Simon's Megalomaniacal Legal Resources

Condominiums - Condominium Appeal Tribunal (CAT)

. Peel Standard Condominium Corp. No. 779 v Rahman

In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal, here where the trbunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)".

In these quotes the court considers a 'mental distress' damage award [ordered under s.1.44(1)3: "An order directing a party to the proceeding to pay compensation for damages incurred by another party to the proceeding as a result of an act of non-compliance up to the greater of $25,000 or the amount, if any, that is prescribed."]:

[32] As noted by the Tribunal, it has jurisdiction to award “indemnification or compensation” related to the parking issue. Mr Rahman had to spend hours of his time addressing multiple tickets issued by the City at the behest of the appellant, respond to unreasonable enforcement efforts by the appellant (including efforts to sell Mr Rahman’s unit for failure to pay the enforcement costs demanded by the appellant), and endure a collateral attack on the legitimacy of his accessible parking pass. He did put evidence before the Tribunal that all of this caused him mental distress. The Tribunal accepted that these events caused mental distress and awarded compensation of $1500 in total for the appellant’s conduct.

[33] It is apparent from the Tribunal’s reasons that the compensation award was in respect to the totality of the appellant’s conduct and all of its effects on Mr Rahman. It was clear on the record that Mr Rahman was seeking such an award, and in my view it would have been open to the Tribunal to make such an award even in the absence of an express request for it: part of the role of the Tribunal is to oversee the conduct of condominium corporations. The appellant mistreated Mr Rahman on the parking issue to the point that its conduct “tipp[ed] over from aggressively pursuing claims to harassing [Mr Rahman].” The award of compensation was reasonable and available in all these circumstances. I would not give effect to this ground of appeal.

. Peel Standard Condominium Corp. No. 779 v Rahman

In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal, here where the tribunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)".

In these quotes the court considers the nature of the CAT appeal tribunal regime, as corrective of disputatious minor disputes:

[8] As should be evident from this summary, the underlying dispute is minor and straightforward. It is precisely the sort of conflict that the Tribunal was established to decide. The parties should have had early recourse to the Tribunal, once it was evident that they disagreed and neither side would back down. Instead, both sides have engaged in conflict escalation, out of all proportion to the underlying parking issue.

....

[42] It is clear from the record that the appellant was seeking to have a fresh member hear the merits of this case, rather than relitigating the jurisdictional issue. Otherwise, it would not have proposed that the Vice-Chair voluntarily step aside rather than adjudicate the recusal issue on the merits. Having taken this approach to the issue, the appellant may not now argue that the Vice-Chair was bound to decide the recusal issue and consider whether to set aside his own prior ruling.

[43] Finally, on this point [SS: bias], the issue of jurisdiction is a question of law. The parking issue has already consumed far more resources, and taken far longer, than is reasonable leaving the ongoing conflict to fester between the parties. Even if I had concluded that the Vice-Chair had erred in failing to decide the conflict issue, and that Member Sanford had erred in failing to adjudicate the jurisdiction issue anew, I would not have sent the issue back for re-adjudication: as a matter of law this dispute was within the Tribunal’s jurisdiction, and it would be contrary to the interests of justice to have the case re-heard. I would not give effect to this ground of appeal.

. Peel Standard Condominium Corp. No. 779 v Rahman

In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal (CAT), here where the tribunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)". In these quotes the court considers the CAT's appellate jurisdiction, focussing on the s.117 ['Prohibited conditions and activities'] provision:

[5] The jurisdiction issue was decided first, by Vice-Chair Clifton, on January 12, 2021 (2021 ONCAT 1). The appellant argued that the parking issue was connected to issues of harassment by Mr Rahman of staff and others associated with the appellant, and so had to be decided within this broader context. These broader issues, the appellant argued, fell within the jurisdictional “carve-out” in s. 117 of the Condominium Act, 1998, SO 1998, c. 19. The Vice-Chair did not accept this argument and held that the parking dispute was within the jurisdiction of the Tribunal.

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[15] This court has jurisdiction over this appeal pursuant to s. 1.46(2) of the Condominium Act, which states that “[a] party to a proceeding before the Tribunal may appeal the order to the Divisional Court on a question of law in accordance with the rules of court.” On questions of law, the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, paras. 8-9. Issues of procedural fairness are reviewed on a correctness or “fairness” standard: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, paras. 26-30.

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Issue 1: Jurisdiction

[16] The Tribunal was established in 2017 pursuant to s.1.32(1) of the Condominium Act. Subsections 1.36(1) and (2) of the Act provide that the Tribunal decide “prescribed disputes” between (among others) condominium owners and condominium corporations. Such disputes are “prescribed” by Regulation (O. Reg. 179/17). Since October 1, 2020, these prescribed disputes include disputes regarding provisions of the declaration, by-laws or rules of a condominium corporation governing pets, vehicles, parking or storage, and indemnification or compensation regarding such disputes.

[17] The Act directs the Tribunal to adopt “the most expeditious method of determining the questions arising in a proceeding before it” while affording procedural fairness to the “persons directly affected by the proceeding” (Act, s. 1.39(1); see also Act, ss. 1.39(2) and 1.40).

[18] Disputes that are otherwise in the jurisdiction of the Tribunal are excluded from its jurisdiction if the dispute is also connected with matters covered by s.117(1) of the Act [see Act, s.1.36(4) and Regulation, s. 1(3)]:

No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.

[19] The appellant argues that s.117(1) of the Act is engaged for three reasons:

(a) Mr Rahman’s claims respecting parking are part of a pattern of conduct of harassment of the appellant’s personnel. This harassment is the subject-matter of proceedings in the Superior Court, and the parking issues are inextricably connected with the Superior Court claims.

(b) Mr Rahman claims that the appellant’s conduct, including its position and conduct in relation to the parking issues, constitutes harassment of him, and for the same reasons as stated in (a), should be addressed within the Superior Court proceedings.

(c) Mr Rahman has characterized his use of outdoor accessible parking as an issue involving his personal safety and well-being.

[20] For the purpose of this analysis, I accept (without finding) that allegations of harassment may fall within the s.117(1) carveout – that is – that harassing conduct may be of such a kind, nature and duration, and arise in such a context, that the harassment “is likely… to cause injury or an illness to an individual….” Whether the circumstances of these parties are such as to trigger the s.117(1) carveout is not before this court and, again, for the purposes of this analysis I accept (without finding) that the allegations of harassment – both by the appellant and by Mr Rahman – are sufficient to trigger the carveout.[1] That, by itself, does not, however, deprive the Tribunal of jurisdiction over the underlying parking dispute.

[21] The parking dispute in this case involves assessment of largely undisputed facts – concerning the parking facilities that exist at the condominium building, the terms of the appellant’s declaration and rules regarding parking, and Mr Rahman’s entitlement to use designated accessible parking. None of these issues has anything to do with whether there has been harassment by the appellant, by Mr Rahman, or on both sides. It is a severable issue, within the larger ongoing disputes, and it is within the exclusive jurisdiction of the Tribunal.

[22] One of the reasons there has been so much conflict – and escalating claims – has been the delay in conflict resolution that have permitted the conflict to fester and grow. It would have benefitted both sides – and the administration of justice – to obtain a swift decision from the Tribunal on the parking issue, to lay to rest the question of where Mr Rahman may park.

[23] There is no basis for concluding that the parking issue, itself, is likely to cause damage to property or injury or illness to a person. Simply because the appellant turned out to be wrong on the parking issue does not mean it was engaging in harassing conduct: parties are entitled to be wrong. Simply because Mr Rahman prevailed on the parking issue does not mean he did not harass the appellant’s personnel and agents: being in the right is not a license to act badly. The Tribunal’s decision on the parking issue – upheld by this court – will be part of the context in which harassment issues may be litigated. That does not elevate the parking issues into matters “in connection with” s. 117(1). Rather, the parking issue is part of the context for the harassment issues. To hold otherwise would be to distort the carveout beyond all reasonable bounds and leave it open to any party to avoid the jurisdiction of the Tribunal by making an allegation of harassment.

[24] The Tribunal’s analysis of the jurisdiction issue discloses no error of law. I would not give effect to this ground of appeal.

. Sarros v. York Region Standard Condominium Corporation No. 1445

In Sarros v. York Region Standard Condominium Corporation No. 1445 (Div Court, 2022) the Divisional Court considered an appeal under the Condominium Appeal Tribunal (CAT). As the tribunal's jurisdiction is quite limited and hasn't resulted in much appeal litigation, I link the case here even though it doesn't make any doctrinal points. It's just interesting to see how the CAT and the Condominiums Act, 1998 work, at least in part.

. Peel Standard Condominium Corporation No. 779 v. Rahman

In Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021) the Divisional Court considers, perhaps for the first time, the novel but limited online Condominium Authority Tribunal (CAT):

Statutory Scheme

[5] The CAT is a relatively new administrative tribunal, and there are no reported decisions from this Court about the CAT. The CAT was established in 2017 under section 1.32(1) of the Condominium Act, 1998, S.O. 1998, c. 19, (the "Act"). Under sections 1.36(1)-(2) of the Act, the CAT is empowered to resolve prescribed disputes between unit owners and condominium corporations on application of either party, as well as prescribed disputes involving unit occupiers, mortgagees, and purchasers.

[6] The disputes that the CAT may resolve on an application under section 1.36 of the Act are prescribed by the Condominium Authority Tribunal Regulation, O. Reg. 179/17 (the "CAT Regulation"). Since October 1, 2020, these have included disputes with respect to provisions of the declaration, by-laws or rules of a condominium corporation that govern pets, vehicles, parking or storage, and indemnification or compensation regarding such disputes. However, disputes that are "also with respect to section 117 of the Act" - which prohibits dangerous activities in units and common areas - are excluded from the CAT's jurisdiction.

[7] The CAT has exclusive jurisdiction to exercise the powers conferred on it under the Act and to determine all questions of fact or law that arise in proceedings before it, except questions regarding the constitutional validity of statutes or regulations.

[8] The CAT is the first Ontario tribunal to adopt a completely online dispute resolution process. There are three stages, comprising negotiation; mediation with the assistance of a CAT mediator; and an adjudicative hearing by a CAT member assigned to conduct a written, online hearing and issue a decision and final order. This is a model which is designed to minimize legal costs and delay and maximize accessibility to self-represented parties. This is a unique response to issues – pets, vehicles, parking, and storage – that should be resolved in an expeditious and low-cost manner which avoids resort to the courts.

[9] A party to a proceeding has a right to appeal a decision of the CAT to this court on a question of law pursuant to section 1.46(2) of the Act, which provides:

1.46 (2) A party to a proceeding before the Tribunal may appeal the order to the Divisional Court on a question of law in accordance with the rules of court.

(3) On the appeal, the Divisional Court may affirm, reverse or vary the order of the Tribunal.

[10] Subject to this right of appeal, section1.46 provides that "an order of the Tribunal in a proceeding is final and binding."