Legal

February 10, 2023 Published by Eastern Ontario Chapter - By Victoria Craine

Condominium Authority Tribunal: Jurisdiction of the CAT

From the Volume 33 issue of the CCI Eastern Ontario Condo Contact Magazine

Condominium-related disputes are bound to happen. From a practical and economic perspective, it always makes sense for the involved parties to try to resolve their dispute at an early stage. Not only does early resolution make a condominium a better place to live and/or work for all residents, but also a better investment for owners.

However, early resolution is not always possible. In such a case, your next step may be to start a legal proceeding in order to resolve your condominiumrelated dispute.

If starting a legal proceeding is required in order to resolve your condominium-relate dispute, it is important to consider the following question: What is the correct forum to start the legal proceeding? In other words, should you start your legal proceeding by way of:

1. Application to the Condominium Authority Tribunal (“CAT”);
2. Court application under section 134 of the Condominium Act; or
3. Mediation and/or arbitration under section 132 of the Condominium Act.

The answer to this question can be tricky – but it’s very important to carefully consider this question before starting your legal proceeding. Choosing the incorrect forum for your legal proceeding can not only be a waste of time and expense, but there is also risk of a cost award against you for bringing your dispute in the incorrect forum.

While condominium-related disputes were previously dealt with by way of Court Application and/or mediation and/or arbitration, since 2017, the CAT has taken on an ever-expanding role in adjudicating condominium-related disputes. Given that most condominiumrelated disputes will fall within the CAT’s expanded jurisdiction, this article reviews the CAT’s current jurisdiction.

Jurisdiction of the CAT

Whether your condominium-related dispute falls within the CAT’s jurisdiction depends on the following two questions:

1. Who are the parties to the dispute? and
2. What is the subject matter of the dispute?

Parties

There are limitations as to who can start a CAT application and who a CAT application can be started against. At this time, the CAT only deals with disputes involving owners, residents, condominium corporations, mortgagees, and purchasers.

More specifically, section 1.36 of the Condominium Act confirms that a condominium corporation can start a CAT application against an owner, occupier, or a mortgagee of a unit. Likewise, an owner or mortgagee of a unit can start a CAT application against a condominium corporation, or an owner, occupier, or a mortgagee of unit. Note that an occupier (such as a tenant) is not permitted to start a CAT application. In addition, a purchaser of a unit may also start a CAT application in limited circumstances.

Accordingly, if your legal dispute involves a declarant/developer, contractor, consultant, or manager, then you are not proceeding to the CAT.

Disputes

The Condominium Act and its regulations confirm that the CAT has exclusive jurisdiction over the following disputes:

• Disputes relating to the condominium’s records.
• Disputes relating to unreasonable nuisances, annoyances or disruptions set out under section 117(2) of the Condominium Act and related regulations, which specifically include:
  • Noise
  • Odour
  • Light
  • Vibrations
  • Smoke
  • Vapour
• Disputes relating to provisions in a condominium’s declaration, by-laws or rules that prohibit, restrict, or otherwise govern unreasonable noise, odour, light, vibration, smoke or vapour that may cause a nuisance, disruption or annoyance to any individual.
• Disputes relating to provisions in a condominium’s declaration, by-laws or rules that prohibit, restrict, or otherwise govern:
  • Pets or other animals;
  • Vehicles;
  • Parking and/or storage; and
  • Any other type of nuisance, annoyance, or disruption to an individual in a condominium corporation
• Disputes relating to provisions in a condominium’s declaration, by-laws or rules that govern indemnification or compensation related to any of the above disputes falling within the CAT’s jurisdiction.

It is important to note that the CAT has exclusive jurisdiction over these disputes. This means that if your dispute falls within the CAT’s jurisdiction, you must bring your dispute to the CAT.

At the same time, the CAT is not able to decide disputes that do not fall within the CAT’s jurisdiction. For instance, the CAT does not have jurisdiction to decide disputes under the following categories:

• Easements under sections 20 and 21 of the Condominium Act.
• Occupiers’ liability under section 26 of the Condominium Act.
• Condominium liens and priority issues under sections 85 and 86 of the Condominium Act.
• Prohibited conditions and activities under section 117(1) of the Condominium Act.
• Amalgamation or termination under parts VII and VIII of the Condominium Act.
• Determination of title to any real property.
• Requiring a person (such as a tenant) to vacate a property permanently.
• A claim for oppression under section 135 of the Condominium Act., unless the “heart” of the dispute falls within the CAT’s jurisdiction set out above.
• Modifications to common elements under sections 97 and 98 of the Condominium Act.
• Generally, any other dispute not falling within the CAT’s jurisdiction noted above.

Overall, the CAT has extensive jurisdiction over condominium related issues, and we anticipate that the CAT’s jurisdiction will continue to expand. There are many advantages to having your condominiumrelated dispute brought by way of CAT application. The CAT is fully online and is therefore very accessible. In addition, the CAT generally provides a faster outcome for a less cost compared to proceeding by way of Court or mediation/arbitration under section 132 of the Condominium Act. Therefore, in our view, bringing your condominium-related dispute by way of CAT application can be a good thing.

But again, before starting any legal proceeding in relation to your condominium-related dispute, it is important to carefully consider the tricky question of what is the correct forum to bring your legal proceeding. If you are unable to confidently answer this question, you may wish to seek advice from your legal counsel considering the potential consequences (as further noted above).

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Victoria is an associate lawyer with Davidson Houle Allen LLP. She advises on all condominium law matters including but not limited to corporate governance matters, building deficiency litigation, proceedings involving difficult owners and tenants, and matters involving the enforcement of property rights. Victoria’s goal is to always resolve a client’s problem in a reasonable, efficient, and client-focused manner.