Legal

February 10, 2023 Published by Eastern Ontario Chapter - By Cheryll Wood, Michael Lewicki

In Reverse – Navigating the Ontario CAT – Experiences, Thoughts and Concerns

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

In a twist on the Q & A for this newsletter, we asked industry professionals questions instead. Keeping with the Condominium Authority Tribunal (“CAT”) theme, we approached CCI members that have experienced all that CAT has to offer for their thoughts on the following:

1. What do you think of the Condominium Authority Tribunal (“CAT”) / describe your experience with the CAT.

In reviewing the responses, it was clear that although there are some hiccups (more on that below) the CAT process overall is satisfactory and leads to quicker and less expensive resolutions to disputes.* It was also found to be less complex than the Court system.

*In most cases… always need a caveat.

2. How have you found navigating the CAT process?

If you have ended up in a dispute and are nervous about what to expect, rest assured, it has been found fairly straight forward.

After some tinkering and trial and error, the website can be navigated. However, better defined menus and some “how to” information might just make the process even easier.

If you are not familiar with the CAT, there are three stages in the dispute resolution process:

• Stage 1 - Negotiation – party led;
• Stage 2 - Mediation – CAT mediator; and
• Stage 3 - Adjudication – CAT decision maker.

There were some questions when navigating the initial stages on what to do when a party is unresponsive. More direction in these cases would be helpful.

Also, when getting to Stage 3 – the process can change depending on the adjudicator. This means that right when you think you have your feet under you – off you go in a different direction! We definitely take the point that each case will have different needs depending on the parties and the issues in dispute. Flexibility can be helpful in those cases. However, some standard guidelines on timelines for submissions, length and format of submissions, could assist parties.

3. Have you faced any issues with the CAT process?

We addressed some issues in the previous section, but don’t worry – we saved some for here!

FAIRNESS

One issue raised was fairness to Condominium Board members or managers that are navigating the process. While lawyers and owners have more time that they can focus on the proceeding, directors or managers going it alone just don’t have the same time, energy or funds available to prepare and respond to the case. Directors are volunteers with other responsibilities and, as a result, they need to rely on professional time and advice to assist them in responding to cases – this of course comes at a cost. The CAT does not always recognize this in their rulings on costs. This means that all unit owners face the burden of costs for disputes with an individual owner – even if it was an unfounded proceeding… See of course Katya Ukrainetz’s article on page 13 which discusses costs (and gives some helpful ideas on preparing your case).

Documents, documents documents…

When starting an application, there is a lot of information that you are required to submit in order to get to the starting line. Not all of this information is is relevant or readily accessible, for example:

• Uploading ALL of the condo’s governing documents, when you are relying only on one specific by-law. This can be time consuming for condominiums with lots of by-laws. [Which condo out there has hit By-law 15….?]
• Needing a tenant’s phone number (or email) – which the other party may not have. Sadly, not all owners comply with Section 83!

A Conundrum:

Some CAT decisions have stated that owners are not entitled to a record because the request was not related to a purpose under the Act.

Owners making a request for records are required to state that the request is: “solely related to that person’s interests as an owner, a purchaser or a mortgagee of a unit, as the case may be, having regard to the purposes of the Act.” However, condominium corporations cannot require that owners provide the purpose of the request. How can we resolve this conundrum without ending up before the CAT? It seems that record requests that relate to an improper purpose will need the Tribunal to weigh in.

4. Do you have any suggestions that would make the CAT process easier to navigate?

One of the suggestions on making the CAT process easier starts before the CAT process begins. Better guidance for condominiums, managers and owners on:

• Non-core records, when does a record that is not set out as a record under the Act, Regulations or the Corporation’s governing documents become a record?
• Could there be a list of reasonable fees without needing to cull past decisions?
• What employment records are actually restricted?
• How long do you need retain portions of in-camera minutes?

If the CAT is to be effective, managers and directors need more information on how to handle records requests so that they are not swamped.

Next, having some standard forms/formatting for commencing an application and/or written submissions could assist in streamlining the process.

As noted above, reducing the need to upload information that is not available or not relevant would assist. Also, it has been noted that the CAO occasionally gives information to owners that is treated as legal advice. This can sometimes cause confusion.

Lastly, we turn back to costs. Without culling the previous CAT cases, it is difficult to know what costs are reasonable. Often times, the amounts awarded previously do not reflect the actual costs incurred by the condominium in reviewing and responding to the request. For example, the standard charge of 20 cents a page for copying in no way reflects the actual costs involved.

Generally speaking, condominiums get legal counsel involved with excessive requests or improper requests. These costs should be recoverable. The costs related to reviewing and processing a request for records are often too low. When an owner has multiple requests, this can hamper the Corporation’s ability to function properly. While the contributors recognize that owners are entitled to access to the Corporation’s records, excessive records requests can place a significant burden on the Corporation. Allowing for proper cost recovery in the CAT process can assist.

See “how to” guide ideas below!

5. Are there any courses or materials that you would find helpful if you end up at CAT again?

That “how to guide” from Question 2 is coming back into play. Here are some guides that might help:

• How to navigate the website.
• How to set up your case.
• How to for condos and managers on responding to records requests.
• How to respond to records requests, for condos and managers.

Also, a course on navigating the CAT process in an organized, cost-effective manner.

FINAL THOUGHTS:

Big THANKS to Rory Gooderham (with 36 years on the front lines), Emily Deng and our more shy contributors (you know who you are) for your comments and insight.

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Cheryll Wood and Michael Lewicki