
In the spring of 2022, I was privileged to join a legal panel speaking to property managers on trends in condominium law. After the prepared presentations were concluded, my fellow lawyers and I started taking questions. Questions from the floor are akin to an ‘open mic’ at a wedding; one minute, your aunt tells everyone how proud she is of you, and the next, your cousin tells embarrassing childhood stories. As the questions continued, one highly respected property manager took to the microphone and asked me directly, “What is your opinion of the Condominium Authority Tribunal?” commonly referred to as the “CAT.” Surprisingly, I responded, “I believe the CAT is…biased.” With shock, my microphone muted, defenders of the CAT took to their posts, and the moderator explained that the opinions of the speakers were their own.
To claim anything or anyone has ‘bias’ is a strong use of the English language. However, are there trends or predilections the CAT may follow in their decision-making? Can a condominium board, a property manager, a unit owner or a lawyer expect or anticipate certain results before the CAT? I posed these questions to my team when I returned to the office.
Led by articling students Jonathan Pettit and Vivian Caldas, we embarked on a six-month review of every CAT decision, commencing in 2018 and updating to the current date. The results were surprising.
As we know, the CAT has jurisdiction to hear certain condominium disputes under the auspices of the Condominium Authority of Ontario, all statutorily granted by the Condominium Act, 1998. From November 1, 2017, to September 30, 2020, the CAT’s jurisdiction only included disputes regarding records. On October 1, 2020, this jurisdiction expanded to parking, animals and storage. On January 1, 2022, the CAT’s jurisdiction again expanded, now including prescribed nuisances, such as noise, smoke, vibration and odours. Our offices used discretion to determine who won or lost each decision. The statistics below weigh the average, meaning we excluded cases of a procedural nature or cases of a mixed or uncertain outcome.
The cases below, therefore, focus on a pool of decisions with a clear dispute and where there was a winner and a loser.
Records Cases
The first pool we looked at was record cases where a unit owner sought records from the condominium. In these cases, the unit owner requesting the condominium’s records won approximately 75.86% of the time, with the condominium being successful in the remaining 24.14% of cases. Furthermore, while winning the vast majority of record cases, unit owners also received cost awards in 68% of those cases. If you are a unit owner seeking records, you will have a high chance of success at the CAT, followed by a costs order in your favour.
Enforcement Cases
The second pool examined were enforcement cases, in which a condominium sought to enforce the provisions of its governing documents against a unit owner or occupant. These cases mimic the records cases but in reverse. Condominiums were successful 71.43% of the time, and in the remainder of cases, 28.57% fell to the unit owner. That said, condominiums only received a costs award in 37.37% of such cases, in contrast to a unit owner receiving a costs award 68% of the time in a records case. However, early trend lines in 2023 appear to be increasing both the rate and ordinal of costs awarded to condominiums.
It should be noted that the word ‘costs’ can cast a wide net. Our review included the awarding of filing fees, legal costs and penalties.
Conclusion
Finally, when all cases are combined, the statistical imbalance appears to level off, with unit owners winning in 56% of decided cases, in contrast to the condominium being successful 44% of the time. This is not a dead-heat, but the vast chasms appear to narrow. With these statistics in mind, can one look to the CAT to have a predictive approach? While every case is unique, it would appear ‘yes.’ Unit owners appear to win records cases; condominiums appear to win enforcement cases. However, should that be surprising? If one looks at the legislation, that would appear appropriate.
Section 55 of the Condominium Act, 1998 demands the creation and production of condominium records, with rare exceptions. Therefore, a 75.86% win rate for unit owners securing records may not be biased but simply the law. In contrast, the 71.43% advantage that condominiums have in enforcement cases would also appear in lockstep with the Condominium Act, 1998, namely the combined subsections of 17(3) and 119, which require and demand compliance.
Therefore, to go back to the question posed to me at the outset, “What do I think of the CAT?” Currently, I think the CAT is following legislative demands, ordering records and demanding compliance. Is that a bias? Perhaps, but if one looks at the legislation, the preferences may not come from the CAT; they come from the Legislature.
Written by Robert Mullin. Editorial assistance provided by Chris Mendes. Statistical analysis provided by Vivian Caldas and Jonathan Pettit.
Robert Mullin is a knowledge leader in Ontario condominium law, writing and speaking frequently on the subject. He regularly works with developers, property management firms and condominium boards across Ontario. Robert routinely advises condominium corporations on the creation of standard unit by-laws and indemnity agreements, the adoption of declaratory, by-law, rule amendments, enforcement procedures including liens, powers of sale, mediations & arbitration, and compliance orders. He also actively assists condominium developers in the formation of new condominiums, including agreements of purchase and sale, new declarations, by-laws, rules, management agreements, and disclosure statements.
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