Serving Ontario's condominium communities since 2008
Two recent CAT decisions highlight scenarios affecting recovery of costs in rule enforcement scenarios:
In TSCC 1767 v. Ahmed et al., the condo repeatedly assured the unit owner it would not seek costs against the owner for his tenants permitting their dog to urinate and defecate on a balcony and failing to clean it…
The latest issue of our newsletter, Condo Alert! Spring 2022, highlights changes to the CAT’s costs regime, discusses the Superior Court’s treatment of tenants and comments on some other interesting cases.
We hope you are dusting yourselves off after a long winter, and that spring brings warm and sunny days!
Andrea
A recent court decision confirmed that disputes between neighbours should not be adjudicated by the courts as the first step (unless there is injury or danger to others or property). Parties should instead pursue mediation and arbitration. We have written on the proper forum for condo disputes before (see here and here) but this case demonstrates that adjudicated proceedings won’t always resolve squabbles between neighbours.
Neighbouring owners (let’s call them, A and B) have a history of alleged name calling, banging on a common wall, harassment and racist taunts. The condo corporation took neighbour B’s side despite “she said/she said” allegations and started an application for order requiring neighbour A to sell their unit or to comply with the rules. Neighbour A moved to stay the application pending mediation and arbitration.…
Continue Reading Condo neighbour disputes don’t belong in the courts
The CAO is investigating if legal costs should be awarded in CAT cases. The effect of CAT’s Costs Rule No. 45 has generally resulted in no costs awards in records cases except in exceptional circumstances. Condos should take advantage of this opportunity to convince CAO to award legal costs to the successful party, for the following reasons.
CAT’s jurisdiction was expanded beyond records cases to include disputes regarding pets, vehicles, parking and storage cases as of October 2020, with some mixed results applicable to recovery of legal fees in some CAT cases. CAT will also assume jurisdiction for noise, odours, smoke, vapour, light or vibration disputes as of January 2022.
Compared to owner-initiated records cases, nuisance cases enforced by Corporations would often involve many kinds of legal concepts. Condos and their lawyers have already developed systems to process various types of scenarios, having careful regard to previous court precedents.
After a manager’s initial efforts have failed to persuade an offending occupant to cease creating a nuisance, a condo’s lawyer issues a demand compliance letter to the offender and often educates boards and managers how to assemble conclusive evidence. Over 90% of rules breaches are resolved (to the relief of neighbours), usually immediately upon receipt of the lawyer’s letter, or through a negotiating process. If lawyers will no longer be encouraged to warn owners and occupants of their obligation to bear legal fees in cases of proven nuisances, then CAT can expect an avalanche of cases.
A recent CAT decision about smoking rules contained the following in its introduction:
“ … this Tribunal has identified concerns with the use of the term “grandfathering” generally, as its origins are problematic, notwithstanding its long-standing social usage. The Tribunal believes that the term “grandfathering” is better understood as creating “legacy” provisions. However, the term…
The Divisional Court of Ontario recently considered a condo corporation’s application for judicial review of a CAT decision. However, the court dismissed the application because the corporation did not exhaust its right of appeal under the Condo Act
Judicial review is a process where courts make sure that the decisions of administrative bodies (such as…
Our newest issue of GMA’s newsletter Condo Alert! – Summer 2021, contains a litigation report on Mark Arnold’s success for victims of terrorism and a case summary of the CAT’s recent treatment of fees payable for records.
We hope you enjoy the short week and thanks for reading!
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…
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 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…
