In November 2017, the Condominium Authority Tribunal (“CAT”) was born as Ontario’s first fully online tribunal. “How would we manage this weird new thing?” we thought.
What started as a records dispute venue has now evolved into a place for pets, vehicles and storage and, most recently, unreasonable nuisances, annoyances or disruptions.
With the growth of the subject matter, we also see a slow but promising trend in cost recovery. For a few years no costs were ordered for defending or bringing applications except in very, VERY rare circumstances.
The CAT can award costs up to $25,000.
The expansion in the CAT’s jurisdiction earlier this year came with a new practice direction on cost factors, which we blogged about here.
A recent consent order, covering everything (but records), included the following terms, reached after a stage 2 mediation:
- The unit occupants must follow the rules and not smoke or allow anyone to smoke inside the unit or common areas which includes the terrace.
- The unit occupants shall not throw objects, including cigarette butts, off the terrace.
- The unit occupants shall follow the rules and not permit any pet to urinate or defecate in the unit, on the terrace, or anywhere on the common elements.
- The unit occupants shall follow the rules and not use the terrace for storage. Only seasonal furniture is permitted on the terrace.
- The unit occupant shall follow the rules and not create or permit the creation or continuation of any noise or nuisance which, in the opinion of the manager or the board of directors, may or does disturb the comfort or the quiet enjoyment of the property by others. This includes noise from music or parties inside the suite as well as noise from guests who leave the suite.
- The unit owners agree to pay $12,500 for costs to the condominium. Payment will be made no later than August 31, 2022.
The costs ordered on consent are realistic. These are generally in line with a successful party’s mediation and arbitration costs in a streamlined process. Negotiated costs at mediation are excellent since parties occasionally choose to reduce or waive costs for settlement. While an otherwise unassuming case, it shows how the CAT has grown from its inception through its jurisdiction expansions to mimic what we saw in the traditional compliance regime, but in a more structured way.
Another recent decision shows the CAT awarding $2,000 costs against an owner who was a party to six previous proceedings (with mixed success). The CAT declined to find the owner vexatious and that the most recent application was brought for an improper purpose. However the CAT did order the owner to contribute to the condo’s costs because:
“ …the evidence presented about his past pattern of conduct towards the board indicates he was at least partly motivated to bring this application for an improper purpose, i.e., to cast doubt on the board’s decision-making and to harass it into keeping minutes and providing information in the way he feels is appropriate, and to providing detail he is not entitled to.”
In prior CAT hearings, the owner’s “conduct was considered troubling, and he was previously cautioned that if in a future proceeding it were determined that he had abused the records request process, there might be cost consequences.” The CAT found the owner’s expectations were unreasonable and “his conduct in pursuit of having them met is unreasonable.” The CAT declined to restrict the owner’s access to the tribunal but for the above considerations, ordered him to contribute to the condo’s costs (which were just over $6,700).
The CAT has matured to this point, in evaluating motivations of owners and in balancing their expectations with the reality of how condos operate.