to door to interview owners, requisitioning owners’ meetings to discuss concerns of irregularities and requesting the AGM registration sheet. Owners are not entitled to unredacted proxies.

Bechlian v. TSCC 2418 – Owner requested a security incident report outlining a complaint she filed. TSCC 2418 invited her to inspect the document but would not provide a copy, then raised several technical defences in response to the CAT application, including the “litigation” and “specific units” exemptions. The CAT considered and rejected all the defences then ordered production of the document, with portions identifying other owners to be redacted. No costs or penalty awarded.

Here are 9 lessons and predictions arising from these first 8 cases:

1. Labour charges for producing records hardly seem worth requesting. The regulations for determining the charges are so onerous, confusing and so low that it almost makes more sense to request no fee and avoid facing a CAT dispute over reasonableness of the requested fee. Additionally, keeping records electronically and using the Adobe software for quick and easy redaction becomes a no-brainer.

2. It’s smart for Corporations to answer most records requests by delivering the requested document by email within a week. If a disagreement arises, ask the owner to complete and submit a prescribed Records Request form, then get legal advice and then deliver a Board’s Response form containing thoughtful, detailed reasons for refusing to provide any given record.

3. Good faith efforts by boards and managers to answer requests for records will be considered in CAT cases and may turn the tide of any case. Your emails documenting those efforts may prove valuable one day. The concept of “reasonableness” remains an important part of records requests.

4. Applications to enforce vexatious requests by owners may be summarily dismissed.

5. The CAT can order production of records but has no jurisdiction to compel corporations to deliver answers to questions or information. That said, it’s sensible to address owner concerns early and avoid larger disputes.

6. The Owners list must be produced when requested, period. Any lingering doubt whether condo corporations must provide the list of unit owners with their address for service is now gone.

7. Penalties for non-compliance should be rare but will be used in clear cases. The frequency of penalties will likely increase over time as the obligations become more well-known.

8. Awards of legal costs are and will continue to be rare but will be too small to make a difference. Parties using lawyers to fight records cases will likely not recover their legal costs. Getting legal advice whether to argue any given case is worth arguing is probably a wise investment.

9. Before long, CAT will have decided most commonly-encountered records scenarios. Then boards and managers will get a better sense of what records are typically ordered to be produced. This should eliminate many needless disputes and reduce the number of cases requiring adjudication, since only records not already covered in an earlier case should require a decision.

The CAT is living up to its goal of becoming an authoritative adjudicator of condo records disputes and can expect its stature to increase over time and with many more decisions to come. We also look forward to seeing the CAT improve its processes and start hearing new kinds of cases like common expense chargebacks, rule enforcement scenarios and other condo disputes.