Lessons from the CAT
On April 5, 2019 I attended the ACMO / CCI 1-day Conference in Kitchener. I was asked to speak during the round table discussions and on the legal panel. My topic for the round table discussion was the Condominium Authority Tribunal (CAT). Today I thought that I would share some of the lessons that we have learned so far from the CAT's first twenty or so decisions. So far the CAT has:
- Dismissed claims that are frivolous or vexatious. They have done so more than once. An owner declared vexatious by the courts will not be precluded from filing with the CAT unless the court order specifies such. The CAT has its own summary dismissal process to address frivolous claims.
- Refused requests for extensions of time (i.e. to move the claim to stage 3 for a binding decision). Owners must move their cases along within the prescribed times or their claims may be dismissed (even if they miss the deadline by one day).
- Adopted some of the "open book" discussions from previous court decisions. The "open book" principle states that owners should be entitled to liberal access to the records, unless one of the exceptions in s.55(4) apply.
- Found that refusing a request because the request form was not completed properly is not a reasonable reason to refuse the request. Penalties were awarded against condominiums trying this tactic to refuse record requests. Instead, the member found the condominium ought to have made inquiries with the owner if it was unclear.
- Found the redaction of complete paragraphs and sections of minutes lead to a reasonable belief that the redaction was excessive. The member ordered the condominium to review the records more carefully and redact only necessary information.
- Confirmed owners are entitled to access the record of owners and mortgagees.
- Confirmed that owners cannot see un-redacted copies of proxies used at owners' meetings unless a by-law provides otherwise.
- Stated that the amount that will be reasonable for labour and copying charges will depend on the circumstances. In one case $63/hr for a manager was not reasonable so the member used $31.50 as the fee. The condominium did not provide a management contract showing their rate or information on the industry average. The fees are payable to the condominium, not the manager. The limit for copying charges of $0.20 per page will be strictly enforced.
- Confirmed that costs will be available only in exceptional circumstances, such as where the condominium refused to respond to the request or the claim by the owner was vexatious. Costs have been awarded to cover the filing fees, but also legal costs in rare cases (but only a fraction of the legal costs sought were awarded).
- Awarded a range of penalties from $500 for less egregious refusals to $2,000 where the condominium willfully disregarded or was willfully blind to its legal obligations to provide the records.