Vexatious Litigant Not Precluded From Accessing Condominium Authority Tribunal

Last week, we wrote a blog post about Senneck v. Carleton Condominium Corporation No. 116: an Ontario Superior Court case that resulted in costly litigation between a difficult unit owner and a condominium corporation.

Following that decision, the Condominium Authority Tribunal has released a decision involving the same parties. Continue reading “Vexatious Litigant Not Precluded From Accessing Condominium Authority Tribunal”

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The New Condominium Authority Tribunal Rules Are Out!

Here are some of the highlights of the new CAT Rules:

For every dispute, a five-step process is contemplated:

I. The Process

Step 1:  Filing [CAT Fee:  $25.00]

Step 2:  Joining (ie. where the Respondent joins the case) [No CAT Fee]

Step 3:  Negotiation (an on-line dialogue between the parties, all within CAT’s on-line system) [No CAT Fee]

Step 4:  Mediation (where a mediator joins the dialogue, to try to help the parties settle) [CAT Fee:  $50.00]

Step 5:  Tribunal Decision [CAT Fee:  $125.00]

II. Representation

The CAT Rules say that parties can be represented in the process (if they wish) by:

(a) a lawyer or paralegal licensed by the Law Society of Upper Canada; or

(b) a person who is exempt from the Law Society’s licensing requirements. This includes a friend or family member who is helping the User without receiving any fee, or a licensed condominium manager.

III. Costs

In terms of costs, the CAT Rules state as follows:

Recovery of fees and expenses

The Tribunal may order a User to pay to another User any reasonable expenses or other costs related to the use of the Tribunal, including:

(a) the Tribunal’s fees paid by the other User;

(b) the other User’s expenses or other costs that were directly related to that User’s participation in the Tribunal’s process; and

(c) the other User’s expenses or other costs that were directly related to a User’s behaviour during the Tribunal process that was unreasonable or for an improper purpose, or that caused an unreasonable delay.

 Legal fees generally not recoverable

The Tribunal will not order one User to pay to another User any fees charged by that User’s lawyer or paralegal, unless there are exceptional reasons to do this.

In summary, the “losing party” generally won’t be ordered to pay the “winning party’s” legal or paralegal costs (if any).  And this will of course be a growing issue as CAT is given increased jurisdiction (over more and more types of condominium disputes) in the years ahead.

Some parties may understandably decide, as a result, not to involve lawyers or paralegals in many CAT disputes.  For condominium corporations, one or more Directors or Officers may sometimes be comfortable handling the process.  In other cases, the property manager may be an excellent representative. [NOTE: This may however be an “extra service” for the manager – perhaps entitling the manager to a reasonable, extra fee (which would likely not be recoverable in the dispute).]

But some condominium corporations may still be most comfortable having legal representation in these disputes – despite the fact that the costs will generally not be recoverable.  [Also:  In some instances, the case precedent may be an important factor for the condominium corporation.]

With this in mind, we are planning to train one of the members of our team (whether a condominium law paralegal or junior lawyer) to assist our clients with CAT disputes…in order to make this service as economical as possible for our clients.  That way, we’ll be ready to assist, at reasonable cost, if we are ever asked to do so.

One final comment:  In our view, the condominium corporation’s liability or D & O liability insurance likely would not respond (or provide coverage) in most CAT disputes.  But this might depend upon any specific allegations in a given case.  So, insurance coverage is always something to keep in mind.

IV. The CAT Rules also cover various other matters relating to the CAT process, including:

(a) Methods of Communication, primarily involving use of CAT’s on-line system (or alternative methods of communication approved by CAT);

(b) Presentation of evidence;

(c) Delivery of relevant documents;

(d) Witnesses; and

(e) Public Access.

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Changes Are Almost Here…Important Dates To Keep In Mind

We’ve been waiting for changes to the Condominium Act, 1998 for years. Five years to be exact.  On June 8, 2012, the Ministry of Consumer Services announced that the Government was to launch a “Condo Review Consultation.   On December 3, 2015, Bill 106, Protecting Condominium Owners Act, 2015 received Royal Assent.  Since then, we’ve been watching and waiting as the regulations have been drafted.

After much anticipation (and trepidation) the Phase I changes are coming into force.  Here are some important dates that you need to be aware of:

November 1, 2017:

• Phase 1 of the amendments to the Condominium Act, 1998, come into force. These changes address:

Information Certificates (to be issued by condominium         corporations)

Notices from corporations to owners and mortgagees

Required Disclosure by Directors and Director Candidates

Mandatory Training for Directors

New Procedures in relation to Meetings [If you have a meeting scheduled on or after December 10, 2017 see below for requirements that apply.]

Quorum and Voting

Voting Requirements for By-laws

Record-keeping and durations

Access to records

For more details, click here for Jim Davidson’s article in Condo Contact.

• The licensing provisions of the Condominium Management Services Act, 2015 (“CMSA”) come into force.

• The Condominium Authority Tribunal (CAT) will begin accepting applications. Disputes about records will be the first type of dispute that can be filed with the CAT.

• The Condominium Management Regulatory Authority of Ontario is to be designated as the administrative authority for the CMSA.

November 25, 2017:

Condo Act Primer hosted by Davidson Houle Allen Condominium Law –   Join us as we complete a walk-through of the Phase I Condominium Act amendments, with ample opportunity for questions. For more details, click here.

December 10, 2017

• If you have a meeting of owners scheduled on or after December 10, 2017 (that you did not provide notice of prior to November 1, 2017) you must comply with the new procedures in relation to meetings, including the Preliminary notice requirements and new prescribed forms (expected to be available soon!) for Meeting Notices and proxies.

December 31, 2017

• All Condominium Corporations must be registered with the Condominium Authority of Ontario and fees from September 1, 2017 to March 31, 2018, must be paid. What happens if you don’t register?  Review our blog to see.

• This is the final date for a Corporation to provide a Periodic Information Certificate (PIC) if the last day of the first quarter fiscal end or third quarter fiscal end is on November 1, 2017.

• A PIC must be delivered within 60 days of the end of the first and third fiscal quarter.  Be sure to review the fiscal end date for your first and third fiscal quarter and set reminders that your PICs are due within 60 days of those dates.

[Note: To see if your condominium qualifies for an exemption from producing information certificates, check out our blog respecting exceptions.]

February 1, 2018

• The remainder of the changes to the Condominium Management Services Act, 2015 come into force.

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What Happens If Your Condominium Corporation Does Not Register With the CAO?

At the CCI-EO Annual General Meeting last night, the following question was asked: What happens if a condominium doesn’t register with the Condominium Authority of Ontario?  We realized this morning that the question was not answered, so we wanted to post a quick blog to answer the question.

As you know, the changes to the Condominium Act, 1998 have created the Condominium Authority of Ontario (“CAO”).  All condominium corporations in Ontario must register with the CAO and pay assessments by December 31, 2017. [Note: Check out our previous blogs for more information about the requirement to register and the proposed fees.  Also, please refer to the CAO website for additional information.]

If your condominium corporation does not register or registers, but does not pay its fees, there are two main consequences:

• The Registrar may make a compliance order against the condominium corporation [Notice of this Order must be given to Owners]; and

• The condominium corporation will not be capable of maintaining a proceeding before the Condominium Authority Tribunal or a proceeding in a court in Ontario except with leave of the Court.

These consequences are severe and can have a wide range of implications for condominium corporations.  For example:

• It could affect an insurer’s right to assert a subrogated claim;

• It can affect the marketability of the condominium corporation; and

• It can affect the condominium corporation’s ability to manage the affairs of the corporation.

In addition to the foregoing, condominium corporations must make additional filings with the Registrar including various returns.  If the condominium corporation is not registered, and thereby does not file its returns, it can be subject to late fees.

In our view, it makes the most practical sense to ensure you register.

In order to register, your condominium corporation needs a unique code.  If your condominium has not yet received a unique invitation code, contact the CAO at info@condoauthorityontario.ca.

Stay tuned to Condo Law News for more blogs about amendments to the Condominium Act and upcoming events .

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