The new Condominium Authority Tribunal (CAT) has now been “up and running” – so far dealing only with records disputes under Section 55 of the Condominium Act, 1998 – for just over a year. How does it seem to be working?
Subject to some concerns and reservations – expressed below – I think the new process is excellent, and CAT is doing a fine job.
The idea behind CAT (and the related on-line dispute resolution process) was to give condominium owners inexpensive access to justice, particularly in relation to accessing records of a condominium corporation. In my view, this purpose has been really nicely served by CAT.
Access to records is, I think, a key concern for many condominium owners. Condominium owners need to be able to inform themselves about the activities of the corporation (subject to considerations of privacy, privilege and confidentiality). On these issues, the new Regulations are detailed, the CAT process is inexpensive and thorough, and the published decisions (so far) have in my view been extremely helpful.
The success of the new process is demonstrated by the number of applications that have been handled by CAT, including the number of cases that have been settled without adjudication as well as the number of actual adjudication decisions. Put simply: CAT is busy. Many condominium owners are making use of the new on-line system….and I think we can expect to see the numbers grow.
That said: Here are my concerns / reservations.
The on-line process is weighty and time-consuming. Furthermore, despite the detailed Regulations, there is much uncertainty in the law (particularly in relation to information / records that must be excluded or redacted). It’s not always simple. In addition, the general rule is that (in the absence of special circumstances), legal costs are not recoverable from the “losing” party. I don’t mean to suggest that this is a bad thing. I just note this fact.
The result – what I’ve observed – is that this new process can place considerable burden upon a condominium’s volunteer Directors and/or Manager (who are already under considerable demand). This burden is also increased because the Board may be reluctant to incur costs for legal assistance, because those costs generally won’t be recoverable. Or, if the Board does seek legal assistance, it is on the understanding that this will be an expense for the entire community.
I want to stress that I don’t say that this is necessarily good or bad. I frankly don’t see a good alternative that will achieve the same access to justice for aggrieved condominium owners. But my point is just that the process can mean significant added burden placed upon volunteer Directors and added expense for the entire community. The old principle in condominium law – that an owner should bear responsibility for costs that the owner unreasonably causes the corporation to incur – appears to have fallen away when it comes to records disputes and the CAT process.
Also, inherent in the process is the following risk: For the rare unscrupulous owner – who only wishes to cause added burden to the Board and the corporation – this process is an extremely helpful tool (and I’m not sure that CAT can or will take the necessary steps to control such situations).
But again: I think it’s an excellent new process. I think we just need to recognize that it brings risks and added burden for condominium communities and their hard-working Directors and Managers.
Stay tuned to Condo Law News and keep up date on the latest developments and amendments to the Condominium Act and other related statutes.