Property managers across the province should brace for the prospect of a Condominium Authority Tribunal proceeding if they haven’t already. Legal proceedings are rarely enjoyable, cost-effective, or fun, but this is also true with CAT proceedings, even though the Tribunal provides accessible dispute resolution with its online-based platform and relaxed procedural rules. The origin of any CAT proceeding can be unpredictable: from trivial records disputes to enforcing dangerous pet prohibitions, there is no “one size fits all” approach. Regardless of the issue, here are some tips to help property managers navigate CAT proceedings.
Be Reasonable – An ounce of prevention is worth a pound of cure
The best way to avoid a time-consuming and expensive CAT proceeding is to address the underlying issue as reasonably as possible. Numerous published CAT decisions revolve around straightforward disputes that have erupted into all-out wars because those involved focus on “how they think things should be” or “how something affects them personally” instead of working towards a mutual goal. Owners, managers, and boards are equally guilty of this.
Here’s a scenario: suppose an owner requests the condo’s owners’ list because they want to bring a requisition meeting to remove the board. The board is confident that the owner is unpopular in the community and will not get support from other owners. The board also knows the owner is technically entitled to the record, but they refuse to provide it to “stick it to this troublemaker.” In response, the owner commences a CAT application which goes to a hearing. In the end, the condo is ordered to provide the record and pay a penalty to the owner on top of its wasted legal fees.
Similarly, owners are also expected to act reasonably and comply with the Corporation’s governing documents. If a condo has a valid “no smoking rule” and a resident knows their neighbour is highly asthmatic/sensitive to smoke, the resident should know better than to smoke on their balcony.
Neither of these scenarios should come before the CAT, yet we will continue to see similar cases in the future. Owners, boards, and managers do not always have to agree with each other, and that’s fine. Sadly, parties often forget that the defining nature of condo living is that it is communal. Therefore, even in the face of disagreements, all parties must act reasonably with common sense and civility. Most CAT cases could be avoided if everyone followed this basic principle.
Maintain Evidence/Records – Follow the paper trail
Whether or not a CAT proceeding is on the horizon, managers should strive to maintain detailed unit files that contain records of the unit’s communications, complaints and requests or any other records relating to that unit.
This is especially important in rule enforcement matters at the CAT. Condos need evidence to establish their version of “what happened” and “how the parties conducted themselves.” Proving these two points is critical to demonstrating whether a resident breached the rules or if the condo reasonably enforced them. Whenever there is an issue with a resident, the manager should prepare a note/report/summary of the incident and place it in the unit file. This should be prepared as soon as possible with enough detail (i.e. who, what, where, when, why and how) while memories and recollections are at their best. For the records to be credibly relied upon, they should be impartial and objective.
Here’s another scenario: a condo relies exclusively on unverified noise complaints from one owner to commence a CAT application against an offender. It is a foregone conclusion that the condo is unlikely to succeed at the CAT: the Tribunal will need important information such as “how the condo verified the noise complaints” and “how loud the noise was.” But a condo relying on investigative security reports or recordings of the offender’s frequent out-of-control parties is better positioned to succeed.
Consult Legal Counsel – Managers manage, lawyers lawyer
Managers play a vital on-the-ground role in handling potential CAT disputes. But when a manager believes they are on the brink of a CAT proceeding, they should immediately get the board’s instructions to contact the condo’s lawyers.
While condo lawyers are unfamiliar with a condo’s residents, community dynamics or operations, they know how a matter may unfold, develop the best approach to solve the board’s problems and articulate what steps should be taken. With this insight, a lawyer can help a manager pre-emptively obtain necessary evidence or take crucial steps. The sooner the lawyers are consulted, the better the manager will be.
Though property managers and directors are permitted to represent their condo at the Tribunal, this is never recommended. When a dispute becomes a CAT application, the manager has done all they could to prevent it from getting to that point – the CAT application is the time to call in the “big guns.” CAT applications risk legally binding consequences such as adverse costs and a sullied reputation. There is simply too much at stake for a condo to risk in taking a DIY approach, even if it is to be fiscally conservative. Establishing/defending a position based on legal principles/precedents, evaluating evidence, and crafting persuasive arguments is a task best left to the lawyers.
Whether they are in the right or wrong, wise managers will steer clear of the CAT. But sometimes, it is unavoidable. And sometimes, it seems the issue has gone away only to remerge down the road. Whatever the case may be, these tips can be easily implemented in any situation to put your condo in the best position possible.
Tony Bui is a condo lawyer at Gardiner Miller Arnold LLP. Tony recognizes that condo law is a people-centric practice first and foremost. With this in mind, he strives to impose a “human touch” on his work. He favours fair and equitable solutions over quick but temporary “band-aid” fixes. He has successfully represented clients at all levels of court in Ontario and handled hundreds of enforcement matters. He is driven by a strong desire to help his clients solve their problems quickly and efficiently. Whether that requires hard-fought litigation or creative diplomacy, he knows which tools to use for the job.
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