CAT’s Evolution – January 1, 2022 sees a further expansion of their jurisdiction

CAT has  seen its jurisdiction expand from being only able to deal with records requests under section 55 of the Act to an ever expanding jurisdiction which now also  includes matters involving pets and animals, vehicles, parking and storage issues and enforcing settlement agreements made in the CAT process.   Starting January 1, 2022, CAT’s jurisdiction will be further expanded to include nuisance, annoyance and disruption disputes. 

With this new expanded jurisdiction and the amendments to section 117 of the Condominium Act, which will also come into effect on January 1, 2022, CAT will now be the forum where owners and condominium corporations will have to take any disagreements or enforcement proceedings if the issue is related to noise, odour, light, vibrations, smoke or vapours.   In addition, any disputes that involve provisions of a condo’s governing documents (ie. declaration, rules or bylaws) that prohibit, restrict or otherwise govern these activities will also have to be brought to CAT to resolve.  As with their current jurisdiction, CAT will also be able to deal with disputes that arise from indemnification or compensation related to these types of disputes.  These matters will no longer be heard by the Courts. 

While initially, on the issue of records requests, the CAT appeared to be very pro condo owner in its decisions with very few if any condo corporations being successful in a records dispute,  it appears that with the expanded jurisdiction that is currently in place CAT has taken a more balanced approach.  However, on the issue of costs  (ie. the amount that a condo corporation gets reimbursed when an owner loses his/her case at CAT), the CAT, while awarding costs in some instances, are leaving condominium corporations with a large part of the expenses incurred being paid by all owners and not just the offending owner. 

Prior to CAT, the Courts continually stated that it was not fair for “innocent owners” to pay the costs incurred as a result of one owner who decides to not follow the rules.  If a condo corporation is left paying for their costs, it is all owners who pay.  The Courts typically, at least in our jurisdiction in Huronia, have granted the condominium corporation the majority if not all their costs on a successful compliance application.    Unfortunately, although we are seeing a transfer to CAT  of the types of cases normally heard by a Court, we are not seeing the principles the Court has adopted being transferred and implemented as well. 

A recent decision released October 1, 2021 may provide an explanation as to why this occurs.      In Middlesex Vacant Land Condominium Corporation No. 605 v. Cui [1] the condominium corporation was successful in enforcing its governing documents and getting some costs.   The condo corporation wanted to enforce a provision in their governing documents regarding pets and nuisance.    The condo claimed that the owner’s dogs barked excessively, the owner did not clean up after them and she did not control them on the common elements.  The CAT ordered the dogs to be  permanently removed and the owner had to pay costs in the amount of $8,273.56 which was approximately 38% of the costs claimed.  The CAT reaffirmed that while it is a serious matter to require someone to remove their dogs it is also a serious matter when condominium residents do not conduct themselves in a way that is considerate of neighbours and other owners.  In order to ensure protection of the interests of other condominium owners and residents, a condominium must be able to enforce its governing documents.  The CAT found that the indemnification provisions in the condo’s bylaws and rules were sufficient to cover the breach of the pet provisions.  In terms of costs, the CAT recognized the principle that the courts have stated (ie. innocent owners should not pay for breaches of one owner) but advised that their hands were tied in terms of costs award as their ability to award costs is guided by the Act and the Tribunal’s Rules of Practice which limit costs to exceptional circumstances.  

While the jurisdiction of CAT is forever expanding, it appears that we should be wishing for further amendments to the Act and CAT’s Rules of Practice so that they too can  evolve and catch up to the well recognized principle the courts have used to award costs to condominium corporation in cases where a condo  has been successful in enforcing its governing documents.   Despite the change in venue to resolve these disputes, the innocent owner principle should apply equally regardless of the forum. 

Sonja Hodis is a litigation lawyer based in Barrie that practices condominium law in Ontario. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums. She represents her clients at all levels of court, various Tribunals and in mediation/arbitration proceedings.   She also acts as mediator or arbitrator in condo disputes.  Sonja can be reached at (705) 737-4403, sonja@hodislaw.com or via her website at www.hodislaw.com. 

NOTE:
This article is provided as an information service and is not intended to be a legal opinion. Readers are cautioned to not act on the information provided without seeking legal advice with respect to their specific unique circumstances. Sonja Hodis, 2021 All Rights Reserved.