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Condominiums - Condominium Appeal Tribunal (CAT)

. Philosophe v. TSCC No. 2804

In Philosophe v. TSCC No. 2804 (Div Court, 2023) the Divisional Court considers an appeal [under s.1.46(2) of the Condominium Act] of "an order that held Mr. Philosophe and Mr. Micoli jointly and severally liable to pay $18,239.60 in compensation to the Corporation".

In these quotes the court sets out and illustrates some Condominium Authority Tribunal (CAT) procedures:
[5] The dispute resolution process at the Tribunal has three stages. Stage 1 – Negotiation, involves an on-line negotiation process where the parties exchange settlement offers, documents, and messages with each other. If the negotiations are unsuccessful, an applicant may escalate the dispute to Stage 2 – Mediation. At Stage 2, the Tribunal appoints a mediator to assist the parties to resolve their dispute. If the mediation is unsuccessful, an applicant may escalate the dispute to Stage 3 – Tribunal Decision. In such cases, the mediator prepares a Stage 2 Summary and Order that identifies the issues that the Tribunal will decide at the Stage 3 hearing.

[6] In its initial application, the Corporation sought a broad range of relief, including an order that Mr. Micoli pay all of the Corporation’s costs on a full indemnity basis. The Corporation sought no monetary relief from Mr. Philosophe. The Corporation sought the following relief:
1. a declaration that [Mr. Philosophe] is in breach of the Corporation's Governing Documents by creating repeated noise disturbances which unreasonably interferes with and disturbs the comfort or quiet enjoyment of other units and the common elements;

2. a declaration that [Mr. Micoli] is in breach of the Corporation's Declaration for failing to ensure the compliance of his tenant with the Act and the Corporation's Governing Documents;

3. an Order evicting [Mr. Philosophe] from the Unit for the continuous breach of the Corporation's Governing Documents;

4. alternatively, an order for the immediate and permanent compliance of [Mr. Micoli] and [Mr. Philosophe] of their respective obligations under the Act and the Governing Documents; and

5. an order directing [Mr. Micoli] to pay all of the Corporation's costs associated with bringing this proceeding on a full indemnity basis.
[7] The parties failed to resolve their dispute at either of the first two stages. On October 20, 2022, the Tribunal issued its Stage 2 Summary and Order “to help prepare this case to be heard in Stage 3 (Tribunal Decision).” The order specified the issues that the Tribunal would consider at the Stage 3 hearing and warned the parties that the specified issues “are the only ones that this Tribunal can decide.” The Tribunal order did not identify Mr. Philosophe’s potential financial liability as an issue to be determined. The order stated as follows:
The [Corporation] asserts that Mr. Micoli is responsible for Mr. Philosophe's compliance with its Declaration and Rules, and to indemnify it for any failure to do so.

7. The issues to be decided in Stage 3 - Tribunal Decision are:
a) Is the [Corporation] entitled to declarations:
i. That Mr. Philosophe is in breach of its Governing Documents by creating repeated noise disturbances that unreasonably interfere with and disturb the comfort or quiet enjoyment of other units and the comment elements;

ii. That Mr. Micoli is in breach of its Declaration for failing to ensure his tenant's compliance with the Condominium Act, 1998 and the Applicant's Governing Documents
b) Is the [Corporation] entitled to:
i. An Order evicting Mr. Philosophe from the unit for continuous breach of its Governing Documents;

ii. Alternatively, an Order for permanent compliance by Mr. Micoli and Mr. Philosophe with their respective obligations under the Condominium Act, 1998 and its Governing Documents

iii. An Order directing Mr. Micoli to pay all of its costs associated with bringing this proceeding, on a full indemnity basis.
8. The Parties should not refer to any other disputes they may have with each other in Stage 3, except to any extent they may be relevant to the issues formally noted above - which are the only issues that this Tribunal can decide. [emphasis added].
[8] On November 14, 2022, the Corporation uploaded its opening submissions for the hearing. The Corporation’s requested relief mirrored the issues listed in the Tribunal’s Stage 2 Summary and Order. Most importantly, the Corporation sought an order directing Mr. Micoli, not Mr. Philosophe, to pay it compensation for its costs. The Corporation did not seek any orders requiring Mr. Philosophe to pay it any damages, costs, or compensation of any kind. The Corporation’s only request for compensation read as follows:
5. An Order directing [Mr. Micoli] to pay all of the Corporation's costs associated with enforcing the Act and Governing Documents and bringing this proceeding for compliance by [Mr. Micoli and Mr. Philosophe] and the Tenant, on a full indemnity basis.
[9] The hearing proceeded on the basis of the Tribunal’s order and the Corporation’s opening statement.

....

[13] Mr. Philosophe appeals the Tribunal’s order pursuant to s. 1.46(2) of the Condominium Act, which provides him with a right to appeal to the Divisional Court on a question of law.[1] A breach of procedural fairness amounts to an error of law.[2]

....

[18] The court has the power to affirm, reverse, or vary the order of the Tribunal [Condominium Act, s.1.46]. ...
. 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.

....

[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.

....

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."


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Last modified: 15-12-23
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