Legal

November 24, 2021 Published by London and Area Chapter - By Stephanie Sutherland, LL.B.

Nuisances, Annoyances and Disruptions: CAT Jurisdiction Expanding

From the CCI Review 2021/2022—November 2021 issue of the CCI London Chapter

The Ontario government has announced that, once again, the jurisdiction of the Condominium Authority Tribunal (CAT) is being expanded. This will enable unit owners and condo corporations to commence CAT proceedings on a wider variety of issues. Unfortunately, we are not aware of any procedural changes at the CAT describing how the CAT will deal with disputes that require the decision-maker to assess witness credibility, expert evidence, and expert reports.

Effective January 1, 2022, the CAT will now have the jurisdiction to hear disputes about “unreasonable nuisances, annoyances, or disruptions” as set out in section 117(2) of the Condominium Act, 1998. These nuisances, annoyances, or disruptions include:

• Noise;
• Odour;
• Light;
• Vibrations;
• Smoke; and
• Vapour.

The CAT will also have the jurisdiction to hear disputes relating to provisions in the declaration, by-laws and rules that govern these issues, or any other type of ‘nuisance, annoyance, or disruption’ within a condominium community. Finally, the CAT will also be able to address disputes relating to indemnification or compensation with respect to the matters – i.e., charge backs.

The CAT’s jurisdiction initially only covered records disputes, under s. 55 of the Act. In October 2020, the jurisdiction was expanded to include disputes related to pets, parking, and storage. There is concern in the condominium legal community in Ontario about how the CAT is addressing these matters and about whether the procedures in place are best suited to fairly and efficiently adjudicate these issues. To date, there are limited cases where the CAT has dealt with that first expanded jurisdiction. Added to this is the fact that some of those decisions have been appealed and we do not have the results of those appeals. Ultimately, some members of the condominium legal community, this writer included, are questioning whether the CAT is properly equipped to deal with another expansion to its jurisdiction so soon after the first expansion.

The CAT is intended to be a place where condominium corporations and owners can go to easily, quickly, and efficiently resolve their disputes, without necessarily needing legal representation. So far, however, the process does not seem to lend itself to accomplishing those goals. In our experience, the CAT process - particularly at the third stage, where the actual online hearing is conducted. The CAT hearing process is not necessarily faster or more efficient (or less costly) than court proceedings or mediation/arbitration, which is how these matters were previously addressed. In addition, the complexity of the legal concepts means that many parties are still understandably choosing to use paralegals or lawyers to represent them.

This most recent expansion is intended to cover “unreasonable nuisances, annoyances, or disruptions”. Those within the industry know and appreciate that some nuisances, annoyances, or disruptions are reasonable (and even necessary) within a condominium community. The CAT’s job will be to assess whether the nuisances, annoyances, or disruptions complained of are unreasonable. This will often require the assessment of witness credibility, which presents challenges in an online dispute resolution platform, especially if the evidence is presented entirely in writing.

Another concern with this new expanded jurisdiction is that issues like noise, vibrations, smoke, etc. often require the involvement of experts (such as engineers or other contractors) to assess the source or cause of the concern, and whether the issue being complained about violates relevant laws, guidelines, or professional standards. For that expert’s evidence to be relied on in a legal proceeding, including in a CAT hearing, an official expert report must be prepared. Both the initial assessment and the official report can be quite costly, and the legal and practical issues to be argued can be very complex. These are not matters where a Board member or property manager can or should be expected to act on behalf of the condominium corporation, or an owner to act on their behalf.

This complexity, and the increased need for legal representation in CAT matters, is particularly concerning given that section 46.1 of the CAT’s current Rules of Procedure state that “The CAT will not order a User to pay to another User any fees charged by that User’s lawyer or paralegal, unless there are exceptional reasons to do so.” The CAT’s decisions to date support the idea that the CAT will only award legal fees in exceptional circumstances. Even where those circumstances are found, the CAT may not order the condo’s full legal costs. This means that in many cases, condominium corporations will end incurring legal fees with little to no recovery, even if they are successful in their CAT matter.

If your condominium is experiencing concerns with a matter that would fall under this expanded jurisdiction, we would encourage you to reach out to your legal counsel to discuss your options. As always, our office is available to work with you to navigate the concerns and determine the best way forward for your condominium community.

Stephanie Sutherland, LL.B. is an associate lawyer with Cohen Highley LLP in Kitchener.

Cohen Highley LLP has offices in London, Kitchener, Chatham, Sar-nia, Stratford and Strathroy.

Stephanie provides risk manage-ment and regulatory compliance advice to condominium corpora-tions, unit owners, and property management companies.

As a professional member of CCI she has participated as a writer, presenter and leader for chapters and the condominium community.