Civil Litigation

CAO tribunal a model for dispute resolution: Winkler

By AdvocateDaily.com Staff

The new online mediation and tribunal project of the Condominium Authority of Ontario is not only an efficient, low-cost answer to dispute resolution in the condo world — it could also become a model for the resolution of disputes in other areas of law in the future, says Toronto litigator and mediator Howard Winkler.

“If this works it could be revolutionary: it could free up scarce judicial resources and provide for a far less expensive dispute-resolution process,” says Winkler, principal and founder of Winkler Dispute Resolution.

The Condominium Authority Tribunal (CAT), set up three months ago, uses a three-part process to resolve disputes — negotiation, mediation, and a binding ruling as a last resort. The key innovation is that all negotiation and mediation are carried out online, which precludes the need for personal appearances and keeps costs very low — up to $200 if the matter goes all the way to a ruling.

For now, the only issues CAT is eligible to hear are disputes related to condo corporation records, but Winkler tells AdvocateDaily.com that he expects the range of eligible issues to broaden rapidly.

“It’s the province’s first foray into a primarily online tribunal,” he says. “the initial limited jurisdiction provides a good starting point to get their feet wet.”

But Winkler believes the system has the potential for broad application and says “the tribunal’s intention is to enlarge the scope of that jurisdiction, hopefully relatively quickly.”

There are three stages in the CAT dispute-resolution process:

  • Negotiation amongst the parties, all facilitated by CAT’s online tools;
  • Mediation, with the sides communicating electronically through the mediator, who can clarify positions and identify common ground;
  • A tribunal hearing, which may consist of written online submissions or an in-person hearing. So far, no cases have got as far as a tribunal hearing.

Calling the CAT process unique and progressive, Winkler says that the traditional litigation route is not working.

“It’s too expensive, time-consuming, and quite frankly at the end of the day, it’s a bit of a crapshoot in terms of predicting what the result will be. In court, you don’t know who your judge will be, and it could be someone without any subject matter expertise.”

In some cases, arbitration has become as unwieldy as the litigation process, Winkler says.

“This is a self-funded tribunal,” he says. Every condo corporation is required to pay a contribution fee to fund it. Complainants pay extremely modest fees for access to the dispute resolution system: The first-stage fee is $25, the assisted resolution fee, which includes access to a mediator, is $50, and if you end up at the tribunal the fee is $125.

“The authority has assembled an impressive group of panel members with expertise ranging from condominium law to dispute resolution,” says Winkler, who is not on the panel himself. ”It really provides a hopefully quick, but certainly inexpensive, access to subject-matter expertise and the dispute-resolution process, and in that regard, it’s quite brilliant. The tribunal is also given the power to weed out at an early stage claims that are determined to be frivolous, vexatious or brought in bad faith or for an improper purpose."

The project’s greatest usefulness will come when it is enlarged to deal with other kinds of disputes between owners, residents and the condo corporation, he says. These could include everything from property management and maintenance issues to disputes between unit owners.

In Ontario, 1.6-million people are living in condos, and more than 50 per cent of new homes being built in the province are condominiums, according to the Ontario Ministry of Government and Consumer Services.

“It’s natural that there’s going to be disputes arising between people living in such close proximity and sharing common elements,” says Winkler. “These kinds of neighbourhood-community-type disputes are really quite amenable to a low-cost expedited dispute-resolution process.”

But he sees no reason why the same process couldn’t be used in many commercial conflicts as well.

Such tribunals could reduce the logjam in the court system, he says. And since, under the right circumstances, it could be funded by the users, the financial burden would be removed from the general public.

“More than 90 per cent of all cases before the courts settle before trial, so any mechanism that facilitates dispute resolution — sooner rather than later — is advantageous to the parties, and also in the public interest,” Winkler says.

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