Legal

July 24, 2024 Published by London and Area Chapter - By Kristi Sargeant-Kerr

Who Can Be Named as a Party to a CAT Application?

From the CCI Review 2023/2024-4 June 2024 issue of the CCI London Chapter

A CAT Case Law Review

The Condo Act states at section 1.36 that parties to a Condominium Authority Tribunal (“CAT”) application may include a condominium corporation, an owner, mortgagee, or occupier of a unit. It is important to note that the Condo Act only allows corporations, unit owners and mortgagees to make an application, and that a nonowner occupier cannot make an application but can be named as a Respondent. The Condo Act also states at section 1.38(3) that the CAT “may add or remove a person as a party if the Tribunal considers it appropriate.” So how does the CAT determine who should be a party to an application?

When necessary, the CAT issues motion orders which either add or remove a person as a party to an application. Existing parties are permitted to submit their arguments regarding such an order. For example, a unit owner has a complaint regarding noise from their upstairs neighbour and files a CAT application against the corporation. Because the upstairs neighbour may be affected by the outcome of the case, the CAT may add the upstairs neighbour as a party to the Application. Parties that are added to the application are called “Intervenors” but have the same rights to participate in the hearing as the initial Applicants and Respondents.

Muskoka Condominium Corporation No. 5 v. Page et al.

In this case, a corporation brought an application against a unit owner and their tenants regarding nuisance, annoyance, and disruption. One of the Respondents brought an order to be removed from the case because she was not a tenant of the unit. The unit owners confirmed that the Respondent was not a tenant of the unit and was instead a guest of one of the tenants. The Corporation opposed the motion and provided evidence the Respondent was involved in four incidents involving nuisance, annoyance, and disruption at the Corporation.

The CAT cited Section 1.39(1) of the Act, which gives “all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on matters in the proceeding.” The CAT determined that the proceeding and any orders stemming from it may directly affect the Respondent, despite the fact that she is not a tenant of the unit, and therefore declined to remove her as a party to the Application.

Jennison v. Pinkus, 2023 ONCAT 55

In this case, the Applicant had complaints regarding noise and nuisance of her upstairs neighbour. The upstairs unit was owned by the Respondent who rented the unit to her son. The CAT Member adjudicating this case brought a motion to add the tenant as a party to the Application because the outcome of the decision could affect the rights of the tenant.

Interestingly, both the Applicant and the Respondent were opposed to the motion. The Applicant stated that she “feels uncomfortable having any direct interaction with the Tenant” because she felt that the tenant was “confrontational.” The Applicant further submitted that if the tenant was being added as a party, then her elderly parents who live with her in her unit should also be added as parties. The Respondent submitted that the tenant is her son who faces “daily challenges” and that she does not believe that having him named as a party would be beneficial to him.

Despite both the Applicant and the Respondent being opposed to the motion, the CAT ordered that the Tenant be made a party to the Application because the Applicant was seeking an order against him and he had a right to know about the complaints made against him and to participate in a hearing that may affect his rights. The CAT also determined that the Applicant’s parents would not be named as parties because they are able to participate in the hearing as witnesses and because they are already aware of the impact of the complaints.

Naming Parties to an Application

When making an application to the CAT, Applicants should consider what orders they are seeking and who those orders may impact. Any person who could potentially be impacted by a CAT order should be named as a Respondent, including unit owners, tenants, occupants, and the condominium corporation.

This can pose a challenge to unit owners who are making an application, as they may not know the names of their neighbours and they may have to submit a Request for Records to their corporation to acquire a list of unit owners.

Corporations may also learn that a unit is tenanted and may not have the tenant’s information on file. Unit owners are required under section 83 of the Condo Act to notify their corporation when their unit is leased; however, many unit owners neglect to do so. If a potential Respondent to an application is a tenant and the corporation does not have any information regarding their name, then the Corporation should take the necessary steps to request a Summary of Lease from the unit owner. If all else fails, then the Corporation may have to file an application and then make a motion for the CAT add to add the tenant as a party.

Kristi Sargeant-Kerr, LL.B., LCCI is a partner with Scott Petrie LLP specializes in all aspects of condominium and real estate law, including development, management and litigation and purchase, sale and mortgaging of condominiums. She has extensive experience working with managers and corporations in and around the region and prides herself on finding reasonable solutions to their complex issues.

Kristi is on the local CCI Board of Directors and is co-chair of their Education Committee. She has also been appointed to the Advisory Committee of the Condominium Management Regulatory Authority of Ontario (CMRAO).