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.